Granting Motion Over Objection of Sick Attorney Not Grounds for Recusal

Tennessee case summary on recusal in divorce.

Laurie Elizabeth Lee v. Bryan Mitchell Lee

The mother in this Knox County, Tennessee, case filed a petition to modify the permanent parenting plan, and the case was set for trial in December 2018.  The father filed an in limine motion which was to be heard the same day as the trial.

The day before the scheduled trial, the mother’s attorney became ill with a stomach virus.  The attorney later described it as the “Mother of all viruses” and that it rendered him unable to move.  He stated that it was all he could do to text his assistant to make the notification to the court.

The chancery court delayed the trial, but went ahead and heard the in limine motion.  The court granted this motion, which barred the mother from calling any witnesses other than herself.  The court acknowledged receiving a fax from the assistant, but noted that no formal motion for continuance had been made.

Before trial, the mother made a motion to recuse the chancellor who had heard the earlier motion.  She argued that there had been an ex parte communication because the father’s attorney had made arguments in her absence.  She argued that this showed partiality.  The recusal request was denied, since the trial court held that communication in open court did not constitute ex parte contact.

The mother then brought an interlocutory appeal to the Tennessee Court of Appeals on the issue of whether the recusal request should have been granted.

The appeals court noted that recusal is necessary when there is a reasonable basis for questioning the judge’s impartiality.  The party seeking recusal must come forth with the evidence.

The appeals court looked at the mother’s affidavit and held that she did not come forth with sufficient evidence.  In fact, it went so far as to describe her affidavit as being “thin gruel.”  In particular, the affidavit did not state how she had personal knowledge of the facts alleged.

The appeals court went on to say that merely granting the opposing motion did not show partiality.  In particular, it noted that the opposing lawyer’s arguments in open court did not constitute ex parte contact.

For these reasons, the Court of Appeals affirmed the lower court’s decision not to recuse.

No. E2019-00538-COA-T10B-CV (Tenn. Ct. App. May 31, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.