Smith v. Smith
| Decision Date | 26 August 1993 |
| Docket Number | No. 19957,19957 |
| Citation | 860 P.2d 634,124 Idaho 431 |
| Parties | Sharon K. SMITH, Plaintiff-Respondent, v. Vernon K. SMITH, Defendant-Appellant. Twin Falls, March 1993 Term |
| Court | Idaho Supreme Court |
Swafford Law Office, Chtd., Idaho Falls, for plaintiff-respondent. Ronald L. Swafford argued.
This is an appeal in a divorce action between Vernon K. Smith (Vernon) and Sharon Kay Smith (Sharon). Vernon and Sharon began living together in 1972 and were married on June 9, 1979. The parties' only child is Vernon K. Smith III, who was born on October 15, 1980. The parties separated on August 1, 1989, and Sharon filed for divorce on January 11, 1990, alleging adultery and extreme cruelty under I.C. §§ 32-604, -605.
On January 12, 1990, Sharon served Vernon with discovery. Vernon responded to the complaint and disputed the allegations while asserting the defenses of statute of limitations and condonation. Vernon did not respond to Sharon's interrogatories.
On May 4, 1990, the court held a hearing on the issues of child support and maintenance. The court heard testimony from both parties, including Vernon's testimony admitting numerous instances of adultery. The court granted maintenance to Sharon, finding adultery and cruelty on Vernon's part, and on May 30, the court ordered Vernon to pay $718.08 in child support and $1,200.00 in temporary maintenance each month. The first payment was to be made on June 1, 1990.
On June 22, 1990, the court orally granted Sharon's motion to compel discovery and ordered Vernon to respond within ten days. Again, on July 12, the court ordered Vernon to respond to interrogatories within ten days. On August 6, 1990, the trial court found that Vernon had willfully and intentionally refused to obey the court's order to answer Sharon's interrogatories and ordered that Vernon's answer and counterclaim be stricken. The court also indicated that it would have a criminal contempt hearing against Vernon for nonpayment of child support.
In its decision of August 6, 1990, the court granted Sharon partial summary judgment on the divorce issue, finding adultery and extreme cruelty. The court based its grant of summary judgment on Vernon's testimony of numerous adulterous relationships and his failure to prove condonation or that the statute of limitations applied.
In a conference call on August 13, 1990, the court denied Vernon's motion to reinstate his pleadings because he had not answered Sharon's interrogatories. On August 23, 1990, the court issued an order for contempt against Vernon finding that he had not paid any child support or spousal maintenance by July 11, 1990. The court then sentenced him to thirty days in jail to begin on September 7, 1990. The court noted that it might suspend the sentence if Vernon paid all the support that was due.
On October 2, 1990, Vernon filed a motion for disqualification along with an affidavit from Donna Applegate. The affidavit stated that Applegate had spoken to Judge Eismann about the Smith case for a number of hours and alleged that the judge was biased. At trial on October 4, 1990, Judge Eismann stated the circumstances of his conversation with Applegate and denied Vernon's motion for disqualification.
The court heard testimony in this case on October 4, 5, 10 and 11, 1990. The trial court filed its memorandum decision on December 6, 1990, and issued modified findings and a judgment on February 11, 1991. Vernon appealed to the district court, and the district judge, acting in an appellate capacity, affirmed the decision of the magistrate judge. Vernon then appealed to this Court.
Vernon argues that Judge Eismann was biased and should have disqualified himself. In support of this argument Vernon has presented the affidavit of Donna Applegate. In her affidavit, Applegate stated that she had known Vernon and Sharon Applegate also stated that Judge Eismann expressed his opinion about what was the best form of custody arrangement for children. She stated that he commented on Vernon's involvement with other women during the marriage and made reference to specific incidents. Based on this conversation, Applegate concluded that Judge Eismann was biased against Vernon.
[124 Idaho 435] since about 1972 and that she went to high school with Judge Eismann. She said she contacted the Judge concerning some name genealogy research she was doing and later visited his home in Murphy because of her interest in Idaho history. Applegate stated that she "spoke at length" about the Smith case with Judge Eismann and his wife. During their conversation, she told the Judge that Sharon was dishonest, deceptive and evil, among other things.
Before the trial commenced, Judge Eismann discussed on the record his conversation with Applegate in explaining his reasons for denying Vernon's motion to disqualify. His statements about what had occurred differed significantly from Applegate's version. He agreed that Applegate had contacted him and made arrangements to visit his home; and that she originally brought up the divorce issue and asked if he were the judge in the Smith case. He further agreed that he had mentioned some facts which had come out at the earlier motion hearing at which the parties' divorce was granted. He also stated that Applegate made derogatory remarks about Sharon's character throughout their conversation, while commenting on how much she liked Vernon. He denied having any discussion with Applegate about the particular merits of this case, including custody issues.
The Idaho Code of Judicial Conduct states that a judge should abstain from public comment about a pending case. Code of Judicial Conduct, Cannon 3(A)(6). It is undisputed that Judge Eismann discussed some aspects of the Smith case with Applegate while the case was still pending before the court. It is a matter of some concern that a trial judge would discuss a case with a third party while the case is pending, and unfortunately doing so may result in exactly the kind of problem with which we are faced in this instance. However, this impropriety on the part of the magistrate does not in and of itself show bias.
The Code of Judicial Conduct outlines when judges must disqualify themselves because of bias. Judges should disqualify themselves if they have a personal bias concerning a party or personal knowledge of disputed facts and deem that their impartiality might be reasonably questioned. Cannon 3(C)(1)(a). The decision to deny a motion for disqualification on the grounds of prejudice and bias is within the sound discretion of the trial court. Idaho First Nat'l Bank v. David Steed & Assoc., 121 Idaho 356, 363, 825 P.2d 79, 87 (1992). The issue is whether the trial judge understood that the decision was a discretionary matter, acted within the boundaries of his discretion and consistent with the available legal choices, and reached his denial of the motion by an exercise of reason. Id.
In ruling on the motion to disqualify, Judge Eismann stated he was not biased against either party and indicated that he could act impartially. In his conversation with Applegate, Judge Eismann mentioned previous testimony about adultery, a matter which had already been settled at the earlier hearing and did not involve disputed facts. Eismann also agreed with Applegate that it is generally not in a child's best interests to alternate custody on a weekly basis. There is no indication from either of these remarks that Judge Eismann's subsequent decisions with respect to property division or custody were influenced by the discussion with Applegate; nor is there a showing that any of Judge Eismann's decisions were influenced by bias against Vernon. The only comments reflecting any bias came directly from Applegate and were directed against Sharon. The judge mentioned those on the record to Sharon and offered to recuse himself if she questioned his impartiality; she declined this invitation. Accordingly, there was no showing of bias and Judge Vernon also suggests that Judge Eismann was biased because Eismann's father was allegedly a law partner of Sharon's attorney's brother. There is no merit to this contention. The Code of Judicial Conduct states that judges should disqualify themselves if a person within the third degree of relationship to them is acting as a lawyer in the proceeding. Cannon 3(C)(1)(d). "[T]he fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge." Cannon 3(C)(3)(d). In the present case, Judge Eismann is not related to Sharon's attorney, Ron Swafford. Furthermore, under the Judicial Code, even assuming that Judge Eismann's father and Swafford's brother are law partners, this relationship is not sufficient to disqualify the Judge.
[124 Idaho 436] Eismann did not abuse his discretion by refusing to disqualify himself.
This Court reviews the decision of a magistrate judge independently of a district judge sitting in an appellate capacity, but with due regard to the district judge's ruling. McNelis v. McNelis, 119 Idaho 349, 351, 806 P.2d 442, 444 (1991). In this case, the magistrate judge, as the trier of fact, was in the best position to assess the credibility of the evidence presented. See Rice v. Hill City Stock Yards Co., 121 Idaho 576, 579, 826 P.2d 1288, 1291 (1992). For this reason, the findings of the trial court will be upheld if supported by substantial, competent though conflicting evidence. Id.; see also Jones v. Jones, 117 Idaho 621, 626, 790 P.2d 914, 919 (1990).
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