Copeland v. Copeland, 2003-CA-02090-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before SMITH, C.J., EASLEY and RANDOLPH, JJ.
• Citation: 904 So.2d 1066
• Parties: Kelly B. COPELAND v. Gregory COPELAND.
• Docket Number: No. 2003-CA-02090-SCT.,2003-CA-02090-SCT.
• Decision Date: 16 December 2004

904 So.2d 1066

Kelly B. COPELAND
v.
Gregory COPELAND

No. 2003-CA-02090-SCT.

Supreme Court of Mississippi.

December 16, 2004.

904 So.2d 1069

Damon Scott Gibson, Gulfport, attorney for appellant

Albert Lionel Necaise, Gulfport, attorney for appellee.

Before SMITH, C.J., EASLEY and RANDOLPH, JJ.

RANDOLPH, Justice, for the court.

¶ 1. Gregory Copeland ("Greg") filed for divorce on May 17, 2002, against his wife, Kelly B. Copeland ("Kelly"), in the Chancery Court of the First Judicial District of Harrison County, Mississippi. Greg's complaint for divorce¹ asserted that he was entitled to a divorce from Kelly on the grounds of habitual cruel and inhuman treatment, adultery or alternatively, irreconcilable differences. Additionally, Greg's complaint sought custody of the minor child of the parties, Gregory Mason Copeland ("Mason").

¶ 2. On May 22, 2002, Kelly filed an answer and counterclaim, denying that Greg was entitled to a divorce, and specifically denying the adultery. Kelly sought a divorce on the grounds of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. Kelly demanded child support, equitable division of the marital assets, attorney's fees and immediate temporary custody of Mason.

¶ 3. The matter was heard on May 31, 2002, on the issues of temporary relief, and although the trial court issued a temporary order, none could be located in the trial court file, nor was any noted on the docket sheet.

¶ 4. On February 6, 2003, prior to the matter going to trial, Kelly filed a motion for recusal in an attempt to persuade the chancellor, Honorable Carter O. Bise, to recuse from the case.² This motion was based on Judge Bise's prior statement of "recusal," where Judge Bise allegedly stated in an off record conference that he would recuse himself.

¶ 5. On March 12, 2003, the recusal motion was heard by Judge Bise. The motion for recusal was based on Kelly's concern about alleged political support provided to Judge Bise by Greg's counsel, Albert L. Necaise.³ This motion was denied on September 4, 2003.

¶ 6. This matter came on for hearing on June 19, 2003, and the trial lasted through June 27, 2003, at which time the trial court took the matter under advisement. On September 4, 2003, the trial court entered its judgment granting: (1) Greg a divorce on the ground of adultery; (2) Greg and Kelly joint legal custody of Mason; (3) paramount physical custody of Mason to Greg; and (4) visitation to Kelly.

¶ 7. Kelly appeals and raises the following issues, which have been reworded for clarification:

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I. Whether the chancellor should have recused himself on the motion of Kelly Copeland.

II. Whether the chancellor erred when he allowed the tape recordings, Exhibit 1, to be introduced as evidence.

III. Whether the chancellor, in granting Gregory Copeland paramount physical custody of Mason Copeland, the parties eighteen month old child, was manifest error.

FACTS

¶ 8. Greg and Kelly were married on November 4, 2000, in the First Judicial District of Harrison County, Mississippi, where they lived until their separation, which occurred on or around May 17, 2002. On December 17, 2001, during the marriage, Mason was born.⁴ Kelly also had a daughter, Allie Holliman, from a previous relationship prior to Greg and Kelly's marriage. Allie was born on June 11, 1998, and her father is Daniel Holliman.⁵ Greg, Kelly, Mason and Allie resided in Saucier, Mississippi, in a trailer on land contiguous with that of Greg's parents.

¶ 9. At all pertinent times, Kelly worked at the office of Kimble Doty, a dentist, as a dental assistant earning approximately $28,000 yearly. Greg operates his own business, Greg Copeland Trucking Company, as a heavy equipment operator, clearing construction sites. Greg has been self-employed since the age of 16 doing "dirt work." Greg's hours are flexible and he testified that he was off work by 3 or 4 p.m.

¶ 10. Kelly stayed home with Mason for five weeks after his birth before returning to work. After Kelly returned to work, and until the date of separation, Greg's mother, Barbara Copeland, would keep Mason during the day.

¶ 11. Problems developed for Greg and Kelly shortly after Kelly became pregnant with Mason. Greg began sleeping in the living room while Kelly continued to sleep in the bedroom. According to Greg, the reason he slept in the living room was because Kelly complained about his snoring and moving too much; according to Kelly, it was because there was no affection in the marriage, Greg showed no affection to Kelly or Allie, and that Greg abused Kelly physically after she became pregnant with Mason.

¶ 12. The sleeping arrangements continued after Mason's birth. After his birth, Mason slept in his crib in the living room where Greg was sleeping. Both parties testified that they took care of Mason's needs after he was born. Kelly testified that Greg participated in caring for Mason, and they both got up with him at night.

¶ 13. Greg testified that Kelly began coming home late from work in March 2002. Kelly's work schedule required her to be at work from 8:00 a.m. until 4:30 p.m., except on days when she worked late.⁶ Greg also testified that Kelly began coming home late five nights a week. Additionally, Greg testified that from the last two weeks in April until May 17, 2002, Kelly would come home on week nights after work and then leave, thereafter returning home between 9:30 p.m. and as late as 11:00 p.m. Greg testified that Kelly was gone six nights a week.

¶ 14. Greg became suspicious of Kelly's conduct. Consequently, on April 15, 2002, Greg set up a tape recording system on the telephone at their residence. Over the

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course of the next few weeks, Greg made approximately ten tapes.⁷ Based on what he heard on the tapes, Greg filed his action for divorce against Kelly

DISCUSSION

I. Recusal.

¶ 15. Pursuant to Canon 3, subdivision E, of the Code of Judicial Conduct, "Judges should disqualify themselves in proceedings in which their impartiality might questioned by a reasonable person knowing all the circumstances...." The test for recusal of a judge is stated as follows: "[W]ould a reasonable person, knowing all the circumstances, harbor doubts about the judge's impartiality?" In re Conservatorship of Bardwell, 849 So.2d 1240, 1247 (Miss.2003); Bredemeier v. Jackson, 689 So.2d 770, 774 (Miss.1997).

¶ 16. Judges are presumed to be qualified and unbiased. Farmer v. State, 770 So.2d 953, 956 (Miss.2000). This Court has held in numerous cases that the "evidence presented must produce a reasonable doubt as to a judge's impartiality." Dodson v. Singing River Hosp. Sys., 839 So.2d 530, 533 (Miss.2003); see also Tubwell v. Grant, 760 So.2d 687, 688 (Miss.2000); Beyer v. Easterling, 738 So.2d 221, 228 (Miss.1999); Walls v. Spell, 722 So.2d 566, 571 (Miss.1998). This presumption is overcome only by showing beyond a reasonable doubt that the judge was biased or unqualified. Upton v. McKenzie, 761 So.2d 167, 172 (Miss.2000). Impartiality is viewed under the "totality of the circumstances" analysis using an objective reasonable "person, not a lawyer or judge," standard. Dodson, 839 So.2d at 534 (citing Collins v. Joshi, 611 So.2d 898, 903 (Miss.1992) (Banks, J., concurring)) (emphasis in original). In Dodson, this Court recently stated:

¶ 12. Surely, it could not have been intended that the standard for recusal be so stringent as to warrant the criminal law "beyond a reasonable doubt" burden of proof. Quoting Turner, we stated in Collins that "[t]o overcome the presumption, the evidence must produce a `reasonable doubt' (about the validity of the presumption)." 611 So.2d at 901. However, in the very next paragraph we stated, "This presumption may only be overcome by evidence showing beyond a reasonable doubt that the judge was biased or not qualified." Id. (emphasis added). In Norton, we quoted Collins in applying the "beyond a reasonable doubt" burden. 742 So.2d at 131. Also, in Upton, we cited Bredemeier and Turner as the sources of the beyond a reasonable doubt burden when both of those cases clearly applied the "produces a reasonable doubt" burden. Upton, 761 So.2d at 172. See Bredemeier, 689 So.2d at 774 (quoting Turner); Turner, 573 So.2d at 678 (applying "must produce a reasonable doubt" burden).

¶ 13. The stringent "beyond a reasonable doubt" burden is, in our opinion, incompatible with the standard of a hypothetical "reasonable person knowing all the circumstances." The proper standard is that recusal is required when the evidence produces a reasonable doubt as to the judge's impartiality. The misapplication of the "beyond a reasonable doubt" burden in the above-discussed cases was nothing more than a minor oversight and would have led to the same conclusion. We now clarify the burden of proof from what was previously stated in Upton, Norton, and Collins.

839 So.2d at 533.

¶ 17. When a judge is not disqualified under the constitutional or statutory

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provisions, the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion. Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991). In determining whether a judge should have recused himself, this Court must consider the trial in its entirety and examine every ruling to determine if those rulings were prejudicial to the moving party. Jones v. State, 841 So.2d 115, 135 (Miss.2003) (citing Hunter v. State, 684 So.2d 625, 630-31 (Miss.1996))

¶ 18. In the case sub judice, Kelly filed a motion for recusal requesting that Judge Bise recuse himself from the case.⁸ This motion was based upon Kelly's concern about an alleged relationship between Judge Bise and Greg's counsel, Albert L. Necaise. Kelly stated that she received information that Necaise introduced Judge Bise at a political rally⁹ during Judge Bise's election campaign of 2002. Kelly claimed that Judge Bise "recused" himself from...