IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned March 19, 2013

IN THE MATTER OF: JACOB H. C.

Appeal from the Juvenile Court for Williamson County

No. 80103 Sharon Guffee, Magistrate

No. M2013-00699-COA-10B-CV - Filed March 25, 2013

Petitioner in a proceeding to modify child support filed a motion for recusal with the trial

judge alleging that the judge was a personal friend and had a business relationship with the

father of one of the parties. The trial judge denied the motion and the petitioner then filed

this interlocutory appeal as of right pursuant to Tenn. Sup. Ct. R. 10B. We affirm the denial

of the motion for recusal.

Tenn. R. App. P. 3 Appeal as of Right/Tenn. Sup. Ct. R. 10B; Judgment of the

Juvenile Court Affirmed

RICHARD H. DINKINS,J. delivered the opinion of the Court, in which PATRICIA J. COTTRELL,

P.J., M.S. and FRANK G. CLEMENT, J., joined.

Jeffrey Spark, Nashville, Tennessee, for the appellant, B. C.

Alisha Guertin Warner, Phillip R. Newman, Franklin, Tennessee, for the appellee, S. B. C.

OPINION

This appeal arises out of the denial of a motion to recuse filed by B. C., father of

Jacob H. C. (“Father”), who had initiated a proceeding on January 22, 2013 to modify child

support; S. B. C., mother of Jacob (“Mother”), filed an answer to the petition and a counterpetition on February 8, seeking to have Father held in civil contempt.

On February 25 Father filed a motion asking the court to recuse itself in accordance

with Tenn. R. Sup. Ct. 10B; the motion was accompanied by the affidavit of Father’s wife.

A hearing was held on the motion on March 11, and on March 15 the court entered an order

as required by Tenn. Sup. Ct. R. 10B, § 1.03, denying the motion and detailing the basis upon
which the motion was denied. A Petition for Recusal Appeal was filed with this court on

March 18.

I. Appeals Under Tenn. Sup. Ct. R. 10B

Appeals from orders denying motions to recuse are governed by Section 2 of Tenn.

Sup. Ct. R. 10B. Under the rule, an accelerated interlocutory appeal of the denial of the

motion is available if filed within fifteen days of entry of the trial court’s order. Tenn. Sup.

Ct. R. 10B § 2.02. If this court determines that no answer is needed from the other parties

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to the case, we may act summarily on the appeal. Id. § 2.05. This court has the discretion

to decide the appeal without argument. Id. § 2.06.

In accordance with Tenn. Sup. Ct. R. 10B §§ 2.05 and 2.06, we have determined that

an answer to the petition, further briefing and oral argument are not necessary. Accordingly,

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we will proceed to review the trial court’s order, applying the de novo standard of review.

Tenn. Sup. Ct. R. 10B § 2.06.

II. Grounds for the Trial Judge’s Recusal

As grounds for recusal, Father asserts that the trial judge is a personal friend of and

has a business relationship with Mother’s father and, consequently, that the judge’s

impartiality “might be reasonably questioned” within the meaning of Tenn. R. Sup. Ct. 10,

RJC 2.11. The following facts relative to the assertion are contained in the affidavit of

Father’s wife:

 Tenn. Sup. Ct. R. 10B § 2.02 provides that the appeal is to be filed “in the appropriate appellate

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court.” This case originated as a proceeding to establish paternity and set support as provided in Tenn. Code

Ann. § 36-2-301, et seq. Pursuant to Tenn. Code Ann. § 36-2-315, appeals from final orders in such

proceedings are to this court; consistent with the statute, this isthe appropriate courtforinterlocutory appeals

of this nature. 

Attached as exhibits to the Petition for Recusal Appeal were copies of: (1) the petition to modify 2

child support, (2) the answer to the petition to modify and counter-petition for contempt,(3)the order entered

October 1, 2012, from which the modification was sought, (4) the answer to the counter-petition, (5) the

motion for recusal filed in the trial court, (6) affidavit of Father’s wife, (7) the order denying the motion to

recuse, (8) a transcript of the hearing on recusal motion, (9) the order entered on June 20, 2011, establishing

paternity and setting support and parenting time, and (10) the order entered January 13, 2012, adopting the

final parenting plan. In addition, attached as an exhibit to the petition was an affidavit of Father which was

sworn to on March 17 and not filed in the trial court. These materials provide a sufficient factual context

for resolution of the issues presented in this appeal. 

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On August 14, 2012, I was present in Williamson County Juvenile

Court for a custody, parenting time and child support trial between my husband

and [Mother] regarding their child [Jacob].

At the time in question, I was waiting outside the courtroom. Also

present was [Mother’s father]. We were sitting next to each other on a bench.

[The trial judge] came out of the hallway in the back where the judge’s

chambers and other offices are located. [Mother’sfather] addressed [the judge]

by her first name and said “Hi!” [The judge] then went to the security desk and

picked up some papers. When [the judge] walked back, [Mother’s father]

spoke to her again and congratulated her on being appointed as the Juvenile

Court Judge. He told her that he was “glad that he could help” or words to that

effect. He asked her when she was getting sworn in. She told him she thought

it would be sometime in January. He then told her to let him know when it

was as he “didn’t want to miss it.” [The judge] did not appear to want to have

a long conversation, in factshe appeared either in a rush or uncomfortable with

the conversation.

During the conversation, he addressed her by her first name. It was

clear from the tone of their conversation and the way they addressed each other

and interacted with one another that they knew each other personally and were

friends.

In addition, Father’s affidavit states that the trial judge presided over certain aspects of the

paternity proceeding as a Juvenile Court Magistrate from May through November of 2011;

that Mother’s father was present through those proceedings and that neither Father nor his

counsel was advised that “[the judge] was a friend of or otherwise knew [Mother’s father].”

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At the hearing on the motion, the judge stated:

We do know each other. We have worked together for 16 years. . . .

I disagree [that the judge could not be impartial]. And the reason I disagree is

I haven’t seen [Mother’s father] for the better part of probably seven or eight

years. I don’t see him on a regular basis. I don’t talk with him. When I see

him I say “hi”, I call him by his first name – just as I call Daniel – that deputy

sitting back there – by his first name. I know a lot of officers Mr. Spark. I

Father also states that the judge’s statements at the hearing on the motion to recuse and in its order 3

denying the motion that the judge did not know that Mother’s father had a daughter until “this case began”

is “misleading,” since the judge’s reference was to the modification proceeding while “the case” included

the proceedings in 2011. 

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think I can be fair and impartial in this matter just as I could for anyone else

that walks into my courtroom. . . .

In the order denying the recusal motion, the court made the following findings:

The Court knows ever [sic] three hundred (300) law enforcement

officers and has worked with many of them over the last sixteen years as an

Assistant District Attorney, private attorney, Magistrate, and Judge. It would

be impractical and unnecessary to grant a recusal in any case involving law

enforcement.

The Court has known [Mother’s father] with the Brentwood Police

Department for sixteen years. Until this case began, the Court was unaware

he had a daughter, demonstrating the lack of a personal relationship. Further,

the Court has only had professional contact with [Mother’s father] and

virtually no contact with him for the last seven or eight years.

III. Discussion

In his Petition, Father argues that the fact that the judge has known Mother’s father

for sixteen years and is on a first name basis with him gives the appearance of impropriety.

He further contends that the statement of Mother’s father, as recounted in Father’s wife’s

affidavit, “that he was ‘glad that he could help’ or words to that effect” and to “invite himself

to the swearing in ceremony” undermines his confidence in the impartiality of the judge.

Father alleges specific concerns arising under Rules 1.2 and 2.11(A) of the Rules of

Judicial Conduct. Rule 1.2 states that a judge “shall act at all times in a manner that

promotes public confidence in the independence, integrity, and impartiality of the judiciary,

and shall avoid impropriety and the appearance of impropriety.” The portions of Rule

2.11(A) which Father asserts are pertinent to this appeal are (1) and (4), which state:

A) A judge shall disqualify himself or herself in any proceeding in which the

judge’s impartiality might reasonably be questioned, including but not limited

to the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party or a party’s

lawyer, or personal knowledge of facts that are in dispute in the proceeding.

* * *

(4) The judge knows or learns by means of a timely motion that a party, a

party’s lawyer, or the law firm of a party’s lawyer has made contributions or

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given such support to the judge’s campaign that the judge’s impartiality might

reasonably be questioned.

The necessity that litigants have confidence in the impartiality of judges is

fundamental, such that the principle is reflected in our Constitution. As noted in Kinard v.

Kinard:

Litigants, as the courts have often said, are entitled to the “cold

neutrality of an impartial court.” See Leighton v. Henderson, 220 Tenn. 91,

98, 414 S.W.2d 419, 421 (1967); Chumbley v. People’s Bank & Trust Co., 165

Tenn. 655, 659, 57 S.W.2d 787, 788 (1933). The principle of judicial

neutrality is embodied in both Tenn. Const. art. 6, § 11 and in the Code of

Judicial Conduct. Thus, one of the central tenets of our jurisprudence is that

all litigants have a right to have their cases heard by fair and impartial judges.

The courts have also recognized, however, that 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. See

Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)

(holding that “justice must satisfy the appearance of justice”); In re Cameron,

126 Tenn. 614, 658, 151 S.W. 64, 76 (1912). Thus, even when a judge

believes that he or she can hear a case fairly and impartially, the judge should

recuse himself or herself if “the judge’s impartiality might reasonably be

questioned.” See Tenn. S. Ct. R. 10, Canon 3(E)(1); Chumbley v. People’s

Bank & Trust Co., 165 Tenn. at 659, 57 S.W.2d at 788.

Kinard v. Kinard, 986 S.W.2d 220, 227–28 (Tenn. Ct. App. 1998). The test of whether

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there is a reasonable basis for questioning a judge’s impartiality is an objective one. Bd. of

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Article VI, § 11 of the Tennessee Constitution provides that “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.” The purpose of this constitutional provision isto 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. Chumbley v. People's Bank & Trust Co., 165 Tenn. 655, 659, 57 S.W.2d 787, 788.

(1933).

Bd. of Prof'l Responsibility of Supreme Court of Tennessee v. Slavin, 145 S.W.3d 538, 548 (Tenn. 2004).

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Prof’l Responsibility of Supreme Ct. of Tennessee v. Slavin, 145 S.W.3d 538, 548 (Tenn.

2004) (citing Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564–65 (Tenn. 2001)).

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There is no fact alleged or shown in the record, other that the fact that the judge has

known the father of one of the litigants for a number of years and worked with him in a

professional capacity, which would give rise to a basis to question the judge’s impartiality.

The judge’s explanation that, in her former position as a prosecutor and lawyer in private

practice, she came into contact with Mother’s father, a police officer in the county in which

the judge sits, raises no concerns of judicial impropriety within the scope of RJC 1.2 or RJC

2.11(A)(1) in hearing a case involving the officer’s daughter. Simply stated, the mere fact

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that the judge worked with Mother’s father in the past does not support a determination that

the judge’s impartiality might reasonably be questioned.

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Father’s contentions relative to RJC 2.11(A)(4) are likewise not supported by the

record. As an initial matter, we note that the rule speaks to a “party” or “party’s lawyer”;

Mother’s father, as to whom the judge’s disqualifying relationship exists, is not a party to

these proceedings and there is no fact in the record and no allegation that his mere presence

at hearings involving his daughter has in any way influenced the judge or any ruling. The

vague and ambiguous statement that Mother’s father was of some “help” relative to the

judge’s appointment is insufficient to raise a concern that disqualification may required by

RJC 2.11(A)(4). Further, there is no allegation of fact and there is no proof in the record

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 Recusal is appropriate “when a person of ordinary prudence in the judge's position, knowing all 5

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 at 564–65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.

Crim. App.1994)).

Even though not specifically alleged, we have also considered the applicability of RJC 2.4(C) to 6

the circumstances presented and have determined that the record does not support the trial judge’s recusal

on the basis of said rule. 

For the same reason, we see no impropriety in the judge having conducted proceedings in the case

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as Juvenile Court Magistrate. We have reviewed the June 20, 2011 Order entered following the hearing on

May 9, 2011 and the order entered January 13, 2012 following the hearing on November 28, 2011. The June

20, 2011 Order, recited that Father acknowledged paternity of Jacob; the orderthen addressed parenting time

and the parameters of child support were set, with counsel for the parties to attempt to agree on the amount

of support and Father’s arrearage and, failing same, to ask the court to setsupport. The order entered January

13, 2012 adopted a permanent parenting plan and set support. There is no indication that Father appealed

either of the orders to the then-sitting Juvenile Court Judge or sought any relief relative thereto other than

the petition to modify which led to this appeal. 

 We address this contention despite the fact that it is entirely based on a statement in an affidavit 8

(continued...)

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showing the manner in which the judge was appointed or the nature of any “campaign” run

by the judge for the position or any “help” Mother’s father may have provided in that regard.

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The record does not give factual support to Father’s argument that the judge should be

disqualified.

IV. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court denying the

motion for recusal and remand this case for further proceedings.

____________________________

RICHARD H. DINKINS, JUDGE

(...continued) 8

in which the affiant states: “He told her he was ‘glad he could help’ or words to that effect.” 

It appears that the judge was appointed to the position by the Williamson County Commission; the 9

circumstances by which there was a vacancy in the position and the procedure utilized by the Commission

for filling the vacancy is not apparent from the record. 

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