Marriage of Burroughs, In re

• Decision Date: 14 May 1985
• Docket Number: No. 48839,48839
• Parties: In re the MARRIAGE OF Cheryl R. BURROUGHS, Respondent, and Michael R. Burroughs, Appellant.
• Court: Missouri Court of Appeals

Page 470

691 S.W.2d 470

In re the MARRIAGE OF Cheryl R. BURROUGHS, Respondent,

and

Michael R. Burroughs, Appellant.

No. 48839.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 14, 1985.

Raymond Howard, St. Louis, for respondent.

Marc P. Weinberg, St. Louis, for appellant.

CROW, Special Judge.

Michael R. Burroughs ("Michael") appeals from an order modifying the child support and temporary custody provisions of a decree of dissolution of marriage.

Michael's marriage to Cheryl R. Burroughs ("Cheryl") was dissolved February 7, 1979. The decree, among other things, awarded custody of the parties' child, Shawn Ricardo Burroughs ("Shawn"), then age two, to Cheryl. Michael, in addition to reasonable visitation rights, was awarded temporary custody of Shawn six weeks each summer commencing when Shawn reached age four. Michael was ordered to pay Cheryl $35 per week child support.

On August 25, 1983, Cheryl filed a motion seeking an increase in the child support to $100 per week and a "modification" of Michael's visitation and temporary custody rights. Michael filed an answer to Cheryl's motion, and also filed a "cross-motion" seeking primary custody of Shawn or, in the alternative, increased visitation and temporary custody.

An evidentiary hearing on these motions on May 23, 1984, resulted in an order raising the child support to $55 per week and reducing Michael's summer custody of Shawn to one month (either July or August, at Michael's option). This appeal followed.

Michael's first assignment of error is that the trial court failed "to make specific findings of controverted facts, as requested by [Michael], pursuant to Rule 73.01 regarding the financial ability of each party to support the child."

At the start of the trial, Michael's attorney stated: "For the record, if I may, I would like to make a motion at this time, pursuant to Rule 73.01, to make specific findings of controverted facts regarding the financial ability of each party to support the child in question."

The judge denied the request. His explanation for doing so ended with this comment: "You know when you make that motion there is no possibility I can make a finding as to how much child support goes to food, laundry, and so forth. All I can do is take the cost of living and work it out that way."

Michael's attorney responded: "For the record, perhaps the court misunderstood what I was asking. I was asking for a specific percentage opinion based on the facts, but also on the controverted facts and the financial abilities of each party, not regarding how the child support per se is figured out."

The judge repeated his belief that it was impossible to comply with the request. No findings of fact were made.

Rule 73.01(a)(2) ¹ provides that in cases tried without a jury, the court, if requested by counsel, shall "include its findings on such controverted fact issues as have been specified by counsel."

We are unable to descry, from the comments of Michael's attorney at trial, what fact issues he wanted the judge to resolve. If the objective of Michael's attorney was to have the judge make specific findings regarding such items as the respective incomes of the parties, or their respective monthly outlays for rent, utilities, medical care, debt payments, and the like, Michael's attorney could have easily said so. His comments, however, yielded no clue. Having failed to identify any specific fact issue for the judge to determine, counsel can assign no error. Dardick v. Dardick, 670 S.W.2d 865, 867 (Mo. banc 1984); Snider v. Snider, 570 S.W.2d 770, 774-75 (Mo.App.1978).

Michael's second point is:

"The trial court's statements and rulings expressed a prejudicial disposition to grant [Cheryl's] motion to modify prior to hearing the evidence or determining the credibility of the witnesses."

During trial, while Michael's attorney was cross-examining Cheryl, the judge stated that the line of inquiry being pursued by Michael's attorney was not helpful to the judge and was a waste of time.

Michael's attorney responded: "Well, your Honor, with due deference to the Court, because of its bias and prejudice against myself and my client in hearing this case, I would ask that you recuse yourself and get another judge to impartially hear the matter determining the financial affairs of the parties, in determining the modification, if any, she is allowed."

The judge denied the request.

Michael's contention on appeal, as we comprehend it, is that the judge, by various comments, inquiries and rulings, exhibited a "predisposition" to decide in favor of Cheryl, which attitude deprived Michael of his right to a fair trial before an unbiased judge.

Cheryl, citing Rule 51.05, points out that Michael filed no application for change of judge prior to trial. ² Cheryl maintains that Michael is consequently precluded from complaining on appeal that the judge was biased against him.

We disagree. The absence of a pretrial application for change of judge does not foreclose a party from asserting on appeal that the judge was prejudiced against him. Allegations of bias and prejudice of a trial judge toward a litigant have been considered on appeal where the aggrieved litigant filed an untimely application for change of judge immediately before trial, In re Marriage of Frankel, 550 S.W.2d 896, 898 (Mo.App.1977); where the aggrieved litigant filed an untimely application for change of judge during trial, City of St. Louis v. Boos, 503 S.W.2d 133, 136 (Mo.App.1973); where the aggrieved litigant filed a motion to disqualify the judge after the evidence had been completed, Berry v. Berry, 654 S.W.2d 155 (Mo.App.1983); and where the aggrieved litigant made no request at all for a change of judge, Rutlader v. Rutlader, 411 S.W.2d 826, 831-32 (Mo.App.1967).

We have, accordingly, studied the record carefully, scrutinizing each incident to which Michael has directed our attention. While the judge was perhaps abrupt and, on occasion, impatient with Michael's attorney, we are not persuaded that the judge's attitude or conduct denied Michael a fair trial. Indeed, the judge carefully explained to the parties that he could not give each party all of the custody that each wanted and that he had to try to decide the case equitably and fairly. The judge pointed out the difficulty of raising a child "by a court order," and he encouraged the parties to work out the temporary custody problems together.

In Berry, 654 S.W.2d 155, a dissolution case, the judge, after the evidence was concluded, sent counsel a draft of his proposed decision on all contested matters. One of the rulings granted custody of the parties' two children to the husband. The wife promptly filed a "motion to disqualify" the judge on the ground that the judge's spouse was the schoolteacher of the older child. The wife asserted that her husband had attended certain of the child's school activities and had discussed the child's academic progress with the judge's spouse. The judge denied the motion without a hearing. That ruling was upheld on appeal, the opinion noting that there was no allegation that the judge had discussed the case with his spouse or that the judge had received from his spouse any information about the child or the father.

Pertinent to Michael's second point, Berry states that a judge should disqualify himself if a reasonable person would have factual grounds to doubt his impartiality. Id. at 159. The issue the judge must determine is whether his impartiality might reasonably be questioned. Id. Once the judge makes that determination, the role of the appellate court is to decide whether the judge's evaluation of the claim of partiality or prejudice amounted to an abuse of discretion. Id. A claim of bias must be evaluated in light of the full record, not simply in light of an isolated incident. Id.

In re $29,000 in U.S. Currency, 682 S.W.2d 68 (Mo.App.1984), cites Berry with approval, applying the same principles in determining whether the trial judge erred in denying an untimely pretrial application for change of judge which alleged the judge was biased and prejudiced. 682 S.W.2d at 74.

Applying the principles of Berry and U.S. Currency to the record before us, we cannot convict the judge of error in refusing to abort the trial and disqualify himself when Michael's attorney made that request during trial, nor can we say that a reasonable person, on the whole record, would have factual grounds to doubt the judge's impartiality or to reasonably question his impartiality. Without separately discussing each instance seized upon by Michael as evidence of judicial prejudice, we note that most have to do with procedural or evidentiary issues, one being the subject of Michael's first assignment of error, which we have rejected. Another is the subject of the upcoming assignment of error and, as will become evident, manifests no bias by the judge against Michael. In sum, the incidents enumerated by Michael, in our opinion, neither individually nor collectively supply factual grounds to reasonably question the judge's impartiality. Michael's second point is, accordingly, denied.

The next assignment of error we discuss pertains to a ruling by the judge at the close of Cheryl's evidence. When Cheryl rested her case, Michael's attorney stated: "At this time, before I call my first witness, if necessary, I would like to make a motion to this Court, pursuant to Rule 55.27, specifically A-6 and G, and the motion being that the pleading fails to state a claim upon which relief can be granted. I would ask the Court if it could briefly review the petition that was filed on behalf of the petitioner [Cheryl]."

The judge denied the motion.

Michael assigns error, insisting that Cheryl's motion to modify fails to state a claim on which relief can be granted. Michael asserts that Cheryl's allegations, even if proven, would not demonstrate a change in circumstances so substantial and continuing as to make...