Facts: Mother and Father are the unmarried parents of Child. After Father’s paternity was established, he was awarded visitation with Child.

Father filed a petition for contempt alleging Mother was interfering with his court-ordered visitation and served it on Mother’s counsel consistent with the Tennessee Rules of Civil Procedure.

The trial court judge — Judge Beal — refused to hear Father’s petition until Mother was personally served with process, which is not required when Mother’s counsel is properly served.

Father filed a complaint in the Circuit Court to compel Judge Beal to hear his petition for contempt. Father also filed a complaint with the Tennessee Board of Judicial Conduct.

The Circuit Court took the extraordinary step of entering a writ of mandamus directing Judge Beal to schedule a hearing on Father’s petition for contempt.

In a subsequent hearing, Judge Beal made several rulings concerning temporary custody of Child. Father was awarded specific visitation and telephone contact with Child each week.

As directed by Judge Beal, Father’s counsel prepared a draft order memorializing the trial court’s rulings concerning temporary visitation. Although the proposed order was approved by counsel for both parties, Judge Beal refused to sign it. Instead, Judge Beal drafted his own order that omitted any reference to Father’s temporary visitation.

Father filed a petition requesting that Judge Beal recuse himself from overseeing the visitation dispute between the parties. Father alleged there was a reasonable question regarding Judge Beal’s objectivity because Judge Beal directed Father’s counsel to draft an order that enforced Father’s visitation rights, only to redraft the order to exclude those provisions. Father allegedJudge Beal demonstrated a level of bias that constitutes grounds for disqualification.

Judge Beal denied the motion for recusal.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

The right to a fair trial before an impartial tribunal is a fundamental constitutional right, and it remains important to preserve the public’s confidence in a neutral and impartial judiciary. 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. Even when a judge sincerely believes that he can preside over a matter in a fair and impartial manner, recusal is nonetheless required where a reasonable person 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. It is an objective test designed to avoid actual bias and the appearance of bias, since the appearance of bias is as injurious to the integrity of the judicial system as actual bias.

Pursuant to Tennessee Supreme Court Rule 10, Code of Judicial Conduct Rule 2.11, a judge must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.

After reviewing the record, the Majority of the Court concluded:

[W]e agree with Father that the trial court’s actions in entering the [] order give rise to a reasonable basis for questioning Judge Beal’s impartiality. Father’s draft order following the [] hearing accurately reflected the rulings that Judge Beal made, and all parties agreed to the entry of the order as to form. Despite this, Judge Beal personally redrafted and entered an order that excluded the rulings favorable to Father’s visitation rights….

Father initiated the recent litigation in this case in an effort to enforce visitation with his minor child, and despite Judge Beal’s oral rulings giving Father temporary visitation pending a full hearing, Judge Beal refused to enter a prepared draft order that affirmed this. As already indicated, the draft order was approved as to form by all parties in this case. When this fact is considered in light of the previous history of this case, which included unsuccessful attempts to set Father’s motion for the entry of a show cause order, father’s filing of a complaint against Judge Beal with the Tennessee Board of Judicial Conduct, and Father’s filing for mandamus relief in Circuit Court, Judge Beal’s decision to not enter an order memorializing his visitation rulings favorable to Father gives cause for concern as to his ability to fairly preside over this case. Under the circumstances presented, we hold that “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.”

Accordingly, the trial court’s ruling was reversed and the case remanded for further proceedings before a different judge.

Dissent: Judge Gibson filed a dissenting opinion stating:

[T]he majority concludes that the trial court’s entry of a written order that differed from the trial judge’s oral colloquy, with no explanation from the trial judge, necessarily demonstrates the appearance of bias and requires recusal….

The crux of the majority’s holding is that the trial judge is required to recuse himself because (1) a writ of mandamus required the trial judge to set Father’s petition for contempt for hearing; (2) Father filed a complaint with the Tennessee Board of Judicial Conduct, and; (3) the trial judge entered an order that was not as expansive as his oral instructions to the party at the [] hearing. However, Father simply has not submitted any evidence that the trial judge’s actions in this case were the result of bias, prejudice, impropriety, or harassment….

The record before us reveals that the trial judge entered an order that did not address every matter he addressed in his oral instructions to the parties at the [] hearing. I recognize that the item the trial judge did not address in his written order is the issue most important to Father — visitation with his daughter. However, trial courts speak through written orders, not through oral statements contained in transcripts….

Based on the evidence and information before us, I do not believe that 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. Rather, I believe that a person of ordinary prudence in the judge’s position would find that Father disagrees with a number of the trial judge’s legal positions. For those, he has a remedy through direct appeal, but they do not require recusal.

The Majority responded as follows:

Although Judge Beal’s refusal to memorialize his oral visitation rulings does not sufficiently evidence the appearance of bias when considered alone, a reasonable question of impartiality does emerge when this fact is considered against the background of the case.

K.O.’s Comment: Everything Judge Gibson says in his dissent about the applicable law is technically accurate. Even so, I think the Majority got this one right. When viewed in context of all the circumstances and the history of the case, particularly the fact that Father had to obtain mandamus relief from the Circuit Court simply to get the hearing to which he was entitled (!!!), a reasonable person could question the trial court judge’s impartiality. Under the circumstances presented, recusal is appropriate.

In re Adison P. (Tennessee Court of Appeals, Western Section, April 21, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.