                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     March 1, 2001 Session

                   BARBARA JEAN McCALL v. KEVIN GREEN

                    Appeal from the Juvenile Court for Washington County
                         No. 13751    Shirley B. Underwood, Judge

                                       FILED APRIL 9, 2001

                                  No. E1999-02827-COA-R3-CV


This is an action where Kevin Green seeks to change custody of his son, Zachary Green, from
Zachary’s mother, Barbara Jean McCall. We find an order entered contended by Ms. McCall to be
an agreed order was not in fact an agreed order, nor a valid one. We further find that the Trial Judge
should have recused herself. We accordingly vacate the purported agreed order and direct that the
Trial Judge recuse herself and another Judge be appointed by the Administrative Office of the
Courts.

      Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated;
                                   Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY, JJ., joined.

Edward L. Kershaw, Greeneville, Tennessee, for the Appellant, Kevin Green

H. Wayne Graves, Johnson City, Tennessee, for the Appellee, Barbara Jean McCall

                                              OPINION


        Kevin Green files a petition against Barbara Jean McCall seeking a change of custody of their
child, Zachary Green, D.O.B. 8-9-94, who was born out of wedlock. The Trial Court dismissed his
petition, resulting in this appeal where he raises four issues, two of which we believe are dispositive.

        The first is whether the Trial Judge was correct in finding that an order contended to be an
agreed order by Ms. McCall, was in fact an agreed order and precluded – under the doctrine of res
judicata – consideration of any proof relative to custody occurring prior thereto, and second whether
the Trial Judge should have recused herself.
       The hearing encompassed two days of testimony, the first on October 16, 1998, and the
second on May 4, 1999. Most of the testimony addressed the visitation rights that Mr. Green should
have, as well as whether Ms. McCall improperly denied him visitation as provided by order of the
Court.

       With regard to the first dispositive issue, the proof shows that, although the order might have
been agreed to at one point, counsel for Ms. McCall changed the order, which he contends was only
in a minor way, resulting in Mr. Green disavowing it, and it may be inferred his then counsel also
disavowed it by not signing the order.

        Both this Court and the Supreme Court have addressed the specific question here presented.
In Sullivan County v. Lyon, an unreported opinion authored by Judge Susano, filed in Knoxville on
December 29, 1999, which relied upon the Supreme Court case of Harbour v. Brown for Ulrich, we
said the following:

                We hold that the trial court’s entry of the Original Agreed Order was
         improper. A court’s power to render a judgment by consent is necessarily
         dependent upon the consent of the parties. Harbour v. Brown for Ulrich, 732
         S.W.2d 598, 599 (Tenn.1987). This consent must “exist at the very moment the
         court undertakes to make the agreement the judgment of the court.” Id. (quoting
         Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex.1951)).

        Thus, it appears that the order of September 1998 was not a valid order and could not be the
basis of a plea of res judicata as to matters occurring prior thereto.

       As to the second issue, during the examination of Mr. Green, the following occurred:

         THE COURT: Do you not have any relatives in Nashville, Davidson County, or
         that area?

         A.   No.

         THE COURT:        You have none whatsoever?

         A.   No.

         THE COURT: What, if any, contact have you ever made in Nashville with some
         of the Greens?

         A.   I have no – I’m pretty confident that I have no relatives in Nashville.

         THE COURT: Well, my question was have you at any time talked to anyone by
         the name of Green in Nashville?


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A.   No, Your Honor.

THE COURT:       You’ve not talked with a juvenile court judge in Nashville...

A. Oh, I’m sorry. I apologize. Adams – Judge Adams Green, yes, I’m sorry.

THE COURT:       For what reason did you call her?

A. A friend of mine is a friend of hers, and I had a conversation with her. And
I’ve also seen her – I’m friends with some councilmen there, and we went to a
juvenile court thing on another occasion, and the vice-mayor was there; another
councilman at large there, and they were showing the juvenile courtroom, and I
went with my friend, George Armistead.

THE COURT: But why would you discuss anything with her, knowing that this
was pending in this Court?

A.   Advice.

THE COURT:       Advice for Mr. Kershaw?

A.   Advice for me.

THE COURT:       Sir?

A.   Advice for myself – what to do in the situation.

THE COURT: So about how many occasions have you had conversations with
her?

A.   Two. Once at juvenile court, and one the other time.

THE COURT:        Do you recall what you might have said to her, and what you
asked her?

A. I mean, I’m not sure I can recall specifically, other than the fact I’m in a
situation, I’m not getting to see my son, and where do you go with this kind of
situation. And Bobbie is not paying attention to what all these court orders say.
I continue to come back into court. I’ve been going to court for two years and we
still don’t get a final answer on it. Those were the kind of questions I asked her.

THE COURT:       What replies did she give you?



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A.   Not much, not much.

THE COURT: How did you get in to see her – through whom did you see her?

A.   George Armistead. He’s a councilman at large.

THE COURT:        Who is...

A.   George Armistead. He’s a councilman at large, and a good friend of mine.

THE COURT:        From Marriott?

A. No. He owns his own business. He has a couple of businesses, but again
he’s a councilman. He knows a lot of people in Nashville.

THE COURT: Well, you understand my concern. Of course, she’s been a long
time friend of mine, and she did mention this to me, Mr. Kershaw, and I’m quite
concerned that he would do something of that kind. This really is quite disturbing
to me. As a mater of fact, I introduced Judge Adams, when she was – before she
married Mr. Green – to the Supreme Court in Nashville, many years ago. And
there is this camaraderie between judges, and this doesn’t sit very well with any
of us. It’s quite disturbing, and I just felt like...

A.   It was nothing more than advice, Your Honor.

THE COURT: Yes, but it was certainly out of place. It was not appropriate.
Now, one last question I want to ask you, you have – back at the beginning we
started – I’d say the same thing with her if she had done that, or attempted to raise
a big issue about this order that I approved because you weren’t here. And I guess
I’m somewhat taking the issue personally. But I had to bring this up, because this
is quite disturbing to me...

MR. KERSHAW: Your Honor, I mean absolutely no disrespect in saying this, but
I feel like...

THE COURT:        Did you have knowledge of it?

MR. KERSHAW: I don’t know if I knew that he talked to this Judge or not. If
I did, it didn’t factor in with me, but if he had asked me if he could talk to the
Judge I wouldn’t have said, “No.” I would have said, “Sure, you’re welcome to
ask for other advice” if for no other reason than to help me, because I don’t know
everything. So if a judge told him, “Hey, tell your lawyer to do this,” I would do
it.


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         THE COURT: Would you go to Judge Wexler, or send him to Judge Wexler if
         this was his court?

         MR. KERSHAW: No, but I have gone to Judge Wexler many times if I had
         something in front of Chancellor Frierson and said, “Judge, what do you think the
         best way for me to handle this is? You’ve been on the bench now for 60 years,
         or you’ve been practicing law for 60 years, you’ve been on the bench for 24 years,
         maybe.” And on many occasions – Judge Wexler and I have a close relationship
         anyway. But on many occasions, he has given me advice on what he would do.

         THE COURT: But you would go for a personal case of your own, Mr. Kershaw.

         MR. KERSHAW: Yes. Now, having said that, let me say this, and again I mean
         no disrespect, but if it bothers you, I think you’ve got a duty to recuse yourself, if
         it disturbs you. I don’t think it’s inappropriate for him to talk to another judge,
         and again, I would never say anything disrespectful to you, Your Honor.

         THE COURT:           I will not recuse myself, if you want to use that for other
         purposes, but I will say this, that it does affect me greatly from a professional
         leave, and it also, I think, goes to the credibility of the witness, whether they’re
         active in a particular matter or not.

               Thereafter, at the close of the hearing on May 4, the Trial Court stated the following:

         THE COURT: I’m strongly considering and probably will talk to the District
         Attorney General Crumley as to whether or not to go through the process to
         issue – to have Mr. Green arrested for obstruction of justice by his conduct, in
         going to a Judge in Nashville, Tennessee to register his complaints. I’ll discuss
         it with him maybe tonight or certainly tomorrow – as soon as I can contact him.
         I think – I hope we’re on tape. I hope his conduct will never again occur under
         any circumstance. Number one, I think more people in life need to realize that
         you don’t tamper with justice under any circumstances, and certainly it does
         greatly upset me that he would do what he did do. And with that I say to you, Mr.
         Green, that I think the Attorney General will definitely rely on any testimony I
         give him, or statements I give him about your conduct. We do have it on tape, and
         with that, I’ll let you go.

        The only proof relative to Mr. Green’s contact with Juvenile Judge Adams-Green in
Nashville, is that he was concerned that his petition for change of custody was being unduly delayed.
Apparently, the Trial Judge felt that Mr. Green was contacting Judge Adams-Green for the purpose
of having her bring influence to bear upon Judge Underwood, but there is absolutely no proof in the
record that this was the case.



                                                  -5-
       What is in the record is that the Trial Judge was upset with Mr. Green to the degree that she
was threatening to have criminal charges preferred against him, and her knowledge of his actions
which prompted this was obtained prior to the hearing on May 4 and prior to her decision.

       We conclude that the Trial Judge’s own statements, specifically to have Mr. Green arrested,
discloses a bias against him which made it unacceptable for her to proceed to dispose of his petition.

       We accordingly find the Trial Court should have recused herself, as requested by counsel for
Mr. Green, and that the judgment entered by her should be vacated and the cause remanded for trial
before another Judge designated by the Administrative Office of the Courts.

      For the foregoing reasons the judgment of the Trial Court is vacated and the cause is
remanded. Costs of appeal are adjudged against Ms. McCall.



                                              _________________________________________
                                              HOUSTON M. GODDARD, PRESIDING JUDGE




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