Facts: Mother and Father are the divorced parents of three children. Less than a year after their divorce, both sought to modify the parenting plan.

After two unsuccessful appeals of the Chancellor’s decision not to recuse himself, the hearing on the competing petitions to modify the parenting plan began over two days in September 2019 but did not finish.

In November 2020, Chancellor Cole recused himself from the case. A few weeks later, Chancellor Brasfield was appointed to preside over it.

In late January/early February 2021, the trial court reviewed the September 2019 hearing transcript and scheduled the hearing to resume in August 2021.

Tennessee Rule of Civil Procedure 63 provides:

If a trial or hearing has been commenced and the judge cannot proceed, any other judge may proceed upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.

Father moved for the trial court to retry the entire case instead of resuming the earlier hearing. In the order denying this motion, the trial court noted that the trial would resume in August 2021 and the Chancellor would “follow Rule 63 of the Tennessee Rules of Civil Procedure as required.”

Ten days before the hearing was to resume in August 2021, Father moved to recuse Chancellor Brasfield because she had not yet certified “as a successor judge that Mother and Father would have a fair trial before an impartial tribunal without prejudice,” Father concluded the trial judge’s impartiality might reasonably be questioned.

In denying Father’s motion for recusal, the trial court said it intended to comply with Rule 63 before the trial resumed in August 2021, noting that “the fact that [the Rule 63 certification] has not yet been made does not mean that the court is not impartial.”

Father appealed.

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

Under Tennessee Supreme Court Rule 10B, a litigant may seek to disqualify a judge from a case for bias or prejudice. The party seeking recusal must present evidence that would prompt a reasonable, disinterested person to believe that the judge’s impartiality might reasonably be questioned.

To justify recusal, the alleged bias or prejudice must be of a personal character, directed at the litigant, and must originate from an extrajudicial source and not result from the judge’s impressions during trial. Adverse rulings by a trial court are usually insufficient grounds to show bias. Rulings of a trial judge, even if erroneous, numerous, and continuous, do not, without more, justify disqualification.

Rule 10B exists to 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 personal interest, partiality, or favor. A motion to recuse should never be used by litigants to delay proceedings or to gain some procedural advantage.

The Court concluded that the trial court’s delay in issuing its Rule 63 certification does not show partiality:

On close review of Father’s arguments, it appears that his issue with the trial judge laid not with the trial judge’s bias or prejudice against him, but with Father’s opinion that the trial judge’s Rule 63 compliance was untimely….

Importantly, Father fails to cite any evidence to demonstrate that the trial judge was partial to Mother or biased against him. … Although every judge should strive to discharge his or her duties in a competent, prompt, and efficient manner, a judge’s failure to do so does not, ipso facto, demonstrate that the judge holds a bias or prejudice against a litigant. … Here, Father fails to meet his burden to show that the Chancellor’s decision to complete the Rule 63 certification on the day of the hearing demonstrates that the trial judge was biased or prejudiced against him.

We reiterate that the purpose of a Rule 10B motion for recusal is to ensure that each litigant is given the right to a fair trial before an impartial tribunal. … Father’s grievance concerning the timeliness of the trial court’s Rule 63 certification is simply not sufficient to show that the trial court was biased in the matter. In the absence of any substantive evidence from which we might conclude that the trial judge showed prejudice of a personal character directed at Father, there is no basis for reversal of the trial court’s denial of Father’s motion for recusal.

The Court affirmed the trial court’s order denying Father’s motion for recusal.

Dougherty v. Dougherty (Tennessee Court of Appeals, Western Section, September 29, 2021).

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