Patel v. Patel

• Decision Date: 24 May 2004
• Docket Number: No. 25824.,25824.
• Citation: 599 S.E.2d 114,359 S.C. 515
• Court: South Carolina Supreme Court
• Parties: Anand B. PATEL, Appellant-Respondent v. Nalini Raja PATEL, Respondent-Appellant.

359 S.C. 515

599 S.E.2d 114

Anand B. PATEL, Appellant-Respondent v. Nalini Raja PATEL, Respondent-Appellant.

No. 25824.

Supreme Court of South Carolina.

Heard February 19, 2004.

Decided May 24, 2004.

Rehearing Denied July 12, 2004.

John O. McDougall, Peter George Currence, and Emma I. Bryson, of McDougall & Self, of Sumter, for Appellant-Respondent.

Harvey L. Golden and J. Michael Taylor, of Golden, Taylor, Potterfield & Barron, of Columbia, for Respondent-Appellant.

Richard Giles Whiting, of Columbia, Guardian ad Litem.

Acting Justice MACAULAY:

This is a domestic relations case. Both parties appeal. We affirm as modified.

FACTS

This domestic relations dispute has continued for more than eight years without resolution. Anand B. Patel (Husband) and Nalini Raja Patel (Wife) were married on July 7, 1980. Three children were born of the marriage. The parties' oldest son, is seventeen. The parties' only daughter, is thirteen. The parties' youngest son, is eleven.

Husband sued Wife for divorce in December 1995. On October 23, 1997, the family court issued the final divorce decree. The family court ruled that neither party was entitled to alimony, awarded custody of the children to Husband, split the marital estate 65 percent/35 percent in favor of Husband, and awarded Husband $41,920.94 in attorney's fees.

In June 1998, Husband informed Wife by letter that he was relocating with the children to Southern California. The court denied Wife's request for a restraining order prohibiting the move. The appeal of the relocation order was consolidated with the appeal from the divorce decree.

In October 2000, the Court of Appeals issued a unanimous, unpublished opinion, in which it (1) reversed the family court's award of custody and ordered Husband to return the children to South Carolina, (2) reversed and remanded the denial of alimony to Wife, and (3) reversed the award of attorney's fees to Husband, but affirmed the 65/35 property division in favor of Husband. Patel v. Patel, Op. No. 2000-UP-653 (S.C. Ct.App. dated Oct. 26, 2000). In January 2001, this Court granted Husband's petition for an emergency supersedeas to stay the return of the children to South Carolina.

This Court denied Wife's petition for a writ of certiorari on the property division issue, and granted Husband's petition on the alimony and custody matters. The Court issued an opinion remanding the issues to the trial court for a new hearing on the custody and alimony issues. Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386 (2001).

While the remand trial was pending, Wife filed a motion for pendente lite alimony. The family court awarded Wife $2,500.00 per month in pendente lite alimony. The issue of retroactive alimony was reserved for the final trial on remand.

The final merits hearing on the remanded issues of alimony, child custody, and child support was held over seven days in October and December 2002. The trial court held Wife was entitled to permanent periodic alimony of $1,500.00 per month beginning February 1, 2003. The court did not address the issue of retroactive alimony. The trial court awarded custody of the oldest child to Husband and awarded custody of the two younger children to Wife. The order required Husband to pay $1,150.00 per month in child support and denied either party attorney's fees and costs.

Both Husband and Wife appeal. On February 18, 2003, this Court assumed jurisdiction pursuant to Rule 204(b), SCACR.

ISSUES

I. Did the family court properly deny Husband's motion to recuse?

II. Did the family court abuse its discretion in awarding custody of the two younger children to Wife?

III. Did the family court abuse its discretion in awarding alimony to Wife, denying Wife retroactive alimony, and setting the amount of alimony at $1,500.00 per month?

IV. Did the family court abuse its discretion in setting the amount of child support and denying Wife transportation expenses?

V. Did the family court abuse its discretion in denying Wife attorney's fees and litigation expenses?

LAW/ANALYSIS

Where a family court order is appealed, we have jurisdiction to find facts based on our own view of the preponderance of the evidence. The Court is not required to disregard the findings of the trial judge who saw and heard the witnesses and was in a better position to evaluate their credibility. Strout v. Strout, 284 S.C. 429, 327 S.E.2d 74 (1985). Our broad scope of review does not relieve the appealing party of the burden of showing that the family court committed error. Skinner v. King, 272 S.C. 520, 252 S.E.2d 891 (1979).

I. Recusal

The underlying circumstances supporting Husband's motion to recuse arose after we remanded the case to the family court for a new hearing on custody and alimony. In August 2002, Wife contacted three State Senators, asking for their help in having a trial date set for the remand trial.¹ All of these senators wrote letters on behalf of Wife to The Honorable James A. Spruill III, the family court judge presiding over the matter.² Two of the senators sent copies of their letters to Chief Justice Toal.

Judge Spruill wrote the three senators advising them that he was not permitted to consider these communications and immediately set a trial date for October 14, 2002. Husband filed a Motion to Recuse and requested a continuance. Judge Spruill denied both motions. Husband then filed suit in federal court against Judge Spruill and the three senators alleging a violation of due process. The pleadings were served on Judge Spruill prior to the merits hearing. The final hearing on the merits began on October 14 and Husband renewed his motion for continuance and recusal, both of which Judge Spruill denied.

Husband asks this Court to acknowledge the appearance of impropriety with the activities of the three senators, and their alleged attempts to sway the opinions of Judge Spruill and Chief Justice Toal. Husband does not wish for the case to be remanded on the custody issue based on Judge Spruill's failure to disqualify himself. On the issue of alimony, Husband requests this Court deny alimony because he was denied a hearing before an impartial tribunal. We conclude Judge Spruill was not required to disqualify himself. Accordingly, Husband was not denied an impartial tribunal based on Judge Spruill's failure to disqualify himself.

Under South Carolina law, if there is no evidence of judicial prejudice, a judge's failure to disqualify himself will not be reversed on appeal. Roche v. Young Bros., Inc., 332 S.C. 75, 504 S.E.2d 311 (1998). In Roche, the Court applied Canon 3(E)(1)(a) of Rule 501, SCACR. Under Canon 3(E)(1)(a), a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to, instances where he has a personal bias or prejudice against a party. It is not sufficient for a party seeking disqualification to simply allege bias; the party must show some evidence of bias or prejudice. Mallett v. Mallett, 323 S.C. 141, 473 S.E.2d 804 (Ct.App.1996). If there is no evidence of judicial bias or prejudice, a judge's failure to disqualify himself will not be reversed on appeal. Ellis v. Procter & Gamble Dist. Co., 315 S.C. 283, 433 S.E.2d 856 (1993).

A judge's impartiality might reasonably be questioned when his factual findings are not supported by the record. Ellis, 315 S.C. at 285, 433 S.E.2d at 857. There is no evidence in the record suggesting that Judge Spruill was prejudiced by the senators' letters. Judge Spruill acted promptly to alleviate any perception of injustice. Shortly after receiving the letters, Judge Spruill wrote the senators advising them that he is not permitted to consider communications from outside the court. Judge Spruill sent copies of these letters to both parties' attorneys. In his January 2, 2003 order, Judge Spruill chastised Wife for her "inappropriate attempt" to influence the court by her contact with the legislators. Because there is no evidence in the record supporting Husband's contention, we conclude Judge Spruill did not err in failing to disqualify himself.

We granted Husband's motion to argue against precedent on the issue of judicial recusal. Husband urges this court to adopt the standard for judicial recusal set forth in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Additionally, Husband argues that this Court should adopt a de novo standard of review on the recusal issue. In Liljeberg, the United States Supreme Court considered the construction of 28 U.S.C. § 455(a) (2001). The federal statute is similar to Canon 3(E)(1)(a). Section 455(a) provides, "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

The issue before the Supreme Court was whether Section 455(a) could be violated based on the appearance of partiality. The Court held that under Section 455(a), recusal is required even when there is no evidence of bias if a reasonable person, knowing all the circumstances, would expect that the judge is biased. Liljeberg, 486 U.S. at 860-61, 108 S.Ct. at 2203, 100 L.Ed.2d 855 at 872-73. Husband argues that the Supreme Court's holding imputes an objective test in applying Section 455(a), in that it does not require evidence of judicial prejudice to warrant disqualification.

We have carefully considered Husband's arguments. Assuming without deciding that there is merit in Husband's policy arguments supporting the federal rule and de novo standard of review, we decline to adopt these standards at this time because Husband has not demonstrated that he would prevail under the Liljeberg test under these facts even if reviewed de novo. There is no evidence in the record leading an objective observer to question Judge Spruill's impartiality after he received the senators' letters. The letters would not have caused an objective mind,...