Meyer v. Meyer, 4477

• Decision Date: 25 July 1975
• Docket Number: No. 4477,4477
• Parties: Dale C. MEYER, Appellant (Plaintiff below), v. Patsy Ann MEYER, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 293

538 P.2d 293

Dale C. MEYER, Appellant (Plaintiff below), v. Patsy Ann MEYER, Appellee (Defendant below).

No. 4477.

Supreme Court of Wyoming.

July 25, 1975.

Richard W. Ferry, Cody, for appellant.

No appearance or brief filed for appellee.

Before RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The following relevant events took place with respect to the post-divorce proceedings here on appeal:

1. September 18, 1973. Appellant-plaintiff was granted a divorce from appellee-defendant and given custody of two of the children. The defendant was given custody of one child. The case was tried by a special judge assigned from another judicial district.

2. June 11, 1974. Defendant filed a motion for modification with respect to child custody.

3. June 17, 1974. Order to show cause, with a hearing date of July 2, 1974, set by the court, served on plaintiff.

4. June 17, 1974. Plaintiff filed petition for modification with respect to child custody. Concurrently he filed a motion for change of presiding judge with supporting affidavit. The trial judge before whom the original divorce action was tried was to hear the modification proceeding.

5. June 19, 1974. Trial judge wrote letter to parties, in pertinent part as follows:

'This is to advise you that I will hear these matters on July 2 as ordered, since your Affidavit insofar as the petition is not timely, and certainly the motion is not timely insofar as the Order to Show Cause is concerned since there has been a trial in this matter and this is based on a judgment entered by the court previously, and the motion would not meet the requirements of Rule 40.1, Rules of Civil Procedure. Also, even if the Petition for Modification would be considered a new trial, the Motion for Change of Judge was not timely filed in that matter.'

6. July 2, 1974. Case tried.

The motion was timely filed; as we compute the time, excluding the date of filing and including the date set for hearing, exactly 15 days transpired. Rule 6(a), W.R.C.P., provides that:

'In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, * * *.' (Emphasis supplied.)

There is no need to define the word 'prior' as it appears in Rule 40.1(b)(1), W.R.C.P., 'Any party, at least fifteen (15) days prior to the date set for trial, may move for a change of district judge * * *.' Rule 6(a), W.R.C.P., makes no exception to cover the situation here existing.

Even if the computation were otherwise, a trial judge may not by short notice deprive a party in a proper case from disqualifying him to preside. In this case, if the plaintiff's motion for change of judge is not timely, so must also the court's notice of trial be insufficient, both of which were filed on the same day. It would have been impossible for the plaintiff to move with more haste. This does not mean a court may not set a trial on less than 15 days' notice; it only means that if a court should do so, a party will not thereby have taken away from him the right to disqualify the trial judge.

The next question then is whether or not upon an application for change of judge on a motion for modification of a divorce decree wich respect to child custody, the judge entering that decree can be disqualified. The answer is that he can be and the...