Facts: Mother and Father had a dispute over their parenting plan. The case was tried and appealed.

The day before the Court of Appeals remanded the case to the trial court for further action, Mother claimed to have a conversation with Father’s counsel wherein Father’s counsel told her she had influence over and “pull” with the trial judge.

Fourteen months later, Mother moved for the trial judge to recuse himself based on this alleged conversation between Mother and Father’s counsel.

Father’s counsel denied making any such statements to Mother or anyone else.

At the hearing on the motion for recusal, the trial judge described Mother’s allegations as “outlandish.” He also noted that Father’s counsel “has appealed many of my cases over the years, so if we were in cahoots, that wouldn’t have been necessary.”

The trial court denied the motion for recusal.

Mother appealed.

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

Tennessee law requires that recusal motions be filed promptly after the facts supporting the motion become known. A party must complain and seek relief promptly after the prejudicial event and may not silently preserve the event as an “ace in the hole” to be used in the event of an adverse decision.

The Court found Mother’s 14-month delay in moving for recusal to be dispositive:

The salient fact before this Court is that [Mother] failed to file her motion for recusal for more than one year after she learned of the fact forming the basis for the motion. Whether she did so to await a favorable decision from the trial court or to preserve the event as an “ace in the hole” is insignificant. What is significant is that the failure to assert those facts in a timely manner results in a waiver of the parties right to question a judge’s impartiality. Based on the foregoing, we hold that [Mother] has waived the issue of bias.

The Court affirmed the trial court’s denial of the motion for recusal.

Baker v. McSherry (Tennessee Court of Appeals, Middle Section, August 5, 2022).

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