Birch v. Birch

• Decision Date: 10 April 1989
• Docket Number: No. 870457-CA,870457-CA
• Citation: 771 P.2d 1114
• Parties: Sybil R. BIRCH, Plaintiff and Respondent, v. Allan G. BIRCH, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1114

771 P.2d 1114

Sybil R. BIRCH, Plaintiff and Respondent, v. Allan G. BIRCH, Defendant and Appellant.

No. 870457-CA.

Court of Appeals of Utah.

April 10, 1989.

Rehearing Denied May 3, 1989.

Robert C. Cummings, Salt Lake City, for defendant and appellant.

Sybil R. Brooks, Albuquerque, N.M., pro se.

Before GARFF, GREENWOOD and ORME, JJ.

OPINION

ORME, Judge:

This is an appeal from the denial of a motion for relief from judgment. Appellant claims he entered into a stipulation under duress and that his former wife fraudulently failed to disclose certain financial information prior to the stipulation. He also appeals the denial of his motion to disqualify the judge who granted the divorce from hearing his motion for relief from judgment.

FACTS

In June 1983, plaintiff Sybil Birch, now known as Sybil Brooks ("Brooks"), filed for divorce from her husband, defendant Allan Birch ("Birch"). After the parties filed financial declarations and attended a conference before a commissioner, the matter was scheduled for trial before Judge Rigtrup. Immediately before the scheduled trial, Judge Rigtrup convened a conference and suggested the parties try to settle the matter. Unfortunately, the conference was not recorded. The parties and their respective counsel then met for several hours before returning with a detailed stipulation, which was read into the record. The stipulation provided for the division of property, including a $20,000 cash payment to Brooks. The stipulation provided that Birch would retain the family home, but that Brooks would be entitled to a lien on the home to secure payment to her of the $20,000. After both parties told the judge, on the record, that they understood and agreed to the stipulation, Judge Rigtrup approved the stipulation and stated he would grant a decree of divorce based thereon.

The court entered its judgment on February 20, 1986. On May 19, Birch filed a motion for relief from judgment pursuant to Utah R.Civ.P. 60(b), and for disqualification of Judge Rigtrup for bias pursuant to Utah R.Civ.P. 63(b). The motions, supported only by Birch's affidavit, were referred to Judge Daniels. Judge Daniels denied Birch's motion to disqualify because he found the supporting affidavit to be legally insufficient. Accordingly, Judge Daniels referred the motion for relief from judgment back to Judge Rigtrup for consideration. Judge Rigtrup denied that motion.

Birch claims on appeal, through new counsel, that Judge Daniels erred in not disqualifying Judge Rigtrup for bias. He urges reversal of that decision and remand with instructions that the motion for relief from judgment be considered by another judge. Assuming we do not disturb Judge Daniels' ruling, he contends, alternatively, that Judge Rigtrup erred in refusing to grant him relief from judgment, and asks us to order such relief. We first consider the disqualification issue.

DISQUALIFICATION OF JUDGE

Utah R.Civ.P. 63(b) provides, in part, as follows:

Whenever a party to any action ... shall make and file an affidavit that the judge before whom such action or proceeding is to be tried or heard has a bias or prejudice, ... such judge shall proceed no further therein, except to call in another judge to hear and determine the matter.

... If the judge against whom the affidavit is directed questions the sufficiency of the affidavit, he shall enter an order directing that a copy thereof be forthwith certified to another judge (naming him) of the same court or of a court of like jurisdiction, which judge shall then pass upon the legal sufficiency of the affidavit.

The thrust of Birch's affidavit was that Judge Rigtrup "appeared to have his mind made up about me and the case when I went into chambers." Birch also claims the judge refused to consider any evidence he attempted to present. Birch cites comments the judge allegedly made concerning custody of the parties' child as well as a statement by the judge to the effect that the parties could either settle the matter before trial, or proceed with the trial and end up with the same result. He also claims the judge interviewed the parties' child in camera, on a prior occasion, without Birch's knowledge. Birch claims he agreed to the property settlement only "because it appeared futile to try to present evidence, given the Judge's attitude." ¹

As a prerequisite to considering the merits of Birch's claim, we must first determine whether his challenge was timely filed. Rule 63 requires that a motion to disqualify be filed "as soon as practicable after the ... prejudice is known." Utah R.Civ.P. 63(b). Birch waited eighty-eight days after the alleged demonstration of bias by Judge Rigtrup to file his motion.

The phrase "as soon as practicable," as it appears in Rule 63, was recently interpreted by the Utah Supreme Court. See Madsen v. Prudential Fed. Sav. & Loan Ass'n, 767 P.2d 538 (1988). In Madsen, defendant waited thirty-nine days after discovering the alleged prejudice to file its motion. Id. at 541. The Court held that the thirty-nine day delay rendered the motion untimely. Id. "We see no reason why the affidavit of prejudice and motion to disqualify should have taken more than ten days to prepare and file, especially since this case was at an advanced stage." Id. at 543. Under the Supreme Court's decision in Madsen, it is clear the eighty-eight days Birch waited to file his motion for disqualification rendered the motion untimely.

Because of the untimeliness of the motion, it is unnecessary for us to reach the merits of Birch's claim concerning the legal sufficiency of his affidavit. Accordingly, Judge Daniels' decision is affirmed.

RELIEF FROM JUDGMENT

Birch also claims that the denial of his motion for relief from judgment was, in any event, improper. Birch claims he is entitled to relief from the divorce decree on three grounds. First, emphasizing he is a paraplegic, he claims he entered into the stipulation under duress engendered by Judge Rigtrup. He relies on the same statements allegedly made by Judge Rigtrup which he claims also show bias. Second, Birch claims Brooks fraudulently misrepresented certain financial information, namely the amount of her income. Third, Birch claims that Judge Rigtrup abused his discretion in suggesting Brooks be given a lien on the family home.

Birch's claims raise two immediate concerns. First, Birch relies on statements allegedly made by Judge Rigtrup in chambers during a conference of which no record was made. Second, there is an institutional hesitancy to relieve a party from a stipulation negotiated and entered into with the advice of counsel.

Lack of Record

Birch's claim that he entered into the stipulation under duress caused by pressure from Judge Rigtrup is primarily based on unrecorded comments allegedly made by Judge Rigtrup in chambers. While the affidavit filed by Birch makes specific references to these comments, these allegations are disputed both by Judge Rigtrup himself and through affidavits filed by Brooks and her former attorney.

As we have previously held, a record should be made of all proceedings of courts of record. Briggs v. Holcomb, 740 P.2d 281, 283 (Utah Ct.App.1987). That precept applies to conferences in chambers as well as more formal proceedings. Id. Failure to make a complete record can be grounds for reversal. See id. While the court shares responsibility to insure that an adequate record is made, at the same time "[t]he burden is on the parties to make certain that the record they compile will adequately preserve their arguments for review in the event of an appeal." Franklin Fin. v. New Empire Dev. Co, 659 P.2d 1040, 1045 (Utah 1983).

In Hansen v. Stewart, 761 P.2d 14 (Utah 1988), a conference was held in chambers without a court reporter present. The plaintiffs in that case claimed to have made objections to jury instructions during the conference. ...