Facts: Having agreed on property division, Husband and Wife’s divorce trial was devoted to custody of their minor child, particularly Wife’s desire to relocate with the child to Indiana.

Husband identified 37 potential witnesses for trial, and Wife listed 34 potential witnesses. (!!!)

At the end of the fourth day of trial, the trial judge, having heard testimony only from Husband, Wife, and one of Husband’s witnesses, made these observations:

I’m going to go ahead and tell you what my thoughts are. . . . I totally understand that at this time in your life you want to be back closer to family. I get that. I think you feel very lonely and very vulnerable, and I understand that. But I cannot. Besides extended family, there is just not a reason for me to say that dad should not enjoy more time with his son and for you to move up there.

After Wife’s counsel objected that Wife had not even started her case-in-chief, the judge said:

You can use this as some guidance. . . . I am not making [a] finding of fact. But I am finding that that is where I’m going, to give you guidance unless there is just some bombshell that comes out. Which there may. You may have a bombshell. But at this point, after listening to both parents over a period of three days, three days I have listened both parents tell me all about each other, that is where I’m going.

After Wife’s counsel suggested the judge was prejudging the case before all the evidence was in, they discussed what additional witnesses Wife planned to present. When Wife’s counsel argued that the child would be the best witness, the judge responded:

I am not letting the children drive the bus on parenting. So I’m just letting you know where I’m going with this. It is going to be an extremely hard hurdle to get me to say that it is in this child’s best interest to relocate to Indiana. . . . Now, if something comes up that changes my mind, that’s fine. But I’m telling you after listening to three days of the two most important people in this child’s life, that have the most information about this child, I am definitely leaning toward the child staying in Tennessee.

Mother’s counsel told the judge, “You basically told them they’ve won,” to which the judge responded:

I haven’t basically said he’s won. It’s not a win/lose thing here. . . . These are good parents, but they need to coparent. This child needs both parents. And the only reasons that have been given, during three days of testimony from [Wife], has been that she has a lot of family support there and [the child] loves it up there.

Nearly two months later, Wife moved for the judge to recuse herself, arguing that the judge’s statements indicated that she had prejudged the case without hearing all the proof.

The trial judge denied Wife’s motion, explaining that her statements had been an analysis of the evidence presented thus far in an effort to aid the lawyers in refining their case. The judge reiterated that she did not make a ruling, did not stop the proof, and did not say she was finished listening to the evidence. The trial court explained that she merely stated that her analysis of the proof presented thus far weighed against relocation to Indiana.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

The right to a fair trial before an impartial tribunal is a fundamental constitutional right. This right should guard against the prejudgment of the rights of litigants and avoid situations in which the litigants might have cause to conclude that the court had reached a prejudged conclusion because of personal interest, partiality, or favor.

Not every bias, partiality, or prejudice merits recusal of the judge. Prejudice must be of a personal character, directed at the litigant, and must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from participation in the case.

If the bias is based upon actual observance of witnesses and evidence given during the trial, the judge’s prejudice does not disqualify the judge. That a witness takes offense at the court’s assessment of the witness cannot serve as a valid basis for a motion to recuse.

The Court agreed there was no basis for the trial judge to recuse herself:

The trial court judge’s remarks at the conclusion of the hearing would not lead a well-informed, disinterested observer to question the impartiality of the judge in this case. . . . Not only did the judge take great pains to explain her remarks that she was not prejudging the issues in this case, she also made clear in those remarks that she viewed both parties as “good parents,” both of whom were needed in the life of their minor child. Such remarks hardly indicate any bias or prejudice against [Wife], let alone the level of bias or prejudice necessary to warrant recusal.

The trial court’s judgment was affirmed.

Metzger v. Metzger (Tennessee Court of Appeals, Eastern Section, January 23, 2018).