IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 7, 2011 Session

ROGER LEE NEAL v. KELLI JEAN HAYES

Appeal from the Circuit Court for Knox County, Fourth Circuit

Nos. 97711, 97713, 97727 Bill Swann, Judge

No. E2011-00898-COA-R3-CV-FILED-JANUARY 30, 2012

This case arises from a long-running legal dispute between Roger Lee Neal (“Neal”) and

Kelli Jean Hayes (“Hayes”) concerning their minor child (“the Child”). Neal and Hayes

disputed, among other things, custody matters relating to the Child. In March 2011, the

Circuit Court for Knox County, Fourth Circuit (“the Trial Court”), entered an order

confirming findings of the Special Master, Sarah Higgins (“the Special Master”) and

resolving numerous contested issues. In the same order, the trial judge, Judge Swann, stated,

in effect, that he no longer could be neutral towards Neal because of Neal’s villainous

statements about the Special Master and Neal’s “admitted perjury” and recused himself from

any further participation in these cases. Husband appeals, arguing, in part, that Judge Swann

could not simultaneously rule on the Special Master’s findings and recuse himself because

of lack of neutrality. We hold that as both the Special Master and Judge Swann expressed

an understandable lack of neutrality in their findings and order, respectively, the Trial Court’s

March 2011 order is vacated, and we remand for further proceedings to be held before a

neutral court. We vacate the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated;

Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., and JOHN W. MCCLARTY, JJ., joined.

Roger Lee Neal, pro se appellant.

Kelli Jean Hayes, pro se appellee.
OPINION

Background

This case has a long and bitterly contentious history, most of which is

superfluous to our review. Apparently this legal battle started several years ago when Neal

filed his Petition to Establish Parentage and for Immediate Injunctive Relief against Hayes

in the Trial Court in which he sought to be designated the primary residential custodian of

the Child, subject to a supervised or restricted co-parenting schedule. In March 2008, the

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Trial Court appointed the Special Master pursuant to Tenn. R. Civ. P. 53. The Special

Master later entered an order terminating supervised visitation by Hayes and providing for

unsupervised visitation. Neal went on to file motions of recusal as to both the Special Master

and the trial judge, Judge Swann. In June 2010, Neal and Hayes signed a Permanent

Parenting Plan.

In her November 2010 findings , the Special Master stated:

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This cause came on to be heard on the 20 day of March, 2008, the 7 th th

day of May, 2008, the 14 day of July, 2008, the 13 day of August, 2008, the

th th

18 and 19 days of September, 2008, the 13 and 14 days of October, 2008,

th th th th

the 24 day of November, 2008, the 26 and 27 days of May, 2009, the 25

th th th th

and 26 days of September, 2009, the 4 day of December, 2009, the 13 , 19 ,

th th th th

25 and 27 days of January, 2010, the 15 , 23 and 29 days of March, 2010,

th th th rd th

the 19 and 21 days of April, 2010, the 3 and 10 days of May, 2010 and the

th st rd th

30 day of June, 2010 before the Special Master, Sarah Swanson Higgins,

th

who, upon argument of counsel and pro se litigants, the testimony of the

witnesses, Exhibits 1 through 170, and the record as a whole, hereby finds as

follows:

1. During the pendency of this proceeding, the Plaintiff, Roger Neal has

filed many pleading[s] which cast false aspersions upon the Special Master’s

actions and which cast her in a false light. Prior to the receipt of his Motion

on October 20, 2010, which requests the Special Master to recuse herself and

This complaint was in case #97713. Cases #97711 and #97727 pertain to Orders of Protections. 1

The three cases are combined in this appeal. 

Both parties have filed motions during the pendency of this appeal. We deferred ruling on these 2

motions until the panel hearing this case convened. We grant Neal’s motion to supplement the record for

the limited purpose of admitting the November 2010 findings of the Special Master. All else presented for

our consideration in the motions is moot, given our judgment. 

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which additionally contains many false statements and accusations, the Special

Master had already decided to recuse herself as she felt she could no longer

maintain neutrality in these matters, primarily due to Mr. Neal’s false

accusations and character assassinations.

2. During the hearing on January 13, 2010, Mr. Neal admitted to lying in

his testimony while under oath. Because of his admission of perjury, it is

recommended that this matter be referred to the District Attorney for Knox,

County, Tennessee for prosecution of Mr. Roger Neal for perjury. This

finding also requires the Special Master to recuse herself from this matter.

3. It is found that, having had the parties before her for 26 days over 33

months, the Special Master has formulated the opinion that neither of the

parties to this action has a fear of the others actions and that each is using the

Order of Protection to control and punish the other.

4. It is found that the parties freely, willingly and with attorneys present

forsettlement negotiations, executed a Permanent Parenting Plan, resolving all

matters before the Fourth Circuit court in that file. Mr. Neal himself began the

settlement negotiations in open court on April 21, 2010 when he announced

that he wished for Ms. Hayes to have unsupervised co-parenting time with the

minor child. Other than the attempts by the parties to alter, amend or void the

agreed Permanent Parenting Plan, the only matter currently before the Fourth

Circuit court in the parenting matter is the Defendant’s appeal of the Child

Support Magistrate’s 2009 ruling, which she properly took exception from and

which was mistakenly confirmed before the matter was heard by the Court.

No transcript is available to be filed with these Findings.

Later, in March 2011, the Trial Court entered an order confirming the findings

of the Special Master, stating:

Be it remembered that 3 November 2010 Special Master Sarah

Swanson Higgins filed findings, required pursuant to orders committing the

captioned matters to her 8 February 2008. The parties were duly noticed to

court to present any objection(s) they might have to the Special Master’s

report. That hearing took place 23 March 2011. At that time the parties

lodged certain objections, and also testified at length as to various matters

which concerned them. The parties continue to be deeply dissatisfied with

each other. Their counsel were present 23 March 2011: Billy Sams, Esq., and

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Mary Evars-Goan, Esq.

As to numbered paragraph one of the Special Master’s Findings, the

undersigned affirms the Special Master’s decision to recuse herself because of

lost judicial neutrality, a loss attributed to “Mr. Neal’s false accusations and

character assassinations” of the Special Master.

As to numbered paragraph two, the undersigned notes with distress and

disapproval that Mr. Neal admitted perjury in open court 13 January 2010.

The undersigned affirms the Special Master’s Recommendation that this

matter of perjury be referred to the District Attorney for Knox County,

Tennessee, for prosecution. The undersigned notes that this Finding of perjury

by the Special Master additionally underlines the advisability of her recusal.

As to numbered paragraph three of the Special Master’s Findings, and

from a review of the three records as a whole, the undersigned affirms the

Special Master’s finding that “neither of the parties to this action has a fear of

the other’s actions, and that each is using the order of protection to control and

punish the other.” This is a misuse of Tenn. Code Ann. § 36-3-601 et seq.

This judge accordingly dismisses the orders of protection and all pending

matters in those files. The costs in each file are taxed to the respective

respondent.

As to numbered paragraph four of the Special Master’s Findings and

from a review of the parentage record as a whole, the undersigned finds that

all matters touching upon parentage (file #97713) were resolved by the

execution of an agreed permanent parenting plan. Various efforts were made

by the parties touching upon the agreed permanent parenting plan subsequent

to its entry, which efforts never should have been entertained by this court.

Indeed, all co-parenting issues after establishment of paternity should have

been referred to Knox Juvenile Court. These parties have never been married;

their parenting issues lie properly before Knox County Juvenile Court, not this

forum. The matters of parenting were entertained by Circuit Court Four in an

unnecessary extension of courtesy to parties who had order of protection

matters before the Special Master. Save for one more, extremely limited, child

support matter, no further litigation will be entertained in this court in #97713,

the parties’ parentage file. The permanent parenting plan is the law of that

case, which the parties may seek to alter, if they choose, in litigation before

Knox Juvenile Court.

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The final sentence of the Special Master’s numbered paragraph four

notes that the mother has an appeal pending of the Child Support Magistrate’s

2009 ruling. That limited matter in file #97713 shall be heard by a recusal

judge, if the mother chooses to pursue that appeal. Should she elect to do so,

she shall have filed a new concise exception to the Magistrate’s ruling by 29

April 2011. If she does not, the Magistrate’s ruling shall be deemed confirmed

29 April 2011, without entry of further order.

The Special Master elected to serve without compensation.

Accordingly, this judge’s earlier order that she be compensated is rescinded

and held for naught.

Lastly, (1) because of the vilification of this Court’s Special Master by

Roger Lee Neal—a Special Master esteemed and trusted by the undersigned;

a Special Master who by choice held 26 days of hearings over 33 months

wholly without compensation—and (2) because of Roger Lee Neal’s admitted

perjury committed 13 January 2010, the undersigned recuses himself hereafter

from any and all consideration of any matters between these parties. As noted,

after the conclusion of the limited matter set out in the first full paragraph

above, any and all proceedings in #97713 are to take place hereafter in Knox

Juvenile Court. All matters in files #97711 and #97727 have been dismissed

with costs taxed.

Solely as to the possibly remaining limited matter in file #97713, this

order constitutes an application by the undersigned to the Honorable Wheeler

A. Rosenbalm, presiding judge for the Sixth Judicial District, to effect an

interchange with a judge active within this district. If that is not possible, the

parties shall immediately pursue with the presiding judge the possibility of

interchange from a contiguous judicial district. If no such judge is available,

the parties shall immediately ask the presiding judge to request from the

Administrative Office of the Courts the designation of a judge by the Chief

Justice.

Neal appeals.

Discussion

Neal raises a host of issues on appeal. Hayes raises a separate issue related to

costs in the Trial Court. We, however, discern one dispositive issue: whether the Trial Court

erred in failing to grant Neal’s motion to recuse before ruling on pending contested matters.

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Initially, we observe that Neal failed to properly cite to the record throughout

his brief as required by Tenn. R. App. P. 27(g). In Whitaker v. Whirlpool Corp., 32 S.W.3d

222 (Tenn. Ct. App. 2000), this Court observed that:

Pro se litigants are entitled to fair and equal treatment. See Childs v.

Duckworth, 705 F.2d 915, 922 (7th Cir. 1983). Pro se litigants are not,

however, entitled to shift the burden of litigating their case to the courts. See

Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983). Pro se

litigants are not excused from complying with the same substantive and

procedural requirements that other represented parties must adhere to. See

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).

Whitaker, 32 S.W.3d at 227. Nevertheless, we will press forward as our resolution of the

dispositive issue depends primarily on the unequivocal statements of the Special Master and

Judge Swann.

In the case of Bean v. Bailey, 280 S.W.3d 798 (Tenn. 2009), our Supreme

Court set forth the following discussion with regard to motions to recuse:

Whether a trial judge should grant a motion for recusal is within the discretion

of the trial judge. Slavin, 145 S.W.3d at 546. Such a decision “will not be

reversed unless a clear abuse [of discretion] appears on the face of the record.”

Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001) (alteration in

original). “[A] trial court has abused its discretion only when the trial court

has applied an incorrect legal standard, or has reached a decision which is

illogical or unreasonable and causes an injustice to the party complaining.”

State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

Tennessee Supreme Court Rule 10, Canon 3(E)(1)states, “A judge shall

disqualify himself or herself in a proceeding in which the judge's impartiality

might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's

lawyer....” We have held that a recusal motion should be granted when “the

judge has any doubt as to his or her ability to preside impartially in the case”

or “ ‘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, 38 S.W.3d at 564-65 (quoting Alley v. State,

882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)). Even if a judge believes he

can be fair and impartial, the judge should disqualify himself when “ ‘the

judge's impartiality might be reasonably questioned’ ” because “the

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appearance of bias is as injurious to the integrity of the judicial system as

actual bias.” Id. (quoting Tenn. Sup. Ct. R. 10, Canon 3(E)(1)).

Bean, 280 S.W.3d at 805.

In the instant case, both the Special Master and Judge Swann expressed an

understandable lack of neutrality as to Neal in their findings and order, respectively.

Historically, Tennessee judges essentially have been charged with initially “self-policing”

with respect to whether or not they ought to recuse themselves for lack of neutrality in a

matter and upon motion by a party. We find no fault with the Special Master or Judge Swann

either for declaring their loss of neutrality or their loss of neutrality in the first place. On the

contrary, our judicial recusal process has relied on such forthright admissions. We are

troubled, however, by a special master or judge simultaneously declaring a lack of neutrality,

asserting a need for recusal, and yet at the same time ruling on contested matters before him

or her. Respectfully, once Judge Swann recognized and acknowledged his understandable

lack of impartiality, he simply should have recused himself from these cases. Likewise, once

the Special Master recognized and acknowledged her lack of impartiality, she should have

recused herself from any further involvement in these cases.

Our decision is one we make reluctantly given the long and troubled history of these

legal disputes between Neal and Hayes. We, however, see no other choice given the Special

Master’s and Judge Swann’s acknowledgment that their recusal was necessary. Once a judge

recognizes that his or her impartiality reasonably might be questioned, the Judge has no

option but to disqualify himself or herself in the proceedings.

Public confidence in the neutrality of the judiciary is of paramount concern.

Our judicial system requires judges to strive to eliminate even the perception of bias in our

judges, even where none exists. Here the Honorable Judge Swann actually voiced his loss

of neutrality in the same March 2011 order by which he decided numerous contested issues.

Once Judge Swann decided he should recuse himself, he had to do just that. We vacate

Judge Swann’s March 2011 order and remand this cause to be heard before a neutral court.

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Conclusion

The judgment of the Trial Court is vacated, and this cause is remanded to the

Trial Court for proceedings consistent with this Opinion. For the Child’s protection, all child

support and child custody provisions that have been in effect during the pendency of this

appeal will remain unchanged until further orders of the Trial Court upon remand. The costs

on appeal are assessed one-half against the appellant, Roger Lee Neal, and his surety, if any;

and one-half against the appellee, Kelli Jean Hayes.

_________________________________

D. MICHAEL SWINEY, JUDGE

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