### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 9, 2002 Se ssion
SARAH MASSIE JOHNSON (NEELEY) v. KEITH ROBERT JOHNS ON

Appeal from the Circuit Court for Davidson County No. 92D-3060 Marietta Shipley, Judge

No. M2002-00354-COA-R3-CV - Filed January 9, 2003

The trial cou

rt gra nted the f ather’ s petition t

o suspend the mothe

r’s impending visitati on with the parties’ 13-year-ol d daughter. The mother then mo ved the trial judge to recuse herself from any further involveme

nt inproceedings relating to custody of the child or to visitation. She claimed that an ex parte communication between the father’s attorney

and the judge prior

to the hearing on the father’s petition created the appearance of partiality or bias. The judg e denied the mother’s motion to recus e. We aff

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

Affirmed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which P ATRIC IA J. C OTT RELL , J. and W. M ICHAEL M ALOAN , S P
. J., joined.
Jo n S . J ab lo ns ki , N as hv il le , T en ne ss ee , for th e a pp el la nt , S ar ah Ma ss ie Jo hn so n N ee le y. Joe Binkley, Jr., Nashville, Tennessee, f or the appellee, Keith Robert Johnson.
OPINION
I. A S TRUGGLE FOR C USTODY
The motion to rec use in this c ase come s in the mids t of a bat tle between Sarah

Massie Johnson Neeley

and Keith

Robert Johns on over cust o dy and visitation rights to their only child. Judge M arietta Shipley of the D avidson County Circuit Court conducted all the hea rings on the nu merous mot ions and pleadings filed by the parties during their ongoing nine -year struggle, including disputes about

the choice of a pediatrician for the child, the best school for her to attend, and the expenses of orthodontic care. We will only mention a

few of th e proce dural hig

hlights of that struggle as we discuss the events that led up to the motion at issue.-2-

When the parties divorced in 1993, the cour t ratified their ma

rital diss olution ag

reemen t, which provided for

joint custody of Anna Keith Johnson, their then four-y ear-old daughter, with the mother named as the primary

custodial parent. This arrangement held until 1996, when Mr. Johnson filed a petition for change of custody . He alleged that Ms. Neeley was an alcoh olic, that she h ad begundrinking heavily , and that this was extremely distressing to Anna K eith. The father asked for a restraining order to prevent the mother f rom consuming alcohol while t he child was in her po ss es si on , a nd fo r s ol e c us to dy.
In her answer

andcounter-petition, the mother admitted she was a recover ing alcoholic, but deniedthe conduct alleged by the father. She also clai med that Mr. Johnson w as emotion ally abusive to Anna Keith, and asked for sole custody of the child. After an in itial hearing, the trial court granted th e r estraining order, and ordered Ms. Neeley to a ttend meetings of Alcoholics Anony mous. T he court also appointed a guard ian ad lite

m for Anna , and ord

ered the parties t o mediate their differences. The mediation fa iled.
A hearing on the com

peting p etitions f

ollowed. The cour

t’s subse quent o rder, e ntered on July 22, 1997, directed

that joint custody was to continue, but that neither par ty was to be

designated as the primary phy sical custodian. The child was to reside an equal amount of time with each parent, on a schedule of alternating wee ks. Ms. Neeley wa s to continue with Alcoholics Anonymous, and the guard ian ad lite m was to ma

intain co ntact wit

h the chil d. Further, “if

appropriate, the Guardian ad li te m a nd /o r t he Fa th er , K ei th Jo hn so n, sh al l b ri ng to th e a tt en ti on of th e C ou rt an y a dditiona l incident s or behavior

by the Mother, Sara

h Johnson, especially r

egarding impaired driving or other behavior that would

affec t th e safety

of the minor child.” In 1999, the trial court enter ed a more detailed permanent parenting plan. In August of 2000, the

guardian ad litem filed a Motion for Emergency Review in the trial court. The gua

rdian cl aimed tha

t the custo dy a

rrang ement wa s not work ing in Anna’s b est

interest , that the minor c

hild had to ld her she

wanted to

live with her father full time, and that the mother had a relapse of her alcohol problem during a recent vacatio n trip toFlorida with her daughter and the daughter’s classmate.
In response to the guardian’s motion, both parties submitted new parenting plans. The father also filed a resp onse which alleged that John Neeley , the mother’s current husband, had been phy sically

and verbally a

busive towards Anna Keith, had made countless derog atory re marks about Mr. Johnson and his current wife, and that he had made a thre atening telephone call to the guar dian ad lite m, to the effect that she should “watch her back,” and that he was placing her in the sam e category as Joe Binkley (the husband’ s attorney).
After a hearing on

the motion, the court suspended the1999 parenting plan, made the father the child’s p

rimary phy sical cu stodian, f

ashioned an inter imvisitation schedule for the mother, and directed the parents to agree upon a Permanent Parenting Plan. On March 1, 2001, the court adopted a new parenting plan which ga ve the father custody

of the child during the wee k, and the power to-3-

make all major decisions regarding her welfare, with the mother to have visitation every w eekend.

II. T HE M OTION TO R ECUSE
On November 7, 2001, Mr. Johnson filed a Pe tition for a Tempor

ary Restrain ing Ord er to suspend the mothe

r’s vi sitation, pending a hearing on some disturbing alleg ations about the mother’s conduct. The father stated that on October 31, 2001, his daughter had been c alled out of class for an int e rview with a representative of the Depa rtment of Childrens’ Services, in response to an anonymous phone c a ll that alleged that Mr. Johnson’s wife, her daughter, a nd Anna Keith had engaged in sexual conduct of an inappropriate nature, which we need not describe here in a ny d etail. The Depa rtment found the allegati ons to be ba seless.
Mr. Johnson claimed that Ms. Neeley had e arlier made the same false alleg at ions to Anna Keith’s doctor, a

nd that all the circumstances pointed to the mother as the anony mous caller. In any case, the father stated that his daughter’s immediate re action was that this was all the moth er’s do ing, andthat the thirteen-ye ar-old was embarrassed, ang ry, and wished not to spend a

ny m ore time with the mother and the mother’s husban d. He argued that if Ms. Neeley exercised her court-ordered visitation, it would

further destroy

the relationship between Anna and her m other, a nd could p ossibly leadto verba

l or phy sical abuse by Ms. Neeley or her husband. The petition was accompanied by a printed copy of a

very ang ry e-ma il message from Anna to her mother, and medical records that d ocumentedthe mother’s previous discussion with her daughter’s doctor, a s well as the doc tor’ s response. Judge Shipley conducted a he aring on the father’s petition on November 8, 2001. Dur ing the hearin g, the ju dge announced that she wanted to hear from the child. An

na Keith w as broug

ht into the judge’s chambers, where she discussed her situation and ex plaine d her feelings outside the presence of her parents, but in the prese nce of their attor neys. Aft er the h earing, the court granted the temporary

restraining order.
On Novembe

r 30, 2001 , the mothe

r filed a Motion to Al

t er or Amend the Temporary Restraining Order and a motion for Judge Shipley to recuse hersel f f

rom hearing any

further proceedings in this case. Ms. Neeley’ s attorney cla imed that he had been given no prior notice of Anna’s appearance bef

ore the court, that the appearance came about a s a result of an improper ex parte request, and that it was in violation of previous orders o f the cou rt. He al so claimed that during the hearing

Judge Ship ley

expresse d an inapp

ropriate interest in the identity of the person who made the anonymous report to the De partment of Children’s Services. The attor ney argue d that the se fact s brought the judge’s impartiality into question. After a hearing on December

14, the trial court denied the motion to alter or amend. In reg ard to the other motion, the judge stated,
“The court has been involved with this child and her parents and has a long history to draw on in dealing with custody a nd visitation issues. Although this cou r t1 The app ellant also claime d that the judg e’s willingne ss to hea r from the mino r child appeared to be co ntrary

to some of the court’s earl ier ruli ngs. However, those ru li ngs h ave no r elevance to the current dispute, but were app arently cited to reinforce the i mplication that the appellant was bli nd-sided by the judg e’s ord er for A nna K eith to appear. In a proceeding involving t elephone visit ation, t he judge st ated f

rom the bench that

Anna Keith h ad had her day in cou rt, and w ould not be heard from a gain. O bvio usly, this s tatement could not preclude the court from questioning the chil d about subse quent unr elat ed events . Other cite d orders prohi bited t he parti es from discussing court proceedings with the c hild, and thus did not ap ply to the judg e at all. -4- understands why it appear s to Mrs. Neeley tha t the court’s decision to hear the child goes agains t the proh

ibition in the parenting plan and why Mrs. Neeley

fe el s t he wa ys she does s o strong ly th at she ha s filed the motion to recuse, the

court de nies Mrs. Neeley ’s Motion to Recuse.” This appeal followed.

III. T HE A PPEARAN CE OF I MPARTIALITY
Civil litigants have a constitutional right to have their cases heard before an unbiased and impartial judge. See Tenn.Con st. Article VI, § 11. As our cour ts have often said, parties are entitled to “the cold neutrality of

an impartial court.” Kinard v. Ki nard , 986 S.W.2d 220 (Tenn. Ct. App. 1998); Leighton v. Henderson , 414 S.W.2d 419 (Tenn. 1 967). In light of the importance of maintaining public confidence in the fairness of the judicial system, even the a

ppearance of bias or partiality may sometimes require

a judge to recuse himself or hers elf from a case. See Davis v. Liberty Mutual Insurance , 38 S.W.2d 560 (Tenn. 2001). See also Rule10, Canon 3(E)(1), Rules of the Supre me Court.
In this case , the appellant’s counsel does not argue that Judge Shipley is actually bias e d agains this client, but rather that the events leading up to Anna’s appe arance a t the hear ing of November

8, and the qu estio ns th e judge asked du ring tha t hearing crea

te the ap pearan ce of bia s, and thus that she is obligated to recuse herself. We discuss these arg uments below.
A.
The appellant’s attorney

complains that he did not receive p rior notic e that Ann a Keith w ould be hea rd. 1 He also argues that in order to secur e the minor child’s attendance at the hearing , the judge had engaged in ex parte communica tion with Mr. Johnson’s attorney, in violation of Canon 3(B)(7) of the Code of Judicial Conduct, which a ll ows such communication only under limited circumstances, such as for

. . . scheduling, administrative purposes or emerg encies that do not deal with substantive matters or issues on the merits are authorized; provided: (i) the judge reasonably

believes that no party

will gain a proce dural or tactical advantage as a r

esult of the ex parte communication; and-5- (i i) t he judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
We must examine the circumstances surrounding Anna’s appea rance to determine if the judge’s actions were in violation of Canon (3)(B )(7). The father’s petitionwas filed on November 7, 2001. Because of its urgent nature , the trial court scheduled the hea

ring fo r the foll owin g day

. At 2:00 p.m. on that day, Mr. Binkley took a break from an appearance in the Gene ral Sessions Criminal Courtto speak with perso nnel i n Jud ge Shipley’s office. He asked them whether the court wi sh ed to he ar ar gu me nt fr om th e a tt or ne ys o nl y, or testimony from the parties and/or Anna Keith. After checking with the judge , the cour t staff to ld him that she wanted to hear

from Anna Keith. Mr. Binkley then ret urned to G

eneral Sessions c ourt. Judge Ship ley

continue d to presi de over other ca ses in her courtro om. The hearing at issue began later that afternoon. Both J udge Shipley and Mr. Binkley apologized to Ms. Neeley ’s attorney f or not contacting him about Anna’s appearanc e prior to the hearing.
The communication the appellant objects to involved a scheduling or administrative question , anddid not dea

l with substantive matters, or the merits of the case. It would also be obvious to any observer that it occurred in the way it did because of the expedited hearing schedule on the father’s petition, and not because of any favoritism on the part of the judge. Further, we believe that the appella nt rece ived notic e as prom

ptly as was pr actica l under th e circu mstance s. The appellant’s attorney

argues that he was placed a t a tactical disadvan

tage because he

did nothave the

opportuni

ty to prepar e for An na Keith’ s testimony . Howeve r, despit e the fa ct that his opponent was informed a few hours earlier than he was that the minor child would be hea

rd from, it appea rs that ne ither pa rty had much o

pportunit y to prepare. Further, the videotape record of the hearing in ch am be rs sh ow s t ha t b ot h a tt or ne ys had the op portunity to ask the witness questions, but that they both took a

fairly passive role, while the judge took the lead in questioning Anna about the reasons she did not want to visit with her mother.
B.
The appellant also claims that prior to and during thehearing in chambers, the trial judge was “overly curious” about the identity of the anonymous tipster who c ontacted the Department of Children’s Se rv ic es . S he ar gu es th at su ch cu ri os it y cr ea te s a n i mp re ss io n o f p ar ti al it y, and violates the spirit of Tenn. Code Ann. § 37-4-109 , which wa s design ed to encourage the reporting of actual incident s of child a

buseto the Department of Childrens’ Services by ma king the identities of parties who report such abuse immune from disclosure.
We believe, however, that some discussion of the question was unavoida ble, sinc e the bas is of the father’s petition was that Anna Keith was furious with her mother because she believed that the mother was the source of the false and humiliating c ommunication to DCS. Further, the videotape shows tha

t during the hear ing in chambers, it was Anna who insisted that the anonymous informant was her mother, w

hilethe judge tried to steer the conversation away

from that question,-6-

andtowards t

he accommodationsthe child would hav e to make

withher mother, regardless of her feelings or beliefs.

C.
We note that the decision to grant or deny a motion to recuse is in the first instance a matter within the discretion of the jud

ge ag ainst whom the motion is directed. State v. Smith, 993 S.W.2d 6 (Tenn. 1 999); Ellison v. Alley , 902 S.W.2d 415 (Tenn. Ct. A pp. 1995); Caruthers v. State , 814 S.W.2d 64, 67 (Te

nn. Crim. App.1991). Such a decision will not be reversed on appeal unless that discretion has been abused. Harris v. S tate , 947 S.W.2d 1 56 (Tenn . Crim. App . 1996); State v. Hines, 919 S.W.2d 573 (Tenn. 1995).
After thoroughly study

ing the record and the arguments of the appellant, we do not believe that Ju dg e S hi pl ey’ s c on du ct cr ea te s e ve n t he ap pe ar an ce of pa rt ia li ty. No doubt Ms. Neeley would like to have a

differe nt judge take ove r this case, since she has seen her cour t-mandatedtime with her daughter steadily

reduced. But adv erse ru lings by a trial cour t are not in themselves sufficient grounds to establish bias. Herrera v. Herre ra , 944 S.W.2d 379 (Tenn. Ct. App. 1996). Also, where a court has been involved in a case for a very

long time, recusal is not favored because of the expe

nse anddifficulty of starting

over. Dunlap v. Dunlap, 996 S.W.2d 803 (Tenn. Ct. App. 1998). It appears to us that the

re was n o abuse

of discretion by Judge Shipley , and we affirm her decision not to grant the motion to recuse.
V.
The order of the trial court is affirmed. Remand this cause to the Circuit Court for further proceedings consistent with this opinion. Tax the costs on appeal to the appellant.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.