Divorce Judge Not Recused for Suggesting Husband Should Be in Drug Court

Tennessee case summary on judicial recusal in divorce.

Roger Scott Austermiller v. Penny Smith Austermiller

Judicial recusal discussed.

During the course of this Williamson County, Tennessee, divorce case, the trial judge, Chancellor Deanna Bell Johnson, after the husband failed a court-ordered drug test, commented that if she could put the husband in a two-year drug court program, she would.  But unfortunately, she went on, that was not possible, since the drug court was only for criminal cases.

The husband made a motion for the judge to be recused, and this was denied.  In denying the motion, the judge stated that she made these suggestions so that the father could get well, beat his addiction, and be a father to his two children.  The court also found that the motion was made for an improper purpose, to delay the litigation.

The husband then brought an immediate appeal to the Tennessee Court of Appeals.

The failed drug test took place during a court proceeding in which it was “blatantly obvious” that the husband was intoxicated.  The court placed the husband under oath and asked he would pass a drug screen.  The court sent the husband for a test and he failed.  He was held in contempt and ordered to jail.  During the booking process, fentanyl was found in his possession.

The appeals court stated the standard of review, and noted that the party seeking recusal bears the burden of proof.  After reviewing the transcript, the appeals court agreed that a reasonable person would conclude that the judge’s remarks expressed her intent to help the husband deal with his drug addiction, rather than punish him.  It noted that the judge’s comments were recommendations for his attorney to discuss the matter with the criminal defense attorney in the husband’s case.  In sum, the Court of Appeals concluded that the husband had not met his burden of proof.

The appeals court did, however, hold that the motion was not filed for an improper purpose.  But since the husband had not met his burden of proof, the lower court’s order was affirmed.

For these reasons, the Court of Appeals affirmed, remanded, and assessed the costs of appeal against the husband.

No. M2022-01611-COA-T10B-CV (Tenn. Ct. App. Dec. 5, 2022).

See original opinion for exact language.  Legal citations omitted.

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