                                                                                       10/19/2018




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on September 11, 2018


               LEE A. BEAMAN v. KELLEY SPEER BEAMAN


                 Appeal from the Circuit Court for Davidson County
                       No. 17D680 Philip E. Smith, Judge


                          No. M2018-01651-COA-T10B-CV


This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the
Supreme Court of Tennessee, from the denial of a motion for judicial recusal filed by
Kelley Speer Beaman (“Wife”) in the parties’ high profile divorce proceedings. Having
reviewed the Petition for Recusal Appeal filed by Wife, together with the supplement to
the Petition and the response in opposition to the Petition filed by Lee A. Beaman
(“Husband”), we conclude that the Trial Judge should have granted the motion. The Trial
Judge in this case conducted an independent investigation into the facts surrounding how
and when Wife’s Trial Brief came into the possession of the online media outlet known
as Scoop: Nashville, and his comments on the record regarding the results of his
investigation create an appearance of prejudice against Wife and her counsel that require
the Trial Judge’s recusal. We therefore reverse the order of the Trial Court and remand
the case for reassignment to a different judge.


            Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
Judgment of the Circuit Court Reversed; Case Remanded for Further Proceedings


D. MICHAEL SWINEY, C.J., delivered the opinion of the Court, in which RICHARD H.
DINKINS and W. NEAL MCBRAYER, JJ., joined.

Larry Hayes, Jr., Nashville, Tennessee, for the appellant, Kelley Speer Beaman.

Gregory D. Smith, Nashville, Tennessee, for the appellee, Lee A. Beaman.
                                                   OPINION

                                                   I. FACTS

       The parties were married on June 15, 2001, after having dated for three (3) years
and after an engagement of seven (7) weeks.1 When they met, Wife was twenty-one (21)
years old and Husband was forty-five (45) years old. Wife never had been married before
her marriage to Husband. She had briefly attended college, but did not obtain a degree.
Husband had been married three times before marrying Wife. He had two young
daughters from a previous marriage at the time he met and began dating Wife. These
children were nine (9) and seven (7) years old when the parties’ married. The parties’
only child was born in September 2005.

       On June 7, 2001, just over a week before they married, the parties entered into an
antenuptial agreement2 which contained the following provisions governing the
distribution of marital property between them if their marriage was dissolved by divorce:

               [Husband] shall pay to [Wife] cash in an amount equal to Sixteen
        Thousand Six Hundred Sixty-Seven Dollars ($16,667) multiplied by the
        whole number of months in which the Parties are married to each other;
        provided, however, with respect to the period the Parties are married to
        each other after June 2003, beginning July 1, 2003 the monthly amount for
        each 12 consecutive month period shall be increased annually by three
        percent (3%) of the monthly amount applicable to the prior 12 month
        period; provided, further, if the amount that [Husband] is to pay to [Wife]
        under this paragraph exceeds Two Million ($2,000,000), then [Husband]
        shall instead pay to [Wife] cash in the amount of One Million Dollars
        ($1,000,000) and use the balance otherwise payable to [Wife] under this
        paragraph to purchase an annuity payable to [Wife] for the remainder of her
        life. Any amount to be paid by [Husband] to [Wife] or for the purchase of
        an annuity shall be paid within five (5) days after entry of the final decree
        of divorce; and
               If the divorce proceeding is commenced after the Parties have been
        married to each other more than ten (10) years, [Husband] shall purchase,
        or pay for the construction of, a residence for [Wife]; provided, however,
        [Husband] shall not be obligated to contribute more than One Million

        1
          A discussion of the procedural and factual background of this case is necessary to give context to the sole
issue on appeal.
         2
          Antenuptial agreements, sometimes referred to as prenuptial or premarital agreements, are favored under
Tennessee law. See Ellis v. Ellis, No. E2013-02408-COA-R9-CV, 2014 WL 6662466, * 4 (Tenn. Ct. App. Nov. 25,
2014).
                                                         2
       Dollars ($1,000,000) toward such purchase price or construction cost.
       [Wife] shall identify the residence to be acquired and [Husband] shall
       contribute his portion (not to exceed One Million Dollars ($1,000,000)) of
       the cost thereof within six (6) months after entry of the final decree of
       divorce.

(Internal paragraph numbering omitted.) The agreement further provided a general
waiver by the parties of any alimony or spousal support if the marriage was dissolved by
divorce, with the following relevant exceptions:

               [Husband] shall provide [Wife] with the use of an automobile during
       the period in which the divorce proceeding is pending.
       ....
               If the Parties have been married to each other two (2) years or more
       on the date the divorce proceeding is commenced, then during any period in
       which the divorce proceeding is pending and the Parties are separated
       [Husband] shall pay to [Wife] alimony pendente lite of Ten Thousand
       Dollars ($10,000) per month; provided, however, such payments shall not
       be paid for an aggregate period in excess of the lesser of (i) the number of
       months the Parties are separated while a divorce proceeding is pending, or
       (ii) twelve (12) months.
               [Husband] shall pay [Wife’s] legal fees incurred in connection with
       the divorce, but in no event shall [Husband] pay fees in excess of Five
       Thousand Dollars ($5,000).

(Internal paragraph numbering omitted.)

       On April 12, 2017, Husband filed a Complaint for Divorce seeking to dissolve the
parties’ marriage on grounds of “irreconcilable differences.” The Complaint sought
enforcement of the terms of the parties’ antenuptial agreement as well as the
establishment of a Permanent Parenting Plan to govern the residential schedule and
financial support of the parties’ minor child.

       On June 22, 2017, after being advised by the parties that they were attempting to
reconcile, the Trial Court entered an Agreed Order of Reconciliation. However, as a
result of the parties’ inability to reconcile successfully, the Trial Court entered an order
on July 14, 2017, setting aside the Agreed Order of Reconciliation.

      On August 14, 2017, Wife filed her Answer and Counter-Complaint to Husband’s
Complaint for Divorce. In this pleading, Wife not only sought dissolution of the parties’
marriage on the additional ground of “inappropriate marital conduct,” she also challenged
                                             3
the validity and enforceability of the parties’ antenuptial agreement. Wife further asserted
that she had been the primary parent and caregiver for the parties’ minor child throughout
the marriage and, therefore, should be the child’s primary residential parent. In his
Answer to Wife’s Counter-Complaint for Divorce, Husband denied fault. He then filed an
Amended Complaint for Divorce on September 29, 2017, asserting “inappropriate marital
conduct” by Wife as an additional ground for his prayer for divorce. Wife filed her
Answer to Husband’s Amended Complaint on November 28, 2017.

       On November 13, 2017, Husband filed a Motion for Partial Summary Judgment
seeking a determination that the antenuptial agreement was a valid and enforceable
contract between the parties. Wife filed a response in opposition to the motion, and the
Trial Court heard oral argument from the parties on the issue on March 5, 2018. In a
lengthy order entered on April 17, 2018, the Trial Court granted Husband’s motion,
thereby upholding the validity of the parties’ antenuptial agreement. Wife subsequently
sought permission from the Trial Court to file an interlocutory appeal from the order
upholding the validity of the antenuptial agreement, which the Trial Court denied by
order entered on June 18, 2018.

       On June 21, 2018, the Trial Court entered an order denying Husband’s motion to
waive mediation and immediately set the case for trial. The Trial Court instead directed
the parties to attend a Judicial Settlement Conference with a Special Master on
September 4, 2018, and further set the case for a three and one-half (3½) day trial to
begin on September 10, 2018. At the time this order was entered, the parties already were
scheduled to attend mediation on August 20, 2018.

        On the same day the Trial Court entered its order setting the case for trial, Wife
filed her first motion to continue the trial setting, or, in the alternative, to order Husband
to attend a deposition on a date certain. In this motion, Wife recounted the difficulties she
had encountered in scheduling Husband’s deposition for a date certain prior to the
parties’ scheduled mediation. Wife later filed a supplement to this motion, on July 3,
2018, in which she sought, in addition to the relief already requested, to compel Husband
to allow an appraiser access to all personal marital property to be divided between the
parties. The Trial Court entered an order on July 23, 2018, denying Wife’s request for a
continuance but granting Wife’s request to compel Husband to grant her appraiser access
to the parties’ personal marital property for purposes of valuation. However, despite
Wife’s ability finally to schedule Husband’s deposition to take place on August 2, 2018,
she later sought another continuance of the trial setting. This continuance request was
based upon Husband’s failure to comply with other written discovery requests and
personal property appraisals. Husband asserted his refusal was due to the parties’ Agreed
Protective Order, over which there had arisen a dispute, having not yet been entered by
the Trial Court.
                                              4
       By order entered on August 9, 2018, the Trial Court denied Wife’s second request
to continue the trial setting, but indicated that a Protective Order would be immediately
forthcoming. The Trial Court further ordered that it would “leave open the proof at the
conclusion of the trial of this cause for additional discovery related solely to untitled
personal property and valuation of untitled personal property” should same be determined
to be necessary.

       After mediation failed, the parties found themselves in yet another dispute over the
scheduling of their depositions. As a result of that dispute, on August 30, 2018, Wife
filed a motion to quash Husband’s August 27, 2018 notice attempting to schedule her
deposition to take place on the afternoon of August 30, 2018. After Wife refused to be
deposed on the afternoon of August 30, 2018, Husband filed a motion on the day of the
parties’ scheduled Judicial Settlement Conference (September 4, 2018) seeking to compel
Wife to sit for a deposition that afternoon immediately following the Conference. By
order entered on September 7, 2018, the Trial Court granted Husband’s motion and
ordered Wife to appear and sit for a deposition on Saturday, September 8, 2018.

       Meanwhile, on the morning of September 5, 2018, the Special Master sent an
email to counsel for both parties which stated, in pertinent part, as follows:

       I am writing to inform you that the Judge would like you to prepare a joint
       statement of issues for the trial next week. He’d also like for the statement
       to contain any agreements that you may have but mostly, he is looking to
       see exactly what the issues are that will be presented at the trial. He will
       likely prepare for this case over the weekend so, if you can provide this to
       our office by noon on Friday 9/7 that would be great. Please let me know if
       you have any questions.

This email was sent by the Special Master at 9:31 a.m. on the morning of September 5,
2018. Late that afternoon, counsel for Husband filed his Pretrial Brief. Counsel for Wife
filed her Trial Brief the following afternoon. The file stamp on the copy of Husband’s
Pretrial Brief that accompanied his response to the Petition for Recusal Appeal in this
Court indicates that it was filed originally with the Trial Court Clerk by facsimile
transmission at 4:24 p.m. on September 5, 2018. The file stamp on the copy of Wife’s
Trial Brief that accompanied her Petition for Recusal Appeal in this Court indicates that it
was filed originally with the Trial Court Clerk at 3:43 p.m. on September 6, 2018.

       At 8:43 a.m. on September 7, 2018, Husband filed a motion to strike Wife’s Trial
Brief. As grounds for the motion, Husband alleged that Wife’s Trial Brief contained
“immaterial, impertinent and scandalous matter only meant to harass [Husband]” and that
                                             5
its contents had “little to no relevance on the issues” to be determined at trial. The motion
further asserted that Wife’s Trial Brief had failed to comply with section D of the Trial
Court’s Chambers Rules in that it was not filed “at least 72 hours prior to” the scheduled
final hearing in this case, excluding weekends and holidays as required by the referenced
rule.

         At 10:13 a.m. on September 7, 2018, Wife filed her response in opposition to
Husband’s motion to strike her Trial Brief. Wife argued first that the allegations
contained in her Trial Brief were germane to the issues of fault and custody in this
proceeding. Specifically, she alleged that she intended “to prove the allegations set forth
in her Trial Brief” to support both her contention that “Husband’s conduct, not hers, was
the cause of the demise of this marriage,” and that “she should be named the minor
child’s custodian/residential parent.” Wife next argued, based upon the email received
from the Special Master, that she delayed in filing her Trial Brief because she “was under
the impression” that, despite the Local Chambers Rules, the Trial Court would accept
pretrial briefs by noon on Friday, September 7, 2018, if counsel could not agree on the
joint statement referenced in the email. Wife also argued that Husband’s position on the
tardiness of Wife’s Trial Brief was disingenuous because Husband’s Pretrial Brief, filed
as it was at 4:24 p.m. on September 5, 2018, also was filed in violation of the Local
Chambers Rules. Specifically, Wife pointed out that “72 hours prior to the beginning of
trial is 9:00 a.m. on Wednesday, September 5, 2018 since this trial is set to begin at 9:00
a.m. on Monday, September 10, 2018.”

       A hearing on Husband’s motion to strike Wife’s Trial Brief was held on the
morning of Saturday, September 8, 2018. During his argument on the motion, counsel for
Husband made reference in the following remarks to the fact that this case, and in
particular, Wife’s Trial Brief, had garnered some media attention:

              I don’t know if the Court has been following social media, following
       the news, following Facebook, but [Wife] filed on Wednesday, the 5th ---
       I’m sorry --- filed her trial brief on Thursday, which was a late-filed brief
       anyway which was three days before the trial. . . .
              It is not necessary to spread what we consider to be falsehoods on a
       public record, nor is it necessary to do what we believe happened here.
       And that was not what the point was with this filed with the Court and
       made public record. We think it was also provided to the media.
              I’ve had calls from reporters. I haven’t responded to any of them.
       But we’ve had people asking us in emails and other things about some
       matters that weren’t in the pretrial brief but were in her answers to
       discovery.

                                             6
At that point, the Trial Judge remarked:

               My thought is clearly this was scandalous. There’s no way around
       addressing it. These issues [of grounds for divorce] could have been
       addressed without it.
               But be that as it may, my concern is we’ve got a child out there
       that’s going to read this.

Counsel for Husband interrupted to state that he had not “gotten to that yet,” to which the
Trial Judge responded:

              I’m going to cut you off.
              Now, I believe and if I find [Wife] has or anyone on her behalf has
       provided this to the media, that’s going to go a long way in my deciding the
       relationship of the child between the child and [Husband]. Because under
       [Tennessee Code Annotated section] 36-6-106, one of the things, one of the
       big factors that I look at is promotion of the relationship of the minor child
       with the other parent.
              Now, I’m going to ask everybody in this courtroom under oath in a
       minute if they’ve leaked it, gave it to the press, or in any way had anything
       to do with it being handed to the press.
              Now with that said, I’ve had a discussion with the Clerk’s Office
       regarding the file stamp copies. And it was my clerk[.] He did the
       investigation and came back with the results. He will testify Monday, if
       necessary. But there were two copies. There were two --- there was an
       original and a copy that was submitted to the Court to the Clerk’s Office a
       minute apart. Probably just a few seconds, but it rolled over. And both were
       issued by Bill Riggs, who was the clerk that accepted the copy. The original
       was taken, the copy was given.
              Now, if you look at what was produced on social media, there is a
       blue stamp. Anything on CaseLink is black and white. That is the second
       copy that was given Mr. Riggs that he initialed, the second copy. Now, Mr.
       Riggs assures the clerk that he didn’t do anything with it other than what
       was in the regular course.
              Now, at this point in time, I’m going to ask everybody to rise, even
       the lawyers, and I’m going to ask them to raise their right hands.

All attorneys and both parties were then sworn. Upon questioning by the Trial Judge,
both Husband and his attorneys denied having had any discussions with the media or
having provided any copies to the media presumably of pleadings or other documents
filed in this case.
                                             7
       When the Trial Judge turned to questioning Wife’s counsel, her attorney objected
to being placed under oath and being made a witness to the proceeding. The Trial Judge
overruled the objection by stating: “Well, you’re a witness. So answer the question.” At
that point, counsel for Wife stated that he had been contacted by “someone” at Scoop:
Nashville after Wife’s Trial Brief had been filed and that he (counsel) had advised this
individual that “it had been filed.” Counsel for Wife further stated:

      He asked me for a copy and I provided him a copy of what had been filed
      already.
             And so I have been contacted a number of times by different social
      media, different media, the Tennessean, and I refused to comment. And I
      refused to comment to Mr. --- he asked me for a comment, whoever it was.
      I think Mr. [Steen]. I said I can’t comment. But I did provide him a copy of
      what I had filed, yes, Your Honor, and that is the extent of my involvement
      with the media.

       The Trial Judge concluded the hearing by announcing that he would not be
striking Wife’s Trial Brief. The Trial Judge explained:

      It’s out there. That’s like putting the horse back in the barn. I will tell you I
      think it was disgusting. I think it was done to gain an advantage. And I
      think it was completely, in my opinion, unethical for that to be provided.
              Now, I will be looking at that as it relates to the relationship of this
      child with [Husband] and [Wife’s] promotion of that relationship. Okay?
      Now, I’ve ruled on that.

In the written order memorializing this ruling, entered on the afternoon of September 8,
2018, the Trial Judge summarized Husband’s motion to strike and the substance of the
hearing that day as follows:

              [Husband] seeks the exclusion of [Wife’s] trial brief on the bases
      that it contains immaterial, impertinent and scandalous matter meant to
      harass [Husband], and that it was filed outside the time-frame permitted by
      the Local Rules of the Court for the 20th Judicial District. [Wife] responds
      that the allegations contained in her trial brief are relevant to the issues of
      fault and custody of the parties’ minor child, and that [Husband’s] trial
      brief also was filed outside the appropriate time-frame.
              During the hearing of this motion, and in response to statements of
      [Husband’s] counsel, the Court stated that it was aware [Wife’s] trial brief
      had been “leaked” to the media, and had been posted to a website and
                                             8
      circulated on social media. The Court placed both parties and their
      attorneys under oath and asked each of them whether they had anything to
      do with the trial brief’s release to the media. Larry Hayes, counsel for
      [Wife], admitted that a reporter from Scoop: Nashville contacted him on
      Thursday afternoon, September 6, 2018, to ask whether a brief had been
      filed. Mr. Hayes further admitted that he advised the reporter a brief had
      been filed and that Mr. Hayes provided a file-stamped copy of the brief to
      the reporter. The Court finds such conduct to be distasteful and, possibly,
      unethical.
              This Court recognizes that court filings are public documents, and is
      hesitant to strike any pleading or paper once it has been filed. Once upon a
      time, the fact that court filings were public documents simply meant that
      anyone could physically travel to the courthouse to view or copy a
      document. Perhaps the document, or portions of it, may have been
      published in the newspaper only to be thrown away when next day’s edition
      arrived. Today such documents are easily circulated on the internet which,
      as we should well be aware, is “forever.” [Wife’s] trial brief mentions the
      parties’ child by name. He is 13 years old. The Court can imagine the
      parties are embarrassed by the scandalous and salacious allegations
      contained in [Wife’s] trial brief. The Court cannot imagine the effect such a
      public airing of his parents’ dirty laundry will have on the parties’ child.
      Nor can the Court adequately express its profound disappointment that
      [Wife’s] trial brief will forever remain available for viewing by the parties’
      child at the touch of a few keystrokes. With all of that said, the Court
      regrettably must find that “the cat is out of the bag” and striking [Wife’s]
      trial brief would have no material effect in undoing the harm that has been
      done by Mr. Hayes’ “leak” to the media. . . .

Based upon these findings, the Trial Judge denied Husband’s motion to strike Wife’s
Trial Brief.

        At 8:54 a.m. on the morning trial was set to begin (September 10, 2018), Wife
filed a motion to disqualify the Trial Judge from further presiding over this case, and to
stay all proceedings pending the Trial Judge’s ruling on the motion. Wife asserted that
the Trial Judge’s impartiality had been “called into serious question” as a result of the
Trial Judge “(1) conducting an inappropriate independent investigation prohibited by the
Code of Judicial Conduct, (2) making unequivocal statements that the results of [his]
inappropriate independent investigation were going to heavily influence [his] deciding a
central issue in this divorce and (3) making unfounded accusations and conclusions of
unethical behavior [on the part of] Wife’s counsel of record in the wake of said
inappropriate independent investigation.” Wife further alleged that she was now unable to
                                            9
receive a fair and impartial hearing in this case as a result of the inappropriate
independent investigation conducted by the Trial Judge. The motion stated that it was
“not being presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless[ly] increase the cost of litigation.”

       In her motion, Wife recounted some of the procedural history of the case leading
up to the hearing on Husband’s motion to strike Wife’s Trial Brief, as well as the
comments made by the Trial Judge at that hearing. Wife explained that this case had
“garnered the attention of the media” prior to the filing of Wife’s Trial Brief, and
supported that assertion by attaching to her motion a copy of an online article about the
case published by Scoop: Nashville on June 4, 2018, on its website. Wife then explained
in her motion:

              On the morning of Friday, September 7, 2018, the online media
       source [Scoop: Nashville], ran a second article on this case. In this second
       [Scoop: Nashville] article, a link was provided in the article by which
       someone could click on the link and be taken to another webpage to view a
       “Stamp-filed” copy of the entirety of Wife’s Trial Brief that had been filed
       the previous day. . . .

Wife supported this assertion by attaching to her motion a copy of another online article
published by Scoop: Nashville on September 7, 2018, on its website, which specifically
referenced the filing and contents of Wife’s Trial Brief. Wife asserted in her motion that
the Trial Judge’s remarks at the hearing on September 8, 2018, made clear that he “had
already begun [his] own independent investigation and had apparently not only read the
[second] [Scoop: Nashville] article, but had also ‘clicked through’ the link in the article to
view the copy of Wife’s Trial Brief that had been included with the article.”

       Wife’s motion argued that the Trial Judge had violated Rule 2.9(C) of the
Tennessee Code of Judicial Conduct by conducting an independent investigation into the
facts surrounding how Wife’s Trial Brief came to be in the hands of Scoop: Nashville,
and that the Trial Judge had announced on the record that he had used the results of that
investigation to influence his view of Wife’s counsel’s ethics and would use the results of
that investigation when considering the issue of custody of the parties’ minor child. In her
motion, Wife asserted:

       There is absolutely nothing unethical about the fact that counsel for Wife
       granted a media outlet’s specific request to provide them with a copy of a
       pleading that had already been filed in this case in preparation for a trial
       that was only a few days [away] and which was already the subject of
       media coverage.
                                             10
Wife’s motion then stated that “the exact sequence and timing of when and how Wife’s
Trial Brief came to be in the possession of the media outlet in question” was set forth in
her counsel’s unsworn declaration, which was attached to the motion. That declaration,
which concluded with a certificate of service dated September 10, 2018, read in its
entirety:

        LARRY HAYES, JR. declares under penalty of perjury that the following
        is true and correct.
                1.     I am the attorney of record for the Defendant, Kelley Beaman
        in the above-styled divorce action.
                2.     On Wednesday, September 6, 2018 at approximately 3:42
        p.m., I filed Wife’s Trial Brief in preparation for the trial which was
        scheduled to begin on Monday, September 10, 2018.
                3.     A few minutes after 4:10 p.m. on September 6, 2018, I
        noticed that I had missed a call from Jason Steen at [Scoop: Nashville].3
                4.     Jason Steen was already listed in my phone as a contact
        because I had previously received a message from him [] several weeks
        earlier which indicated that he was writing an article about this case.
        Although I returned Mr. Steen’s call on that occasion, I do not think we
        ever spoke and I do not believe he ever ran the article referenced in the
        message I had received.
                5.     At 4:14 p.m. on September 6, 2018, I returned Mr. Steen’s
        missed call and spoke to Mr. Steen for approximately one (1) minute. I
        believe this to be the only time I have ever spoken to Mr. Steen in my life,
        and if I have had a previous conversation with him, I certainly do not recall
        it.
                6.     During my approximate one-minute phone call with him on
        September 6, 2018, Mr. Steen told me that he was writing an article about
        the Beaman divorce trial which was beginning on Monday, advised me that
        he had a copy of Mr. Beaman’s Trial Brief, and asked me if I was going to
        file a Trial Brief on behalf of Mrs. Beaman.
                7.     In response to this question by Mr. Steen, I told him that I had
        already filed Mrs. Beaman’s Trial Brief.
                8.     Mr. Steen at that point indicated that he had not seen a copy
        of Wife’s Trial Brief on Caselink and therefore asked me if I could please
        provide him with a copy of what had been filed. I told Mr. Steen that I
        would do that.

        3
         Verbiage referencing the copies of screenshots from counsel’s cellphone showing the time of
this and another missed call referenced in the above text has been omitted from this recitation.
                                                  11
                9.     Therefore, at approximately 4:16 p.m. on September 6, 2018,
        I emailed a “Stampfiled” copy of Wife’s Trial Brief to Mr. Steen.4
                10.    At all times relevant to the facts stated in this Affidavit, I
        have been fully cognizant of the wording, restrictions, limitations,
        allowances and interpretations of Rule 3.6 of the Tennessee Rules of
        Professional Conduct. At no time during my representation of Mrs. Beaman
        or at any other time have I ever violated Rule 3.6 of the Tennessee Rules of
        Professional Conduct.
                11.    I take my ethical obligations very seriously. At the request of
        the Tennessee Supreme Court, I served two (2) separate three-year terms on
        the Board of Professional Responsibility Disciplinary Hearing Panel
        governing lawyer conduct and I was called upon numerous times to
        interpret and enforce the Rules of Professional Conduct against lawyers
        when necessary. I have been practicing law for 27 years and I have never
        been accused by any Court of any unethical behavior in my entire legal
        career. Further, I have never been found by any Court or any other
        governmental body, specifically the Board of Professional Responsibility,
        of committing any ethical violation in my entire career.
                12.    I take great offense to the manner in which this Court initiated
        an inappropriate independent investigation in which it forced me to testify
        over my objection and without prior notice about matters that resulted in
        this Court’s erroneously concluding that “unethical” behavior had been
        undertaken by me in any way, shape, form or fashion.
                13.    If this Court were of the opinion or suspicion that any Rule of
        Professional Conduct had been violated, this Court is fully aware that the
        proper course of action would have been to refer this matter to the Board of
        Professional Responsibility which was created for that exact purpose, not to
        launch its own investigation, then conduct its own sue [sic] sponte hearing
        without any notice to the person(s) that this Court was actually
        investigating.
                14.    Regardless, the facts that this Court ultimately discovered
        though its inappropriate independent investigation do not violate any Rule
        of Professional Conduct and for this Court to make such a declaration in a
        public courtroom, then file an Order stating the same thing is offensive to
        me, unnecessary to the administration of this matter and is extremely
        prejudicial to my client’s ability to receive a fair and impartial hearing
        which is a fundamental constitutional right.
                15.    This Court has made unfounded derogatory comments of the

        4
        A copy of the email sent by Wife’s counsel to Mr. Steen was attached to the declaration and
showed that it contained no content other than the attachment.
                                                  12
        most serious nature against me. I respectfully request that this Court recuse
        itself from further proceedings in this matter and that this Court consider
        striking or otherwise redacting from its Order entered September 8, 2018
        any reference to “unethical” behavior on my part.

(Emphasis in original.) Wife argued in her motion that her attorney’s conduct in
providing Scoop: Nashville with a file-stamped copy of Wife’s Trial Brief did not violate
Rule 3.6 of the Tennessee Rules of Professional Conduct because “[t]he only thing that
really happened in this matter is that counsel for Wife saved a media source a trip to the
Courthouse to obtain a public document that it knew was there and that it wanted to
read.” Wife made the point in her motion that her attorney made no further comment to
the media outlet regarding the Trial Brief, “which stands, as written, as an accurate
summary of the relevant information and facts that counsel for Wife expects to be present
at the trial of this cause.”

       A hearing on Wife’s motion to disqualify the Trial Judge was conducted prior to
the start of the trial on the morning of September 10, 2018. Wife’s counsel announced
that he had filed the motion that morning, to which the Trial Judge responded: “Well,
what this does, Mr. Hayes, is it stays this case.”5 After counsel acknowledged that such
was the case, the Trial Judge asked, after referencing counsel’s prior attempts to continue
the final hearing: “And now you don’t think that looks a little funny?” Counsel answered
in the negative, to which the Trial Judge responded: “You don’t need to answer my
question. I know what’s going on here. Have a seat.” Husband’s counsel was then
granted permission by the Trial Judge to respond to the motion, but provided no
argument in opposition to the motion other than to state that Rule 10B’s prohibition on a
judge taking any further action in the case while a motion for judicial disqualification was
pending included an exception “for good cause shown.” The Trial Judge then stated that
he would have a decision on the motion “before the end of the day.”

       At 4:48 p.m. on September 10, 2018, the Trial Judge entered a nineteen page
order, with attachments, denying Wife’s Rule 10B motion. After discussing the
procedural history of this case, as well as the law governing judicial recusal, the Trial
Judge determined subjectively that he was not actually biased or prejudiced in favor of or
against either of the parties to this proceeding. The Trial Judge then embarked upon an
analysis of whether “a person of ordinary prudence in the Court’s position, with full
knowledge of the facts known to the Court, would find a reasonable basis to question the
Court’s impartiality.” The Trial Judge noted that he was “concerned about several issues
        5
         We read the Trial Judge’s remark as a reference to section 1.02 of Rule 10B of the Rules of the
Supreme Court of Tennessee, which states: “While the motion is pending, the judge whose
disqualification is sought shall make no further orders and take no further action on the case, except for
good cause stated in the order in which such action is taken.”
                                                   13
surrounding how and when the reporter [from Scoop: Nashville] received [Wife’s] trial
brief.” The Trial Judge then acknowledged that he “became aware portions of [Wife’s]
trial brief had been posted on Twitter the afternoon of September 6, 2018.”6 The Trial
Judge even attached to his order printouts of two posts from the Twitter account
maintained by Scoop: Nashville, which posts made reference to Wife’s Trial Brief, and
which were time-stamped at 3:50 and 3:51 p.m. on September 6, 2018. From our review
of the record, these printouts of the two posts are nowhere else in the record.

       In determining that his actions in this case did not constitute an inappropriate
independent investigation into the facts surrounding how Scoop: Nashville obtained
Wife’s Trial Brief, the Trial Judge provided the following explanation as to what
transpired after he “became aware” that portions of the brief were on Twitter:

        At that time, the Court had not received a chambers copy of the trial brief
        and did not know that [Wife] had filed a trial brief. A member of the
        Court’s staff checked Caselink to obtain a copy of [Wife’s] trial brief. At
        that time, Caselink contained an entry indicating the brief had been filed,
        but the brief itself was not yet available for viewing. Because the trial brief
        was not yet available for viewing by the public, and because portions of the
        brief had been posted online so soon after the document had been filed, the
        Court’s first concern was the possibility that someone in the Circuit Court
        Clerk’s office had provided a copy of the document to the reporter. Given
        the salacious nature of the allegations contained in the brief, and with the
        parties’ 13-year old child in mind, the Court contacted the Circuit Court
        Clerk (“the Clerk”) to ask him to determine whether a member of his staff
        had provided a copy of the trial brief to a reporter and, if so, under what
        circumstances.
               As the Court noted in its September 8, 2018 Order denying
        [Husband’s] motion to strike [Wife’s] trial brief, the Court recognizes that
        court filings are public documents. They are available for viewing by
        anyone with a subscription to Caselink or the wherewithal to travel to the
        Clerk’s office to obtain them. As far as the Court is concerned, however,
        there is a vast difference between a reporter traveling to the courthouse to

        6
          Twitter is “self-described as an information network made up of 140-character messages called
Tweets[,] . . . which may contain photos, videos, links and up to 140 characters of text.” In re Application
of State for Commc’ns Data Warrants to obtain the Contents of Stored Commc’ns from Twitter, Inc., 154
A.3d 169, 170 n.1 (N.J. Super. Ct. App. Div. 2017) (internal quotations omitted). We note that
Tennessee’s Judicial Ethics Committee (“JEC”) issued an advisory opinion in 2012, addressing “whether
judges may utilize [online] social media” and, if so, “the extent to which they may participate.” Tennessee
Judicial Ethics Advisory Opinion, No. 12-01 (Oct. 23, 2012). The social media platform known as
Twitter was specifically mentioned by the JEC in this advisory opinion. See id.
                                                    14
        obtain a copy of a document and a member of either the Clerk’s staff or the
        Court’s staff advising a reporter that a document has been filed and
        providing a copy of that document to the reporter. The Court cannot --- and
        would not --- prevent a member of the media from doing his job. The Court
        could not condone, however, a member of the Clerk’s staff or the Court’s
        staff essentially doing the reporter’s job for him. The Clerk investigated the
        matter and determined that a member of [Wife’s] counsel’s staff filed an
        original trial brief with the Clerk and, at the same time, obtained a “filed”
        stamp on a copy of the brief and retained the file-stamped copy. The
        Deputy Clerk who accepted the trial brief for filing assured the Clerk that
        he had done nothing with the original trial brief other than process it in
        accordance with the Clerk’s regular business practices.

(Footnotes omitted.) Based upon the foregoing, the Trial Judge concluded that he was
“well within [his] rights --- and, indeed, [his] responsibilities --- to determine whether
inappropriate activity ha[d] taken place within the Court system that would prejudice
either party in this, or any other, matter.”

        The Trial Judge then noted that, contrary to the apparent assertion made in Wife’s
recusal motion, it was Husband’s counsel who indicated during the hearing on the motion
to strike Wife’s Trial Brief that he believed the brief had been provided to the media, and
that the Trial Judge’s subsequent actions at the hearing were in response to that assertion.
The Trial Judge then used the Twitter post printouts attached to the order on review to
refute Wife’s counsel’s assertions of fact as to the timing of his contact with the reporter
from Scoop: Nashville:

               The Court notes that Scoop: Nashville’s first Twitter posts
        concerning [Wife’s] trial brief were posted on September 6, 2018, at 3:50
        and 3:51 p.m. The posts contained excerpts of the trial brief but, it appears,
        not the entire “file-stamped” document. While these posts were made after
        the brief was filed at 3:42 p.m., they were made well before Mr. Hayes, as
        he has declared under penalty of perjury in support of [Wife’s] Motion to
        Disqualify, had spoken to the reporter and agreed to provide him with a
        copy of the trial brief.[7]
               Mr. Hayes takes umbrage with the Court’s description of his conduct

        7
         Husband, in a footnote in his response to Wife’s Petition for Recusal Appeal, stated that, for
purposes of this appeal, he would adopt Wife’s counsel’s statement “that the Brief was emailed to a
member of the media at 4:16 p.m.” Unfortunately, this does not change the fact that the Trial Judge found
from his investigation that these Twitter posts “were made well before Mr. Hayes, as he has declared
under penalty of perjury in support of [Wife’s] Motion to Disqualify, had spoken to the reporter and
agreed to provide him with a copy of the trial brief.”
                                                   15
       as “distasteful” and “possibly unethical.” The Court is not concerned with
       whether or not Mr. Hayes may speak to the media concerning his client’s
       divorce proceeding. The Court is concerned that Mr. Hayes thought nothing
       of providing a document containing salacious, as yet unproven allegations
       to the media, knowing full well that the parties have a 13 year old son who
       would, in all likelihood, have access to that document. The Court fully
       understands that all papers and pleadings filed with the Clerk are public
       documents. But given the nature of [Wife’s] trial brief, and the age of the
       parties’ child, it seems a matter of common decency that Mr. Hayes would
       rather make the reporter do the actual legwork of obtaining the brief
       himself. The brief was filed at 3:42 p.m. If, as Mr. Hayes has testified in his
       Declaration, he did not advise the reporter he had filed the brief until 4:14
       p.m., it is possible the reporter would not have been able to make it [to] the
       Clerk’s office in time to obtain a copy of the brief that afternoon. There
       would have been a nearly 17-hour period when the contents of the brief
       would not have been circulating online. But excerpts of the brief were
       posted online at 3:50 p.m. --- a mere eight minutes after its filing and well
       before it was available for viewing on Caselink. The reporter got the brief
       from somewhere. The Court does not know from where.

(Footnote omitted.)

       The Trial Judge also rejected Wife’s assertion that he had already determined to
what extent the results of his alleged inappropriate investigation would bear on one of the
central issues in this divorce proceeding. Specifically, the Trial Judge reasoned:

               The Court can only restate its utter dismay at the effect the
       publication of [Wife’s] trial brief may have on the parties’ child. The Court
       is not concerned with the contents of [Wife’s] brief as they relate to the
       parties. The parties were adults, married to each other for 17 years, and
       their activities behind their closed bedroom door were entirely their
       business. The Court is very concerned that either party or their agents
       would actively participate in publishing the trial brief online, given the
       parties’ child is 13 years old and would likely be reading the brief that very
       afternoon. Of course, the reporter easily could have obtained a copy of the
       trial brief himself and published it online the very next day. But he would
       have been doing his job and the parties’ hands --- and consciences ---
       would have been clean.
               [Wife] alleges that the Court has determined one of the central issues
       in this divorce as a result of what has transpired regarding her trial brief.
       Nothing is further from the truth. The Court reinforced that each party’s
                                             16
       demonstrated willingness and ability to promote their child’s relationship
       with the other party is a factor the Court considers heavily when deciding
       custody issues. The Court further made the parties aware that if either of
       them provided [Wife’s] trial brief to the media, such conduct would be
       relevant to that factor.
               Aside from the validity of the parties’ Prenuptial Agreement,
       nothing has been decided in this matter. But the Court is permitted to form
       opinions and make determinations concerning the parties and the issues as
       the case unfolds. . . .
       ...
               The Court stated that it finds Mr. Hayes’ providing a copy of
       [Wife’s] trial brief to the media --- given the nature of the allegations it
       contains and the age of the parties’ son --- to be “distasteful” and “possibly
       unethical.” The Court stands by its statement. While the Court recognizes
       that Mr. Hayes may believe he is zealously advocating for his client, the
       Court also believes Mr. Hayes may fail to recognize that excessive zeal
       may be detrimental to his client’s interests.
               The Court does not know whether the allegations contained in
       [Wife’s] trial brief are true. Quite frankly, their truth or falsity is irrelevant
       until the proof is heard by the Court. The Court’s chief concern is the
       parties’ child. . . .
               Whether or not Mr. Hayes has violated any particular Rule of
       Professional Conduct would be an issue for the Tennessee Board of
       Professional Responsibility, not this Court. The Court is incredulous,
       however, that Mr. Hayes behaved in such a manner. As the Court noted in
       its September 8, 2018 Order concerning [Wife’s] trial brief, items posted on
       the internet are “forever.” It bears repeating --- the parties’ child is 13 years
       old. He is old enough to access the internet and to read the posts made
       about his family. He is old enough to be hurt by what people in his
       community say about him and his family. He is young enough that he may
       not be able to separate the actions of the adults around him from his own
       feelings of self-worth. With the parties’ child as its utmost concern, the
       Court does not apologize for its disappointment in Mr. Hayes’ actions.

(Internal quotations, citations, and footnote omitted.)

       The Trial Judge concluded his order by determining, contrary to the assertion
made in the motion for judicial recusal, that the motion was, in fact, filed for the purpose
of delay and with “an improper purpose.” The Trial Judge explained:

       [T]he Court must note that [Wife] has attempted to delay these proceedings
                                              17
      no fewer than four times prior to filing her Motion to Disqualify. The Court
      further notes that under the terms of the parties’ prenuptial agreement, [Wife]
      stands to receive more money for each day she remains married to
      [Husband]. The Court cannot ignore that it is in [Wife’s] financial interest to
      delay the trial of this matter as long as she possibly can. While she stated her
      Motion to Disqualify is not presented to cause unnecessary delay, the Court
      believes this to be yet one more attempt to delay the proceedings. . . .

        Wife thereafter timely filed her Petition for Recusal Appeal in this Court pursuant
to Rule 10B. The Petition was placed in the drop box maintained by the Appellate Court
Clerk pursuant to Rule 20(a) of the Tennessee Rules of Appellate Procedure, at some
point prior to the opening of the box on the morning of September 11, 2018. That same
morning, the Trial Judge began the final hearing in the parties’ case, and Wife filed with
the Appellate Court Clerk a supplement to the Petition and motion seeking a stay of the
trial court proceedings pending the outcome of this accelerated interlocutory appeal. The
parties completed their opening statements and Husband testified for over an hour before
a lunch break was taken. During the lunch break, this Court entered an order staying the
trial court proceedings and, pursuant to section 2.05 of Rule 10B, directed counsel for
Husband to file an answer to the Petition.

       Having reviewed Wife’s petition and supporting documents submitted with the
petition, together with the supplement to the petition and Husband’s answer, we conclude
that additional briefing and oral argument are unnecessary. As such, we proceed to decide
this appeal in accordance with sections 2.05 and 2.06 of Rule 10B.

                                        II. ISSUES

       The only issue before the Court in this appeal is whether the Trial Judge erred in
denying Wife’s Rule 10B motion. See Duke v. Duke, 398 S.W.3d 665, 668 (Tenn. Ct.
App. 2012). Husband asserts in his answer to Wife’s Petition for Recusal Appeal that,
before this Court may evaluate the merits of the Trial Judge’s stated reasons for denying
Wife’s motion, we first must consider any procedural defects in Wife’s motion filed in
the Trial Court and her petition filed in this Court that might provide a basis for
affirmance. While Husband’s position would appear to comport with the de novo
standard of review applicable to Rule 10B interlocutory appeals as of right, see Tenn.
Sup. Ct. R. 10B, ' 2.01; see also Elseroad v. Cook, 553 S.W.3d 460, 462 (Tenn. Ct. App.
2018); Duke, 398 S.W.3d at 668, it does not comport with the well-settled proposition
that issues not raised at the trial level are considered waived on appeal. See, e.g.,
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); Cain-Swope v. Swope, 523
S.W.3d 79, 94 (Tenn. Ct. App. 2016); Moses v. Dirghangi, 430 S.W.3d 371, 381 (Tenn.
Ct. App. 2013); Barnhill v. Barnhill, 826 S.W.2d 443, 458 (Tenn. Ct. App. 1991). In
                                            18
other words, Husband asks this Court to consider certain procedural defects in Wife’s
motion that he never raised in the Trial Court and that were never considered by the Trial
Judge in denying Wife’s motion. We note that both existing case law in Rule 10B
appeals, see Cisneros v. Miller, No. M2016-02426-COA-T10B-CV, 2017 WL 113964,
*2 (Tenn. Ct. App. Jan. 6, 2017); In re Samuel P., No. W2016-01592-COA-T10B-CV,
2016 WL 4547543, *2 (Tenn. Ct. App. Aug. 31, 2016); Childress v. United Parcel
Service, Inc., No. W2016-00688-COA-T10B-CV, 2016 WL 3226316, *2-3 (Tenn. Ct.
App. Jun. 3, 2016); Elliott v. Elliot, No. E2012-2448-COA-10B-CV, 2012 WL 5990268,
*3-4 (Tenn. Ct. App. Nov. 30, 2012), as well as Rules 13(b) and 36(a) of the Tennessee
Rules of Appellate Procedure, when considered together, see Emory v. Memphis City
Schools Bd. of Educ., 514 S.W.3d 129, 148-49 (Tenn. 2017); In re Kaliyah S., 455
S.W.3d 533, 540 (Tenn. 2015), appear to give this Court considerable discretion to
consider the procedural issues raised by Husband for the first time in this appeal.8 As
such, we will address Husband’s procedural issues before evaluating the merits of the
Trial Judge’s stated reasons for denying Wife’s motion.

                                    III. PROCEDURAL ANALYSIS

        Husband argues first that Wife’s Rule 10B motion was procedurally defective in
that it was not accompanied by “an affidavit under oath or a declaration under penalty of
perjury on personal knowledge” as required by the rule. Tenn. Sup. Ct. R. 10B, § 1.01
(emphasis added). Specifically, Husband asserts that the unsworn declaration from
Wife’s counsel that accompanied her motion did not expressly state that it was based “on
personal knowledge” and that, for this reason alone, the Trial Judge could have denied
the motion. While Husband is correct that the requirement of a supporting affidavit or
declaration under penalty of perjury in compliance with the rule is mandatory and that the
absence of such an affidavit or declaration would provide a basis on its own for affirming
the denial of Wife’s motion, see, e.g., Murray v. Miracle, No. E2018-01530-COA-T10B-
CV, 2018 WL 4520573, *2 (Tenn. Ct. App. Sept. 20, 2018); Berg v. Berg, No. M2018-
01163-COA-T10B-CV, 2018 WL 3612845, *4 (Tenn. Ct. App. July 27, 2018); Childress,
2016 WL 3226316 at *3; Elliott, 2012 WL 5990268 at *3, we reject the notion that such
an affidavit or declaration must contain the words “on personal knowledge” for this Court

        8
          We should note that with the discretion to consider these procedural deficiencies raised by
Husband for the first time in this appeal comes the concomitant discretion to waive the deficiencies in
order to reach the merits of Wife’s motion as considered by the Trial Judge. See In re Adison P., No.
W2015-00393-COA-T10B-CV, 2015 WL 1869456, *3 n.5 (Tenn. Ct. App. Apr. 21, 2015) (considering
the substantive merit of recusal issue in Rule 10B appeal despite procedural deficiencies in motion filed in
trial court that did not form the basis for denial of motion); Watson v. City of Jackson, 448 S.W.3d 919,
928 (Tenn. Ct. App. 2014) (considering the substantive merit of recusal issue in Rule 10B appeal despite
procedural deficiencies in both the motion filed in the trial court and the petition for recusal appeal filed
in Court of Appeals).
                                                     19
to conclude that its contents are so based. See Shook v. Associates in Ear, Nose, Throat,
Head & Neck Surgery, No. 03A01-9309-CV-00307, 1994 WL 25853, *2 (Tenn. Ct. App.
Jan. 26, 1994). In Shook, the appellant argued that an affidavit in support of a motion for
discretionary costs pursuant to Rule 54.04 of the Tennessee Rules of Civil Procedure that
did not expressly state that the expenses sought to be recovered were “necessary and
reasonable” (as the rule required such expenses to be) was insufficient due to that
omission alone to support a finding that the eligible expenses sought were reasonable and
necessary. See id. This Court determined that “such ‘magic words’ were not necessary” if
a “fair interpretation” of the affidavit demonstrated substantial compliance with the
requirements of the rule. Id. We conclude that the same holds true here. A fair
interpretation of Wife’s counsel’s declaration in this case demonstrates that it was based
on personal knowledge even though it did not expressly state that it was based “on
personal knowledge.” Unlike the affidavit at issue in Berg, the declaration in this case did
not include qualifying language necessarily negating the conclusion that it was based on
personal knowledge. Cf. Berg, 2018 WL 3612845, at *3 (holding that an affidavit that
included an oath attesting that the statements contained therein were “true to the best of
[the affiant’s] knowledge, information and belief” was insufficient to signify that it was
based on personal knowledge and therefore insufficient to support a Rule 10B motion for
recusal).

       Husband next argues that the declaration filed by Wife’s counsel in support of the
Rule 10B motion also was fatally defective in that it was not dated in accordance with the
requirements of Rule 72 of the Tennessee Rules of Civil Procedure. We reject this
argument based on a plain reading of both Rule 72 and the declaration filed by Wife’s
counsel in this case. Rule 72 states:

               Whenever these rules require or permit an affidavit or sworn
       declaration, an unsworn declaration made under penalty of perjury may be
       filed in lieu of an affidavit or sworn declaration. Such declaration must be
       signed and dated by the declarant and must state in substantially the
       following form: “I declare (certify, verify or state) under penalty of perjury
       that the foregoing is true and correct.”

(Emphasis added.) First, the requirement in Rule 10B that a motion seeking judicial
recusal be accompanied by “an affidavit under oath or a declaration under penalty of
perjury” is not a requirement of the Tennessee Rules of Civil Procedure such that any of
the content requirements of Rule 72 for an unsworn declaration under penalty of perjury
would be binding on an affidavit or declaration filed in support of a Rule 10B motion.
Tenn. Sup. Ct. R. 10B, § 1.01. Second, even if the content requirements of Rule 72 were
applicable to an unsworn declaration filed in support of a Rule 10B motion, we
conclude that the dated certificate of service at the conclusion of the declaration in this
                                            20
case was sufficient to comply with any requirement in Rule 72 that such a declaration be
dated.

       Husband finally argues that Wife’s failure to challenge in this appeal the Trial
Judge’s finding in the order on review that Wife’s Rule 10B motion was made for “an
improper purpose,” namely to “attempt to delay these proceedings,” provides this Court
with an independent unchallenged basis upon which to affirm the denial of the motion.
Specifically, Husband argues that even if the Court determines that the Trial Judge’s
analysis on the “substance” of Wife’s motion was in error, this Court should still affirm
the denial of Wife’s motion because she has failed to explicitly challenge the “improper
purpose” finding in this appeal. However, contrary to Husband’s attempt to
compartmentalize the Trial Judge’s findings in this case into two separate and distinct
bases for the denial of Wife’s motion, we feel that the Trial Judge’s finding that Wife’s
motion was filed for “an improper purpose,” despite the motion’s assertion otherwise,
was part and parcel of the Trial Judge’s overall conclusion that his recusal was not
required based on the allegations set forth in Wife’s motion. In short, the Trial Judge’s
finding that Wife’s motion was filed for “an improper purpose” was not a separate and
distinct basis for the denial of the motion that must be separately, expressly, and
explicitly challenged by Wife in this appeal.

                                 IV. MERITS ANALYSIS

       Without question, “[t]he right to a fair trial before an impartial tribunal is a
fundamental constitutional right.” Bean v. Bailey, 280 S.W.3d 798, 803 (Tenn. 2009)
(quoting State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002)). Article VI, section 11 of the
Tennessee Constitution states,

             No Judge of the Supreme or Inferior Courts shall preside on
             the trial of any cause in the event of which he may be
             interested, or where either of the parties shall be connected
             with him by affinity or consanguinity, within such degrees as
             may be prescribed by law, or in which he may have been of
             counsel, or in which he may have presided in any inferior
             Court, except by consent of all the parties.

This constitutional right “is intended ‘to guard against the prejudgment of the rights of
litigants and to avoid situations in which the litigants might have cause to conclude that
the court had reached a prejudged conclusion because of interest, partiality, or favor.’ ”
Id. (quoting Austin, 87 S.W.3d at 470). By statute, the Legislature has delineated those
circumstances in which recusal is constitutionally required. See Tenn. Code Ann. § 17-2-
101.
                                           21
       In this case, recusal was sought by Wife on the basis that the Trial Judge had
conducted an improper independent investigation into disputed issues of fact surrounding
how and when Scoop: Nashville had obtained Wife’s Trial Brief, thereby creating, at a
minimum, the appearance of bias or prejudice on the part of the Trial Judge as evidenced
by the conclusions reached by him as a result of his investigation. “[P]reservation of the
public’s confidence in judicial neutrality requires not only that the judge be impartial in
fact, but also that the judge be perceived to be impartial.” Kinard v. Kinard, 986 S.W.2d
220, 228 (Tenn. Ct. App. 1998); see also Offutt v. United States, 348 U.S. 11, 14 (1954)
(holding that “justice must satisfy the appearance of justice”). As such, Rule 2.11(A) of
the Tennessee Code of Judicial Conduct as set forth in Rule 10 of the Rules of the
Supreme Court of Tennessee requires a judge to recuse himself or herself “in any
proceeding in which the judge’s impartiality might reasonably be questioned.” In other
words, even when a judge subjectively believes that he or she can hear a case fairly and
impartially, the judge still must recuse himself or herself “ ‘when a person of ordinary
prudence in the judge’s position, knowing all of the facts known to the judge, would find
a reasonable basis for questioning the judge’s impartiality.’ ” Davis v. Liberty Mut. Ins.
Co., 38 S.W.3d 560, 564-65 (Tenn. 2001) (quoting Alley v. State, 882 S.W.2d 810, 820
(Tenn. Crim. App. 1994)); see also Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011)
(quoting Bean, 280 S.W.3d at 805). This objective standard is necessary because “the
appearance of bias is as injurious to the integrity of the judicial system as actual bias.”
Davis, 38 S.W.3d at 565; see also Smith, 357 S.W.3d at 340.

        Husband centers his argument on the merits of this appeal on the contention that
the Trial Judge in this case did not conduct an improper independent investigation into
how and when Scoop: Nashville obtained Wife’s Trial Brief. Husband asserts that the
Trial Judge’s inquiries in this regard were confined to consultations with court staff and
court officials, and the questioning of the parties and counsel on the record, none of
which are prohibited by the Tennessee Code of Judicial Conduct. We agree with Husband
that, if the Trial Judge’s inquiries were so confined, then no improper independent
investigation occurred. Rule 2.9(C) of the Tennessee Code of Judicial Conduct states: “A
judge shall not investigate facts in a matter independently, and shall consider only the
evidence presented and any facts that may properly be judicially noticed.” However, Rule
2.9(A)(3) expressly states that “[a] judge may consult with court staff and court officials
whose functions are to aid the judge in carrying out the judge’s adjudicative
responsibilities,” so long as the judge “makes reasonable efforts to avoid receiving
factual information that is not part of the record, and does not abrogate the responsibility
personally to decide the matter.” Thus, the Trial Judge was correct in his conclusion that
he was “well within [his] rights --- and indeed, [his] responsibilities” in consulting with
the Circuit Court Clerk and his staff regarding the specifics surrounding when and how
Wife’s Trial Brief was filed. However, these inquiries, by the Trial Judge’s own
                                            22
admission as set forth in his order denying Wife’s Rule 10B motion, came after the Trial
Judge “became aware portions of [Wife’s] trial brief had been posted on Twitter the
afternoon of September 6, 2018.”

       The comments to Rule 2.9 of the Tennessee Code of Judicial Conduct make clear
that “[t]he prohibition against a judge investigating the facts in a matter extends to
information available in all mediums, including electronic.” Tenn. Sup. Ct. R. 10, Rule
2.9, cmt. 6. As is clear from Wife’s supplement to the Petition for Recusal Appeal filed
in this Court, the printouts of the two posts from the Twitter account maintained by
Scoop: Nashville, which were relied on by the Trial Judge in the order on review, and
attached thereto, were never relied on or mentioned by the parties in the proceedings
below, or attached to any pleading filed by the parties in the Trial Court. While
emanating from the same media outlet as the online articles about the case that were
attached to Wife’s Rule 10B motion, it is clear from the uniform resource locator (URL),
or web address, tags at the bottom of these respective documents that the articles attached
to Wife’s Rule 10B motion came from the website maintained by Scoop: Nashville while
the documents attached to the order on review came from posts by Scoop: Nashville on
its account maintained on the Twitter website. As such, it is clear beyond question that
the Trial Judge in this case improperly consulted Twitter in an effort to resolve disputed
facts surrounding how and when Scoop: Nashville obtained a copy of Wife’s Trial Brief.9

       Relying on Holsclaw v. Ivy Hall Nursing Home, Inc., 530 S.W.3d 65 (Tenn.
2017), Husband correctly points out in his response to the Petition for Recusal Appeal
that a determination that the Trial Judge in this case conducted an improper independent
investigation in violation of Rule 2.9(C) does not automatically require the Trial Judge’s
recusal. We note that it is not the job of this Court to determine whether the Trial Judge’s
conduct was in violation of Rule 2.9(C). We instead consider that conduct only in
determining whether the Trial Judge erred in not granting Wife’s Rule 10B motion. As
the Supreme Court made clear in Holsclaw, we must determine whether the Trial Judge’s
“impartiality might reasonably be questioned” as a result of the Trial Judge having
conducted an independent investigation. Id. at 72. On this point, unlike the judge in
Holsclaw, the Trial Judge in this case announced on the record and in his own orders that
he had used the results of his independent investigation to influence his view of Wife’s
counsel’s ethics and that he also would use the results of the investigation when

       9
         Unfortunately, the Trial Judge’s improper consideration of the time stamps on the Twitter posts
he viewed during his independent investigation only served to create a factual dispute as to when Wife’s
Trial Brief came to be in the hands of Scoop: Nashville. This shows at least one reason why judges are
prohibited from conducting their own independent investigations into factual matters including utilizing
online sources not subject to the evidentiary standards of the adversarial process.


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considering the issue of custody and parenting time of the parties’ minor child. We are
constrained to conclude that these comments by the Trial Judge create an appearance of
bias or prejudice against Wife and her counsel that now require the Trial Judge’s recusal.
Nothing about the providing of a copy of Wife’s Trial Brief to Scoop: Nashville violated
the Tennessee Rules of Professional Conduct, as correctly alluded to by the Trial Judge in
his comments on the record and orders in this case. See Tenn. Sup. Ct. R. 8, Rule
3.6(b)(2) of the Tennessee Rules of Professional Conduct (stating that a lawyer may
convey to the media “information contained in a public record”). We agree with the Trial
Judge in this case that “the willingness and ability” of a parent “to facilitate and
encourage a close and continuing parent-child relationship between the child and both of
the child’s parents, consistent with the best interest of the child” is a statutory factor to be
considered by a trial court in determining the issue of child custody in a divorce
proceeding. See Tenn. Code Ann. § 36-6-106(2). However, we disagree that anything
learned by the Trial Judge from his independent investigation into Scoop: Nashville’s
posts should, in any way, color the Trial Judge’s view of Wife with regard to this
statutory factor.

                                      V. CONCLUSION

       Accordingly, having determined that the record provided by Wife demonstrates
that the Trial Judge erred in denying the motion seeking his recusal, we reverse and
remand with directions that this case be assigned to a different judge in the 20th Judicial
District. Costs on appeal are assessed against the appellee, Lee A. Beaman, for which
execution may issue, if necessary.




                                            ___________________________________
                                            D. MICHAEL SWINEY, CHIEF JUDGE




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