Miller v. Miller

• Decision Date: 15 November 1972
• Docket Number: No. 55107,55107
• Parties: Jean L. MILLER, Appellant, v. Thomas E. MILLER, Appellee.
• Court: Iowa Supreme Court

Page 105

202 N.W.2d 105

Jean L. MILLER, Appellant, v. Thomas E. MILLER, Appellee.

No. 55107.

Supreme Court of Iowa.

Nov. 15, 1972.

Rehearing Denied Dec. 13, 1972.

Henry Cutler, Waterloo, and Herrick, Langdon, Belin & Harris, Des Moines, for appellant.

Fulton, Frerichs, Nutting & Kennedy, Waterloo, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.

LeGRAND, Justice.

This appeal presents the tragic climax to a marriage which has brought strife and bitterness to the principals and inevitable resulting distress to their three minor children. After a long and acrimonious trial under the provisions of our divorce law before the repeal of chapter 598, The Code, 1966, by the Sixty-third General Assembly, the trial court awarded defendant a divorce and also gave him custody of the children. The decree included a property settlement and alimony provisions. Plaintiff appeals, challenging the result in all of these areas. Defendant cross-appeals to attack the property settlement, alimony and attorney's fees allotted to plaintiff's attorneys, all of which he characterizes as excessive. We modify and affirm on plaintiff's appeal; and we affirm outright on defendant's cross-appeal.

This case involves several unusual circumstances which we dispose of before reaching the issues to be decided.

I. The first concerns plaintiff's right to continue her appeal attacking the granting of a divorce to defendant. Subsequent to the entry of the decree, plaintiff remarried. This fact came to our attention through the statement of counsel during oral argument. Thereafter defendant filed a motion to dismiss the appeal on that ground.

Of course, one may not claim a decree of divorce should be set aside and at the same time rely on its provisions to embark on a new marriage. The price of victory in that case would be high indeed--a bigamous relationship.

We have recently held a party who remarries while an appeal from a divorce decree is pending forfeits the right to challenge that part of the decree which dissolves the marriage. Olson v. Olson, 180 N.W.2d 427, 428 (Iowa 1970). That decision is controlling here. The decree insofar as it awards defendant a divorce from plaintiff is final.

However, this does not prevent plaintiff from pursuing her appeal from the decretal provisions concerning property settlement, alimony and custody. We therefore proceed to a consideration of those issues.

II. Before doing so, however, there is one other matter we should first dispose of, since it runs through this whole litigation. While we find it distasteful, we feel compelled to treat plaintiff's charge that the trial court improperly based the decree on considerations outside the record. Plaintiff alleges the judge was influenced by the personal opinion of a fellow judge with whom he discussed the case, both before it was heard and while it was being tried. Plaintiff also asserts the trial judge received damaging information from his wife concerning plaintiff's conduct and that this influenced his ultimate decision.

This unfortunate situation arose in the following manner. Judge Blair Wood, one of the judges of Black Hawk County, lives near the residence of the parties to this action. He was familiar with some of the circumstances of their marital difficulty, both from personal observation and from the unavoidable neighborhood gossip which always attends such trouble. He disqualified himself from hearing this case, and it was then transferred to Judge Van Metre. Thereafter, according to the statement of Judge Van Metre which appears as part of the record, the two judges discussed the matter on several occasions.

We set out the important parts of the record on this matter:

'Mr. Cutler: Did Judge Wood make any statements relative to the merits or his knowledge of the parties?

'The Court: He said that there was a feeling in the neighborhood generally, but that he did not know enough personally about them to know whether that feeling was true. He told me after the decision, he told me Monday morning that the neighbors were unanimous in concurring with it.

'Mr. Cutler: But as I understand it the Court did have lunch with Judge Wood and some of these conversations, as you have stated for the record, did take place during the course of the trial?

'The Court: Yes. We discussed the case. I think I got an indication that Judge Wood was more sympathetic to the defendant than to the plaintiff, and we all know how Judge Wood expresses his opinions on things. I am trying to think of statements of fact that Judge Wood might have made as opposed to expressions of his or other people's opinions.

'The Court: * * * In the passing course of the trial during this whole week I talked to (Judge) Blair (Wood) dozens of times about hundreds of things, but quite a few times in passing about things in this case, and I know he gave me an impression of opinions. He also expressed an opinion as to Mrs. Green.

'Mr. Cutler: That's one of the witnesses who testified in Court?

'The Court: Right. And his opinion was that she was a fine woman and a good neighbor. I don't think her testimony was anything more than peripheral to the main issues in the case at best.'

Later in ruling on various motions made by plaintiff the court stated in part:

'The next matter to take up is the situation engendered because of conversations with Judge Wood about this case. This is the most difficult of the matters, because was I said, it's true that in the course of conversations with Judge Wood I acquired the impression that he personally from neighborhood feelings and opinions felt that the defendant would be the more suitable person to have custody than the plaintiff. However, I can't tell you exactly how I acquired this impression, that was the impression I had before really discussing this case at all with him because of his action in disqualifying himself from the trial, and it's a matter that I am sure raises difficulties for counsel and difficulties for the parties, but it's almost impossible for the second judge in a case to be unaware of the circumstances surrounding the first judge's disqualification or withdrawal from the case and thus to know what viewpoint or opinion or idea or concept the first judge has about the case, and in a district such as ours with four judges who work closely together about the only way I can see to avoid this sort of thing would be to ask the Supreme Court to send in a judge from outside the district whenever one of our judges felt either because of opinions or connections with the parties or whatever it might be that he must withdraw from the case. As I say, admittedly it's troublesome, but I am going to overrule this motion for mistrial and also state in connection therewith if I felt the question of custody to be a close one in this case or if I felt that it turned upon my judgment of the credibility of witnesses whose testimony was in serious dispute I would think this knowledge on my part of Judge Wood's opinion would be much more crucial, but the fact is that in a week's testimony not one single person who had any real familiarity with the operation of the Miller household for the last two years testified in support of the plaintiff, and the overwhelming weight of the testimony of all the witnesses who testified from any real observation of the operation of the household indicated that the best interests of the children would require an award of custody to the husband.'

We feel plaintiff has a valid complaint. When a judge feels impelled to disqualify himself for personal reasons, as was the case here, it necessarily follows those same reasons should inhibit his successor from discussing the matter with him. When sitting as a trier of facts, a judge, like a jury, must be careful to exclude all considerations except those arising from the evidence before him. Anything less, even if it has no part in the ultimate decisions, leaves the unsuccessful litigant convinced he has not had fair treatment. It is almost as important to avoid this Appearance of unfairness as it is to avoid unfairness itself.

We strongly disapprove the trial court's failure to observe this salutary rule. By discussing the merits of the controversy with the very judge who had previously declined to hear the case because he knew too much--extrajudicially--about both the parties and the facts, the trial court begot a problem which he himself concedes to be 'difficult' and 'troublesome.'

The matter is perhaps saved from more serious consequences by the fact that the appeal here is de novo. We are required to make our own evaluation of the facts on the record before us. Ordinarily we give weight to the findings of the trial court, particularly when dealing with matters involving the credibility of witnesses. Rule 344(f), 7, Rules of Civil Procedure. However, in an effort to avoid prejudice to plaintiff from these circumstances, we have disregarded that rule here and have reached our own conclusions uninfluenced by the trial court's findings. See Gerk v. Gerk, 158 N.W.2d 656, 659 (Iowa 1968).

III. We come finally to the issues to be decided. They include property settlement, alimony, child custody and attorney fees. The real battleground is the question of custody. We reserve that until the other matters have been resolved.

IV. In our review of the property settlement provisions of the decree, it might be helpful to give some background facts.

Much of the marital difficulty can be characterized as in-law trouble. The record rather conclusively reflects that defendant's parents and plaintiff took an almost instant dislike to each other. This feeling seems to have been carefully nurtured by both sides throughout the existence of the marriage. Perhaps plaintiff was overly sensitive about defendant's superior financial status. His family is one of means. Defendant's only jobs were with family-owned companies. Plaintiff believed, rightly or...