Velardo v. Ovitt

Decision Date27 July 2007
Docket NumberNo. 06-184.,06-184.
Citation933 A.2d 227,2007 VT 69
PartiesPaul VELARDO v. Sarah OVITT.
CourtVermont Supreme Court

Nanci A. Smith, Montpelier, and Richard L. Ducote, Pittsburgh, PA, for Plaintiff-Appellant.

Nicholas L. Hadden and Scott R. Bortzfield of Law Office of Nicholas Hadden, St. Albans, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. DOOLEY, J.

This is a custody dispute over a seven-year-old child. Father appeals the family court's award of legal rights and responsibilities over the child to mother asserting, among other claims, that he is entitled to a new trial because an assistant judge who sat in the case is the sister of the guardian ad litem (GAL), and the relationship was not revealed until after trial. We hold that the undisclosed sibling relationship between the assistant judge and the GAL required recusal of the assistant judge pursuant to Canon 3E(1) of the Code of Judicial Conduct. As a remedy for the litigants, we find that, under the circumstances, we must vacate the family court's order and remand for a new trial.1 In the interests of judicial economy, however, we address one other of father's claims because it is likely to reappear in subsequent proceedings.

¶ 2. Father filed a parentage action in August 2003, shortly after he left the parties' home, seeking custody of the parties' then four-year-old son. The State also brought a CHINS action (child in need of care or supervision) that same month. Father made numerous allegations that mother had abused the child. The parties reconciled in February 2004, but by December of that year they were again in litigation over the child. The presiding family court judge appointed Mary Connor to serve as GAL for the child on March 7, 2005. She submitted a brief report to the court dated July 9, 2005. In it, she noted twice that "[e]very report of child abuse was followed up by [mother] bringing her son . . . to be seen by [the child's doctor] to rule out abuse." She recommended, consistent with a previous order of the court, that father be awarded only supervised visitation.

¶ 3. In the course of the litigation, the parties stipulated that Jan Tyler, Ph.D., would conduct a forensic evaluation of the child. She completed her report in January 2004 and recommended that mother be awarded primary physical and legal responsibility for the child. Father's counsel at the time agreed to admit the report. Later, however, father's new counsel objected to its admission on the ground that it contained impermissible hearsay.

¶ 4. In October 2005, the family court issued a thirty-one-page decision giving mother sole legal and physical custody of the child and providing for supervised visitation by father. The decision was signed by the presiding judge and Assistant Judge Teresa Manahan. It was based on evidence presented in eight separate hearings. The court noted the presence and written recommendation of the GAL in one sentence at the beginning of its order. The court also chronicled each audio, video, and photographic record of the child taken by father and his parents. It found that each party could provide the child with "a safe environment," but found that, although father "clearly was the primary care provider for the child while the parties lived together," there were countervailing "problems created by his continuing need to interrogate the child" about mother's alleged abuse. The court noted, on the other hand, mother's "insight" and "appropriate concern and responsibility for the child" as shown through her continued cooperation in the investigation of the child's welfare. In light of these differences, the court awarded mother sole legal rights and responsibilities and awarded father parent-child contact to be "supervised by responsible adults as agreed by the parties."

¶ 5. Father subsequently moved for a disqualification of the judges and for a new trial because of the post-trial revelation that the GAL and Assistant Judge Manahan are sisters, and because Judge Manahan participated in the custody decision. Judge Manahan did not respond to the motion. The GAL did respond, acknowledging that she is the sister of Judge Manahan, but stating that she had no ex parte communications with the judge. The presiding judge did not rule on the motion for a new trial and referred the disqualification motion to the administrative judge. The administrative judge declined to disqualify Judge Manahan because there was nothing pending before her at that time and declined to disqualify the presiding judge because any claims he was "contaminated" based on his contact with the assistant judge were speculative. Father also requested a new trial based on the family court's consideration of the Tyler report; the court denied this motion. On appeal, father contests the denial of these motions, as well as the administrative judge's denial of his post-trial request to remove the assistant and presiding judges from the case. We address the remedy for the assistant judge's alleged ethical violation first, and proceed briefly to father's other claims.

¶ 6. The paramount aim of our Code of Judicial Conduct is to promote public confidence in our judiciary. Such public confidence is an essential element of any properly functioning legal system. As the first words of the Vermont Code of Judicial Conduct state:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.

A.O. 10, Preamble. To ensure the judicial independence and public trust on which our legal system is based, judges are subject to strict standards of conduct. They are required to recuse themselves from sitting on a case where their "impartiality might reasonably be questioned." Id. Canon 3E(1). In this case, we are required to determine whether this standard was violated, and if so, whether the parties are entitled to a particular remedy.

¶ 7. The Code is binding on "anyone, whether or not a lawyer, who is an officer of the judicial system and who performs judicial functions." A.O. 10, Terminology [11] (defining "judge"). Unquestionably, this includes assistant judges. In re Kroger, 167 Vt. 1, 5-6, 702 A.2d 64, 67 (1997) (per curiam) (applying A.O. 10, Canons 1 and 2A to assistant judge); State v. Hunt, 150 Vt. 483, 492, 555 A.2d 369, 375 (1988) (applying A.O. 10, Canon 3 to assistant judges). Canon 3E, formerly Canon 3C, controls the disqualification of judges. It states in no uncertain terms that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." A.O. 10, Canon 3E(1) (emphasis added). It then gives a nonexhaustive list of instances in which recusal is required. Id. One such instance is when "a person within the fourth degree of relationship" to the judge "is a party to the proceeding, or an officer, director or trustee of a party," is "acting as a lawyer" in the proceeding, or "is to the judge's knowledge likely to be a material witness in the proceeding." Id. Canon 3E(l)(d)(i), (ii), (iv). It is undisputed that, as sisters, the assistant judge and GAL were related within four degrees. See A.O. 10, Terminology [9] (defining "fourth degree of relationship" as including sisters).

¶ 8. Both the assistant judge and the GAL had significant, but limited, roles in this custody case. Thus, the first question is whether Canon 3E(1) requires recusal of an assistant judge if a GAL is within the fourth degree of relationship to the judge. The assistant judge is a unique Vermont judicial officer who is elected at the county level and is also responsible for "care and superintendence of county property," as well as other county administrative responsibilities. 24 V.S.A. § 131; see also id. §§ 133, 171, 211. Assistant judges are elected in each county. Vt. Const. ch. II, § 50. For purposes of many family court proceedings — including a parentage action such as the one here, 4 V.S.A. § 454(1)the court consists of the presiding judge plus the available assistant judge or judges. Id. § 452(a). In such cases, the full court decides questions of fact, and the presiding judge decides questions of law and mixed questions of fact and law. See id. § 457(b). A custody determination is a mixed decision of fact and law. See Woodbury v. Woodbury, 161 Vt. 628, 628-29, 641 A.2d 367, 367 (1994) (mem.) (explaining that assistant judges may not award custody but that "the presiding judge must make the custody determination based on the findings of fact of the court, which include the findings of fact of the assistant judges"). Thus, even though Assistant Judge Manahan signed the custody determination in this case, that signature must be taken to represent approval of the factual findings only.

¶ 9. Nevertheless, although the assistant judge's role is more limited than that of the presiding judge, we see no reason why that limitation affects the application of Canon 3E(1), at least in a proceeding that resolves factual issues. Thus, an assistant judge must recuse herself under the same circumstances as a presiding judge. We held exactly as much in Richard v. Richard, in which we required the disqualification of assistant judges consistent with Canon 3. 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985) superseded on other grounds by V.R.C.P. 40(e).

¶ 10. The coverage of the GAL in Canon 3E is more complicated. As discussed above, the Canon specifically mentions parties, lawyers, and expected witnesses, but does not list GALs by name. A GAL may be appointed in a parentage proceeding...

To continue reading

Request your trial
15 cases
  • In re Strouse
    • United States
    • Vermont Supreme Court
    • July 15, 2011
    ...disclose the continuing relationship so that the firm could take the action necessary to cure the potential ethical violation. See Velardo v. Ovitt, 2007 VT 69, ¶ 29, 182 Vt. 180, 933 A.2d 227 (holding that father was entitled to new custody trial because assistant judge in case was sister ......
  • Davis v. State
    • United States
    • Florida District Court of Appeals
    • June 3, 2020
    ...correct."); State v. Gardner, 789 P.2d 273, 278 (Utah 1989) (reviewing disqualification error for harmlessness); Velardo v. Ovitt, 182 Vt. 180, 933 A.2d 227, 236-37 (2007) (applying Liljeberg ); Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459 S.E.2d 374, 387-88 (1995) (reviewi......
  • In re Strouse
    • United States
    • Vermont Supreme Court
    • July 15, 2011
    ...disclose the continuing relationship so that the firm could take the action necessary to cure the potential ethical violation. See Velardo v. Ovitt, 2007 VT 69, ¶ 29, 182 Vt. 180, 933 A.2d 227 (holding that father was entitled to new custody trial because assistant judge in case was sister ......
  • State v. Van Huizen
    • United States
    • Utah Court of Appeals
    • February 16, 2017
    ...the interests of justice and the avoidance of impropriety require a reversal of sentence and a remand for resentencing.").¶61 And in Velardo v. Ovitt , the Vermont Supreme Court addressed circumstances similar to those here. 2007 VT 69, 182 Vt. 180, 933 A.2d 227. In Velardo , a party claime......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT