Margaret Kathryn Young v. Larry Joe Young ( 2022 )

08/19/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 1, 2022
MARGARET KATHRYN YOUNG v. LARRY JOE YOUNG
Appeal from the Circuit Court for Shelby County
No. CT-1421-21 James F. Russell, Judge
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No. W2022-01031-COA-T10B-CV
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The petitioner seeks accelerated interlocutory review of a trial judge’s recusal under
Tennessee Supreme Court Rule 10B or, alternatively, a common law writ of certiorari.
Such review is beyond the scope of Rule 10B. And a judge’s recusal may not be reviewed
by a writ of certiorari. So we dismiss the appeal.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Appeal Dismissed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON II, J., joined.
Larry Rice and Erin O’Dea, Memphis, Tennessee, for the appellant, Margaret Kathryn
Young.
Robert L.J. Spence, Jr., Memphis, Tennessee, for the appellee, Larry Joe Young.
OPINION
I.
In April of last year, Margaret Kathryn Young filed for divorce from her husband
of 35 years, Larry Joe Young. In doing so, Ms. Young challenged the validity of an
antenuptial agreement that she had signed the day before their marriage. At her request,
the circuit court bifurcated the proceedings and set a separate hearing on the validity of the
agreement for July 25 of this year.
As Ms. Young describes the events, the hearing on the antenuptial agreement
proceeded with the parties presenting opening statements and Mr. Young closing his proof
after calling two witnesses. See Randolph v. Randolph, 937 S.W.2d 815, 821 (Tenn. 1996)
(holding that the proponent of the agreement has the burden of proof). Ms. Young intended
to offer only her own testimony in her case-in-chief. The day concluded with her testimony
on direct examination.
The next day began at approximately 10:30 a.m. with cross-examination of
Ms. Young by Mr. Young’s counsel. At approximately 2:00 p.m., the judge asked the
parties and all others to leave the courtroom in order to address the attorneys. When the
break was taken, Ms. Young was being cross-examined on a child custody petition that her
first husband filed shortly after Ms. Young’s marriage to Mr. Young. The judge advised
the attorneys that an attorney at the judge’s former law firm filed the first husband’s
custody petition. The judge had been a partner in the firm at the time. And the judge’s
office at his former firm was next to the office of the attorney representing the first husband.
The judge then stated that his former firm’s involvement in the custody case would “have
no bearing or effect upon my ability to serve impartially in this case.”
Although stating his belief that he could act impartially, the judge thought the
attorneys were obligated “to visit with the clients and inform them of the disclosure that’s
been made and [to] discuss with them whether or not [he] should remain on th[e] case under
the circumstances.” Before visiting with his client, Ms. Young’s attorney asked the judge
if he would have any memory of a case that occurred thirty-seven years ago. The judge
responded “not much.” Ms. Young’s attorney then asked if the judge had any memory of
Ms. Young’s first husband or of working on the child custody matter. The judge replied,
“Not that comes to mind.” But the judge could not rule out the possibility that he might
have worked on the case in some capacity.
After a break was taken so that the attorneys could confer with their clients,
Mr. Young requested the judge’s recusal. He based the request on the fact that the judge
might have been involved in the child custody proceeding between Ms. Young and her first
husband. Mr. Young’s counsel explained that he was concerned that Ms. Young might
later complain that the judge should have recused himself. In counsel’s words,
And I’m not so much worried about our side. I’m worried about this
side complaining. [Ms. Young’s counsel] doesn’t have to be the lawyer. His
client can complain that [her lawyer] made a poor decision. So that’s what
I’m looking at. I’m looking at finality. I don’t want anybody to be able to
come back one day and say that the judge should have recused himself, that
my lawyer made a bad call, his bad call prejudiced my rights.
Ms. Young opposed recusal. She argued that the filing of the child custody petition
was irrelevant to the issue before the court—the validity of the antenuptial agreement. And
a decades-old representation by a former law partner would not cause a person of ordinary
prudence in the judge’s position to question his impartiality. Ms. Young also submitted
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that it would be inappropriate for the judge to recuse himself at this stage of the
proceedings. The hearing was nearly concluded. Once she had finished testifying, the
parties could make closing arguments, and the judge could make his decision. Counsel
emphasized the age of his client and the adverse impact of a delay resulting from the
judge’s recusal:
I need you to have the courage to complete this trial. I’ve got a 73-
year-old lady on disability whose husband pushed her and deprived her to
the point where she’s had to go through bankruptcy. And without a
determination on this issue that we have been struggling tooth and nail to get
her for many, many months, she can’t get relief.
To allay any concern that Ms. Young might later object to the judge hearing the
case, her counsel asked her if she would waive any potential conflict. She agreed to do so
after confirming for the record that she had been advised of the judge’s “possible conflict”
and that she was present for the arguments of counsel. But opposing counsel was not
satisfied. The exchange reminded him “of the issues we’re litigating in this case and
whether or not it’s an informed decision.”
After taking another recess to consider the arguments, the judge stated that he would
recuse. He reiterated “that my ability to serve fairly and impartially in this case would not
be affected at all by this turn of events that has come to light vis-à-vis my former law firm.”
Yet he concluded he should recuse “and allow the case to be transferred to someone else
who would not be subject to criticism regardless of the outcome.”
Ms. Young’s counsel stated he would seek accelerated review of the judge’s
decision under Tennessee Supreme Court Rule 10B. And he told the judge, “You have a
duty to hear this case, and we believe the Court of Appeals will affirm that.” The judge
responded, “I can understand and appreciate that.”
II.
A.
As promised, within days, Ms. Young filed her “Petition for Expedited Recusal
Appeal Pursuant to Tenn. Sup. Ct. R. 10B, or in the Alternative for Common Law Writ of
Certiorari for Review of the Trial Court’s Improper Recusal.” Appended to the petition
are a partial transcript from the hearing and the petition to change custody. No order of
recusal was provided.
Ms. Young “ask[s] this Court to order the Trial Judge to resume his duty as the judge
in this case, to complete the hearing on the validity of the parties’ Antenuptial Agreement,
and to issue a ruling and enter an order before he retires on August 31, 2022.” She submits
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that the recused judge has an ethical responsibility to decide her case, which authorizes the
relief she requests. Under the Tennessee Code of Judicial Conduct, a judge must “hear and
decide matters assigned to the judge, except when disqualification is required by [Rule of
Judicial Conduct] 2.11 or other law.” TENN. SUP. CT. R. 10, RJC 2.7. Here, Ms. Young
argues that there are no reasons justifying disqualification. A judge’s impartiality might
reasonably be questioned if the judge “was associated with a lawyer who participated
substantially as a lawyer in the matter [in controversy] during such association.” Id. RJC
2.11(A)(6)(a). But the representation of the recused judge’s former law partner was wholly
unrelated to the antenuptial agreement.
As for the need for such extraordinary relief, in her petition and accompanying
“motion for expedited decision,” Ms. Young explains that the divorce has been pending
for over a year. Although she has sought a determination of the validity of the antenuptial
agreement, “the hearings have been repeatedly continued, through the request of
[Mr. Young] or at the insistence of the Trial Court.” Meanwhile, she receives $1,000 per
month in social security disability and has been forced to file for bankruptcy relief. And
she cannot obtain pendente lite relief because of the antenuptial agreement.
If a new judge is assigned, both parties “will be forced to prepare again for trial, and
pay for that preparation, again.” Ms. Young states that she lacks the means to pay for that
preparation. Nor can she afford to wait any longer to seek pendente lite relief.
Beyond her financial distress, Ms. Young worries about the parties’ health and the
prospect that one of them, particularly her husband, may die before a new hearing can be
held. She is seventy-two, and Mr. Young is eighty-three years old. If her husband passes
away before a new hearing, the validity of the antenuptial agreement would be an issue that
still impacts his estate. But the recused judge, as Ms. Young explains, “would be the sole
trier-of-fact with the ability to make a credibility finding as to the deceased’s testimony.”
The recusal, because of its timing, also means a greater potential delay than
ordinary. The recusal occurred the week before judicial elections. Due to the elections,
Ms. Young complains that “many of the courts are not currently setting hearings or will
find themselves with new judges on September 1, 2022.” See Tenn. Code Ann. § 8-18-
104 (2016). So “[i]t will be some time before a hearing can be scheduled before the new
judges, as they will be closing their practices and preparing for their role.”
B.
A judge’s recusal can burden the parties to the case. And, in some circumstances,
a recusal may even “bring public disfavor to the court and to the judge personally.” TENN.
SUP. CT. R. 10, RJC 2.7 cmt. 1. Despite those dangers, the options for seeking review of
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such decisions during the course of litigation are limited.1 A party is generally entitled to
an appeal as of right only after the trial court has entered a final judgment that resolves all
the claims between all the parties, leaving nothing else for the trial court to do. TENN. R.
APP. P. 3(a); In re Est. of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003); State ex rel.
McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). Rule 10B of the Rules
of the Supreme Court of Tennessee creates an exception to the general rule. It offers a
party “an accelerated interlocutory appeal as of right” from determinations of whether a
judge should preside over a case. TENN. SUP. CT. R. 10B, § 2.01. But that exception is
limited to “an order denying a motion for the judge’s disqualification or recusal or for
determination of constitutional or statutory incompetence.” Id. Because this appeal is from
a grant of a motion for recusal, Rule 10B is not applicable.
Recognizing the limits of Rule 10B, Ms. Young alternatively requests review under
the common law writ of certiorari. Tennessee Code Annotated § 27-8-101 “detail[s] how
parties may petition the higher courts for a common-law writ of certiorari and when review
may be granted.” State v. Lane, 254 S.W.3d 349, 354 (Tenn. 2008). The writ may be
granted if an inferior tribunal has exceeded its jurisdiction or is acting illegally. Tenn.
Code Ann. § 27-8-101 (2017). But there must be “no other plain, speedy, or adequate
remedy.” Id. The writ “does not apply to actions governed by the Tennessee Rules of
Appellate Procedure.” Id. So the writ is not an alternative “when an express provision for
an appeal is available.” State v. Hartwell, 124 S.W.3d 629, 631 (Tenn. Crim. App. 2003);
see Clark v. Metro. Gov’t of Nashville & Davidson Cnty., 827 S.W.2d 312, 316 (Tenn. Ct.
App. 1991) (reasoning that the writ “does not take the place of appeal”).
Ms. Young acknowledges that she could have sought appeal by permission under
Tennessee Rule of Appellate Procedure 9 or 10. She did not because “the time it would
take to engage in the process would expire before the [recused] [j]udge retires.” But, given
that Rules 9 and 10 expressly provide for interlocutory appeals, she had other remedies.
See TENN. R. APP. P. 9, 10. Even if the timing of the judge’s retirement made seeking
permission to appeal from the trial court impossible, Ms. Young could have sought an
extraordinary appeal from this Court. See TENN. R. APP. P. 10. Because review was
available under the Tennessee Rules of Appellate Procedure, review was not available by
common law writ of certiorari. See Tenn. Code Ann. § 27-8-101; cf. In re Lucas H., 634
S.W.3d 1, 9 (Tenn. Ct. App. 2021) (allowing the writ where there was “no other existing
avenue of appeal” after the trial court denied a party’s Rule 9 motion and this Court
determined that review could not be sought under Rule 10).
1
With some notable exceptions, federal “courts appear to prefer review of recusal motions after
the final judgment.” See Wesley Kobylak, Annotation, Review of Federal Judge’s Grant or Denial of
Motion to Recuse, 64 A.L.R. FED. 433, 438 (1983). But, “while interlocutory appeal is generally not
available in the context of recusal motions, the rare cases in which it has been granted are uniformly where
the recusal has been granted.” Id. at 439.
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III.
Review of a trial judge’s recusal is not available under either Tennessee Supreme
Court Rule 10B or a common law writ of certiorari. So we dismiss the appeal.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
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