Grasser v. Grasser

• Decision Date: 29 March 2018
• Docket Number: No. 20170188,20170188
• Citation: 909 N.W.2d 99
• Parties: Stephanie GRASSER, Plaintiff and Appellee v. Gene GRASSER, Defendant and Appellant
• Court: North Dakota Supreme Court

909 N.W.2d 99

Stephanie GRASSER, Plaintiff and Appellee

v.Gene GRASSER, Defendant and Appellant

No. 20170188

Supreme Court of North Dakota.

Filed March 29, 2018

H. Malcolm Pippin, Williston, ND, for plaintiff and appellee.

Lynn M. Boughey, Bismarck, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Gene Grasser appeals from an amended judgment entered on March 17, 2017, awarding primary residential responsibility to Stephanie Grasser and distributing marital property and debts. We conclude the district court did not abuse its discretion by denying Gene’s request for recusal or by finding Gene in contempt and awarding sanctions which it did not reimburse. We further conclude the court did not clearly err by awarding Stephanie primary residential responsibility of the parties’ child or by distributing the parties’ marital property and debts. We affirm.

I

[¶2] Gene and Stephanie Grasser were married in October 2000, and had a child, S.G., born in 2004. The marriage was tumultuous, and the record reflects Gene’s conduct included violence, criminal conduct, threats of violence, hostile and vulgar language, and substance abuse. During the marriage, Stephanie left the marital home for extended periods of time. In July 2014, Stephanie filed for a divorce.

[¶3] On October 3, 2014, Gene filed a motion to continue an interim hearing. In the same motion, Gene indicated he was filing a demand for recusal. On October 8, 2014, Gene filed a motion for demand for a change of judge requesting the judge recuse himself, indicating he had concerns about prior relationships between the court and Stephanie as well as between the court and witnesses involved in the case. Stephanie responded to the demanded recusal and requested an emergency telephonic hearing. During the telephonic hearing on October 8, 2014, the judge acknowledged he knew who Stephanie was, but denied any type of relationship between Stephanie or the other witnesses. The court denied the demand for recusal on the record.

[¶4] On October 10, 2014, the district court held a hearing for an interim order and again addressed the motion demanding a change of judge. The judge reiterated that he recollected who Stephanie was, but had no relationship with her. The court indicated Gene could bring another motion if he had any information he thought was relevant. The court stated "I do take the appearance of impropriety very seriously," and from what had been presented, the judge did not find grounds to recuse himself. A written order followed denying the motion for reasons stated on the record.

[¶5] On multiple occasions throughout the divorce proceeding, Stephanie moved the district court to find Gene in contempt, to compel discovery, and award her sanctions and attorney’s fees. The court found Gene in contempt of court, and awarded sanctions and attorney’s fees. The court also ordered Gene to produce the discovery requested multiple times.

[¶6] The district court entered a partial summary judgment in May 2015, granting the parties’ divorce, reserving issues to be addressed at trial. The court held a trial on September 21 and 23, 2016, regarding primary residential responsibility of their child and division of marital property and debts. The judgment was filed in March 2017. Gene filed a notice of appeal in May 2017.

II

A

[¶7] Gene argues the district court erred in addressing the motion for recusal. At the October 8 and 10, 2014 hearings, Gene indicated he had concerns about prior relationships between the court and Stephanie as well as the court and witnesses.

[¶8] Gene labeled his written motion as a demand for a change of judge and cited to N.D.C.C. § 29–15–21 in his brief supporting the motion. However, Gene argued in his brief and during the hearings for the judge to recuse himself based on impartiality. A motion for recusal and a demand for a change of judge are two separate motions. This Court is not bound by a party’s label and may look to the substance of the motion to determine the proper classification. Eagleman v. State , 2016 ND 54, ¶ 18, 877 N.W.2d 1. Based on his position in the district court we will review Gene’s argument as a motion for recusal.

[¶9] A motion for recusal is reviewed under the abuse of discretion standard. Rath v. Rath , 2013 ND 243, ¶ 14, 840 N.W.2d 656. A court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Lizakowski v. Lizakowski , 2017 ND 91, ¶ 26, 893 N.W.2d 508.

The rules of judicial conduct provide that a judge is required to avoid impropriety and the appearance of impropriety in all of the judge’s activities. " ‘The law presumes a judge is unbiased and not prejudiced.’ " We have said "[a] ruling adverse to a party in the same or prior proceeding does not render a judge biased so as to require disqualification." The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality.

Rath , at ¶ 14 (citations omitted). "Unlike a demand under N.D.C.C. § 29–15–21, a district court judge is not immediately divested of authority upon the filing of a motion to recuse." Schweitzer v. Mattingley , 2016 ND 231, ¶ 15, 887 N.W.2d 541. "While a judge has a duty to recuse when required by the Code of Judicial Conduct, a judge also has an equally strong duty not to recuse when the facts do not require recusal." Id. at ¶ 13. A judge shall not permit relationships to influence the judge’s judicial conduct or judgment. N.D. Code Jud. Conduct Canon 2.4(B).

[¶10] Gene made vague charges of potential lack of impartiality based on "concerns about prior relationships." However, when the district court asked about the substance of the concerns during the emergency telephonic hearing, Gene’s attorney indicated "I have no information one way or the other—but it’s my client’s position that Your Honor has previously spent time, like quality time, with Stephanie, as well as a long standing friendship with her that stems from high school interaction." The judge responded a dating relationship never happened. The judge indicated he knew who Stephanie was, but was never in any type of relationship with her. The judge concluded he was not inclined to recuse himself without Gene’s attorney providing affidavits showing information of a closer relationship to the individuals involved. Gene did not provide any evidence other than the initial allegations of potential partiality. Therefore, the court did not abuse its discretion by denying Gene’s request for recusal.

B

[¶11] Gene argues the district court erred in failing to order reimbursement to him for sanctions and attorney’s fees entered against him. Throughout the divorce proceedings, the court entered multiple orders finding Gene in contempt and awarded sanctions and attorney’s fees to Stephanie. Gene argues the court sanctioned him for failing to provide full and complete discovery at a time when his attorney failed to properly represent him. Attorney Nicole Foster represented Gene when the divorce began. There were three orders awarding sanctions during the time Foster represented Gene. Another attorney took over Gene’s case and the court entered two additional orders for sanctions. Gene cites to three disciplinary board cases against Foster, alleging he was sanctioned for missing deadlines he knew nothing about.

[¶12] The district court may impose a sanction for contempt under N.D.C.C. ch. 27–10. A court may award sanctions under N.D.R.Civ.P. 11 against an attorney, or a represented party, or both, if the requirements of the rule are violated by them. Dietz v. Kautzman , 2004 ND 119, ¶ 14, 681 N.W.2d 437 ; see also N.D.R.Civ.P. 11.

A district court also has inherent authority to sanction a litigant for misconduct. Sanctions must be reasonably proportionate to the misconduct. When sanctioning a party for misconduct, a district court should consider and make findings on the culpability or state of mine of the party against who sanctions are being imposed, the prejudice to the moving party, the impact of the prejudice on the moving party’s ability to present or defend the party’s case, and the availability of less severe sanctions.

A district court has discretion in awarding attorney fees as a sanction in divorce actions. An award of attorney fees as a sanction will not be disturbed on appeal unless the court abuses its discretion. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.

Brew v. Brew , 2017 ND 242, ¶ 32, 903 N.W.2d 72 (quoting Lewis v. Smart , 2017 ND 214, ¶ 32, 900 N.W.2d 812 ).

[¶13] "An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal." N.D.C.C. § 27–10–01.3(3). Gene did not appeal any of the five contempt orders, the last which was issued on March 6, 2017. Instead, Gene filed this appeal from the amended judgment on May 19, 2017. An appeal of a contempt order must be made within "60 days after entry of the judgment or order being appealed." N.D.R.App.P. 4(c). More than 60 days elapsed between the final contempt order and the notice of appeal. Gene failed to timely appeal any of the contempt orders and is, therefore, bound by them. See Negaard v. Negaard , 2005 ND 96, ¶ 11, 696 N.W.2d 498.

[¶14] Gene did not formally raise the issue of reimbursement of imposed sanctions by motion, rather he raised it for the first time in a post-trial brief. He argued:

Gene strongly believes that the sanctions that were imposed on him and the money that he was required to pay [Stephanie’s attorney] was unjustified and due to his former lawyer’s actions and inactions, and that the court should require Stephanie

...