Judge’s Order Recusing Himself Can’t Be Appealed Immediately

Tennessee case summary on recusal in divorce.

Margaret Kathryn Young v. Larry Joe Young

Shelby County Courthouse

The wife in this Shelby County, Tennessee, case filed for divorce after 35 years of marriage.  She challenged the validity of the antenuptial agreement signed the day before the marriage, and the question of the validity was heard at a hearing in July, 2022 before Judge James F. Russell.

During this wife’s testimony, she was testifying regarding a child custody petition filed by her first husband, shortly after this marriage.  Judge Russell realized that he had been a partner in the law firm which represented the first husband.  Judge Russell advised the attorneys of these facts, and told them that his involvement in that case would have no effect on his impartiality.  The wife’s attorney asked if the judge had any recollection of the case 37 years ago, to which he replied, “not much.”

After a break, the husband’s attorney requested that the judge recuse himself, on the grounds that the wife might later complain.  The wife, however, opposed recusal.  The court asked the wife to waive any possible conflict, which she did.  Nonetheless, Judge Russell decided to recuse himself.

The wife’s attorney sought accelerated review of the judge’s decision under a Supreme Court rule governing recusal cases.  The attorney argued that the judge had a duty to hear the case.

The appeals court first noted that the rules of judicial conduct require judges to hear cases unless disqualified by some law.  It conceded that a recusal can, indeed, burden the parties to a case.

But the appeals court pointed out that the rule cited by the husband applied only to cases where the trial judge refused to recuse himself.  Appeals of a judge’s decision to recuse himself, like all other appeals, must wait until a final judgment.

The wife anticipated this argument, and also requested review under a common law writ of certiorari.  But the appeals court held that this was not the proper procedure to be followed.  There are other provisions which can be used for interlocutory appeals, and since these were not followed, the appeal was not proper.

For these reasons, the Court of Appeals dismissed the appeal.  The court’s opinion was authored by Judge W. Neal McBrayer, and it was joined by Judges J. Steven Stafford and Thomas R. Frierson II.

No. W2022-01031-COA-T10B-CV (Tenn. Ct. App. Aug. 19, 2022).

See original opinion for exact language.  Legal citations omitted.

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