Tenn. Lawyer Can’t Get Divorce Judge Recused Despite Alleged Hostility

Tennessee law case summary on recusal of judges in divorce and family law from the Court of Appeals.

Cynthia Sherwood McKenzie v. Jason Wayne McKenzie – Tennessee divorce request for recusal of judge

Cynthia and Jason McKenzie were married two years and had no children before their divorce in Davidson County, Tennessee.  Cynthia was an attorney.  She was represented by several different attorneys during the course of the litigation, but ultimately took over her own representation.  She made a motion to have the judge, Philip E. Smith, recuse himself from the case.  She claimed that he was biased against her, based upon some statements he made and based upon his rulings.  Judge Smith denied the motion, and she appealed this ruling to the Tennessee Court of Appeals.

In the case of such a motion, the Tennessee court rules allow for an immediate appeal, which is heard in an accelerated manner by the Court of Appeals.  The Court of Appeals may allow the other party to answer, but this is not required.  In this case, the court determined that no answer was necessary and decided the case summarily.  In its opinion, it first noted the importance of unprejudiced and unbiased judges.  In fact, even the appearance of bias can warrant recusal of a judge.  But the appeals court noted that the type of bias must be such as to predispose the judge to rule in favor of or against a party.  Not every kind of bias merits recusal.  In general, the bias must result from extrajudicial sources, and not observations made during the case.

In this case, because Cynthia did not show any extrajudicial source, she was required to show that the alleged bias was so pervasive that it would deny her a fair trial.  She argued that she met this standard because Judge Smith’s rulings were not based on precedent, and that his statements in court were “personal attacks.”  The court first noted that the adverse rulings, even if erroneous, were usually not sufficient to establish bias.  Therefore, it turned to Judge Smith’s statements.

Even hostile remarks do not ordinarily support recusal.  The court noted that a contrary rule would allow an attorney to quarrel with a judge in order to elicit a hostile response, in order to get a different judge.  The court then looked at some examples of what Cynthia argued were hostile remarks.  She referred to incidents of “name calling,” but one of these was simply the advice that she should get another attorney because she was too emotionally involved.  The court had used the old adage about a lawyer representing herself having a “fool” for a client, but the court noted that the Judge was not calling her a fool by using this quote.  The court didn’t consider any of these alleged “personal attacks” to warrant recusal.

Cynthia also accused Judge Smith of gender bias, and pointed to the fact that he referred to a dog as “man’s best friend.”  The court of appeals said that the allegation was outrageous in light of this weak evidence.

For these reasons, the Court of Appeals affirmed Judge Smith’s rulings.  It assessed the costs of the appeal against Cynthia.

No. M2014-00010-COA-T10B-CV (Tenn.Ct. App. Feb 11, 2014).

See original opinion for exact language.  Legal citations omitted.