Klein v. Klein

• Decision Date: 02 February 1990
• Docket Number: No. 89-131,89-131
• Citation: 572 A.2d 900,153 Vt. 551
• Parties: Stephen L. KLEIN v. Susanne T. KLEIN.
• Court: Vermont Supreme Court

Page 900

572 A.2d 900

153 Vt. 551

Stephen L. KLEIN v. Susanne T. KLEIN.

No. 89-131.

Supreme Court of Vermont.

Feb. 2, 1990.

Trine Bech of Bech & Associates, Hartland, for plaintiff-appellee.

Susan M. Murray of Langrock Sperry Parker & Wool, Middlebury, for defendant-appellant.

Before ALLEN, C.J., and PECK, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

Defendant, Susanne Klein, appeals the trial court's order for maintenance and child support. Defendant argues that the court abused its discretion and that the trial judge should have been recused from participating in this case. We reverse and remand in part and affirm in part.

This is the second time this divorce case has been appealed to this Court. The facts of the case leading up to the first appeal are described in detail in Klein v. Klein, 150 Vt. 466, 555 A.2d 382 (1988). The pertinent facts for this appeal are as follows.

Plaintiff and defendant were divorced in July, 1986 after an eighteen-year marriage. At the time of their divorce, plaintiff and defendant were approximately forty-seven and forty years of age respectively. In the initial divorce decree, defendant was awarded custody of the parties' two children, both of whom are now over the age of 18. The court divided the parties' property between them, but did not award spousal maintenance or child support to defendant. Defendant appealed arguing that the court abused its discretion by awarding plaintiff a disproportionate amount of property, failing to award defendant any maintenance, and failing to make a specific child support order. We affirmed the property distribution because it "fell within the range of the trial court's discretion." Id. at 469, 555 A.2d at 384. We found, however, that defendant was "entitled to an award of maintenance as a matter of law," but left the amount and terms of the award to the discretion of the trial court. Id. at 472, 555 A.2d at 386. Additionally, we concluded that child support for the daughter should be paid through the custodial parent, who in this case was defendant, and further that the original support order was unenforceably vague. Id. at 477-78, 555 A.2d at 389. We therefore reversed and remanded the case on the maintenance and child support issues. Id. at 467, 555 A.2d 383.

On remand, the case was heard by the same superior court judge who had originally heard the case. Defendant filed a motion with the trial court to recuse the assigned superior judge, arguing first that he would be unable to rethink his prior discretionary rulings and second that recusal was necessary to instill confidence in the judiciary and to avoid the appearance of impropriety. Pursuant to V.R.C.P. 40(e)(3), the court referred the matter to the Administrative Judge for Trial Courts, who denied the motion because "no reason [was] advanced sufficient to require a recusal."

A hearing was held over a two-day period in December, 1988. At the hearing, no evidence was taken but counsel for both parties presented oral arguments on the remanded issues. The court issued its order on December 22, 1988. With respect to the issue of child support, the court recognized the need for a standard by which the parties could monitor and enforce the child support obligation. Nevertheless, it found that despite this error, plaintiff had in fact met his obligations, and concluded that, "[i]n light of the findings Defendant's request for child support is deemed to be MOOT as the children are of full age." The court therefore declined to find any child support payments due to defendant. With respect to the issue of spousal maintenance, the court stated that it had already rendered findings of fact which required the court to award maintenance to defendant. The court ordered that defendant receive $250 per week from the date of the divorce decree until the death of either party or until June 1, 2000, whichever occurs first. Additionally, the court stated that remarriage is not per se grounds to terminate the maintenance award.

Both plaintiff and defendant filed motions with the trial court in response to its order. Defendant's motion asked the court to reconsider the maintenance award and to hold an evidentiary hearing on the child support issue, contending that the issue was not moot because she had made child support payments while her daughter was still a minor. Plaintiff's motion was a request for the court to issue findings of fact on the issue of maintenance. The court denied both motions, and defendant subsequently appealed to this Court.

Defendant raises three errors on appeal as follows: (1) the trial court abused its discretion in making its maintenance award; (2) the court committed reversible error in ruling that the child support issue was moot; and (3) the trial judge refused to recuse himself from this case on remand after being reversed by this Court. We take these issues in reverse order.

Defendant's recusal argument is that the presiding trial judge abused his discretion in refusing to recuse himself from the proceedings after remand of his earlier decision. Specifically, defendant argues that it is not "humanly possible" for the trial judge to ignore his previous discretionary ruling. Additionally, defendant claims that a judge should be recused in divorce cases where there has been a remand involving discretionary issues in order to avoid the appearance of impropriety and to reinforce the litigants' confidence in the judiciary.

Our normal standard for recusal in divorce cases is that the party seeking disqualification must show that the judge " 'could not, or did not, pass upon the facts of [the] case without bias or prejudice.' " DeGrace v. DeGrace, 147 Vt. 466, 469, 520 A.2d 987, 989 (1986) (quoting Daitchman v. Daitchman, 145 Vt. 145, 147, 483 A.2d 270, 271 (1984)). This standard is based on Code of Judicial Conduct, Canon 3 C(1)(a): "[a] judge should disqualify himself in a proceeding in which ... he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." In addition, we have held that a "motion for recusal may not ordinarily be based simply on the judge's participation in earlier proceedings regarding the same case." In re T.L.S., 144 Vt. 536, 543, 481 A.2d 1037, 1041 (1984). Under this standard, the motion was properly denied in this case.

Defendant argues, however, that the nature of domestic relations cases and the wide discretion given the trial court in such cases require a stricter recusal standard. Her argument is based in part on Canon 3 C(1) of the Code of Judicial Conduct which provides that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." We do not agree that prior involvement in a divorce case creates a reasonable ground to question the impartiality of the court. The presumption, if any, must be of "honesty and integrity," with burden on the moving party to show otherwise in the circumstances of the case. See In re Judy Ann's Inc., 143 Vt. 228, 233, 464 A.2d 752, 755 (1983). In addition, the adoption of V.R.C.P. 40(e), which provides that recusal motions be referred to the Administrative Judge for Trial Courts, requires that the appearance of impartiality be found by a disinterested judicial officer. The Administrative Judge found no reasonable ground to question the impartiality of the trial court in this case, and we do not find good cause to overturn his determination.

Defendant next claims that the trial court failed to hear testimony regarding plaintiff's child support obligation and erroneously ruled that the child support issue was moot. The parties' younger child was nearly seventeen years of age at the time of the original divorce proceedings. Because the court may order support "until the child attains the age of majority or terminates secondary education," 15 V.S.A. § 658(c), defendant asserts that plaintiff must pay child support for the period of time while their daughter was still a minor.

The original trial court order granted custody of the parties' daughter to defendant, and required plaintiff "to give the children their allowances and support them as he has been doing." In Klein, we found this order "unenforceably vague," and also concluded that the child support should be paid through defendant. Klein, 150 Vt. at 477-78, 555 A.2d at 389. On remand, the court heard oral arguments by both parties concerning the support issue, but refused to accept any new evidence. Based upon these arguments, the court stated:

[W]ith the exception of vacations and weekends the minor child spent the final year of her minority attending a boarding school; room, board and tuition at the boarding school were paid from a trust fund established by Plaintiff's father on behalf of the minor child; and throughout this year long period Plaintiff continued to fund the minor child's gasoline credit card and provide a regular allowance to her. In light of the findings Defendant's request for child support is deemed to be MOOT as the children are of full age.

Because the court did not take any new evidence...