Osborne v. District Court of Ninth Judicial Dist.

• Decision Date: 24 November 1982
• Docket Number: No. 5719,5719
• Citation: 654 P.2d 124
• Parties: Larry Dean OSBORNE, Petitioner, v. DISTRICT COURT OF the NINTH JUDICIAL DISTRICT, State of Wyoming, Respondent, and Janice Carol Osborne, Real Party in Interest.
• Court: Wyoming Supreme Court

Page 124

654 P.2d 124

Larry Dean OSBORNE, Petitioner, v. DISTRICT COURT OF the NINTH JUDICIAL DISTRICT, State of Wyoming, Respondent and Janice Carol Osborne, Real Party in Interest.

No. 5719.

Supreme Court of Wyoming.

Nov. 24, 1982.

Timothy J. Judson, Seipt & Judson, Riverton, for petitioner.

Richard D. Gist, P.C., Lander, for respondent.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROSE, Chief Justice.

The petitioner, Larry Dean Osborne, seeks the issuance of a writ of prohibition to prevent District Judge W.J. Nicholas from further acting or presiding in a divorce action filed by Janice Carol Osborne in the District Court of the Ninth Judicial District. The filing of the action in this court came about as a result of the district judge's refusal to remove himself and to appoint another district judge to hear the matter as provided by Rule 40.1(b)(1) W.R.C.P. ¹ Under the facts set out herein, we find the trial judge's denial of petitioner's Rule 40.1(b)(1) rights to be erroneous and will grant the petition for a writ of prohibition.

FACTS

On January 12, 1981 Janice Osborne filed a complaint for divorce in the District Court of the Ninth Judicial District and, in response, the petitioner filed an answer and counterclaim. Both the complaint and petitioner's counterclaim asked the court to grant a just and equitable division of the property and debts. On April 3, 1981, the parties entered into a written agreement which provided for a division of the property and debts and for the custody and support of the minor children. ² Consistent with the terms of this agreement, Mr. Osborne, the petitioner here, stipulated to a withdrawal of his answer and counterclaim and consented that the court hear the matter as on default.

At a hearing on the plaintiff's complaint on May 14, 1981, the district judge refused to accept the property agreement and permitted the complainant Janice Osborne to testify even though the petitioner Larry Osborne, in compliance with his agreement under the stipulation, was not present. Based on the evidence at the ex parte hearing, the district judge caused a decree of divorce to be entered on January 25, 1982. This decree granted the parties a divorce and maintained the custody and support as outlined in the prior agreement, but substantially changed the division of property and debts from the agreement which had previously been entered into by the Osbornes. The court provided in the decree that Mr. Osborne could file a motion requesting a new hearing on the property distribution if he was not satisfied with the disposition made by the judge.

On February 2, 1982 the petitioner did file a motion requesting a trial on the property settlement question. This motion was granted by the court on March 18, 1982 and a trial date was set for May 12, 1982. On March 26, 1982 the petitioner filed a motion for change of judge under the auspices of Rule 40.1(b)(1), W.R.C.P., and he orally repeated this motion on May 12, 1982. The district court denied the motion in an order filed June 3, 1982. The judge represented that he was denying the motion because, in his view, the issues scheduled to be heard on May 12, 1982 were the same as those before the court on May 14, 1981 and the petitioner's motion for change of judge therefore should have been made prior to May 14, 1981. This denial formulates the basis of the present petition for a writ of prohibition.

THE RULE 40.1(b)(1) MOTION

Rule 40.1(b)(1), W.R.C.P. gives a litigant the right to peremptorily challenge a district judge and identifies three deadlines by which a motion for change of judge must be made. The motion must be made (1) at least 15 days before the date set for any hearing on a motion made pursuant to various rules; (2) 15 days before the date set for a pretrial if no motion hearing as outlined above is applicable; or (3) 15 days before the date set for trial if the conditions outlined in numbers (1) or (2) are not applicable. ³ See: Rule 40.1(b)(1), supra n. 1. The rule also directs that when a motion for change of judge is filed the presiding judge shall forthwith call in another judge to try the action. In these proceedings we are concerned with the latter time period because, prior to the filing of the motion for a change of judge, there had been no hearing on any of the delineated motions and there had been no pretrial hearing. Thus, the only question for our review is whether the petitioner properly filed his motion 15 days prior to the date set for trial.

Mr. Osborne urges that the district judge, through the March 18, 1982 order, set the trial date for May 12, 1982, and his motion for change of judge was timely because the 26th of March is more than 15 days before May 12, 1982. He goes on to conclude that since the motion was timely, the judge, according to Rule 40.1(b)(1), was obligated by law to call on another district judge to hear the matter. The real party in interest, Janice Osborne, and the district judge respond to petitioner's contention by arguing that the motion for a change was untimely since the issues to be tried on May 12, 1982 were the same as those which were before the court on May 14, 1981. So, say the respondents, a "trial" on the property settlement had already occurred and the May 12, 1982 setting was merely an ancillary proceeding or continuation of the May 14, 1981 hearing. They conclude that the motion for change of judge, to be timely, should have been filed within at least 15 days of the May 14, 1981 date.

Although this court has not heretofore considered this question, we have developed a body of case law having to do with the filing of motions for change of judge. First of all, it is well established that once a proper motion for change of judge has been filed, the district judge concerning whom the motion is made is divested of all jurisdiction except for residual authority to assign the case to another district judge. Meyer v. Meyer, Wyo., 538 P.2d 293 (1975); Barbour v. Barbour, Wyo., 518 P.2d 12 (1974); State v. District Court of Sheridan County, Wyo., 389 P.2d 921 (1964). Rule 40.1(b)(1), W.R.C.P., supra n. 1, codifies this case rule by providing:

"After the filing of such motion, the presiding judge shall forthwith call in another district judge to try the action."

Also, we have held that the time limitations now embodied in Rule 40.1(b)(1) are requirements of substance rather than form and they will be strictly enforced. Barbour v. Barbour, supra, 518 P.2d at 13. However, with respect to the 15-day requirement, we have said:

"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." (Emphasis added.) Meyer v. Meyer, supra, 538 P.2d at 294. ⁴

Finally, we have said that a party cannot utilize a motion to change a judge as a means of picking and choosing between judges after he or she is given an impression of the court's view on the matter in dispute.

"Although it is our view that no litigant can reasonably or equitably pick and choose his judge after the start of any hearing on a contested matter or pretrial proceeding, * * *." State ex rel. Johnston v. District Court of Platte County, Wyo., 495 P.2d 255, 256 (1972).

Taking the above authorities into account, we are of the opinion that a resolution of this appeal depends upon whether or not the May 14, 1981 proceeding was a "trial." Ancillary to this query is the question which asks whether or not petitioner Osborne was ever given an opportunity to file a motion for change of judge. We hold that the May 14, 1981 proceeding was not a "trial" as that term is contemplated by Rule 40.1(b)(1), and, therefore, petitioner's March 26, 1982 motion for change of judge was timely filed and should have been granted.

We have said that

" * * * the term 'trial' contemplates the final disposition of the controversy, either on the facts or on a question of law."

Griggs v. Meek, 37 Wyo. 282, 261 P. 126, 129 (1927). Likewise, the burden of what was said in State ex rel. Johnston v. District Court of Platte County, supra, is that the term "trial," as utilized in former Rule 40.1(b), contemplates a resolution of the controversy on the merits. Thus, we were constrained to hold in that case that a hearing on a motion for preliminary injunction was not a "trial" to which the right to seek a change of judge would attach. ⁵ Other courts have also concluded that the term "trial" refers to some form of controversy or dispute that has been placed in issue and resolved according to law following a hearing on the merits. Gulf Oil Corporation v. McManus, 173 Ind.App. 147, 363 N.E.2d 223, 225 (1977); In re Marriage of Beilock, 81 Cal.App.3d 713, 146 Cal.Rptr. 675, 679 (1978). It has been said that a "trial" is a contest held just once between well-prepared adversaries of roughly equal strength. People v. Tribbett, 90 Ill.App.2d 296, 232 N.E.2d 523, 526 (1967). Simply stated, we hold that the term "trial," as utilized in Rule 40.1(b)(1), is intended to encompass those proceedings before a proper tribunal whereby two or more adversaries present factual or legal issues that are resolved after a full hearing on the merits.

With the above in mind, we cannot conclude, as the real party in interest and the district judge urge, that the May 14, 1981 proceeding was a trial. We say this because the facts clearly reflect that prior to that proceeding the parties had agreed to a settlement and the petitioner did not...