Markowitz v. Markowitz

• Decision Date: 11 September 2003
• Docket Number: No. 14-00-01505-CV.,14-00-01505-CV.
• Citation: 118 S.W.3d 82
• Court: Texas Court of Appeals
• Parties: Avi Bart MARKOWITZ, Appellant, v. Bridget Mary MARKOWITZ, Appellee.

118 S.W.3d 82

Avi Bart MARKOWITZ, Appellant, v. Bridget Mary MARKOWITZ, Appellee.

No. 14-00-01505-CV.

Court of Appeals of Texas, Houston (14th Dist.).

September 11, 2003.

Rehearing Overruled October 30, 2003.

Margaret H. Meece, Bryan, for appellant.

Allen Segal, Bryan, for appellee.

Panel consists of Justices YATES, FOWLER, and SEYMORE.

OPINION ON REHEARING

CHARLES W. SEYMORE, Justice.

We withdraw our previous opinion dated April 17, 2003 and substitute this opinion in its place. In six issues, Avi Bart Markowitz appeals the final decree of divorce that dissolved his marriage to Bridget Mary Markowitz and divided their property. We affirm. Accordingly, Avi's motion for rehearing is overruled.

Background

Avi and Bridget Markowitz married in 1983. Avi filed for divorce in 1997 and on December 15, 1997, he presented an agreed decree of divorce to Bridget for her signature. Bridget was scheduled for breast cancer surgery the next day. Despite the impending hospital stay, she signed the decree but initialed it "AMW." Later, she testified that the acronym meant "against my will." On December 18, 1997, while Bridget was hospitalized, the court rendered judgment on the parties' agreement and signed the final decree of divorce. Late that afternoon, Bridget called the trial court from her hospital room, claiming (with her husband's attorney also on the line) that she had been coerced into signing the decree. She subsequently retained an attorney and filed a motion for new trial.

Following the grant of a new trial, the trial court entered temporary orders, providing in part for spousal support and a continued salary for Bridget, who had worked as a nurse in Avi's medical practice. Avi did not comply with the temporary orders timely or willingly. Additionally, as the divorce became more contentious, the trial court found Avi in contempt on three occasions and jailed him twice for failure to comply with the temporary orders. During the course of proceedings, Avi filed three writs of habeas corpus, two or three motions to recuse the judge, and two petitions for writ of mandamus. There were many other pretrial motions, some involving Bridget's own poor behavior. The jury trial spanned seven weeks during October and November 1999. Post-verdict motions and hearings continued in the same vein of non-cooperation and contentiousness between Avi and Bridget. In total, Avi spent more than $300,000 in attorney's fees, and Bridget's attorney dedicated some $70,000 worth of time to the case. The trial court signed a final judgment on September 20, 2000, and this appeal ensued.

Reporter's Record

In his first issue, Avi contends that he is entitled to a new trial because the court reporter failed to transcribe and file certain pretrial proceedings, which were recorded electronically. Avi claims that the missing pretrial proceedings would demonstrate he was denied a fair and impartial trial on the merits because of the trial judge's bias. For the reasons set forth in Justice Fowler's opinion, which is the majority opinion on this issue, the court overrules issue one.

Alleged Judicial Bias

In his second issue, Avi contends he was denied a fair and impartial trial because of judicial bias throughout the proceedings. In seventeen pages of his brief, he complains that three years of rulings, as well as comments made by the trial court and Bridget, evidence the trial court's bias against him.

Parties have a right to a fair and impartial trial. Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex.App.-Houston [1st Dist.] 1994, writ denied). One of the fundamental components of a fair trial is a neutral and detached judge. Ward v. Village of Monroeville, 409 U.S. 57, 62, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). A judge should not act as an advocate nor an adversary for any party. Metzger, 892 S.W.2d at 38. "To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed and (2) probable prejudice to the complaining party." Id. at 39.

In Barrientos v. Nava, 94 S.W.3d 270 (Tex.App.-Houston [14th Dist.] 2002, no

pet.), this court considered judicial bias when a trustee was appointed. We wrote as follows:

The scope of our review is the entire record. Id. We note that "`judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.'" Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). Such remarks may constitute bias if they reveal an opinion deriving from an extrajudicial source; however, when no extrajudicial source is alleged, such remarks will constitute bias only if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. See Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex.App.-Houston [14th Dist.] 1997, no writ) (citing Liteky, 510 U.S. at 554-56, 114 S.Ct. 1147).

Barrientos v. Nava, 94 S.W.3d at 291-92. In Barrientos, the court concluded that the judge clearly held strong opinions about the proposed trustee, but they were based on the testimony and evidence the judge heard and saw during the trial. As such, they were not grounds for improper bias. With this case law in mind, we now turn to Avi's complaints of judicial bias.

First, we consider the trial court's allegedly biased comments. The record reflects various occasions on which the trial court expressed consternation about appellant's conduct. A party must object to a court's improper comment when it occurs in order to preserve error for appellate review. Dow Chem. Co., 46 S.W.3d at 241. Avi did not object to any of the judge's comments during the proceedings in which they were made.¹ Therefore, no error is preserved for our review regarding the trial court's allegedly improper courtroom comments.

Next, we consider the allegedly extrajudicial comment reported in a local newspaper article: "Upon sending Markowitz to jail last week, [Judge] Delaney said he was protecting the weak from the strong.... [Judge] Delaney declined to comment Wednesday...." Avi claims the judge's reported comment is an extrajudicial opinion reflecting the judge's bias. Again, this is taken from evidence introduced during a hearing to enforce temporary orders, a transcript not made part of the appellate record. We may not consider matters not included in the appellate record. Therefore, no error is preserved for our review regarding this allegedly extrajudicial comment.

Last, we consider Avi's claim that the trial court's rulings establish judicial bias against Avi such that he was denied a fair and impartial trial. Only in the rarest circumstances are judicial rulings demonstrative of the degree of favoritism or antagonism required to show that a fair and impartial trial is impossible. Liteky, 510 U.S. at 555, 114 S.Ct. 1147; see In re M.C.M., 57 S.W.3d 27, 33 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (insufficient showing of antagonism in, for example, judge's refusal to permit attorney to read from documents in evidence). Such rulings are generally best brought as grounds for appeal, not as evidence of judicial bias. See Liteky, 510 U.S. at 555, 114 S.Ct. 1147; Grider v. Boston Co., 773 S.W.2d 338, 346 (Tex.App.-Dallas 1989, writ denied) ("proper remedy was to assign error on the basis of the adverse rulings").

Avi suggests some thirty different rulings reflect the trial court's antagonism toward him. An objecting party, in order to preserve a complaint for appellate review, must get a ruling from the trial court. Tex.R.App. P. 33.1; see Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.). We have examined the trial record, and in many of Avi's examples of biased rulings, the record contains no ruling or request for a ruling. In several other instances, objections to testimony were resolved in Avi's favor. These favorable rulings would indicate that the trial judge was attempting to rule on the merits notwithstanding the antagonistic atmosphere between parties and the court. Finally, after carefully examining the clerk's record and trial record for the remaining examples of allegedly biased rulings, we conclude that the trial judge did not exhibit deep-seated favoritism or antagonism that would make fair judgment impossible. See Dow Chem. Co., 46 S.W.3d at 241. Even considering the cumulative effect of all of the judge's comments and rulings, we cannot conclude that they probably caused the rendition of an improper judgment by either influencing the jury to return a verdict it would not have otherwise returned. Nor has it been shown that they impacted the judge's post-verdict rulings. See Metzger, 892 S.W.2d at 39.

Accordingly, we overrule issue two.

Breach of Contract

In his third issue, Avi contends that the trial court erred in granting judgment non obstante veredicto (JNOV) on the jury's finding (Issue No. 11) that Bridget failed to comply with her contractual obligations under the Final Decree of Divorce dated December 18, 1997. He further contends the trial court was obligated to incorporate into the final judgment an award of $115,530 found to be his damages resulting from Bridget's breach of contract. Our disposition of this issue turns on the status of the agreement (recited in the 1997 decree) after the trial court granted a new trial.

Here, our discussion is controlled by one fact: the trial court granted a motion for new trial. While a trial court retains plenary power, it has the authority to grant a new trial after rendition of an agreed divorce. See Nichols v. Nichols, 907 S.W.2d 6, 9-10 (Tex.App.-Tyler 1995, writ denied). When a motion for new trial is granted, the original judgment is set aside and the parties may proceed without prejudice from previous proceedings. See In re...