Woodward v. Woodward, 20090316.

• Citation: 2010 ND 143,785 N.W.2d 902
• Decision Date: 15 July 2010
• Docket Number: No. 20090316.,20090316.
• Parties: Maureen Ann WOODWARD, Plaintiff and Appellant v. George WOODWARD, Defendant and Appellee.
• Court: United States State Supreme Court of North Dakota

785 N.W.2d 902

2010 ND 143

Maureen Ann WOODWARD, Plaintiff and Appellant

v.George WOODWARD, Defendant and Appellee.

No. 20090316.

Supreme Court of North Dakota.

July 15, 2010.

William Kirschner, Fargo, N.D., for plaintiff and appellant.

Jerilynn Brantner Adams, Fargo, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Maureen Ann Woodward appealed from a third amended divorce judgment changing primary residential responsibility of her minor child from her to her former husband, George Woodward, and establishing a parenting schedule for the child. We hold the district court did not err in denying Maureen Ann Woodward's motion for recusal of the district court judge and the court's modifications of primary residential responsibility and parenting time are not clearly erroneous. We affirm.

I

[¶ 2] In Woodward v. Woodward, 2009 ND 214, ¶¶ 2-4, 776 N.W.2d 567, we outlined the circumstances leading up to a prior appeal in this post-judgment divorce proceeding:

George and Maureen Ann Woodward were married in 1986 and have three children from their marriage. The parties divorced in 2006. Maureen Ann Woodward was awarded physical custody of the children, and George Woodward was awarded reasonable visitation. George Woodward remarried in 2007 and currently works as a physician in Grand Forks. Maureen Ann Woodward continues to reside in Fargo with the children, serves as their home school teacher and has not remarried.

In 2008, Maureen Ann Woodward discontinued visitation, claiming the children were afraid of George Woodward's new wife, and moved to amend the divorce judgment so that George Woodward could exercise limited visitation with the children only when his new wife was not present. The judicial referee denied Maureen Ann Woodward's motion, granted George Woodward's responsive motion to hold her in contempt for withholding visitation, granted George Woodward compensatory visitation and ordered her to undergo a parental alienation and psychological evaluation. The referee also ordered her to pay George Woodward's attorney fees. Upon request for review, the district court adopted the judicial referee's findings and order.

After Maureen Ann Woodward continued to deny George Woodward visitation with the children, he again moved to hold her in contempt, and she responded with a motion to suspend visitation. The district court found her in contempt and ordered that the two remaining minor children attend counseling as needed to "transition" them for visitation. The court ordered that Maureen Ann Woodward could purge herself of contempt by complying with the visitation provisions of the amended divorce judgment.

[¶ 3] In Woodward, 2009 ND 214, ¶ 1, 776 N.W.2d 567, we affirmed the district court orders denying Maureen Ann Woodward's motion to modify or limit George Woodward's visitation with the parties' three children, granting George Woodward's motion for compensatory visitation, finding Maureen Ann Woodward in contempt for failure to comply with the visitation provisions of the divorce judgment, and ordering Maureen Ann Woodward to undergo a parental alienation and psychological evaluation.

[¶ 4] In March 2009 and while the prior appeal was pending before this Court, George Woodward moved to change custody of the three children. In April 2009, Maureen Ann Woodward asked the districtcourt judge to recuse himself from further proceedings in this case, claiming the judge's refusal to completely read and review the deposition testimony of Dr. Harjinder Virdee, a board certified psychiatrist, at a February 2009 hearing before ruling on George Woodward's prior contempt motion violated the court's judicial duties and demonstrated a lack of impartiality. The court denied Maureen Ann Woodward's motion for recusal, stating that at the February 2009 hearing:

The Court was willing to consider any part of Dr. Virdee's deposition Plaintiff could direct the Court as important....

The Court allowed Plaintiff's Counsel to identify the most pertinent sections of the deposition. Plaintiff's Counsel pointed out that in her deposition, Dr. Virdee speaks strongly about how the children are suffering emotionally and psychologically and that they would be in danger if they were forced to visit their stepmother.... Further, Plaintiff's Counsel mentions that they (Counsel and Dr. Virdee) had a rather lengthy conversation that goes on about forty-five pages, but that Dr. Virdee basically makes numerous references to how the children are being affected by the threat or the fear that they have of visiting with their stepmother..... The Court considered the testimony and disposed of the matter fairly and with impartiality. Plaintiff directed the court to no other parts of the deposition, nor does the Plaintiff do so now. Judges are not ferrets. Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D.1996).

In this case, Plaintiff has previously filed numerous Motions and committed other acts to delay and frustrate visitation between the parties' children and Defendant. Plaintiff has twice been held in contempt concerning visitation. There appears to be no legitimate basis for filing this Motion to Recuse Court. Rather, it appears that Plaintiff filed her Motion to Recuse Court for the sole purpose of further delaying the proceedings in this matter. The Court concludes that a reasonable person could not, on the basis of these objective facts, reasonably question the Court's impartiality, and that disqualification is not required.

[¶ 5] After an evidentiary hearing, the district court partially granted George Woodward's motion for change of custody and changed custody of only the youngest child. The court found there had been a significant change in circumstances since the original custody decision, including that Maureen Ann Woodward had persistently and without justification denied George Woodward visitation with the children, the children were significantly behind in their schooling, the children had been isolated in Maureen Ann Woodward's home, and George Woodward had remarried and has a stable home in Grand Forks. The court also found it would be in the children's best interests if George Woodward had primary custody because he is better able to satisfy the children's educational needs, he is more aware of the children's social and emotional needs and the importance of developing outside interests, he provides opportunities for the children to interact with their relatives, Maureen Ann Woodward has centered on her continuing conflict with George Woodward and exposed the children to that conflict and alienation, and she has issues which adversely affect the children's relationship with their father. The court decided, however, it lacked authority to change custody of the eighteen-year old child because that child was no longer a minor and a changeof custody was not in the best interest of the sixteen-year old child because that child was nearing majority and did not wish to reside with or visit George Woodward. The court decided, however, it was in the best interest of the nine-year old child to change custody to George Woodward. The court also established a visitation schedule, granting Maureen Ann Woodward the same visitation with the youngest child that George Woodward had received with the other children under the existing judgment.

II

[¶ 6] Maureen Ann Woodward argues the district court judge erred in failing to recuse himself from further proceedings in this case, including George Woodward's motion for change of custody. She argues the district court judge's failure to read Dr. Virdee's complete deposition before ruling on George Woodward's prior contempt motion violated the court's judicial duties and demonstrated a lack of impartiality. George Woodward responds that Maureen Ann Woodward's appeal from the order denying recusal is not timely.

[¶ 7] We reject George Woodward's claim that Maureen Ann Woodward's appeal from the court's order denying her motion to recuse is untimely. It is well settled that nonappealable interlocutory orders are reviewable in an appeal from a final judgment. E.g., Security State Bank v. Orvik, 2001 ND 197, ¶ 6, 636 N.W.2d 664. The district court's order denying Maureen Ann Woodward's motion for recusal is a nonappealable interlocutory order that is reviewable on appeal from the final judgment. See N.D.C.C. § 28-27-02 (outlining appealable orders). We therefore review Maureen Ann Woodward's argument in the context of her timely appeal from the third amended judgment.

[¶ 8] A judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. N.D.Code Jud. Conduct, Canon 2. Canon 3(E)(1)(a), N.D.Code Jud. Conduct, governs disqualification of a judge for bias or prejudice whenever the judge's impartiality might reasonably be questioned and provides:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings.

[¶ 9] The rules of judicial conduct provide that a judge is required to avoid impropriety and the appearance of impropriety in all the judge's activities. Farm Credit Bank v. Brakke, 512 N.W.2d 718, 720 (N.D.1994). " 'The law presumes a judge is unbiased and not prejudiced.' " Id. (citation omitted). We have said "[a] ruling adverse to a party in the same or prior proceeding does not render a judge biased so as to require disqualification." Id. The test for the appearance of impartiality is one of reasonableness and recusal is not required in response to spurious or vague charges of impartiality. Id. at 721. In State v. Jacobson, 2008 ND 73, ¶ 13, 747 N.W.2d 481, we explained:

Although a judge has a duty to recuse when required by the Code, a judge also has an

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