Kinard v. Kinard

• Decision Date: 05 August 1998
• Citation: 986 S.W.2d 220
• Parties: John Anderson KINARD, Plaintiff/Appellee, v. Linda KINARD, Defendant/Appellant.
• Court: Tennessee Court of Appeals

Page 220

986 S.W.2d 220

John Anderson KINARD, Plaintiff/Appellee, v. Linda KINARD, Defendant/Appellant.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Aug. 5, 1998.

Order Granting Rehearing Aug. 24, 1998.

Applications for Permission to Appeal

Denied by Supreme Court

Jan. 19, 1999 and Feb. 16, 1999.

Dicken E. Kidwell, Murfreesboro, Tennessee for Plaintiff/Appellee:

J. Russell Heldman, Franklin, Tennessee, Defendant/Appellant:

OPINION

KOCH, Judge.

This appeal involves a divorce ending a long-term marriage. The husband filed suit to divorce his wife of thirty years in the Chancery Court for Rutherford County, and the wife counterclaimed for a divorce from bed and board. The trial judge, sitting without a jury, declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony for three years. The wife takes issue on this appeal with the decision to declare the parties divorced, the division of marital property, and the failure to award her long-term spousal support and attorney's fees. She also insists that the trial judge should have recused himself because of his prior professional association with the husband's lawyer. We conclude that the trial judge was not disqualified from hearing this case. While we also find that declaring the parties divorced was proper, we have determined that the division of marital property and the spousal support award should be modified but that the wife should not receive an additional award for her legal expenses.

I.

Linda Kinard and John A. Kinard were married in August 1964. Mr. Kinard is a licensed pharmacist. Ms. Kinard was a school teacher when the parties married but, at Mr. Kinard's request, she left teaching after the first year of the marriage when she became pregnant with the first of their two children. The couple bought their first pharmacy several years later. Today, the business, Drug Centers, Inc., has grown into a chain of nine drugstores.

Marital difficulties began to surface in 1992 when the parties' last child left home and Mr. Kinard reduced Ms. Kinard's role in the business. In March 1994, after thirty years of marriage, Mr. Kinard filed suit in the Chancery Court for Rutherford County seeking a divorce from Ms. Kinard based on irreconcilable differences and inappropriate marital conduct consisting of interfering with his business and making unfounded accusations about his fidelity. Ms. Kinard counterclaimed for a divorce from bed and board. Following a bench trial, the trial judge declared the parties divorced in accordance with Tenn.Code Ann. § 36-4-129(b) (1996), divided the marital estate, awarded Ms. Kinard rehabilitative spousal support of $1,000 per month for thirty-six months, and denied Ms. Kinard's request for an additional award for her attorney's fees.

Ms. Kinard retained a new lawyer after the trial judge announced his decision. Within thirty days after the entry of the final divorce decree, Ms. Kinard's new lawyer filed motions requesting the trial judge to alter or amend the divorce decree, to grant a new trial, and to recuse himself because of his prior professional relationship with Mr. Kinard's lawyer. Following a hearing, the trial judge denied the recusal motion as well as Ms. Kinard's request for an interlocutory appeal. Ms. Kinard has now perfected this appeal as of right in which she raises numerous objections relating to the manner in which the divorce was granted, the division of the marital property, the spousal support award, and the trial judge's refusal to order Mr. Kinard to pay her legal expenses.

II. SUPPLEMENTATION OF THE RECORD

Before proceeding further, we turn our attention to the evidentiary record. Following the entry of the final divorce decree and the denial of the Tenn. R. Civ. P. 59 motions, the trial judge permitted Ms. Kinard to reopen the record to present additional testimony that she would have given at trial had she been represented by her present lawyer. We must determine whether this novel process is contemplated or permitted by the Tennessee Rules of Civil Procedure because the answer to this question will dictate the facts that we will consider in rendering this decision.

After the trial judge denied Ms. Kinard's post-trial motions and her motion for an interlocutory appeal, her present lawyer requested permission to make an "offer of proof" because the denial of Ms. Kinard's motion for a new trial meant that she would not be "back at square one" and would not be given an "opportunity to start over." As best as we can understand her lawyer's reasoning, he wished to take Ms. Kinard's deposition in order to preserve for appellate review the substance of additional testimony that she would have given at a second trial had the trial judge recused himself and granted a new trial. The lawyer believed that this testimony would somehow become relevant if this court later determined that the trial judge should have recused himself. The trial judge agreed to allow this "offer of proof" over Mr. Kinard's objection. In May 1996, fully ten months after the original divorce trial and four months after the denial of the post-trial motions, Ms. Kinard gave a deposition answering questions from her present lawyer that her former lawyer had not asked her in the original proceeding. This deposition is now a part of the appellate record even though it was never presented to or considered by the trial judge.

We can find no precedent for this novel post-trial fact gathering. Rather than being an offer of proof in the traditional sense, it is more accurately an attempt to include testimony in the appellate record that was not considered by the trial judge in the first instance. The reasons for Ms. Kinard's failure to present this testimony at trial are not altogether clear. Ms. Kinard does not, and based on the nature of the testimony cannot, claim that her after-the-fact testimony concerned newly discovered information. We can only conclude that Ms. Kinard's present lawyer decided that her former lawyer should have asked her these questions at trial and that he decided to ask the questions himself even though the case had already been concluded.

We have determined that the substance of Ms. Kinard's May 1, 1996 deposition should not be considered on this appeal. Our jurisdiction is appellate only. See Tenn.Code Ann. § 16-4-108(a)(1) (1994); Duncan v. Duncan, 672 S.W.2d 765, 767 (Tenn.1984); Mallicoat v. Poynter, 722 S.W.2d 681, 682 (Tenn.Ct.App.1986); Foley v. Dayton Bank & Trust, 696 S.W.2d 356, 359 (Tenn.Ct.App.1985). While we review factual findings by a trial judge sitting without a jury de novo with a presumption of correctness in accordance with Tenn. R.App. P. 13(d), we do not customarily consider evidence that has neither been presented to nor considered by the trial judge unless it has been made part of the record in accordance with Tenn. R.App. P. 14. Because the trial judge never considered Ms. Kinard's May 1, 1996 deposition, we decline to consider it now.

There is a second reason for declining to consider Ms. Kinard's May 1, 1996 deposition. Ms. Kinard's lawyer believed that the deposition would be needed only if an appellate court were to determine that the trial judge should have granted a new trial and then recused himself. As we discuss more fully in Section III, we have determined that the trial judge did not err by declining to recuse himself from the case. Accordingly, there is no need to consider Ms. Kinard's answers to questions that her former lawyer failed to ask her at trial.

III. THE TRIAL JUDGE'S DISQUALIFICATION

We turn now to the question of the trial judge's qualification to hear this case. After the trial judge had entered the final divorce decree, Ms. Kinard's present lawyer insisted that he should have granted a new trial and then stepped aside because of his prior professional relationship with Mr. Kinard's lawyer. We have determined that the evidence does not provide a reasonable basis for questioning the trial judge's impartiality.

A.

Litigants, as the courts have often said, are entitled to the "cold neutrality of an impartial court." See Leighton v. Henderson, 220 Tenn. 91, 98, 414 S.W.2d 419, 421 (1967); Chumbley v. People's Bank & Trust Co., 165 Tenn. 655, 659, 57 S.W.2d 787, 788 (1933). The principle of judicial neutrality is embodied in both Tenn. Const. art. 6, *228s 11 ¹ and in the Code of Judicial Conduct. ² Thus, one of the central tenets of our jurisprudence is that all litigants have a right to have their cases heard by fair and impartial judges.

The courts have also recognized, however, that the preservation of the public's confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial. See Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954) (holding that "justice must satisfy the appearance of justice"); In re Cameron, 126 Tenn. 614, 658, 151 S.W. 64, 76 (1912). Thus, even when a judge believes that he or she can hear a case fairly and impartially, the judge should recuse himself or herself if "the judge's impartiality might reasonably be questioned." See Tenn. S.Ct. R. 10, Canon 3(E)(1); Chumbley v. People's Bank & Trust Co., 165 Tenn. at 659, 57 S.W.2d at 788.

The decision of whether recusal is warranted must in the first instance be made by the judge himself or herself. Unless the grounds for recusal fall within those enumerated in Tenn. Const. art. 6, § 11 or Tenn.Code Ann. § 17-2-101(1994), these decisions are discretionary. See State v. Raspberry, 875 S.W.2d 678, 681 (Tenn.Crim.App.1993); Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn.Ct.App.1989); Wiseman v. Spaulding, 573 S.W.2d 490, 493 (Tenn.Ct.App.1978). However, instead of making this decision based on subjective notions of his or her impartiality, a judge must be more objective and must ask what a reasonable, disinterested...