Bryars v. Bryars

• Decision Date: 05 March 1986
• Parties: Aimee C. BRYARS (Scott) v. Charles H. BRYARS, Jr. Civ. 4967.
• Court: Alabama Court of Civil Appeals

Page 1187

485 So.2d 1187

Aimee C. BRYARS (Scott) v. Charles H. BRYARS, Jr.

Civ. 4967.

Court of Civil Appeals of Alabama.

March 5, 1986.

Robert E. Gibney of Kilborn & Gibney, Mobile, for appellant.

J. Don Foster of Foster, Brackin & Bolton, Foley, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

The primary problem on appeal is whether the trial judge should have recused himself as to hearing and deciding issues in postdivorce litigation.

The financially affluent marriage of the parties was dissolved by their divorce in October 1984 after protracted litigation. No appeal was taken from that judgment, but both parties sought enforcement, amendment, and/or clarification of various provisions of the divorce decree.

Mr. Bolton was a member of the law firm which represented the husband throughout this domestic relations case, but he was not one of the husband's trial attorneys. When the wife's counsel learned for the first time that Judge Enfinger, the trial judge, and Mr. Bolton were close business associates, he filed a motion on behalf of the wife that the judge recuse himself as to the pending post-divorce issues because of the business relationships of the judge and Mr. Bolton.

Judge Enfinger disclosed certain facts to the wife's attorney on the day before the hearing of the wife's motion. The judge detailed his business relationships with Mr. Bolton in open court at the hearing.

Judge Enfinger and his father, Mr. Bolton and his father, and two other individuals are the six equal stockholders in a closed corporation which purchased two hundred and fifteen acres of timberland at $625 per acre, a total of $134,375. The judge was an incorporator of that corporation and thinks that he is either secretary or treasurer and a member of its board of directors. However, he has attended no corporate meetings. The purchase price for the land is being paid by the stockholders, apparently from their own funds on an installment basis, with the stockholders being jointly and severally obligated therefor. That debt is current as to principal, interest, and taxes. The land is being offered for sale at between $1,000 and $1,200 per acre. If it sells for the higher figure, the total sale price would be $258,000, and each stockholder would apparently realize a gross profit of around $20,000.

Judge Enfinger and Mr. Bolton are evidently the only incorporators and stockholders in a corporation which owns, operates, maintains, and rents a charter boat. The two individuals are financially responsible for payments upon the boat. That corporation has been involved in litigation.

Mr. Bolton was authorized by the judge to accept service on his behalf when the judge was sued in a federal court for personal injuries, and Mr. Bolton had previously made several phone calls on the judge's behalf as to that matter. However, Mr. Bolton did not represent the judge in that litigation. Mr. Bolton is not the judge's personal attorney but they are close personal friends.

The motion to recuse was overruled, testimony upon the merits of the litigated matters was heard ore tenus, a final judgment was issued, and the wife duly appealed.

Recusal is required under Canon 3 C(1) of the Alabama Canons of Judicial Ethics when the facts are such that it is reasonable for a party, for members of the public, or for counsel to question the impartiality of a trial judge, but recusal is not required by mere accusations without proof of supporting facts. Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.1982); Miller v. Miller, 385 So.2d 54 (Ala.Civ.App.1980). The test under that canon is: " 'Would a person of ordinary prudence in the judge's position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?' "...