Facts: In this divorce, Wife received an order of protection and filed several petitions for criminal contempt alleging violations of that order.

Wife also filed a criminal complaint against Husband, accusing him of aggravated stalking.

Husband moved to dismiss the petitions for criminal contempt.

At the hearing on those motions, the trial judge and Husband’s counsel had this exchange:

Court: If I could put him in drug court, I would. It’s a two-year program. I would certainly love for him to be in that. Unfortunately, he doesn’t qualify because it’s not for domestic. It’s for criminal. Although with his criminal case, you know, he may qualify for that.

Counsel: Your Honor, he doesn’t qualify because he hasn’t been convicted, I think.

After this exchange, Husband moved for the trial judge to recuse herself from the case.

The trial judge denied the motion for recusal, explaining that Husband has a “tortured and long history” of struggling with addiction for many years, which both parties acknowledged. During one court hearing, it was “blatantly obvious” Husband was intoxicated. Husband testified he would pass a drug screen, but he failed. The trial judge sentenced him to jail for contempt. When law enforcement searched Husband before he could be processed into jail, fentanyl was found in his possession.

The trial judge explained that she has served as the Recovery Court judge and has observed how lives can be changed through that court’s work. The judge explained that she made the comments quoted above based on Husband’s history of serious drug addiction, and they were intended as suggestions that might help Husband get well and beat his addiction so he can be a father to his two children.

In denying the motion, the trial judge also found that Husband filed his motion for recusal for an improper purpose, namely, to delay the litigation and to prevent the court from entering various orders that required Husband to do certain things.

Husband appealed.

On Appeal: The Court affirmed in part and reversed in part.

Tennessee’s Rules of Judicial Conduct require judges to act in a manner that promotes public confidence in the judiciary’s independence, integrity, and impartiality. That means judges must not show bias or prejudice for or against a party and maintain an open mind in considering issues that may come before the judge.

Tennessee’s Code of Judicial Conduct requires judges to disqualify themselves in any proceeding in which the judge’s impartiality might reasonably be questioned. The test for recusal is an objective one, i.e., whether a person of ordinary prudence in the judge’s position, knowing all the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

A party challenging a judge’s impartiality must offer some evidence that would prompt a reasonable, disinterested person to believe that the judge’s impartiality might reasonably be questioned.

Husband first argued that the trial judge’s desire to “confine Husband to a facility” justifies recusal. The Court was unconvinced:

We believe a reasonable person would conclude that [the trial judge’s] comments represent a desire to help Husband deal with his history of drug abuse instead of a desire to incarcerate or otherwise punish Husband. As [the trial judge] explained, incarceration was merely a means by which Husband might qualify for drug treatment; however, [the trial judge] did not state that she intends (or has the authority) to incarcerate Husband for the period of time necessary to qualify for inpatient treatment through Recovery Court. In fact, [the trial judge] acknowledged from the bench that Husband “doesn’t qualify because [Recovery Court is] not for domestic.”

Finding the judge’s comments insufficient to prompt a reasonable, disinterested person to believe that the judge’s impartiality might reasonably be questioned, the Court affirmed the trial court’s denial of the motion to recuse.

Husband also argued the trial court erred in finding Husband’s motion was filed for an improper purpose. On this issue, the Court agreed with Husband:

When a recusal motion is pending, the trial court may enter orders that are based upon rulings the court made from the bench before the recusal motion was filed. Accordingly, after Husband filed his motion for recusal, [the trial judge] was not prohibited from entering orders based on the rulings she already made.

The Court reversed the trial court’s finding that Husband’s recusal motion was filed for an improper purpose.

Austermiller v. Austermiller (Tennessee Court of Appeals, Middle Section, December 5, 2022).

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