                                                                                            01/23/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              Assigned on January 5, 2018

            BRIAN METZGER v. STEPHANIE DIANE METZGER

                 Appeal from the Circuit Court for Jefferson County
                        No. 24348-II   Beth Boniface, Judge


                            No. E2018-00035-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 to recuse the Trial Court Judge
filed by Stephanie Diane Metzger (“Mother”) during the final hearing in the parties’
divorce proceedings below. Having reviewed the Petition for Recusal Appeal filed by
Mother, and discerning no reversible error in Trial Court’s denial of the motion, we
affirm.

               Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right;
                      Judgment of the Circuit Court Affirmed

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and BRANDON O. GIBSON, J., joined.

David L. Valone, Knoxville, Tennessee, for the appellant, Stephanie Diane Metzger.

Jason S. Randolph, Dandridge, Tennessee, for the appellee, Brian Metzger.

                                         OPINION

       The parties’ divorce proceedings have been pending since June of 2015. Prior to
the final hearing, the parties stipulated to the division of marital assets with the exception
of a few items. As a result, the majority of the final hearing was devoted to the issues of
custody and support for the parties’ minor child, including Mother’s desire to relocate
with the minor child to Indiana. Over the course of four days in August and September of
2017, the Trial Court Judge heard testimony from some witnesses and received into
evidence thirty-two (32) exhibits. Prior to the final hearing, Brian Metzger (“Father”) had
listed thirty-seven (37) potential witnesses, and Mother had listed thirty-four (34)
potential witnesses. However, by the end of the fourth day of testimony on September 29,
2017, the Trial Court Judge had heard testimony only from Father, one of Father’s
witnesses, and the out-of-order direct examination testimony of Mother but not her
complete cross-examination testimony. At that point in the proceedings, the Judge made
the following observations to counsel:

       I’m going to go ahead and tell you what my thoughts are. I’m not going to
       give all the facts and things like that, that I would do for a written thing, but
       I’m going to give you guidance on where we’re going.
               And hopefully this will help you and it also might hone in the last
       little bit that we need to do as far as questioning of this witness and any
       rehabilitation of this witness through re-direct. I totally understand that at
       this time in your life you want to be back closer to family. I get that. I think
       you feel very lonely and very vulnerable and I understand that.
               But I cannot. . Besides extended family there is just not a reason for
       me to say that dad should not enjoy more time with his son and for you to
       move up there. And then your child is in 4-H, you know, during the
       summer. During the school year he’s going to have very limited time.
       During the summer he wouldn’t even have the full summer.
               And where does the child really want to go a full summer without
       seeing his mom? So, I am not finding that it’s in the child’s best interest to .
       .

Counsel for Mother interrupted at that point to lodge an objection on grounds that Mother
had not even started her case-in-chief, to which the Judge responded as follows:

       You can use this as some guidance. I have not made. . That’s what I said. I
       am not making Finding of Fact. But I am Finding that that is where I’m
       going, to give you guidance unless there is some just bombshell that comes
       out. Which there may. You may have a bombshell. But at this point after
       listening to both parents over a period of three days, three days I have
       listened to both parents tell me all about each other, that is where I’m
       going. Your client does not have a job up there. She has extended family up
       there that she wants very much to. .

Counsel then again interrupted to make the point that he believed the Judge was “pre-
judging the case before all the proof [was] in.”

       A discussion thereafter ensued between counsel for Mother and the Trial Court
Judge regarding what additional witnesses Mother planned to present on the issue of the
best interests of the minor child, particularly with regard to Mother’s desire to relocate to
Indiana. When counsel for Mother attempted to argue that children are the best witnesses
for what is in their best interests, and that he had not yet presented testimony from the
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parties’ minor child on this point, the Judge commented:

      They are a factor but nowhere near. . I am not letting the children drive the
      bus on parenting. So I’m just letting you know where I’m going with this. It
      is going to be an extremely hard hurdle to get me to say that it is in this
      child’s best interest to relocate to Indiana. Now, if you do not agree with
      me don’t worry. There is such a wonderful power of Appeal that you will
      have and you may do that. Now, if something comes up that changes my
      mind, that’s fine. But I’m telling you after listening to three days of the two
      most important people in this child’s life, that have the most information
      about this child, I am definitely leaning toward the child staying in
      Tennessee.

In response to this comment, counsel for Mother stated:

      Right. And now the problem there is basically saying it’s resolved. And
      they’re. . You basically told them they’ve won. You basically said that. But
      where is my client going to go. This guy makes over $200,000.00 a year. .

The Judge quickly corrected counsel and stated:

      I haven’t basically said he’s won. It’s not a win/lose thing here. . . .

      [T]hese are good parents but they need to co-parent. This child needs both
      parents. And the only reasons that have been given, during three days of
      testimony from your client, has been she has a lot of family support there
      and [the child] loves it up there. And I understand he loves it up there every
      summer. It’s not during the school year. He’s with his grandparents. It’s a
      wonderful vacation time. It’s a wonderful vacation period. Kids love
      vacation. They love Myrtle Beach but I can’t move to Myrtle Beach.

       The Trial Court Judge and counsel for both parties then continued to discuss the
nature of the proof already presented, and what proof the parties still expected to present
on the issues yet to be resolved. During this discussion, the Judge made the following
additional comment on her view of Mother’s desire to present testimony from the minor
child on the issue of what would be in his best interests:

      I have not lightly made this decision. And if there is some bombshell that I
      pretty much know what is going to happen, [the minor child] is going to get
      in here and I think he’s going to say he loves Indiana, or you wouldn’t be
      putting him up there.
                                              3
When counsel for Mother persisted in arguing why the testimony of the minor child was
so important to the disposition of the issue of custody in this case, the Judge stated:

       And I’m telling you the reasons why I’m leaning that way. That is the way
       I’m leaning. And I’m trying to tell you that so I was in hopes that the
       parents would be able to have more say in trying to devise a Parenting Plan
       without me doing it. . . .

       Apparently it’s not going to be any help for me to give the guidance at this
       point. I retract any guidance that I gave. I have made no guidance. I’ve
       made no Ruling. I was merely trying to help the parents and explain why
       I’m thinking the way I’m thinking. And like I said before, I have listened to
       three full days of both parents. I’m not just lightly making this decision
       based on no information whatsoever. I am basing this on both parents[’]
       lengthy and extensive testimony. But if there’s. . I take it all back because
       [counsel for Mother] rightfully is correct. He’s absolutely correct that we
       will listen to the rest of the testimony before we finish.

The hearing then concluded.

        Almost two months later, on November 21, 2017, counsel for Mother filed a
motion to recuse the Trial Court Judge, arguing that the statements made by the Judge at
the conclusion of the hearing on September 29, 2017, indicated that she had prejudged
the matter without hearing all of the proof. The motion, and the accompanying affidavit
in support, asserted that the Judge’s comments gave Mother a reasonable basis upon
which to question the impartiality of the tribunal going forward. The motion, and
accompanying affidavit, further stated that recusal was not being sought for any improper
purpose, such as to harass or cause unnecessary delay or needless increase in the cost of
the litigation. See Tenn. Sup. Ct. R. 10B, ' 1.01 (“The motion shall state, with specificity,
all factual and legal grounds supporting disqualification of the judge and shall
affirmatively state 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.”).

       After hearing argument from counsel at a hearing on the motion to recuse, the
Trial Court Judge entered a written order denying the motion in which she characterized
her statements at the conclusion of the hearing on September 29, 2017, as giving the
parties “an analysis” of the evidence presented thus far on the issue of Mother’s desire to
relocate to Indiana “in an effort to aid counsel in refining their case.” The Judge made
clear in her order that she “did not make a ruling, did not stop the proof in the trial and
did not say that it was finished listening to the evidence.” The Judge further elaborated
                                             4
upon the nature of her challenged remarks as follows:

      [T]he Court clearly stated that the proof was still open and would be
      analyzed without prejudice by the Court and that the evidence may prove
      that the relocation is in the child’s best interests. The Court did not close
      the door on the proof supporting or opposing relocation. There has been no
      showing that the Court is biased or prejudiced against either parent. In
      contrast, the Court has stated repeatedly that both parents are good people,
      capable of being good co-parents. The Court had no thoughts regarding
      [Mother’s] desire to move until the end of the fourth day of testimony. The
      Court merely stated that the analysis of the proof presented thus far
      weighed against relocation to Indiana.

The Judge then quoted Groves v. Ernst-Western Corp., No. M2016-01529-COA-T10B-
CV, 2016 WL 5181687, at *5 (Tenn. Ct. App. Sept. 16, 2016), for the proposition that
“[f]orming an opinion of litigants and issues based on what is learned in the course of
judicial proceedings is necessary to a judge’s role in the judicial system.” The Judge
concluded her order by stating that she “remain[ed] committed to adjudicating the rights
and responsibilities of the parents based upon the child’s best interests.”

       Mother thereafter timely filed her Petition for Recusal Appeal in this Court
pursuant to Rule 10B. We have determined in this case after a review of the petition, and
supporting documents submitted with the petition, that an answer, additional briefing, and
oral argument are unnecessary to our disposition because the record provided by Mother
does not demonstrate error by the Trial Court Judge in the denial of the motion to recuse.
As such, we have elected to act summarily on this appeal in accordance with sections
2.05 and 2.06 of Rule 10B. See Tenn. Sup. Ct. R. 10B, ' 2.05 (“If the appellate court,
based upon its review of the petition and supporting documents, determines that no
answer from the other parties is needed, the court may act summarily on the appeal.
Otherwise, the appellate court shall order that an answer to the petition be filed by the
other parties. The court, in its discretion, also may order further briefing by the parties
within the time period set by the court.”); § 2.06 (“An accelerated interlocutory appeal
shall be decided by the appellate court on an expedited basis. The appellate court’s
decision, in the court’s discretion, may be made without oral argument.”).

                                       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)); see also Tenn. Const. Art.
VI, ' 11. This constitutional right “is intended ‘to guard against the prejudgment of the
                                            5
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). “[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 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.” See also Smith v. State, 357
S.W.3d 322, 341 (Tenn. 2011) (noting that recusal is required, even if a judge
subjectively believes he or she can be fair and impartial, whenever “‘the judge’s
impartiality might be reasonably questioned because the appearance of bias is as injurious
to the integrity of the judicial system as actual bias’”) (quoting Bean, 280 S.W.3d at 805).

       The terms “bias” and “prejudice” generally “refer to a state of mind or attitude that
works to predispose a judge for or against a party”; however, “[n]ot every bias, partiality,
or prejudice merits recusal.” Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App.
1994). Specifically,

       [P]rejudice must be of a personal character, directed at the litigant, ‘must
       stem from an extrajudicial source and result in an opinion on the merits on
       some basis other than what the judge learned from . . . participation in the
       case.’
       ...
              Personal bias involves an antagonism toward the moving party, but
       does not refer to any views that a judge may have regarding the subject
       matter at issue. Impersonal prejudice resulting from the judge’s background
       experience does not warrant disqualification. If the bias is based upon
       actual observance of witnesses and evidence given during the trial, the
       judge’s prejudice does not disqualify the judge. However, if the bias is so
       pervasive that it is sufficient to deny the litigant a fair trial, it need not be
       extrajudicial.
              Adverse rulings by a trial court are not usually sufficient grounds to
       establish bias. Rulings of a trial judge, even if erroneous, numerous and
       continuous, do not, without more, justify disqualification.

Id. (internal citations omitted); see also State v. Cannon, 254 S.W.3d 287, 308 (Tenn.
2008); State v. Reid, 213 S.W.3d 792, 816 (Tenn. 2006). The reason for this rule has been
explained by our Supreme Court as follows:

                                              6
      Given the adversarial nature of litigation, trial judges necessarily assess the
      credibility of those who testify before them, whether in person or by some
      other means. Thus, the mere fact that a witness takes offense at the court’s
      assessment of the witness cannot serve as a valid basis for a motion to
      recuse. If the rule were otherwise, recusal would be required as a matter of
      course since trial courts necessarily rule against parties and witnesses in
      every case, and litigants could manipulate the impartiality issue for
      strategic advantage, which the courts frown upon.

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001) (internal citations
omitted).

       Moreover, “a judge should not decide to recuse unless a recusal is truly called for
under the circumstances.” Rose v. Cookeville Reg’l Med. Ctr., No. M2007-2368-COA-
R3-CV, 2008 WL 2078056, * 2 (Tenn. Ct. App. May 14, 2008). This is true because “‘[a]
judge has as much of a duty not to recuse himself [or herself] absent a factual basis for
doing so as he [or she] does to step aside when recusal is warranted.’” Id. at *2-3
(quoting Mass v. McClenahan, No. 93 Civ. 3290(JSM), 1995 WL 106106, * 1 (S.D.N.Y.
Mar. 9, 1995)). Recusal based upon an asserted appearance of bias or prejudice “‘is
appropriate only if the facts provide what an objective, knowledgeable member of the
public would find to be a reasonable basis for doubting the judge’s impartiality.’” Id. at
*3 (quoting In re United States, 666 F.2d 690, 695 (1st Cir. 1981)).

      In this case, the Trial Court Judge’s remarks at the conclusion of the hearing on
September 29, 2017, would not lead a well-informed, disinterested observer to question
the impartiality of the Judge in this case. As the Judge noted in her order denying the
motion to recuse:

              Forming an opinion of litigants and issues based on what is learned
      in the course of judicial proceedings is necessary to a judge’s role in the
      judicial system. As such, an opinion formed on the basis of what a judge
      properly learns during judicial proceedings, and comments that reveal that
      opinion, are not disqualifying unless they are so extreme that they reflect an
      utter incapacity to be fair. Judicial expressions of impatience,
      dissatisfaction, annoyance, and even anger towards counsel, the parties, or
      the case, will not ordinarily support a finding of bias or prejudice unless
      they indicate partiality on the merits of the case.

Groves, 2016 WL 5181687, at *5 (internal citations omitted). Not only did the Judge take
great pains to explain in her remarks that she was not prejudging the issues in this case,
she also made clear in those remarks that she viewed both parties as “good parents,” both
                                            7
of whom were needed in the life of their minor child. Such remarks hardly indicate any
bias or prejudice against Mother, let alone the level of bias or prejudice necessary to
warrant recusal.

                                    CONCLUSION

        Having determined that the record provided by Mother does not demonstrate error
on the part of the Trial Court Judge in denying the motion to recuse, we affirm. Mother is
taxed with the costs of this appeal, for which execution may issue. This case is remanded
for further proceedings.




                                         ________________________________
                                         JOHN W. MCCLARTY, JUDGE




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