                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                                      Assigned March 6, 2015

                                         IN RE ADISON P.

                   Appeal from the Juvenile Court for Henderson County
                              No. 6203     Steve Beal, Judge


                  No. W2015-00393-COA-T10B-CV – Filed April 21, 2015


This accelerated interlocutory appeal results from the trial court‟s denial of Appellant
William R. F.‟s (“Father”)1 motion for recusal. Having reviewed the trial court‟s ruling
on the motion for recusal pursuant to the de novo standard of review required under
Tennessee Supreme Court Rule 10B, we reverse the judgment of the trial court.
    Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the Chancery
                                    Court is Reversed
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which KENNY
ARMSTRONG, J., joined. BRANDON O. GIBSON, J., filed a dissenting opinion.

Brian Schuette, Bowling Green, Kentucky, for the appellant, William R. F.

Joey M. P., Pro se.

                                                OPINION

                                              Background

       This is an accelerated interlocutory appeal from the Henderson County Juvenile
Court‟s denial of a recusal motion. The parties in this case are parents to a minor child
who was born in October of 2002. We consider the case only on the submissions of the
parties and the attachments thereto.2

1
  In order to protect the anonymity of minor children, the Court, in its discretion, may elect to use initials
for the children, their parents, and others. K.B.J. v. T.J., 359 S.W.3d 608 n.1 (Tenn. Ct. App. 2011).
        The litigation underpinning this appeal concerns a custody dispute between the
minor child‟s parents. Father and the minor child‟s mother, Appellee Joey M. P.
(“Mother”), were not married when the minor child was born. Approximately a year
after the minor child‟s birth, the trial court held a hearing with regard to custody and
paternity. An order on the hearing was subsequently entered on December 8, 2003. In
addition to declaring Father as the minor child‟s natural father, the trial court‟s December
8, 2003, order provided Father with specified visitation rights.

       According to Father, Mother, over time, consistently failed to follow the trial
court‟s order with respect to visitation. As a result, on July 11, 2011, Father filed a
petition for contempt and asked that the trial court enter an order granting him temporary
exclusive custody of the minor child. In addition to alleging that Mother had refused to
allow Father to exercise certain visitation rights, Father alleged that Mother had removed
the minor child to Texas. The parties later reached an agreement concerning the
parenting issues, and on August 25, 2011, an agreed order was entered prohibiting
Mother from removing the minor child out of Tennessee absent court approval.

       Despite the agreed order entered in August of 2011, the friction between the
parties continued. Visitation disputes remained a problem and led to further litigation.
Once again, however, the parties were able to reach some resolution. Following a
successful mediation, the trial court entered an agreed order on June 4, 2013. This agreed
order permitted Mother to relocate to Texas with the minor child and outlined certain
dates on which Father would have visitation. In relevant part, the June 4, 2013, order
provided that Father was entitled to visitation with the minor child “during the summer
months with the exception of one week.”

       According to Father, although his summer visitation with the minor child was
scheduled to begin on June 5, 2013, he claims he was unable to exercise that visitation as
a result of his inability to locate or communicate with Mother. He further claims that
although the trial court held a telephonic conference with the parties‟ counsel on June 26,
2013, the trial court did not enter an order following the conference and refused to order
Mother to comply with the parties‟ agreed visitation order. Eventually, on July 26, 2013,

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 2
   Father‟s petition for an accelerated interlocutory appeal was accompanied by several documents that
were filed in the trial court, including his motion for recusal, the trial court‟s order denying his recusal
motion, and transcripts of proceedings that occurred before the trial court. Although the minor child‟s
mother filed an answer to Father‟s petition for an accelerated appeal requesting that his petition be
dismissed, she did not take issue with Father‟s recitation of the basic facts surrounding the case.




                                                     2
Father, acting pro se, filed a “Petition for Contempt and Emergency Change of Custody.”
Despite his efforts to schedule this petition for a hearing before Judge Steve Beal, Father
alleges that the trial court refused to hear his petition. Father later retained the assistance
of counsel and filed a motion for the entry of a show cause order. Therein, Father
requested that Mother appear and show cause why she should not be held in contempt for
failing to abide by the agreed order entered on June 4, 2013. Father also gave notice to
Mother‟s counsel that the matter was set for hearing on April 23, 2014.

    Father alleges that when his counsel appeared before the trial court to present his
motion, Judge Beal refused to hear it. Apparently, Judge Beal indicated he would not
hear the motion unless Mother‟s counsel consented to the hearing or Mother was
personally served with process. Father believed that such a requirement was unnecessary
in light of the fact that he had properly noticed the motion and served it on Mother‟s
counsel of record. Accordingly, on June 9, 2014, Father filed a complaint for mandamus
relief in the Circuit Court of Henderson County. Father also filed a complaint against
Judge Beal with the Tennessee Board of Judicial Conduct on June 13, 2014. Therein,
Father alleged that Judge Beal‟s failure to hear his motion constituted judicial
misconduct.

    On July 28, 2014, the Circuit Court conducted a hearing on Father‟s complaint for
mandamus relief. Approximately a month later, on August 27, 2014, the Circuit Court
entered a writ of mandamus granting Father relief in relation to his motion for the entry
of a show cause order. Specifically, the Circuit Court directed Judge Beal to set Father‟s
motion for the entry of a show cause order for hearing.3 Following the Circuit Court‟s
grant of mandamus relief, Father filed a petition in the trial court requesting that Judge
Beal recuse himself from overseeing the visitation dispute between the parties. Judge
Beal denied the motion, and although Father subsequently filed a petition for recusal
appeal under Tennessee Supreme Court Rule 10B, we dismissed the appeal as untimely.4

   On December 4, 2014, Father filed a second motion for recusal. This motion was
predicated on grounds different from those that had been specifically raised in the first
motion for recusal. Namely, the second motion alleged that there was a reasonable
question regarding Judge Beal‟s objectivity in Father‟s case due to the fact that Judge
Beal directed Father‟s counsel to draft an order that partially enforced Father‟s visitation


3
  As noted by Father, Judge Beal has appealed the order of the Circuit Court that granted mandamus
relief. That appeal, In re Adison P., No. W2014-01901-COA-R3-CV, is still pending in this Court.
4
 We dismissed the first recusal appeal, In re Adison P., No. W2014-02000-COA-T10B-CV, by order
entered on October 31, 2014.




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rights, only to redraft the order to exclude those provisions.                As Father recited in the
motion:

                At the conclusion of the September 3, 2014, hearing, Judge
                Beal directed [Father‟s] counsel to draft an order setting forth
                his rulings. Counsel complied with the court‟s directive . . . .
                Without explanation, however, Judge Beal redrafted the
                order, apparently for the sole purpose of excluding those
                portions that enforced on a temporary basis [Father‟s] right to
                visit with his daughter in Houston, Texas one weekend per
                month and to have telephone contact with her each Friday
                evening at 6:00 PM. A copy of the order actually entered by
                the Court is attached hereto as Exhibit 2. Judge Beal took this
                action in spite of the fact that all parties to the proceeding had
                agreed to the order as to form and that it was properly
                submitted. By entering an order that excluded provisions
                protecting [Father‟s] right to resume contact with his
                daughter, Judge Beal has demonstrated a level of bias that
                constitutes grounds for his disqualification.

On January 7, 2015, the trial court held a hearing on Father‟s second motion for recusal,
and on February 17, 2015, Judge Beal entered an order denying the motion. Judge Beal
dismissed Father‟s second motion for recusal by reasoning that the matters complained of
had been disposed of in the order denying Father‟s first motion for recusal. As such,
Judge Beal considered the matters to be res judicata. Following Judge Beal‟s denial of
the second motion for recusal, Father timely pursued this accelerated appeal pursuant to
Tennessee Supreme Court Rule 10B. In response to an order of this Court, Mother filed
an answer to Father‟s petition for recusal appeal on March 23, 2015. Having reviewed
Father‟s petition for recusal appeal, along with its supporting documents, and Mother‟s
answer in response to Father‟s petition, we conclude that additional briefing and oral
argument are unnecessary. As such, we now proceed to review Father‟s petition in
accordance with Tennessee Supreme Court Rule 10B sections 2.05 and 2.06.5

5
  We observe that Father‟s second motion for recusal and second petition for recusal appeal are
technically deficient in two respects. First, Father‟s second motion for recusal contains no affirmative
statement that “it is not being presented for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation.” Tenn. Sup. Ct. R. 10B, § 1.01. Second,
although Father‟s second motion for recusal references that it was supported by an affidavit (as is required
under Tennessee Supreme Court Rule 10B, Section 1.01), this affidavit was not included with the
supporting documents to Father‟s second petition for recusal appeal. Tennessee Supreme Court Rule
10B, Section 2.03 states that “[t]he petition [for recusal appeal] shall be accompanied by a copy of the
motion and all supporting documents filed in the trial court[.]” Tenn. Sup. Ct. R. 10B, § 2.03.
Notwithstanding these deficiencies, we will proceed to consider the substantive issue raised on appeal.
“However, we caution litigants that „while in this case we chose to proceed with our review despite the
fact that the parties chose not to abide by the rules of th[e Tennessee Supreme] Court, we cannot say we

                                                     4
                                     I.          Issue on Appeal

        When reviewing a Tennessee Supreme Court Rule 10B appeal, the only order we
may review is the trial court‟s order that denies a motion to recuse. Duke v. Duke, 398
S.W.3d 665, 668 (Tenn. Ct. App. 2012). In this appeal, we must determine whether the
trial court erred in denying Father‟s second motion for recusal.

                                   II.      Standard of Review

       We review the trial court‟s ruling on the motion for recusal under a de novo
standard of review. Tenn. Sup. Ct. R. 10B, § 2.01.

                                          III.     Discussion

        Pursuant to Tennessee Supreme Court Rule 10, Code of Judicial Conduct Rule
2.11, “[a] judge shall disqualify himself or herself in any proceeding in which the judge‟s
impartiality might reasonably be questioned[.]” “„The 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)), and it
remains “important to preserve the public‟s confidence in a neutral and impartial
judiciary.” Id. As we have emphasized in the past, “the preservation 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) (citations omitted). Even when a judge sincerely believes that he
can preside over a matter in a fair and impartial manner, recusal is nonetheless required
where a reasonable person “„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)). “It is an objective test designed to avoid
actual bias and the appearance of bias, „since the appearance of bias is as injurious to the
integrity of the judicial system as actual bias.‟” Shelby County Gov’t v. City of Memphis,
No. W2014-02197-COA-T10B-CV, 2015 WL 127895, at *4 (Tenn. Ct. App. Jan. 8,
2015) (citation omitted).

      The genesis for Father‟s second motion for recusal may be found in the transcript
of proceedings from a September 3, 2014, hearing before the trial court. The hearing
conducted on that date concerned several matters, including a motion to withdraw by
Mother‟s counsel and Father‟s initial motion for recusal. In addition to ruling that he was


_________________________
will be so accommodating and choose to do the same in the future.‟” Watson v. City of Jackson, 448
S.W.3d 919, 928 (Tenn. Ct. App. 2014) (citing Wells v. Wells, No. W2009-01600-COA-R3-CV, 2010
WL 891885, at *4 (Tenn. Ct. App. Mar. 15, 2010)).

                                                   5
denying Father‟s motion for recusal, Judge Beal made several rulings concerning
temporary custody of the child. In part, Judge Beal ruled as follows:

              I‟m going to instruct there be a weekend visitation, and I‟m
              going to have that, if [Father] would like, from a Friday from
              6:00 p.m., which would be after school, until Sunday
              afternoon, let‟s say six -- well, 5:00 p.m. That gets the child
              back more in time for school and gets everybody more
              settled. And I’m going to order that to be done within the
              next 30 days, in that timeframe. (emphasis added)

In addition to this visitation, Judge Beal ruled that Father was entitled to recurring
visitation once a month until a final hearing on Father‟s motion to show cause occurred.
Judge Beal instructed that the scheduling of such additional visitation could be handled
by the entry of separate monthly orders as was necessary. Judge Beal further ruled that
Father was entitled to speak with his daughter by telephone once per week.

       Following the September 3, 2014, hearing, Father‟s counsel prepared a draft order
responsive to the trial court‟s rulings. Significantly, the draft order memorialized Judge
Beal‟s rulings concerning temporary visitation with the minor child. Although this
proposed order was agreed as to form by all parties, Judge Beal refused to sign it.
Instead, Judge Beal drafted his own order that did not include any reference to Father‟s
rights to temporary visitation; this order, which was entered on September 22, 2014,
addressed only the first motion for recusal, Mother‟s counsel‟s motion to withdraw, and a
child support issue. It was Judge Beal‟s refusal to enter the prepared draft order that
caused Father to file his second motion for recusal.

       Although Judge Beal denied the second motion for recusal on the basis that all the
matters complained of by Father were dealt with in connection with Father‟s first motion
for recusal, this interpretation is simply incorrect. Father admittedly raised the same legal
arguments concerning Judge Beal‟s obligation to recuse himself from the case, but
Father‟s second motion for recusal did not simply regurgitate the factual grounds
presented to the trial court in the first motion for recusal. Rather, the second motion for
recusal was filed in response to Judge Beal‟s refusal to enter the draft order that
recognized Father‟s temporary visitation rights. Despite Judge Beal‟s comments at the
second recusal hearing that he perceived the recusal issue to be moot and his ultimate
determination that it was res judicata, we agree with Father that the second recusal
request was appropriately before the trial court. Father could not have raised Judge
Beal‟s refusal to enter the prepared draft order in connection with his first motion for
recusal because it was factually impossible to do so. Judge Beal‟s entry of the order




                                             6
excluding mention of his temporary visitation rulings did not occur until several weeks
after the hearing on Father‟s first motion for recusal.6

        With respect to the substantive merits of the second motion for recusal, we agree
with Father that the trial court‟s actions in entering the September 22, 2014, order give
rise to a reasonable basis for questioning Judge Beal‟s impartiality. Father‟s draft order
following the September 3, 2014, hearing accurately reflected the rulings that Judge Beal
made, and all parties agreed to the entry of the order as to form. Despite this, Judge Beal
personally redrafted and entered an order that excluded the rulings favorable to Father‟s
visitation rights. When discussing the matter at the second recusal hearing, Judge Beal
offered no real explanation for his actions other than that which is evidenced by the
following exchange:

                [Father‟s counsel]: Well, now, you . . . did not memorialize
                that order as I think --

                [Judge Beal]: It‟s in the past.

                [Father‟s counsel]: --the trial court is supposed to do. The trial
                court speaks through its written orders.

                [Judge Beal]: An order, what I rule is what‟s placed in the
                final order, counsel.

                [Father‟s counsel]: I did place it in the final order.

                [Judge Beal]: That was not -- no, counsel, counsel--

                [Father‟s counsel]: I drafted it.

                [Judge Beal]: Be quiet a moment. The order was not what I
                wished my final ruling to be, and I placed into the order my

6
  Although the trial court‟s September 22, 2014, order denying Father‟s first motion for recusal is the
same order to which Father attributes judicial bias on account of its exclusion of Judge Beal‟s temporary
visitation rulings, Father was in no position to raise the new grounds for recusal in connection with his
first accelerated recusal appeal. Again, the new grounds were not litigated or ruled upon in the first
recusal hearing, as they had not yet occurred. We further note that Father was under no obligation to
appeal his substantive grievances concerning the September 22, 2014, order‟s omission of favorable
visitation rulings in connection with his first Rule 10B appeal. Although Judge Beal suggested as much
during the second recusal hearing, it is important to recognize that the September 22, 2014, order was
interlocutory in nature. Father‟s first accelerated recusal appeal entitled him to challenge only the trial
court‟s ruling on the motion to recuse. See Duke, 398 S.W.3d at 668 (“Pursuant to [Tennessee Supreme
Court Rule 10B], we may not review the correctness or merits of the trial court‟s other rulings[.]”).
Likewise, in this appeal, we review only the trial court‟s denial of Father‟s second motion for recusal.

                                                    7
              final ruling. And the last time I checked counsel does not get
              to tell me what the rulings of the Court [are]. The rulings of
              the Court [are] what I place into the order.

              [Father‟s counsel]: I think the transcript of the hearing will
              reflect what the rulings of the Court were.

              [Judge Beal]: Before the final order is down the Court can
              amend in any way the Court chooses and place the order.
              Now, the order as written is the order that I intended and the
              order I intend. Now, go ahead, counsel.

              [Father‟s counsel]: The order that you entered is inconsistent
              with the Court‟s rulings. And the only thing taken out of the
              order that the Court entered as compared to the order that I
              drafted in accordance with the Court‟s instructions is
              anything that recognizes [Father‟s] rights of visitation[.]

Judge Beal‟s explanation offers no real insight into what appears to be an intentional
decision to not memorialize rulings favorable to Father. Father initiated the recent
litigation in this case in an effort to enforce visitation with his minor child, and despite
Judge Beal‟s oral rulings giving Father temporary visitation pending a full hearing, Judge
Beal refused to enter a prepared draft order that affirmed this. As already indicated, the
draft order was approved as to form by all parties in this case. When this fact is
considered in light of the previous history of this case, which included unsuccessful
attempts to set Father‟s motion for the entry of a show cause order, father‟s filing of a
complaint against Judge Beal with the Tennessee Board of Judicial Conduct, and Father‟s
filing for mandamus relief in Circuit Court, Judge Beal‟s decision to not enter an order
memorializing his visitation rulings favorable to Father gives cause for concern as to his
ability to fairly preside over this case. Under the circumstances presented, we hold that
“„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.‟” City
of Memphis, 2015 WL 127895, at *7 (citation omitted).

        Although the dissent suggests that circumstances of this case only evidence the
fact that Father disagrees with the legal positions taken by Judge Beal, we respectfully
disagree. The facts of this case certainly reflect legal disagreement, but they also raise
reasonable questions about the judge‟s neutrality. Although Judge Beal‟s refusal to
memorialize his oral visitation rulings does not sufficiently evidence the appearance of
bias when considered alone, a reasonable question of impartiality does emerge when this
fact is considered against the background of the case.



                                             8
        Again, following the September 3, 2014, hearing, Father‟s counsel drafted an
order responsive to Judge Beal‟s previous rulings and tendered it to the trial court.
Notwithstanding its accuracy in memorializing Judge Beal‟s oral rulings, this draft order
was not ultimately entered. As Judge Beal commented during the course of the second
recusal hearing, “The order was not what I wished my final ruling to be, and I placed into
the order my final ruling.” Although we recognize that a trial court speaks through its
orders, Judge Beal offered no explanation in the instant case as to why the visitation
rulings in Father‟s favor were not included in his September 22, 2014, order. The picture
we are left with, then, is one framed by a deliberate decision by Judge Beal to exclude
visitation rulings he previously made in Father‟s favor. A review of his comments at the
second recusal hearing does not suggest that he necessarily changed his mind as to the
merits of the rulings he previously made; rather, his comments reflect an unwillingness,
for reasons unknown, to memorialize his rulings favorable to Father. As we have already
indicated, this is a cause for great concern when the history of this case is considered.
We must emphasize that the primary disputes in this case concern Father‟s attempts at
exercising visitation with the minor child. When Father previously filed a motion
attempting to address the matter, Judge Beal initially refused to set Father‟s motion for
hearing. In fact, Judge Beal refused to set the matter until a writ of mandamus issued
directing him to do so. It is within this context that we have considered Judge Beal‟s
refusal to memorialize his oral visitation rulings favorable to Father. Although we
certainly cannot say with any certainty that Judge Beal actually acted with any bias with
respect to any of the foregoing decisions, we simply hold that these circumstances
provide a reasonable basis for questioning his impartiality. 7 Accordingly, we conclude
that Judge Beal erred in his decision to continue to preside over this case. In order to
promote confidence in the courts, we must guard against the appearance of impartiality.
The trial court‟s order denying Father‟s second motion for recusal is hereby reversed.




7
  We agree with the dissent that recusal is not required merely because a litigant files a disciplinary
complaint against a judge, and we certainly do not intend to suggest that filing a complaint with the
Tennessee Board of Judicial Conduct should dictate such an outcome. The question of whether recusal is
required must be analyzed in terms of the standard already discussed. That is, would a person of ordinary
prudence in the judge‟s position, knowing all of the facts known to the judge, find a reasonable basis for
questioning the judge‟s impartiality? Here, we have made reference to Father‟s misconduct complaint
because it was a fact known to Judge Beal at the time he reviewed Father‟s second motion for recusal.
The dissent notes that Father‟s misconduct complaint does not indicate when or whether it was received
by the Board of Judicial Conduct, but we are satisfied from our review of the materials transmitted to us
that Judge Beal was aware of it. In fact, a review of the transcript of proceedings from the first recusal
hearing on September 3, 2014, indicates that Judge Beal was aware of it as of that date. In addition to our
knowledge of the mandamus complaint, awareness of the judicial misconduct complaint helps inform the
perception of Judge Beal‟s decision to not memorialize his prior rulings favorable to Father. Again, we
find that when Judge Beal‟s lack of a satisfactory explanation for this decision is considered in light of
this greater context, a reasonable basis exists for questioning his impartiality.

                                                    9
                                     IV.    Conclusion

   The order of the trial court denying Father‟s second motion for recusal is reversed.
This cause is remanded to the trial court for transfer to a different judge for all further
proceedings as are necessary and consistent with this Opinion. Costs on this appeal are
assessed against the Appellee, Joey M. P.

                                                        ___________________________
                                                        ARNOLD B. GOLDIN, JUDGE




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