IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 27, 2024

MICHELLE MILLER V. CARLOS DURAND

Appeal from the Chancery Court for Carter County

No. C230098 Suzanne S. Cook, Chancellor

No. E2024-00889-COA-T10B-CV

This is an accelerated interlocutory appeal as of right. Michelle Miller, pursuant to Rule 

10B of the Rules of the Supreme Court of Tennessee, appeals from the trial court’s denial 

of her motion for recusal. Discerning no error upon our review of the petition for recusal 

appeal, we affirm. 

Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; 

Judgment of the Chancery Court Affirmed; Case Remanded

JOHN W. MCCLARTY,J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and JEFFREY USMAN, J., joined.

Michelle Miller, Nashville, Tennessee, pro se appellant. 

Jason Andrew Creech, Johnson City, Tennessee, for the appellee, Carlos Durand. 

OPINION

I. BACKGROUND

In their previous post-divorce action, the parties, appellant Michelle Miller 

(“Mother”) and appellee Carlos Durand (“Father”), litigated custody issues about their 

minor child. A guardian ad litem represented the child’s interests. In that action, Mother 

filed a “request for [the trial judge’s] recusal” on August 1, 2023. The Carter County 

Chancery Court (“trial court”) denied the request and Mother did not perfect an appeal. 

After multiple hearings and the presentation of video evidence to the trial court, Mother 

and Father settled all pending issues in mediation. The trial court entered a permanent 

parenting plan and a consent order resolving all issues, both dated September 28, 2023. 

07/26/2024
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Father was designated the primary residential parent. Neither party appealed from the 

September 28, 2023, order. 

The litigation underlying this appeal began when Father filed a motion for injunctive 

relief on April 25, 2024, seeking to enjoin Mother from taking the minor child out of the 

State of Tennessee, involving him in legal matters within Costa Rica’s jurisdiction, or 

transporting him to any international destination. On April 26, 2024, the trial court found 

“good cause to believe that irreparable harm will occur in the event injunctive relief is not 

granted.” Accordingly, the trial court granted a temporary injunction, pursuant to 

Tennessee Rules of Civil Procedure 65 and 65.07, on the relief sought by Father. The order 

on Father’s motion for injunctive relief advised Mother of her right to “HAVE A 

HEARING ON THIS ORDER ON THE NEXT COURT DAY FOLLOWING SERVICE 

OR AS SOON THEREAFTER AS POSSIBLE.” Mother filed a request for a hearing and 

a response in opposition. The parties appeared for such hearing on May 6, 2024, in which 

Mother objected to the introduction of a report from the child’s licensed counselor. The 

trial court ruled that the counselor’s report was, by itself, hearsay and sustained Mother’s 

objection. After determining that the counselor’s testimony was necessary to resolve the 

issues before the court, the trial court continued the hearing to the next available date, June 

28, 2024. The trial court offered the parties the opportunity to be heard on several earlier 

dates out-of-county, an option the parties had elected in their prior dispute, but Mother 

declined. 

On May 16, 2024, Mother filed a motion to recuse the trial judge. By order entered

May 30, 2024, the trial court denied Mother’s motion to recuse. The court’s order found

that Mother’s motion was untimely and procedurally deficient in certain respects, but the 

trial court nevertheless considered the motion “based on substance rather than form.” The 

trial court also noted that Mother’s motion to recuse omitted the fact that the court 

continued the May 6 hearing on the temporary injunction so that necessary expert 

testimony could be presented and subjected to cross-examination. Mother filed the instant 

interlocutory appeal as of right from the trial court’s order denying recusal, pursuant to 

Tennessee Supreme Court Rule 10B. 

II. DISCUSSION

We have reviewed Mother’s “Amended Rule 10B Petition” and its supporting 

documents filed July 1, 2024. Upon review, we have determined 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 judge as to the denial of Mother’s motion 

for recusal. 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 
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court, based upon its review of the petition for recusal appeal 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.”).

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), abrogated on other grounds by

State v. Miller, 638 S.W.3d 136 (Tenn. 2021)); see also Tenn. Const. Art. VI, § 11. 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) (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)). “A motion to recuse 

should be granted when judges have any doubt about their ability to preside impartially in 

a 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.’” Boren v. Hill Boren, PC, 557 S.W.3d 542, 548 (Tenn. Ct. App. 2017) 

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

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.” Alley v. State, 882 S.W.2d 810, 821 

(Tenn. Crim. App. 1994). However, “[n]ot every bias, partiality, or prejudice merits 

recusal.” Id. “Adverse rulings by a trial court are not usually sufficient grounds to establish 

bias.” Id. In fact, “[r]ulings of a trial judge, even if erroneous, numerous and continuous, 

do not, without more, justify disqualification.” Id. In other words, “if the bias is alleged 

to stem from events occurring in the course of the litigation of the case, the party seeking 

recusal has a greater burden to show bias that would require recusal, i.e., that the bias is so 

pervasive that it is sufficient to deny the litigant a fair trial.” McKenzie v. McKenzie, No. 

M2014-00010-COA-T10B-CV, 2014 WL 575908, *3 (Tenn. Ct. App. Feb. 11, 2014). 

We review a trial court’s ruling on a motion for recusal de novo. Tenn. Sup. Ct. R. 

10B § 2.01. “The party seeking recusal bears the burden of proof.” Williams ex rel. Rezba 

v. HealthSouth Rehab. Hosp. N., No. W2015-00639-COA-T10B-CV, 2015 WL 2258172, 

at *5 (Tenn. Ct. App. May 8, 2015). We will not consider additional allegations of bias 

raised on appeal when not included in the initial motion for recusal filed in the trial court. 
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See Malone v. Malone, No. W2023-00843-COA-T10B-CV, 2023 WL 8457951, at *14

(Tenn. Ct. App. Dec. 6, 2023); McKenzie, 2014 WL 575908, at *6 n.3. 

The majority of Mother’s conclusory arguments presented in her amended petition 

concern events surrounding, allegations pertaining to, and the trial court’s rulings from the 

prior litigation against Father. For example, Mother complains that “Judge Cook took our 

son out of my house and gave custody to [Father] a few hours after denying my [other] 

recusal request on August 8, 2023—all the while knowing [Father] was still awaiting trial 

for criminal child abuse in another country.” All of this was resolved in mediation and was 

finalized by the permanent parenting plan and consent order entered September 28, 2023, 

from which neither party appealed. Therefore, we will not consider Mother’s attempt to 

relitigate the prior case. The only order this Court may review as to its correctness or merits 

in a Rule 10B recusal appeal is the trial court’s order denying a motion to recuse. Duke v. 

Duke, 398 S.W.3d 665, 668 (Tenn. Ct. App. 2012) (“Pursuant to [Tennessee Supreme 

Court Rule 10B], we may not review the correctness or merits of the trial court’s other 

rulings[.]”). 

As to the current action between the parties, as noted above, there is a temporary 

injunction in place. The temporary injunction prohibits the minor child from being 

transported out of state or out of the country, and further prohibits the child’s involvement 

in any legal matter in Costa Rica. The hearing on the temporary injunction has yet to take 

place, but it was continued to June 28, 2024. The trial court’s offer to schedule the hearing 

sooner than June 28, albeit out-of-county, was declined by Mother. In her amended Rule 

10B petition, Mother now states that the trial court knew that the child was due to “testify 

against his father” in Costa Rica on May 17, 2024. Mother contends that by continuing the 

hearing on the temporary injunction, the trial court demonstrated bias and “discriminat[ion] 

against [the child’s] Costa Rican citizenship.” She further asserts that “Judge Cook has 

used her bias to illegally interfere with the criminal trial outside her jurisdiction.” In the 

same breath, Mother notes that “The Costa Rica Criminal court has rescheduled [Father’s] 

trial for November 13, 2024.” 

Mother’s argument is unavailing. The trial court’s ruling gave Mother an 

opportunity to cross-examine the child’s counselor at the future hearing on the temporary 

injunction. She has not presented a meritorious argument that the trial judge’s ruling to 

continue the May 6 hearing was adverse to her, let alone erroneous, let alone demonstrative 

of bias so pervasive as to be unfair. See McKenzie, 2014 WL 575908, *3. Therefore, we 

find no basis upon which to conclude that a person of ordinary prudence in the trial judge’s

position, knowing all of the facts known to her, would find a reasonable basis for 

questioning the trial judge’s impartiality. See Davis, 38 S.W.3d at 564; Tenn. Sup. Ct. R. 

10, RJC 2.11(A). With the foregoing considerations in mind, we affirm the trial court’s 

May 30, 2024 order denying Mother’s motion for recusal. 
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III. CONCLUSION

We affirm the trial court’s May 30, 2024 order. The case is remanded for further 

proceedings. Costs of the appeal are taxed to the appellant, Michelle Miller, for which 

execution may issue. 

_________________________________ 

JOHN W. McCLARTY, JUDGE