Buchanan v. Buchanan, 91-CA-0083

• Decision Date: 02 October 1991
• Docket Number: No. 91-CA-0083,91-CA-0083
• Citation: 587 So.2d 892
• Parties: Minor Ferris BUCHANAN v. Judith Ann BUCHANAN.
• Court: Mississippi Supreme Court

Page 892

587 So.2d 892

Minor Ferris BUCHANAN v. Judith Ann BUCHANAN.

No. 91-CA-0083.

Supreme Court of Mississippi.

Oct. 2, 1991.

As Corrected Dec. 18, 1991.

Harlon H. Varnado, William B. Kirksey, Jackson, for appellant.

Randy A. Clark, Stanfield Carmody & Coxwell, L.C. James, James & Associates, Ross R. Barnett, Jr., Barnett Law Firm, Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and BANKS, JJ.

ROBERTSON, Justice, for the court:

I.

Today's appeal arises from a post-trial judicial recusal motion, incident to an increasingly heated child custody modification dispute. The divorced spouses lived in Jackson, Mississippi, for several years under a shaky detente. The trouble started when the mother sought to accept a professional opportunity in Chicago and take the two young children with her. The trial judge terminated the theretofore existing joint legal custody, placed permanent custody with the mother with liberal visitation rights in the father. The present appeal turns on the question how the trial judge should have responded to a post-trial motion for recusal.

II.

A.

Judith Ann Buchanan ("Judith") and Minor Ferris Buchanan ("Minor") were husband and wife until June 15, 1988, when the Chancery Court of the First Judicial District of Hinds County, Mississippi, decreed them divorced. The Buchanans are well educated professionals. Judith holds a Ph.D. and a D.M.D. and for a number of years was principally affiliated with the University of Mississippi School of Dentistry in Jackson. Minor is a lawyer who maintains his office in Jackson.

Two children were born of the marriage, namely Holly Dean Buchanan, a girl, born January 19, 1984, and now seven and a half years old, and Cameron Ferris Buchanan, a girl, born October 7, 1985, and now almost six years of age. The 1988 divorce was granted on grounds of irreconcilable differences. Miss.Code Ann. Sec. 93-5-2 (Supp.1988). The Buchanans obtained approval of a custody, support, and property settlement agreement, wherein they would share joint legal custody ¹ of the two children but where Judith would have primary physical custody, with Minor enjoying quite liberal but nevertheless rather specific visitation rights.

In 1990 Judith received and accepted the position of Assistant Dean of the University of Illinois School of Dentistry in Chicago and incident thereto proposed to move to Oak Park, Illinois, and take the children with her. After some discussions which produced no agreement, Judith filed in the Chancery Court of the First Judicial District of Hinds County, Mississippi, on July 16, 1990, a motion for modification in effect asking that she be allowed to take the children with her to the Chicago area and that the custody and visitation provisions of the final judgment of divorce be modified to conform to these new circumstances. ² Minor answered and cross-claimed, agreeing, in effect, that the custody arrangements had to be changed but asking that he be given the permanent custody of the children, subject to Judith's rights of visitation.

On August 27, 1990, all four judges of the Chancery Court of Hinds County, entered a joint order recusing themselves from any further action in this matter. The parties then applied to this Court for appointment of a special chancery judge to hear the case and on September 12, 1990, Chief Justice Roy Noble Lee entered an order providing:

That Honorable John Dunnam is hereby commissioned Special Chancery Court Judge for Hinds County to preside and conduct proceedings in the Buchanan modification matter.

See Miss.Code Ann. Sec. 9-1-105(1) (Supp.1990).

In early November, 1990, Special Judge Dunnam presided over an eight-day trial and on November 19, 1990, released a formal written opinion, the essence of which was that the Court granted Judith the "full physical and legal custody of the minor children," with permission to take them with her to her new residence in Oak Park, Illinois, subject to "liberal visitation" rights in Minor. The terms and provisions of this decision have been carried into effect by final judgment entered December 7, 1990.

B.

The issues tendered on the present appeal have another origin. Within ten days of Special Judge Dunnam's decision, Minor moved that Judge Dunnam withdraw his opinion and recuse himself from proceeding further. Minor charged that he had just come into possession of information which suggested that Judge Dunnam should have disqualified himself from hearing the case ab initio. In substance, Minor charged that Judge Dunnam's son-in-law was a student at the University of Mississippi School of Dentistry with whom Judith had been associated until very recently, that a number of the important witnesses Judith called at trial were also faculty members at the School of Dentistry, and that these faculty members possessed substantial powers to affect and enhance the professional future of Judge Dunnam's son-in-law. Minor sought a hearing on his motion and, on December 19, 1990, the Court convened for that purpose. Through counsel, Minor presented his motion but then, inexplicably, the Court refused to allow him to present evidence in support and elaboration thereof.

Thereafter the Court entered its formal order denying the motion to recuse and finding

that said motion should be dismissed with prejudice without the requirement of testimony, although the defendant was allowed to proffer all testimony and exhibits into the record.

Minor now appeals to this Court.

III.

A.

Subject to the disqualification question presented here, the merits of the Buchanans' custody modification matter are not before us. What is abundantly apparent is that Judith and Minor each is a more than fit and proper person to have permanent care and custody of these two children, and the only real question at trial was which of the two should have the primary physical custody, with liberal visitation rights in the other. We think it almost a certainty that neither party would have had grounds for appeal on the merits, whichever way the Court had decided the substantive issues.

B.

This appeal concerns a satellite issue. The question before us is whether Minor's post-trial motion for recusal was so deficient on its face that the Court had authority to deny it as a matter of law. The question is not whether Minor's motion should have been granted but whether he was entitled to an evidentiary hearing.

We think it important to put before us the legal standards and in this regard, we begin with Miss. Const. Art. 6 Sec. 165 (1890) which in pertinent part provides:

No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties....

In addition to the constitutional provision, the Mississippi statutes, Sec. 9-1-11 (1972) contains similar language and provides:

The judge of a court shall not preside on the trial of any cause where the parties, or either of them, shall be connected with him by affinity of consanguinity, or where he may be interested in the same or wherein he may have been of counsel, except by the consent of the judge and of the parties.

In the case at hand, neither the constitutional nor statutory provisions would appear to have prohibited Judge Dunnam from presiding. None of the parties were connected to Judge Dunnam by affinity or consanguinity, nor was Judge Dunnam ever of counsel in the matter. Judge Dunnam's son-in-law's presence as a student at the School of Dentistry did not render Judge Dunnam "interested" in the matter in any legally cognizable sense.

The Code of Judicial Conduct gives further guidance. Canon 3, subsection C ³ provides:

C. Disqualification

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has personal bias or prejudice concerning a party ...;

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(2) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

(3) For the purposes of this section:

(a) the degree of relationship is calculated according to the civil law system.

The Canon enjoys the status of law and this Court enforces it as such. Collins v. Dixie Transport, Inc., 543 So.2d 160, 164 (Miss.1989). Canon 3 C imports an objective standard: "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986). See Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990); In Re Moffett, 556 So.2d 723, 725 (Miss.1990); Collins v. Dixie Transport, Inc., 543 So.2d 160, 166 (Miss.1989); Jenkins v. Forrest County General Hospital, 542 So.2d 1180 (Miss.1989); Cantrell v. State, 507 So.2d 325, 328 (Miss.1987); see also, Pearson v. Parsons, 541 So.2d 447, 455 (Miss.1989). The presumption is "that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' (about the validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss.1990).

C.

Turning to the motion itself, we find Minor...