Tatham v. Rogers
| Citation | 283 P.3d 583 |
| Decision Date | 14 August 2012 |
| Docket Number | No. 30085–4–III.,30085–4–III. |
| Court | Court of Appeals of Washington |
| Parties | Elinor Jean TATHAM, Respondent, v. James Crampton ROGERS, Appellant. |
OPINION TEXT STARTS HERE
James Elliot Lobsenz, Gregory Mann Miller, Michael Barr King, Kenneth Scott Kagan, Carney Badley Spellman PS, Seattle, WA, for Appellant.
Peggy Ann Bierbaum, Attorney at Law, Port Townsend, WA, Valerie A. Villacin, Catherine Wright Smith, Smith Goodfriend PS, Seattle, WA, for Respondent.
¶ 1 Washington's appearance of fairness doctrine not only requires a judge to be impartial, it also requires that the judge appear to be impartial. State v. Finch, 137 Wash.2d 792, 808, 975 P.2d 967 (1999). This case calls upon us to decide whether, and by what standard, James Rogers 1 may obtain relief from a judgment where he learned of facts following trial, previously unknown, that give rise to a reasonable concern that he did not receive a fair, impartial, and neutral hearing. A reasonable concern can exist even where there is no proof of actual bias.
¶ 2 We hold that a violation of the appearance of fairness doctrine does not result in a void judgment but does result in a judgment that may be vacated under CR 60(b)(11). To obtain relief, the moving party must demonstrate a risk of injustice to the parties if relief is not granted. The showing was made here. Because we remand for a new trial, we do not reach Mr. Rogers' alternative challenges to the distribution provided by the judgment.
¶ 3 Elinor Tatham and James Rogers ended a nine-year committed intimate relationship in February 2006. In January 2007, Dr. Tatham filed the action below seeking an equitable division of their community-like property. She later filed a petition for the entry of a parenting plan addressing the parties' rights and obligations for the care and support of their daughter. Both matters were tried in April 2009 before Judge Craddock Verser, then the lone superior court judge in Jefferson County, where the parties lived and the action was filed.
¶ 4 The evidence at trial established that Dr. Tatham was then 47 years old and worked as a physician, and that Mr. Rogers was 52 years old and pursued work as a carpenter while attending school. Dr. Tatham had continuously worked as a physician during the parties' relationship, while Mr. Rogers had been unemployed for the most part, devoting his energy and efforts and a portion of his income to renovating a house he had purchased in 1994. The house was referred to during trial as the Rosewind home. Mr. Rogers' main source of income was a substantial inheritance, which amounted to $1,360,000 2 at the time of separation and $917,000 at the time of property division. The parties agreed that the inheritance was Mr. Rogers' separate property.
¶ 5 Mr. Rogers presented evidence at trial that deterioration in his mental health since 2008 made him effectively unemployable. Several of his friends testified that since 2008 they had witnessed episodes in which Mr. Rogers spoke rapidly, nonsensically, and abusively. Three agreed that they would not hire Mr. Rogers to perform carpentry work in his current state. Although not a psychiatrist, Dr. Tatham described his outbursts as “manic psychotic episode[s].” Report of Proceedings (RP) (Apr. 16, 2009) at 259. Mr. Rogers testified that he had visited several mental health doctors and professionals, but had not been diagnosed with a mental illness nor was he currently undergoing treatment. In connection with the parenting plan issues, the trial court found that Mr. Rogers was afflicted by “an emotional/mental disorder,” and denied Mr. Rogers visitation with his daughter until he received a full mental health evaluation and pursued treatment if needed. Clerk's Papers (CP) (Sept. 9, 2010) at 5.
¶ 6 Both parties entered the relationship with separate property and they acquired significant community-like property during the relationship. They agreed as to the characterization of their property and the court accepted the parties' characterization. The separate property consisted of the following:
The court found the total value of the parties' separate property at the time of separation to be $18,911 in the case of Dr. Tatham's property and $1,360,203 in the case of Mr. Rogers'.
¶ 7 It found the following to be the parties' community-like property, on which it placed the following values:
Of this $625,000 in value of community-like assets, the court awarded 75 percent, or $471,000 in value to Dr. Tatham, and 25 percent, or $154,000 in value to Mr. Rogers, allocating the assets as follows:
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In re In re Estate of Hayes
...of fairness doctrine must produce sufficient evidence demonstrating bias and mere speculation is not enough. Tatham v. Rogers, 170 Wash.App. 76, 96, 283 P.3d 583 (2012). ¶ 114 James Hayes fails to establish, let alone argue, that the trial judge held any direct, personal, substantial pecuni......
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In re Estate of Hayes
...of fairness doctrine must produce sufficient evidence demonstrating bias and mere speculation is not enough. Tatham v. Rogers, 170 Wash.App. 76, 96, 283 P.3d 583 (2012).¶ 114 James Hayes fails to establish, let alone argue, that the trial judge held any direct, personal, substantial pecunia......
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In re Marriage of Van De Graaf
...appearance of fairness doctrine requires recusal where the facts suggest a judge is actually or potentially biased. Tatham v. Rogers, 170 Wn. App. 76, 93, 283 P.3d 583 (2012). Judges not only must actually be unbiased, but they also must appear to be unbiased. State v. Gamble, 168 Wn.2d 161......
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In re Biggs
... ... 847, 108 S.Ct. 2194, 100 ... L.Ed.2d 855 (1988); Haupt v. Dillard , 17 F.3d 285 ... (9th Cir. 1994); Tatham v. Rogers , 170 Wn.App. 76, ... 283 P.3d 583 (2012); State v. Bilal , 77 Wn.App. 720, ... 893 P.2d 674 (1992). None of the decisions ... ...
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§ 12.7 Standard of Review Applied to Specific Rulings: Civil Cases
...discretion in deciding whether to certify a class. Decisions denying motions for recusal of judge. Tatham v. Rogers, 170 Wn. App. 76, 87, 283 P.3d 583 The appellate courts consider the following pretrial rulings to be matters of law subject to de novo review: Arbitrability. Grandee v. LDL F......
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Table of Cases
...of Ret. Sys., 108 Wn. App. 77, 29 P.3d 63 (2001), review denied, 145 Wn.2d 1030 (2002): 21.5(1)(c) Tatham v. Rogers, 170 Wn. App. 76, 283 P.3d 583 (2012): 11.7(13), 12.7(1) Taylor, In re, 105 Wn.2d 683, 717 P.2d 755 (1986): 24.6(2)(a) Taylor v. Cessna Aircraft Co., Inc., 39 Wn. App. 828, 69......
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§ 11.7 Particular Applications of the General Rule and Its Exceptions
...avoid the additional burden of proving prejudice on appeal from a final judgment. See §11.7(9)(b). In Tatham v. Rogers, 170 Wn. App. 76, 283 P.3d 583 (2012), the Court of Appeals held that a party may be entitled to relief after judgment (e.g., under CR 60) when a judge should have—but fail......
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§60.7 Significant Authorities
...the appearance of fairness doctrine that comes to light after judgment is entered is CR 60(b)(ll). Tatham v. Rogers, 170 Wn.App. 76, 100, 283 P.3d 583 (2) Federal Federal cases interpreting and applying Fed. R. Civ. P. 60 are discussed in detail in the following secondary materials: Charles......