judge refusal

[TNparent]

What is the name of your state? TN

What recorse would you recommend when a judge refuses your request to have a court reporter present? We were about to have a hearing on several subjects when I noticed there wasn't a court reporter. I requested that the case be either continued to a later time in the day so one could be brought in or to another date.

The judge refused and we went on with the hearing, now I have no record of what went on and there, and it is crucial for my appeal. Not everything was settled and we have another court date next month in which I'd like to bring up the matters I'm concerned with that didn't get recorded this time, but I'm assuming my request for a court reporter is going to be denied again.

I'm dealing with a very small county courthouse. Dickson, TN. This judge seems to take liberties with a lot of things just because he is the only one and can.

How do you take it up with the judical board of review, when there is nothing to prove I asked and he refused?

 

[ellencee]

TNparent
It is my understanding that if you are the party wanting to have the hearing recorded, then it is your responsibility to hire a court reporter, pay a court reporter for recording and transcribing, and follow any other procedures for having a court reporter present and working.

The judge had no duty to provide you with a court reporter or to grant you a continuance.

I suspect you pro se in court against an attorney representing the other side. A recorded and transcribed hearing would be a great idea if you were an attorney; without your being an attorney, I doubt recording and transcribing will make a difference in the outcome now or later in appeal (if you are granted a hearing for your appeal).

EC

 

[TNparent]

actually no, I'm not pro se...I have a court appointed attorney and he is the one that requested the court reporter and it was refused. If my attorney is being paid for by the state, then the court reporter would be too so there is no reason it should be denied. Yes, I'm the one who noticed there was not one...but my attorney agreed there should be.

Sometimes there is one, sometimes there isn't. As I stated before, it is a very small jurisdiction, he also handles all juvenile and probate cases...all at the same time. The judge responded that she only gets called in when there are more than 10 cases being heard that day to make it "worth her while".

And, yes, it will make a BIG difference...I have already had to contact the board of judical review once in regards to this judge and his tendency to rule based on his personal feeling rather than law. I was told I needed to have some sort of evidence (IE transcription) of him actually making the comments in question before they could proceed with action and I could put in for an appeal to a higher court. He has been called into question before, and had been suspended briefly for similar problems.

 

[ellencee]

TNparent
I have no idea what the answer would be other than to ask your attorney to handle it. It seems to me that your attorney would be able to do whatever needs to be done so that a court reporter is present for the next hearing.

Your username is TNparent, so I assumed this was a parental issue; if it is--how did you get a court appointed attorney?

EC

 

[TNparent]

when I appeared in court for the first time the other party had an attorney, I didn't, I was asked if I could afford one, I said not really but I'm trying to find one, and one was appointed for me...the case started with the associate judge (?), because the regular judge was out sick. The associate judge later ended up the GAL in our case at the next court date.

My attorney argued that this associate shouldn't be the GAL since the case started with him on the bench...but that was shot down as well.

I have custody of my son, the mother wants him back. He's been with me 4 years. She signed him over because she had to go out of state to take care of her mother who was ill. I don't want to give him back.

She is using the fact that I live with my girlfriend (she just got married to the doctor who was caring for her mother) to say I'm unfit as a parent...the judge in the case has openly said in court that he doesn't agree with unmarried but living together situations and will rule in the mother's favor if the situation doesn't change but will "hear" the case in full anyway. All said while there was no court reporter present.

When I contacted the judicial review board regarding the judge using his personal bias instead of law, they said my & my attorney's word was not enough. I needed the transcript of the hearing for any action to be taken, such as his removal or change of jurisdiction. Something he is avoiding having happen...

 

[ellencee]

TNparent
It was decent of the first judge to give you an attorney. Although I think it is questionably appropriate for the first judge to be the guardian ad litem, at least that person showed fairness and generosity towards you in providing you with an attorney. If I were you, I would want that person, the GAL, to look favorably on every move I made and every word that came out of my mouth. I wouldn't be looking to have the GAL dismissed or replaced.

The sitting judge has also given you a heads-up and a chance to retain custody of your child. If you are wise, you will either marry your live-in girlfriend before the court date, or you will move out and establish a home for your child and yourself.

Judge and jury use personal beliefs and opinions when deciding cases. The 'law' requires that applicable laws and procedures be met and carried out in the required manner. The judge may very well issue his ruling in favor of the mother's having custody because he believes that your arrangement is not good for the child. As long as his ruling is based on the applicable law and the hearing is held according to the required and established procedures, you have no chance of overturning the ruling.

I think you have to decide whether living with your girlfriend is worth losing custody of your child and whether or not you are willing to do battle with someone whose pockets are far deeper than yours.

My bet is on the mother regaining custody if you do not take the generosity and the hints that have been afforded to you and instead, continue to find fault with the court and the procedings.

Personally, if you have had the child for four years, I think the child should remain with you and I think it's a little late for Mom to decide your living arrangements are not appropriate.

EC

 

[hexeliebe]

The appellate courts have ruled repeatedly in Tennessee that discretionary costs, as the name implies, are to be awarded within the discretion of the trial court and that decision will not be overturned absent a showing of abuse of discretion. See Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 902 (Tenn.1992); Perdue v. Green Branch Min. Co., 837 S.W.2d 56, 60 (Tenn. 1992); Lock v. NationalUnion Fire Ins. Co., 809 S.W.2d 483, 490 (Tenn. 1991); Placencia v. Placencia, 3 S.W.3d 497, 503(Tenn. Ct. App. 1999); and Mix v. Miller, 27 S.W.3d 508, 516 (Tenn. Ct. App. 1999).

Rule 54.04(2) provides as follows:

Costs not included in the bill of costs prepared by the clerk are allowable onlyin the court’s discretion. Discretionary costs allowable are: reasonable and necessarycourt reporter expenses for depositions or trials, reasonable and necessary expertwitness fees for depositions or trials, and guardian ad litem fees; travel expenses arenot allowable discretionary costs. Subject to Rule 41.04, a party requestingdiscretionary costs shall file and serve a motion within thirty (30) days after entry ofjudgment. The trial court retains jurisdiction over a motion for discretionary costseven though a party has filed a notice of appeal. The court may tax discretionarycosts at the time of voluntary dismissal

The above opinion goes on to say that absent a transcript of the trial a judge may disallow all discretionary costs with the burden of proof falling on the plaintiff to show an abuse of discretionary powers.

In other words, if you want a court reporter there, hire him/her then, if and when you win, ask for reasonable costs including the reporter fee which is not part of the discretion of the court but required to be awarded.

As for the judge's comments on his personal 'tastes' not only is it out of line, but is very likely grounds to demand he recuse himself immediately from the trial and to appoint a new judge.

In JACK HUTTER v. H. ALLEN BRAY, ROBERT M. COHEN, GEOFFREY D. KRESSIN, R.D. HASH, R. FRANKLIN NORTON, WARREN P. LUHN,
GARY G. SPANGLER, and NORTON the Tennessee court of Appeals ruled:


"Litigants are entitled to the “cold neutrality of an impartial court.” Leighton v. Henderson, 220 Tenn. 91, 414 S.W.2d 419, 421 (Tenn. 1967). The decision of whether recusal is warranted must in the first instance be made by the himself, and motions are addressed to the sound discretion of the Trial Court. Owens v. State, 13 S.W.3d 742 (Tenn. Crim. App. 1999). "

It is incumbent upon the party challenging a judge’s impartiality to come forwardwith evidence that would prompt a reasonable, disinterested person to believe that the judge’sfairness could be reasonably questioned. Tenn. S.Ct. R. 10, Canon 3(E)(1). The mere fact that ajudge has ruled adversely to a party or witness in a prior judicial proceeding is not grounds forrecusal, nor the fact that a party takes offense at the court’s assessment. Davis v. Liberty Mutual Ins.Co., 38 S.W.3d 560, 565 (Tenn. Ct. App. 2001); State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995)."

Now, without a transcript of the comments made by the judge, you have only two options that I can see.

1. you file a complaint with the Tennessee Supreme Court committee on Judicial Ethics or,

2. File a motion for the judge to voluntarily recuse himself, including the comments he has made predisposing his decision based on the lifestyle of the parties and, if necessary, filing a motion for a directed verdict which will require the judge to stipulate the legal basis for any decision he makes.

 

[TNparent]

hex -

just wanted to give you a big thank you for the information you supplied.

I will be making sure I have a court reporter present.

I asked my attorney if he would draw up a motion for recusal but he refused to do it. His answer to that was..."I have to be in that court on a daily basis, if I ask him to recuse myself, it will jeapordize my paying clients...and he wouldn't step down from the case anyway."

sooo, I'm guessing I just have to hope he says the same crap to me when I bring it up again this next court date and then get in touch with the judicial review board.

ellen -

thank you for your thoughts and comments, however I will not be forced into another marriage just to appease an old coot of a judge. It is 2004. Both my girlfriend and I have been married before and really don't see the point of it. Marriage in most cultures is a religous based union...and it should remain that way. She and I both wear rings, as a symbol of our commitment to each other but that is as far as we really want to go. No one is going to tell me I'm a bad parent, or she is a bad step-parent...just because we don't have our names on a marriage license.

 

[dixygrl04]

I live in tn also, my ex tried for custody in order to get out of paying backpay he owed me,we live in a small town also, I pd my lawyer 1500 -for nothing, I did not lose custody, the judge said that he does not grant joint custody unless both parties agree, and he doesn't change custody unless there is evidence, etc, at the time we were going to court, from jan thru april 03, I had been told that my ex and his "wife" were actually divorced, my attorney asked him while he was on the stand, and he said yes, they were divorced. But my experience with the courts here for 8 yrs, it's all just a crock, and I had a ****ty lawyer, who I have found out since hiring him, is strung out, etc, and it shows in his work, if I have to go back to court, I will be using a different one, it's kind of like they all work together around here. It may seem like that where you are also.But you having him for 4 yrs sounds like a plus to me, and the child is established, etc, I would definitely get married or at least have separate living arrangements, that can be a major issue.

 

[ellencee]

thank you for your thoughts and comments, however I will not be forced into another marriage just to appease an old coot of a judge. It is 2004. Both my girlfriend and I have been married before and really don't see the point of it. Marriage in most cultures is a religous based union...and it should remain that way. She and I both wear rings, as a symbol of our commitment to each other but that is as far as we really want to go. No one is going to tell me I'm a bad parent, or she is a bad step-parent...just because we don't have our names on a marriage license.

--Surely you understood that I did not actually mean for you to run out and get married unless, of course, that was already on the agenda! I know that family court judges have considerable lattitude in making decisions and I know that some judges are more favorable towards married couples than unmarried couples. Marriage does imply a certain intention of permanent commitment and I can fully understand why a married parent can be considered the parent more likely to provide the child with stability, a family home, etc.

As I stated in my first post, I believe it is and was your responsibility to have a court reporter there. I fear that your focus is on the judge and a future appeal that may or may not be granted instead of being on the the child and retaining custody and because of your focal points, your child will be placed with the mother and her new husband.

Best wishes,
EC

 

[hexeliebe]

Just a side note here.

My attorney argued that this associate shouldn't be the GAL since the case started with him on the bench...but that was shot down as well.

Make the point again, this time in writing (if your deadbeat attorney has the balls) and submit it as a motion to disqualify the GAL.

If your attorney doesn't have the balls, voice the objection again during trial with the recorder present. You want this on the record.

Also, keep your eyes and ears open. The GAL should ONLY submit his/her written report to the court. They should never be allowed to testify except to what is in the report.

Both the Model Code and Model Rules of Professional Conduct prohibit an attorney from being a witness in a case except under certain circumstances which do not apply in the matter of a guardian ad litem.7 Having an attorney who serves as guardian ad litem testify and be cross-examined about the report places the attorney in an ethically uncomfortable position. Even accepting arguendo that a guardian ad litem could testify, the requirements of Tenn. Rules of Evidence 701 and 702 (expert testimony) would still have to be met. Because most attorneys do not have any special training when serving as guardian ad litem, they certainly would not qualify as experts.

Regardless of how the hearing turns out, you want everything you can get on the record. Because, on the off chance that this judge let's his personal feelings override the law, you will be facing a de novo review on appeal ( on the facts ) and if it's not in the transcript, it's not a fact.