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.
[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.
