            IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE
                                                       FILED
                                                       February 18, 1999

JENNIFER OAKLEY (WILSON),             )               Cecil Crowson, Jr.
                                      )              Appellate Court Clerk
      Plaintiff/Appellant,            )
                                      )    Appeal No.
                                      )    01-A-01-9802-CV-00100
VS.                                   )
                                      )    Davidson Circuit
                                      )    No. 96D-1850
LARRY R. WILSON,                      )
                                      )
      Defendant/Appellee.             )


      APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                   AT NASHVILLE, TENNESSEE

                THE HONORABLE MURIEL ROBINSON, JUDGE




JENNIFER OAKLEY
2201 Murphy Avenue, Suite 202
Nashville, Tennessee 37203
      Pro Se/Plaintiff/Appellant

EARL J. PORTER, JR.
214 Third Avenue North
Nashville, Tennessee 37201

THOMAS F. BLOOM
500 Church Street
Nashville, Tennessee 37219
      Attorneys/Defendant/Appellee




                             REVERSED AND REMANDED




                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.
                                 OPINION


              This appeal concerns the trial judge’s authority or duty to correct a

divorce certificate filed pursuant to Tenn. Code Ann. § 68-3-402. The appellant

asserts that the trial judge denied her a fair hearing and any relief because of the

judge’s bias and personal animosity toward her. We reverse the trial judge’s order

concerning the divorce certificate and hold that the recusal question is now moot.



                                           I.



              On May 2, 1997, the Circuit Court of Davidson County entered a divorce

decree dissolving the troubled marriage of Larry Wilson and Jennifer Oakley Wilson.

The divorce involved one child, a son born to Ms. Wilson in a prior marriage and

adopted by Mr. Wilson in 1991. The bitterness associated with this divorce has been

reported in a prior opinion of this court. See Wilson v. Wilson, No. 01-A-01-9707-CV-

00325 (Nashville Sept. 2, 1998), app. for perm. to app. pending.



              The State Department of Health is required by statute to establish an

office of Vital Records. Tenn. Code Ann. § 68-3-103. A State Registrar appointed for

that purpose acts as custodian of the records, Tenn. Code Ann. § 68-3-104(b)(1)(A),

and prescribes the forms that “will accomplish the purpose of complete and accurate

registration.” Tenn. Code Ann. § 68-3-104(b)(2). One of the records kept by the State

Registrar is a divorce certificate issued by the clerk of the court granting the divorce.

Tenn. Code Ann. § 68-3-402(a).



              In Davidson County (and we suspect in many other counties) local

practice requires that the divorce certificate be filled out and filed with the divorce




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decree. The information in the certificate, therefore, is provided by one of the lawyers.

The clerk then forwards a copy of the certificate to the vital records office.



              Mr. Wilson’s lawyer drew the decree and filled out the divorce certificate.

In a section calling for the “NUMBER OF CHILDREN EVER BORN ALIVE OF THIS

MARRIAGE” the lawyer entered the word “one.” On December 12, 1997, Ms. Wilson

(now restored to her maiden name of Oakley) filed a motion seeking to amend the

divorce certificate to reflect that no children were born in the marriage. Along with the

motion to correct the certificate Dr. Oakley filed a motion for the trial judge’s recusal.

The motion recited that one of her former lawyers had said that the judge was

“gunning” for her and that other former lawyers had seen fit to withdraw from the case,

allegedly for political reasons. Attached to the motion was a copy of a motion filed

with the Davidson County District Attorney’s Office requesting an investigation of the

trial judge for a host of allegedly illegal and unethical acts. Dr. Oakley subpoenaed

three of her former attorneys, the trial judge’s two stepdaughters (her secretary and

docket clerk) and the Chairman of the Board of Professional Responsibility. The items

sought from the Board of Professional Responsibility related to a complaint filed

against one of Dr. Oakley’s former attorneys.



              The trial judge overruled the motion to amend the certificate, quashed

the subpoenas, and refused to hear Dr. Oakley on the recusal motion.



                                            II.

                               The Divorce Certificate



              The statutes allow for the amendment of vital records. In order to

protect the integrity and accuracy of the records, however, the statutes and

regulations adopted by the Department of Health must be followed. Tenn. Code Ann.

§ 68-3-203(a). The statute itself gives the State Registrar the power to amend a

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certificate when presented “with evidence which a reasonable man would conclude

proves beyond a reasonable doubt that an original entry on a certificate was factually

inaccurate at the time of recordation.” Tenn. Code Ann. § 68-3-203(f). In addition,

the Department regulations provide:

              Any item on a certificate may be corrected by an order of
              a court of record with the exception of the date of filing
              and the signature of the certifier, and changing the date
              of birth to a date which is after the date of filing. A
              certified copy of the order must be submitted to the State
              Registrar.

Rule 1200-7-1-.10(2)(a)(5).



              We conclude, therefore, that Dr. Oakley had two avenues through which

she might have sought amendment of the certificate. She could have tried to

persuade the State Registrar to do it; or, as she did here, she could have sought an

order from the court that granted the divorce.



              In denying Dr. Oakley’s motion, the trial judge relied on Tenn. Code Ann.

§ 36-1-121(a), a part of the adoption law, that establishes a relationship between the

adopted child and the adoptive parents “as if the adopted child had been born to the

adoptive parents.” We are convinced, however, that the statute describes a legal

relationship and does not require the divorce certificate to show that the child was

born during the marriage of the adoptive parents. The divorce certificate stresses the

word this in seeking information about children born during the marriage. It seems to

us that the accuracy of vital records demands that the certificate be amended to show

that no children were born to the Wilson marriage.



              We are aware that an adopted child’s birth certificate may be amended

to show the adoptive parents as the birth parents. See Tenn. Code Ann. § 68-3-310,

311, 312. We were informed at oral argument that Mr. Wilson is in fact shown on the

child’s birth certificate as the father. Thus, if we grant Dr. Oakley’s motion to amend


                                         -4-
the divorce certificate, the vital records will be in conflict. But, aside from shedding

some light on the urgency, or lack of it, for the relief sought in Dr. Oakley’s motion, we

cannot see how the legislature’s policy decision in adoption cases covers a certificate

of divorce. We are aware also that “a new certificate of birth by adoption shall not be

prepared if so requested by the court that granted the adoption, the adoptive

parent(s), or the adopted person.” Tenn. Code Ann. § 68-3-311(c)(3). In a case

where the adopted child’s birth certificate has not been changed, the records would

again conflict if the divorce certificate showed that the child was born during the

marriage.

                  We are of the opinion that Dr. Oakley was entitled to an order correcting

the information on the divorce certificate.



                                              III.

                                          Recusal



                  Having decided that the divorce certificate should be corrected, the

recusal motion is now moot. Even should we decide that the record showed some

merit to the motion, the relief granted would be a remand for a hearing before an

unbiased judge. But having gained the object of the hearing, Dr. Oakley needs no

further relief.



                  At the risk of being accused of rendering an advisory opinion, we think

a further comment is necessary. To the extent that the recusal motion was based on

matters that occurred in the original divorce proceeding, we have now held that the

record from that case does not demonstrate a disqualifying bias or prejudice. There

was no need to go over that terrain again. And to the extent that the motion was

based on other alleged improprieties -- such as violating the nepotism laws or the

Code of Judicial Conduct -- that have nothing to do with bias toward Dr. Oakley, the

divorce court is not the proper forum in which to raise those issues. A litigant should

                                             -5-
not be allowed to drive a judge off a case by making charges unrelated to personal

bias or prejudice and then saying “no judge could be impartial toward someone who

made those charges.”



              To the extent, however, that the recusal motion cited proof that had not

been heard before or raised issues not previously determined, Dr. Oakley would be

entitled to be heard.     We take no position on whether the motion itself or its

attachments showed any new issues or the necessity for additional proof. At oral

argument Dr. Oakley argued that some of the witnesses she subpoenaed would

testify about statements made by the trial judge showing bias or prejudice. We do not

see allegations in the motion or its attachment requiring that proof, but that is the type

of proof that might be proper if this issue ever surfaces again. We suspect that it will.



              The lower court’s order denying the motion to correct the divorce

certificate is reversed and the cause is remanded to the Circuit Court of Davidson

County for further proceedings in accordance with this opinion. We pretermit the

recusal issue. Tax the costs on appeal equally to the appellant and the appellee.



                                                   __________________________
                                                   BEN H. CANTRELL,
                                                   PRESIDING JUDGE, M.S.

CONCUR:


_____________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________
WILLIAM B. CAIN, JUDGE




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