Wednesday, January 31, 2018

G.W.G. ex rel J.D.G. v. A.D.N.

            The Missouri Court of Appeals’, Eastern District, decision in G.W.G. ex rel J.D.G. v. A.D.N. assessed, among other issues, a claim that the trial court was impartial and failed to recuse itself despite being aware of certain evidence that improperly swayed the decision in a custody case.  The decision illustrates the high threshold required to make an effective showing of impartiality and the emphasis of viewing a trial record as a whole rather than at specific pieces that suggest impropriety.

I.        Facts and Holding
            A.D.N. (“Mother”) and J.D.G. (“Father”) engaged in a romantic relationship, which resulted in the birth of G.W.G. (“Child”) on October 24, 2011.[1]  The parties cohabitated and shared the parental responsibilities for Child until the fall of 2015, when Mother unilaterally moved with Child from Shelby County, Missouri, to Palmyra, Missouri.[2]  Mother denied Father contact with Child despite Father’s continuous indications he wanted Child to reside with him.[3]
            On December 7, 2015, Father filed a Petition for Order of Paternity and Child Custody.[4]  The trial court declared Father to be Child’s natural father after agreement of the parties and established the paternity on June 16, 2016.[5] Both parties submitted a proposed parenting plan to the judge.[6]  Father requested joint legal and physical custody and the designation as the residential parent, and Mother requested joint legal custody and sole physical custody.[7]
            After trial, the court entered a Judgment and Decree for Custody, Visitation and Child Support (“the Judgment”), which adopted Father’s proposed parenting plan and designated Father as the primary residential parent.[8]  The court indicated Father’s parenting plan was the most closely aligned with the best interests of Child and that by living with Father, Child would maintain meaningful contact with both parents.[9]  The court reasoned Father had remained in Shelby County for the past few years and had stability, while Mother had moved twice in the past year and indicated her willingness to relocate for a better job opportunity.[10]  The Judgment was drafted after considering the statutory factors for determining proper custody.[11]
            Mother subsequently filed a Motion to Reopen the Evidence and New Trial (“Motion to Reopen”).[12]  Mother presented an affidavit from a deputy sheriff indicating there existed an audio recording of Father confessing to child molestation.[13]  Evidence had been presented at trial about Father’s acquittal of the charge ten years earlier.[14]  At the hearing on Mother’s motion, the trial court admitted it had been aware of the child molestation charge before trial started and noted, “[Y]ou’re supposed to be fair and impartial and not pre-judge anything … I was thinking when we had the trial that there’s probably no way I was every going to give him the kid.”[15]  The trial court denied Mother’s Motion to Reopen and she appealed on several issues, including plain error.[16]

II.     Legal Background
            Missouri law provides that if plain error is not raised or preserved for appeal, it may still be considered if the plain error affects substantial rights and if the court finds “manifest injustice or miscarriage of justice has resulted therefrom.”[17]  However, appellate courts rarely find plain error in a civil case.[18]
Further, the Supreme Court of Missouri Rules provide that “[a] judge shall recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”[19]  One circumstance in which recusal is mandated is when “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer or knowledge of facts that are in dispute in the proceeding that would preclude the judge from being fair and impartial.”[20]  The Missouri Court of Appeals, Western District, noted the standard for judge recusal and stated that “[w]hen the judge appears to be biased by ‘an extrajudicial source [that] results in an opinion on the merits on some basis other than what the judge has learned from the judge’s participation in a case,’ this Court may require disqualification.”[21]  In Francis, the Western District indicated it would consider the entire record when assessing the facts in support of disqualification of a judge.[22]
Disqualification standards are difficult to meet because there is the presumption a judge will act “with honesty and integrity and will not preside over a trial in which he or she cannot be impartial.”[23] This presumption can be overcome by analyzing whether “a reasonable person would have factual grounds to find an appearance of impropriety and doubt the impartiality of the court.”[24]

III.  Instant Decision
The Missouri Court of Appeals, Eastern District, denied Mother’s plain error appeal.[25]  Mother argued that even though the potential bias of the trial court seemingly would have worked in her favor, its admission of awareness of facts outside the record “created the appearance of impropriety” and the trial court should have recused itself.[26]  Mother argued the court may have “bent over backwards” to avoid appearing to be impartial, including ruling in Father’s favor.[27]
The Eastern District stated the trial court appeared to have weighed the facts impartially and indicated Mother’s allegations were “wildly speculative.”[28]  The court stressed the importance of viewing the record as a whole. [29]  The trial court judge indicated he took into account all of the evidence:
I didn’t realize he had the other child he had raised and they had lived together for several years with the child, and a jury found him not guilty … I came to a different result than I thought I would … But the evidence presented at the trial, he had the other child and how he was raising the child, it swayed me.[30]

The Eastern District indicated the Judgment was supported by evidence and all facts the court may have known before trial were contained within the record on which the Judgment was based.[31]

IV.  Comment
            The Eastern District’s decision on impartiality was likely due to the high threshold for finding plain error in civil cases.[32]  However, Supreme Court Rule 2-2.11(a)(1) does not limit the recusal requirements to actual prejudice as even the appearance of impropriety can warrant recusal.[33]  In the case at hand, the trial court’s statement that before trial it believed that “there’s probably no way [the court] was ever going to give [Father] the kid”[34] indicates more than an appearance of impartiality but rather an indication it had decided how it would rule in the case. This seems to be a step further than merely being biased.
            Although judges are human and “if lack of bias or impartiality are defined to mean the total absence of preconceptions in the mind of a judge, then no one has ever had a fair trial and never will,”[35] the judge’s statement was more than mere bias or impartiality.  “Here, the judge’s knowledge about the Father was not as problematic because the trial court was eventually exposed to the evidence.[36]  But in other cases, this could be a troubling precedent. Judges with knowledge of a case should be required to bring this to the attention of the parties before the trial. Here, the trial court only indicated it was aware of Father’s past after Mother’s post-Judgment motion.[37]  This raises a question as to impropriety during the trial.  Although the Eastern Districts’ dismissal of Mother’s claim that the court “bent over backwards” to appear impartial[38] is logical, it failed to delve further into the investigation over whether the trial court failed to recuse itself in violation of Rule 2-2.11 for the appearance of impropriety.[39]  This case indicates that recusal is not necessary when a judge has knowledge about one of the parties to the case that will eventually be admitted into evidence.  But because prior to trial there is no way of knowing exactly what the record will show, a judge should disclose to the parties any knowledge that could preclude him or her from being fair and impartial.
- Alyssa D. Smith

[1] G.W.G. ex rel J.D.G. v. A.D.N., No. ED 104943, 2017 WL 6459831, at *1 (Mo. Ct. App.), transfer denied, (Jan. 30, 2018).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. Mo. Rev. Stat. 452.375.2(7) delineates eight non-exhaustive factors.
[12] Id. at *2.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Mo. Sup. Ct. R. 84.13(c).
[18] McGee ex rel. McGee v. City of Pine Lawn, 405 S.W.3d 582, 588 (Mo. Ct. App. 2013).
[19] Mo. Sup. Ct. R. 2-2.11(A).
[20] Mo. Sup. Ct. R. 2-2.11(A)(1).
[21] Francis v. Wieland, 512 S.W.3d 71, 82 (Mo. Ct. App. 2017) (second alteration in original) (quoting Anderson v. State, 402 S.W.3d 86, 91–92 & n.1 (Mo. 2013) (en banc)).
[22] Id.
[23] Johnson v. March, 376 S.W.3d 26, 29 (Mo. Ct. App. 2012) (quoting Worthington v. State, 166 S.W.3d 566, 579 (Mo. 2005) (en banc)).
[24] Dunn v. Dunn, No. WD 80123, 2017 WL 4622130, at *3 (Mo. Ct. App.), transfer denied, (Jan. 23, 2018) (quoting Anderson, 402 S.W.3d at 91).
[25] G.W.G. ex rel J.D.G. v. A.D.N., No. ED 104943, 2017 WL 6459831, at *3 (Mo. Ct. App.), transfer denied,(Jan. 30, 2018).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] See McGee ex rel. McGee v. City of Pine Lawn, 405 S.W.3d 582, 588 (Mo. Ct. App. 2013).
[33] Mo. Sup. Ct. R. 2-2.11(A)(1).
[34] G.W.G. ex rel J.D.G., 2017 WL 6459831, at *2.
[35] Id. at *3 (internal quotation marks omitted) (quoting Elnicki v. Caracci, 255 S.W.3d 44, 49 (Mo. Ct. App. 2008)).
[36] Id.
[37] Id.
[38] Id.
[39] Mo. Sup. Ct. R. 2-2.11(A)(1).