Carter v. Carter, 88-FM-1204

• Decision Date: 29 September 1992
• Docket Number: No. 88-FM-1204,91-FM-786.,88-FM-1204
• Citation: 615 A.2d 197
• Parties: Carolyn A. CARTER, Appellant, v. James L. CARTER, Appellee.
• Court: D.C. Court of Appeals

615 A.2d 197

Carolyn A. CARTER, Appellant, v. James L. CARTER, Appellee.

Nos. 88-FM-1204, 91-FM-786.

District of Columbia Court of Appeals.

Argued October 18, 1990.

Decided Following Remand September 29, 1992.

Delores A. Young, Washington, D.C., for appellant.

Charles H. Mayer, Washington, D.C., for appellee.

Before SCHWELB and WAGNER, Associate Judges, and BELSON, Senior Judge.

SCHWELB, Associate Judge:

At the conclusion of a bitterly contested divorce trial which featured disputes over alimony, distribution of assets, and counsel fees, Judge Virginia Riley issued a judgment of divorce in which she resolved most of the questions raised by the parties. Unfortunately, Judge Riley died shortly thereafter. Mrs. Carolyn Carter (the wife) filed a timely appeal to this court from Judge Riley's decision.

The case was argued on October 18, 1990. On March 29, 1991, this court entered an unpublished order sustaining in substantial part Judge Riley's disposition of the case. We remanded the record, however, for further proceedings regarding four specific issues.

On remand, the case was assigned to Judge Nan R. Huhn. Judge Huhn held a hearing on the remanded issues and subsequently entered three separate written orders in which she decided all of the matters which remained in controversy. These orders are now before us for review.¹ We remand for further findings on the issues of alimony and counsel fees. In all other respects, we affirm the trial court's decision, largely for the reasons stated by Judge Huhn.

I

Following this court's remand of the record, the wife filed an "Affidavit of Bias or Prejudice" against Judge Huhn. In her affidavit, the wife represented primarily that at the memorial service following Judge Riley's death, Judge Huhn delivered the eulogy. In her remarks, according to the affidavit, Judge Huhn referred to her admiration for Judge Riley. The wife claimed that Judge Huhn would be required by this court's remand to reconsider some of Judge Riley's rulings, and that

Appellant verily believes that Judge Huhn is inherently bias sic and prejudiced against the legal and equitable merits of the Appellant's causes on remand; because of Judge Huhn's deference to her admiration for Judge Riley's failing health—especially during the last case over which her Honor presided (i.e., the Appellant's trial).

Judge Huhn declined to disqualify herself, holding that "the Defendant's Affidavit of Bias or Prejudice contains no legal or factual basis to support the contention that this Court recuse itself from this case."

Superior Court Civil Rule 63-I provides that wherever a party has filed a "sufficient" affidavit alleging that the assigned judge "has a personal bias or prejudice against the party or in favor of any adverse party," that judge shall proceed no further therein. The question presented is whether the wife's affidavit in this case was "sufficient" within the meaning of Rule 63-I. We are satisfied that it was not.

This court has applied a three-part test for determining the legal sufficiency of such an affidavit:

1. The facts must be material and stated with particularity;

2. The facts must be such that, if true they would convince a reasonable person that a bias exists.

3. The facts must show the bias is personal as opposed to judicial, in nature.

In re Bell, 373 A.2d 232, 234 (D.C.1977) (adopting the standard of the Third and Fifth Circuits); see also In re Evans, 411 A.2d 984, 994 (D.C.1980) (citing In re Bell). Even if it were Judge Huhn's function, under this court's remand order, to pass on the merits of Judge Riley's rulings—and it is not—we do not believe that any reasonable person would be persuaded that a judge who delivered the eulogy for a deceased colleague would thereby forfeit her impartiality. Indeed, affidavits alleging bias or prejudice based on a judge's prior associations have been held insufficient in cases where an inference of prejudice would have been far more supportable than here. See, e.g., Eisler v. United States, 83 U.S.App.D.C. 315, 320, 170 F.2d 273, 278 (1948);² United States v. Story, 716 F.2d 1088, 1090-91 (6th Cir.1983); Price v. Johnston, 125 F.2d 806, 811-12 (9th Cir.), cert. denied, 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750 (1942).

In the present case, there is no indication that Judge Huhn had ever had any contact with Mrs. Carter, or even with Mrs. Carter's counsel, prior to hearing this case.³ There is no evidence of bias from an extrajudicial source. Judge Huhn's warm feelings toward Judge Riley, which were doubtless shared by many District of Columbia judges, do not constitute a circumstance requiring recusal.⁴ Indeed, as in Browner v. District of Columbia, 549 A.2d 1107, 1113 (D.C.1988), the arguments for recusal here are "completely devoid of merit."

II

During their marriage, the parties' principal asset was the marital residence. In her judgment of divorce, Judge Riley directed that the residence be sold, that the wife receive a 5/8 share of the proceeds, and that the husband receive the remaining 3/8 share. The judge also ordered the husband to pay the wife $400 per month in "temporary alimony" until the home was sold and the wife received her share.

In our remand order of March 29, 1991, we vacated this portion of Judge Riley's decision on the grounds that

during the pendency of this appeal, this court explicitly held in Joel v. Joel, 559 A.2d 769 (D.C.1989), that a trial judge is without authority to award alimony which will be "subject to an automatic reduction based on specified future occurrences." See also Posnick v. Posnick, 96 U.S.App.D.C. 198, 199, 225 F.2d 37, 38 (1955) (per curiam); King v. King, 286 A.2d 234 (D.C.1972). Accordingly, on remand, the trial court is directed to enter an order consistent with Joel and the authorities on which Joel relies.

We added that

in determining what, if any permanent alimony should have been awarded in lieu of the temporary alimony, the trial court must base its finding on the situation that existed as of the time for which the award is now being retroactively made. The court may, however, entertain an appropriate application by either party for a modification of the amount awarded for the initial period.

In her June 18, 1991, order following the remand, Judge Huhn ruled preliminarily that

the temporary alimony awarded under Judge Riley's Order of December 4, 1987, terminated upon the December 15, 1989, disbursement of the proceedings from the sale of the parties' home. Though the automatic termination of alimony was in error, the husband, at that time, had no legal or equitable basis to file a motion to modify alimony. Given these circumstances it would be inequitable for the court to deny the husband an opportunity to bring a motion for modification of alimony, nunc pro tunc to December 15, 1989. For purposes of considering the husband's motion, the relevant inquiry is the financial status of the parties subsequent to the December 15, 1989 disbursement of proceeds from the sale of their home.

After the parties had an opportunity to present evidence as to their financial circumstances at the time of disbursement, Judge Huhn ruled as follows:

An alimony award "can be modified only upon a showing of a substantial and material change in the conditions and circumstances of the involved parties since the entry of the decree." Nelson v. Nelson, 379 A.2d 713, 715 (D.C.1977) (citation omitted). The affidavits submitted by the parties, and opposition thereto, support the husband's oral motion to modify, as there has been a substantial and material change in the parties' financial resources since the entry of Judge Riley's original order. The wife received approximately $130,000 from the home sale, while the husband received approximately $80,420. In addition, this decision is consistent with the intention of Judge Riley, whose original order had conditioned the termination of the temporary alimony award upon the sale of the parties home, and with the March 29, 1991, Order of the District of Columbia Court of Appeals.

Relying on the well-established principle that an order reducing alimony may not be made retroactive beyond the date when application for such relief was made, Rhodes v. Gilpin, 264 A.2d 497, 500 (D.C. 1970); see also the leading case of Kephart v. Kephart, 89 U.S.App.D.C. 373, 380, 193 F.2d 677, 684 (1951), cert. denied, 342 U.S. 944, 72 S.Ct. 557, 96 L.Ed. 702 (1952), the wife argues that Judge Huhn's nunc pro tunc order terminating alimony as of December 15, 1989, was contrary to law. She urges this court simply to strike the time limitation on the husband's obligation to pay alimony. Were we to do so, the husband would be required to pay the wife $400 per month long after an alleged substantial and material change in the circumstances of the parties.

As we noted in King, supra, 286 A.2d at 238, and reiterated in Joel, 559 A.2d at 772, the disposition proposed by the wife would require the court to ignore the parties' respective economic conditions at the relevant times. If an intervening event making one spouse comparatively richer or poorer were ignored, then the resulting order would necessarily be inappropriately skewed. Accordingly, both in King and in Joel, this court struck the alimony award in its entirety, and remanded for a new determination of alimony. King, supra, 286 A.2d at 238; Joel, supra, 559 A.2d at 772.⁵ We follow these decisions, and there is thus no obstacle to the judge's determination de novo when and how much alimony the husband should be required to pay.

Moreover, as Judge Huhn noted, it would be inequitable to preclude the husband from seeking modification nunc pro tunc. Under Kephart and its progeny, one must make a timely request for a modification before, not after, an installment sought to be reduced has become due. In the present case, however, the duty to pay temporary alimony automatically lapsed, by the terms of Judge Riley's order, upon the...