Flannery v. Flannery
| Decision Date | 12 April 1969 |
| Docket Number | No. 45482,45482 |
| Citation | 203 Kan. 239,452 P.2d 846 |
| Parties | Dorothy A. FLANNERY, Appellant, v. Lawrence S. FLANNERY, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. One who acts in a judicial capacity is disqualified to hear any matter concerning which he may be biased or prejudiced or in which he may have a personal interest.
2. The existence of bias, prejudice or conflict of interest on the part of judicial officer is a matter which must be established and the mere allegation of a litigant that a judge is biased, prejudiced or is personally interested in the litigation is not sufficient to compel such judge to disqualify himself.
3. In the absence of circumstances which, of themselves, would tend to cast doubt upon the fairness of whatever judgment might be pronounced by the judge, the question of bias or prejudice or self-interest on his part rests largely within the conscience of the judge himself.
4. The order of a judge disqualifying himself in a given case does not preclude him from thereafter assuming jurisdiction when the cause for his disqualification in the first instance has been removed or has ceased to exist.
5. Where matters concerning the disposition and division of property and property rights are adjudicated and settled in a final divorce decree the trial court is thereafter without statutory authority to change, alter or modify the judgment with respect to the property so divided.
6. The record is examined in a proceeding brought (1) to require the defendant to pay expenses of repairs, upkeep and maintenance to a house occupied by his former wife, who by the terms of the divorce decree was required to pay such expenses herself and (2) to obtain an increase in the amount of child support to be paid by the defendant, and for reasons appearing in the opinion it is held the trial judge did not err in (a) refusing to disqualify himself from hearing plaintiff's motion, (b) holding that the court was without power to modify its prior judgment with respect to property rights and interests therein settled and decreed, and (c) refusing to increase child support payments.
Albert M. Ross, Kansas City, for appellant, Harold K. Wells and James M. Barnett, Kansas City, on the brief.
George K. Melvin, Lawrence, for appellee.
This is an appeal by the plaintiff, Dorothy A. Flannery, from an order overruling her motion to modify a divorce decree in two particulars: (1) By requiring her former spouse, the defendant Lawrence S. Flannery, to pay for certain repairs to the ancestral home being occupied by Mrs. Flannery and a minor son, the title to which had been awarded equally to the two Flannerys and which plaintiff had been given the right to occupy until September 6, 1969; (2) by increasing the child support of $120 per month originally set by the court.
The divorce case, itself, was heard by Judge Floyd H. Coffman of Ottawa who was assigned to hear the matter after the regular district judge, Frank R. Gray, disqualified himself. Shortly after the motion for modification was filed, plaintiff's counsel, Mr. Ross, wrote Judge Coffman asking him to set the motion for hearing. The following day, the defendant's counsel, Mr. George Melvin, sent a letter to Judge Coffman objecting to his hearing the motion and stating that Judge Gray should hear it even though he had disqualified himself from hearing the divorce.
Three days later Judge Coffman advised both attorneys by mail that he had set the matter for hearing but would not insist on hearing it if Judge Gray should hold that he, Coffman, had no jurisdiction. A further letter was mailed to Judge Coffman by Ross advising that he assumed Judge Gray would not wish to hear the motion but that he had no preference as to which judge heard it and would leave that to the sound discretion of the courts. Thereafter Judge Gray advised by letter that the matter which had required his disqualification appeared to have been finally adjudicated and he saw no reason why he could not hear the motion.
The upshot of the extended colloquy was that Judge Gray determined he would hear plaintiff's motion, and this he did, despite a motion filed by plaintiff for a change of venue. In ruling on this motion, Judge Gray said:
The plaintiff contends that Judge Gray erred in making this ruling and in proceeding to hear plaintiff's motion to modify.
Treating plaintiff's motion for change of venue as a motion for disqualification, as it seems to have been considered by Judge Gray, we entertain the view that no error was committed in its denal or in no error was committed in its denial or in Judge Gray's proceeding to act in the matter. In so concluding, we have no intention of repudiating the principle that one who acts in a judicial capacity is disqualified to hear any matters concerning which he may be biased or prejudiced, or in which he may have an interest. That principle is far too basic to the Anglo-American concept of justice to be abrogated or debased. In Tootle v. Berkley, 60 Kan. 446, 56 P. 755, it was said:
'* * * It is the purpose of the law that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, and independent. * * *' (p. 448, 56 P. p. 756.e
See, also, Peyton's Appeal, 12 Kan. 398.
However, the fact of disqualification, that is, the existence of bias or prejudice or of conflict of interest on the part of a judicial officer is a matter which must be established. In this state a judge may not be disqualified by the simple expedient of a certificate filed by a litigant alleging bias, prejudice or conflicting interest, although such a rule exists in some jurisdictions by legislative enactment. Ordinarily it may be said, absent circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment the judge might pronounce, the question of bias or prejudice on the part of a court rests largely within the conscience of the court itself. In the early case of City of Emporia v. Volmer, 12 Kan. 622, it was held:
'In criminal cases, on an application for a change of venue on account of the prejudice of the judge, such facts and circumstances must be shown by affidavits or other evidence as clearly establish such prejudice; and unless it be by such testimony clearly established, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged.' (Syl. 1.)
This holding was cited with approval in Sheldon v. Board of Education, 134 Kan. 135, 140, 4 P.2d 430, and applies with equal force in both civil and criminal cases.
In the present case Mrs. Flannery did not allege in her motion for change of venue that Judge Gray was biased or prejudiced. She merely set out that she felt Judge Coffman was acquainted with the facts and circumstances involved in the dispute between the parties, including their financial situation, and that it had already been detrimental to her health to have the matter assigned to a different judge.
Indeed, the argument pressed most strongly by Mrs. Flannery in this appeal is that where a judge has once disqualified himself, his disqualification persists throughout all subsequent proceedings which may arise in connection with the case. Her position in this respect conflicts with...
To continue reading
Request your trial
-
Sweeney's Estate, In re, 46631
...Supp. 60-1601, 60-1610) and our decisions (Ediger v. Ediger, 206 Kan. 447, 479 P.2d 823; Drummond v. Drummond, supra; Flannery v. Flannery, 203 Kan. 239, 452 P.2d 846, and cases cited therein) divorce ends the marital relationship, and a judgment for alimony is a final determination of the ......
-
Marriage of Beardslee, Matter of
...the issues, which is in violation of Supreme Court Rule 6.02(e) (1995 Kan. Ct. R. Annot. 29). Clarence points to Flannery v. Flannery, 203 Kan. 239, 243-45, 452 P.2d 846 (1969), where the court applied the general rule that the district court does not retain statutory authority to modify a ......
-
State v. Hurd
...Hurd has not demonstrated Judge Peterson's former employment created a conflict of interest in this case. See Flannery v. Flannery, 203 Kan. 239, 241–42, 452 P.2d 846 (1969) (concluding that judge may be required to recuse if defendant proves conflict of interest). Second, Hurd also alleged......
-
State v. Solem
...from hearing any matter concerning which he may be biased or prejudiced, or in which he may have an interest. (Flannery v. Flannery, 203 Kan. 239, 452 P.2d 846.) In the absence of circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment might be pro......