Facts: In this divorce, the parties’ disputes over marital assets and debt were referred to a special master. Wife filed exceptions to the special master’s report. The trial court confirmed certain parts of the special master’s recommendations and modified others.

On September 5, Wife filed two motions, including a motion to reconsider the trial court’s ruling regarding the marital home and a motion for a new trial.

On September 23, the trial judge recused herself because of a conflict that arose.

The case was reassigned to another judge.

One and a half years later, a hearing was held on the outstanding motions before the newly assigned judge.

Four months later, the successor judge entered an order stating he “did not try the case and is not familiar with the facts and the parties and is of the opinion that ruling on these motions is inappropriate.” The successor judge opined that the proper venue for Wife would be the Court of Appeals. Thus, Wife’s motions were denied.

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

Rule 63 of the Tennessee Rules of Civil Procedure governs situations when a case must be assigned to another judge because the judge originally presiding over the case cannot proceed. The Rule says:

If a trial or hearing has been commenced and the judge is unable to 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. In a trial or hearing without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. In any trial or hearing with or without a jury, the successor judge may recall any witness.

The Court found the successor judge did not comply with Rule 63:

The successor judge noted that he “did not try the case and is not familiar with the facts and the parties.” The successor judge then summarily denied Wife’s pending motions. There is no indication in the record that the successor trial judge ever certified his familiarity with the record or even attempted to do so. In fact, the plain language of the order indicates quite the opposite. We find this to be a clear contravention of Rule 63 as there is no room for discretion regarding compliance with the Rule. The plain language of the Rule demonstrates that it applies to all cases in which a successor trial judge replaces a trial judge who is unable to proceed. The successor judge here had a duty to comply with Rule 63 and either certify familiarity with the record and find that continuing the proceeding would not prejudice the parties or, in the alternative, order a new trial. The successor judge in this case did neither. We find this to be clear error and violative of the trial court’s obligations pursuant to Rule 63.

The Court reversed the trial court and remanded the case for compliance with Rule 63.

Thomas v. Thomas (Tennessee Court of Appeals, Western Section, December 1, 2022).

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