Williams v. Williams

• Decision Date: 14 December 1999
• Citation: 6 S.W.3d 916
• Parties: (Mo.App. W.D. 1999) . David Wayne Williams, Respondent v. Debra Kay Reed (Williams), Appellant WD56351 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

6 S.W.3d 916 (Mo.App. W.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

David Wayne Williams, Respondent v. Debra Kay Reed (Williams), Appellant

WD56351

Missouri Court of Appeals Western District

Handdown Date: 12/14/99

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, Judge

Counsel for Appellant: William D. Rotts

Counsel for Respondent: Stephen Cotton Walker

Opinion Summary:

The mother appeals the trial court's judgment modifying custody by transfering physical custody to the husband, and increasing the mother's child support to the father.

REVERSED AND REMANDED.

Division Four holds:

(1)The trial court erred in hearing the motion for change of judge.Because the trial judge made his wife a material witness to the hearing, the judge's recusal was required pursuant to Rule 2, Canon 3D(1)(d)(iii).The trial judge's failure to recuse himself from hearing the motion for change of judge was not prejudicial error, however, as the record of the hearing on the motion for change of judge indicated that the mother's attorney had no evidence to present in support of the motion.

(2)The trial court erred in denying the motion for change of judge because the judge's conduct during the hearing on the motion for change of judge created an appearance of impropriety requiring his recusal.The judge's reaction to the clearly unsupported allegation contained in the motion for change of judge would give a reasonable person a factual basis to doubt his ability to thereafter preside as a neutral arbiter over the motion to modify.The judgment is reversed and remanded for trial before a different judge.

Opinion Author: Patricia Breckenridge, Chief Judge

Opinion Vote: REVERSED AND REMANDED.Breckenridge, C.J., Spinden and Howard, JJ.

Opinion:

Debra Kay Williams, now Reed, appeals the trial court's judgment modifying custody and support of the child born of her marriage to David Wayne Williams.In the judgment of modification, the trial court transferred physical custody of the minor child, Mercedes Gayle Williams, from Ms. Reed to Mr. Williams, and ordered Ms. Williams to pay child support in the amount of $367.14 per month.Ms. Reed raises two points on appeal.In her first point, Ms. Reed claims that insufficient evidence supported the trial court's finding that a substantial and continuing change in circumstances had occurred which necessitated transferring physical custody of the minor child from Ms. Reed to Mr. Williams.In her second point, Ms. Reed claims that the trial court erred in failing to hold a proper hearing on her motion for change of judge and in denying her motion for change of judge.This court finds that Ms. Reed's second point is meritorious, as the trial judge's conduct and statements during the hearing on Ms. Reed's motion for change of judge would give a reasonable person a factual basis to doubt the judge's ability to thereafter preside as a neutral arbiter over the motion to modify.Therefore, the judgment of the trial court is reversed and the cause is remanded for a new trial on the motion to modify in front of a different judge.

Factual and Procedural Background

Ms. Reed and Mr. Williams were divorced on July 28, 1997.In their settlement agreement, Ms. Reed and Mr. Williams agreed to exercise joint legal and physical custody of Mercedes, who was born January 31, 1993, with Ms. Reed designated as Mercedes' primary physical custodian.The parties designated specific periods of visitation for Mr. Williams with Mercedes, and agreed that Mr. Williams would pay child support in the amount of $81.50 per month.The parties also agreed that they would keep each other informed regarding the names and addresses of any daycare providers for Mercedes.The trial court entered a judgment of dissolution in which it approved the settlement agreement and ordered the parties to abide by its terms.

On March 9, 1998, Mr. Williams filed a motion to modify child custody and support.In his motion, Mr. Williams alleged four substantial and continuing changed circumstances, which he claimed warranted modification of the judgment of dissolution.Three of Mr. Williams' alleged changed circumstances concerned Ms. Reed's homosexual relationship with Tracy Moore.Mr. Williams claimed that Ms. Reed was in a public, same-sex relationship with Ms. Moore which was detrimental to Mercedes' best interests.Mr. Williams also claimed that Ms. Moore had a history of violence with her same-sex partners, and such behavior was detrimental to Mercedes.Additionally, Mr. Williams claimed that when Mercedes resided with Ms. Reed, Mercedes was forced to sleep in a room with her 10-year-old step-brother while Ms. Reed and Ms. Moore shared a bed.Mr. Williams' other alleged changed circumstance was that the daycare providers listed in the parties' separation agreement no longer provided care for Mercedes.Ms. Reed filed an answer denying Mr. Williams' allegations.

On July 21, 1998, three days prior to the trial on Mr. Williams' motion to modify, Ms. Reed filed a motion for change of venue and change of judge for cause pursuant to 51.05(d).In the motion for change of venue, Ms. Reed's attorney, Kylar Broadus, alleged that Mr. Williams, a Jefferson City police officer, had undue influence over the citizens of Cole County and had made threats to individuals involved in the proceeding.Because of Mr. Williams' influence in Cole County, Mr. Broadus asked that the case be transferred to Boone County.In the motion for change of judge, Mr. Broadus averred that Ms. Reed had just learned, on or about July 17, 1998, that the trial judge "is, about to or has recently become involved in a dissolution proceeding in which his soon to be ex-wife is involved in a same-sex relationship and child custody is an issue."Mr. Broadus claimed that the trial judge and his wife's alleged situation would make the judge unable to provide Ms. Reed with a fair hearing.

On July 24, 1998, prior to hearing evidence on Mr. Williams' motion to modify, the trial judge announced that he would hear evidence on Ms. Reed's motion for change of venue and change of judge.Mr. Broadus started by saying that the allegation regarding the judge's wife and the state of their marriage was based upon information Mr. Broadus received "through the grapevine."The judge then began questioning Mr. Broadus as to the source of and factual basis for the allegation.The judge relayed to the parties that he had discussed the motion with his wife prior to the hearing, and she was "outraged" about the allegation in the motion.When Mr. Broadus indicated that his client had told him about the judge's alleged marital situation, the trial judge called Ms. Reed to the stand, denied her request to consult with Mr. Broadus prior to taking the stand, and threatened to hold her in contempt of court if she did not do what the judge told her to do.Ms. Reed, under questioning by the trial court, indicated that she had merely asked Mr. Broadus to investigate information she had received about the judge's wife and their marriage.After telling Mr. Broadus he was personally insulted, the trial judge chastised Mr. Broadus for filing a baseless motion for change of judge and denied the motion for change of judge and change of venue.¹

Both parties then presented evidence regarding Mr. Williams' motion to modify.After taking the case under advisement, the trial court modified the parties' judgment of dissolution by ordering, inter alia, that Mercedes' primary physical custody be transferred to Mr. Williams, and that Ms. Reed pay $367.14 per month as child support.Ms. Reed subsequently filed this appeal.

Because it is dispositive of Ms. Reed's appeal, this court will address only Ms. Reed's second point.In her second point, Ms. Reed claims that the trial judge failed to conduct a proper hearing on the motion for change of judge in that the trial judge testified regarding the allegation and considered improper evidence from the judge's own spouse, and therefore should have disqualified himself from hearing the motion for change of judge.Additionally, Ms. Reed claims that the trial judge's conduct during the hearing on the motion for change of judge indicated that he would be unable to give Ms. Reed a fair hearing on the motion to modify, and therefore the trial judge should have granted the motion for change of judge.

Standard of Review

In reviewing the trial court's denial of a motion for change of judge, the appellate court presumes that a trial judge will not preside over a proceeding in which the judge cannot be impartial.Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 836(Mo. App.1996).Therefore, this court will affirm the trial court's denial of a motion for change of judge unless the denial constitutes an abuse of discretion.Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 245(Mo. App.1999).

Ms. Reed made a motion for change of judge for cause pursuant to Rule 51.05(d).

While Rule 51.05(d) does not set forth what qualifies as "cause,"§ 476.180, RSMo 1994 and Rule 2, Canon 3D of the Code of Judicial Conduct do.Id.Section 476.180, RSMo 1994, provides that no judge "who is interested in any suit or related to either party, or who shall have been of counsel in any suit or proceeding pending before him," shall preside over a proceeding without the express written consent of the parties.Because none of the particular circumstances listed in the statute apply, this court turns to Rule 2, Canon 3D(1) of the Code of Judicial Conduct(1998) for guidance.²Id.This canon provides as follows:

(1) A judge should recuse in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge:

(a) has a personal bias or prejudice concerning the proceeding;

(b) served as a lawyer in the matter in controversy, or a lawyer with whom the judge...