Roger Scott Austermiller v. Penny Smith Austermiller

This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court

Rule 10B § 2.02 from the trial court’s denial of a motion for recusal in a pending divorce

action. The husband moved for recusal based on comments the presiding judge made after

the husband failed a court-ordered drug test. The judge stated from the bench, “If I could

put [the husband] in drug court, I would. It’s a two-year program. I would certainly love

for him to be in that. Unfortunately, he doesn’t qualify because it’s not for domestic. It’s

for criminal.” In the order denying the husband’s motion, the judge stated: “the Court made

these suggestions only to help [the husband] get well and beat his addiction so he can be a

father to his two children.” The court also found that the husband filed his motion “for an

improper purpose, i.e., to delay the litigation.” We have concluded that the motion was not

filed for an improper purpose; however, we find the evidence is insufficient to prompt a

reasonable, disinterested person to believe that the judge’s impartiality might reasonably

be questioned. Accordingly, the judgment of the trial court denying the motion for recusal

is affirmed.