No Recusal for Judge Predicting Crediting Doctor’s Testimony
- At September 05, 2019
- By Miles Mason
- In Divorce Process
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Tennessee case summary on judicial recusal in divorce.
The husband and wife in this Davidson County, Tennessee, case were divorced in 2007, at which time the wife was found to be suffering from Lyme Disease and unemployable. The husband was ordered to pay $1,200 per month in alimony until death or remarriage.
In 2016, the husband filed a petition to terminate the alimony on the grounds that the wife had a common law marriage in Alabama. The wife asked to increase the alimony due to increased medical expenses. She also alleged that the husband, a professor at Vanderbilt, had an increased salary.
A trial was set for February 2019 before Judge Philip E. Smith. The husband’s attorney made a motion for Judge Smith to recuse himself, based upon the judge’s suggestion that the parties try to resolve the case. The affidavit included the grounds that the judge had said that he would credit a doctor’s testimony, even though he hadn’t read the depositions. Judge Smith denied the motion, and the husband appealed to the Tennessee Court of Appeals. Even though the motion failed to state that it was not made for an improper purpose, the appeals court did address the merits.
The court first noted that the party seeking recusal has the burden of proof, and that this party must show bias or prejudice. But it also noted that, by necessity, the judge must reach a decision during the trial, and that this is going to be based on both favorable and unfavorable impressions.
Despite the judge’s announcement that he would credit the testimony of the doctor, he had not made a specific ruling. When the appeals court examined the lower court’s rulings, it found no grounds for bias.
Nor was there bias shown in the court’s suggestion that the parties should try to settle the case. There was no indication that the judge had pre-judged the case from this remark.
For these reasons, the Court of Appeals affirmed the lower court’s ruling, although it denied the wife’s request for attorney’s fees for the appeal.
No. M2019-00409-COA-T10B-CV (Tenn. Ct. App. Jul. 2, 2019).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.
