Christian v. Christian
| Decision Date | 17 August 1988 |
| Docket Number | 19836-CA,Nos. 19835-C,s. 19835-C |
| Citation | 535 So.2d 842 |
| Parties | John Moss CHRISTIAN, Plaintiff-Appellee, v. Carole Echols CHRISTIAN, Defendant-Appellant. 535 So.2d 842 |
| Court | Court of Appeal of Louisiana — District of US |
Barham, Adkins & Tatum by T.J. Adkins, Ruston, for defendant-appellant.
Lancaster, Baxter & Lancaster by Michael E. Lancaster, Tallulah, for plaintiff-appellee.
Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
Defendant-appellant, Carole Echols Christian, appeals the judgment granting her and her husband "joint custody" of their four-year-old son, John Moss Christian, with primary residential care granted to her husband, John Moss Christian, subject to certain visitation rights by Carole Echols Christian. Determining that the trial court award is a joint custody award in name only, we modify that award and render.
John Moss Christian and Carole Echols Christian were married on April 8, 1983. The couple had one child, Joshua Christian, who was born on June 30, 1984. The parties separated numerous times during the marriage and finally separated permanantly in April 1986. Mr. Christian subsequently filed for separation and provisional custody of the then two and one-half-year-old child. Ms. Christian filed a reconventional demand for separation based upon cruel treatment by her husband in addition to a request for custody of the child. The trial court granted the separation and awarded provisional sole custody to the father. Ms. Christian applied to this court for supervisory review of that judgment which was denied.
Mr. Christian petitioned for divorce on June 23, 1986 and requested permanent custody of the child. The trial judge granted John Moss Christian a divorce based upon the grounds of adultery and awarded joint custody of Joshua to the parties with primary domiciliary custody granted to the father and visitation given to the mother every other weekend and one week of each month during the summer plus alternating holidays. It is from this custody decree that Ms. Carole Echols Christian appeals.
Ms. Christian argues numerous assignments of error relating to the custody decree. She argues that the trial judge erred in failing to allow another district judge hear a motion to recuse and, in addition, in failing to grant said motion to recuse. She further argues that the trial judge improperly heard the case at hand as it was improperly assigned to Division "B" in direct violation of the Sixth Judicial District rules of court. She urges that the trial court erred in appointing certain mental health professionals to evaluate the parties, their parents, the minor child and the homes of the parties on its own motion. Finally, appellant asserts that the trial court erred in granting joint custody of the minor child as it is in reality a sole custody decree to the father with only minimal visitation rights to the mother.
By these assignments of error, the appellant argues that the trial judge erred in failing to allow another district judge of the Sixth Judicial District Court to hear a motion to recuse pursuant to Louisiana Code of Civil Procedure Article 151, subd. A(6) and also in failing to grant the motion to recuse under LSA-C.C.P. Art. 151, subd. A(6).
The record shows that the cause was tried on July 10, 1986 and taken under advisement. Thereafter, on August 21, 1986, the court, on its own motion, ordered the Department of Health and Human Resources to do a suitability study of the homes. As a result, two mental health professionals conducted the study of the homes. Subsequently, on September 22, 1986, the court, again on its own motion, appointed a psychiatric social worker to evaluate the child, both parents and their parents.
Counsel for defendant-appellant agreed to these appointments with the understanding that he would be allowed a hearing to cross-examine the professionals. Prior thereto, on February 18, 1987, the trial court, having received the reports of those having been appointed to conduct the examinations, simultaneously dispatched two letters to counsel for each party.
One of these letters simply set the case for a hearing on the reports of the appointed professionals on April 14, 1987. However, the other letter, which forms the basis for the motion to recuse, directed counsel for plaintiff-appellee to prepare a judgment in the form of the one which was eventually rendered in this cause. Thus, counsel for defendant-appellant asserted the trial judge should be recused because she had prejudged the case on the basis of the reports submitted without having heard the cross-examination.
LSA-C.C.P. Art. 151 sets forth specific grounds for recusal of a judge as follows:
Art. 151. Grounds
A. A judge of any court, trial or appellate, may be recused when he:
(1) Is a material witness in the cause;
(2) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter's employment in the cause;
(3) At the time of the hearing of any contested issue in the cause, has continued to employ, to represent him personally, the attorney actually handling the cause (not just a member of that attorney's firm), and in this case the employment shall be disclosed to each party in the cause;
(4) Has performed a judicial act in the cause in another court;
(5) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree, or is related to an attorney employed in the cause; or to the spouse of the attorney, within the second degree; or
(6) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.
B. In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.
This list of grounds for recusation is exclusive rather than illustrative. State v. Pailet, 246 La. 483, 165 So.2d 294 (1964); State v. LaBorde, 214 La. 644, 38 So.2d 371 (1949); State v. Davis, 154 La. 928, 98 So. 422 (1923); Spangenberg v. Yale Materials Handling-Louisiana, 407 So.2d 1270 (La.App. 4th Cir.1981), writ denied, 412 So.2d 1096 (La.1982); Bergeron v. Illinois Central Gulf Railroad Company, 402 So.2d 184 (La.App. 1st Cir.1981), writ denied, 404 So.2d 1260 (La.1981); Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App. 3rd Cir.1978).
In Southern Builders, Inc. v. Carla Charcoal, Inc., supra, the Third Circuit addressed a similar situation. The trial judge in that case wrote a letter to counsel during a recess in the litigation which indicated that after several conferences with the court-appointed expert, the trial court felt that liability in the case should be allocated in a certain fashion.
A hearing on the motion to recuse was held before an ad hoc judge. The trial judge specifically testified that he still had an open mind in the case and could still fairly judge the matter. The trial judge further testified that he understood from counsel of one of the parties that the possibility of a settlement was in the offing and the letter was written to facilitate any possible settlement.
Two Third Circuit judges of the Southern Builders, Inc. v. Carla Charcoal court, citing much of the jurisprudence cited here, determined that that jurisprudence required that there be a specific statutory basis for recusing a judge and agreed that the trial court properly rejected the motion to recuse. The majority did not base its conclusion on the fact that the trial judge testified at the recusal hearing that the letter represented only tentative conclusions. While the majority opinion felt the trial judge could render a fair decision, the opinion noted the appearance of impropriety was a cause for serious concern and should have been the basis for recusation. However, the appellate court declined to overrule the trial court because of the long-standing rigid jurisprudence that the grounds for recusation must fall within one of the specifically enumerated provisions of LSA-C.C.P. Art. 151. *
Likewise, we are constrained to follow the uniform jurisprudence which holds that grounds for recusation are to be strictly construed. Like the majority in Southern Builders, Inc. v. Carla Charcoal, we are concerned with the appearance of impropriety but believe that we are bound by the long-standing interpretations of our Supreme Court.
Also in this assignment, appellant argues that the trial judge erred in failing to allow another district judge of the Sixth Judicial Court to hear the motion to recuse. LSA-C.C.P. Art. 154 provides that "[i]f a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or judge ad hoc...." The article therefore specifically indicates that if a valid ground for recusation does not exist, then the trial judge who is the subject of the motion to recuse can validly deny the motion without referring it to another judge. Inherent in our determination that the present motion did not set forth a valid ground for recusation is the conclusion that the trial judge was not in error in denying the motion to recuse without referring it to another judge. This assignment of error lacks merit.
In this assignment, defendant-appellant argues that the case was improperly assigned to Division B in direct violation of Rule 6 of the rules of the Sixth Judicial District Court. Thus, appellant urges that the trial court erred in denying the motion to transfer...
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