Opinion
Record No. 1413-93-4
Decided: October 25, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Richard J. Colten, Judge Pro Tempore Affirmed.
Philip J. Hirschkop (Marianne R. Merritt; Hirschkop Associates, on briefs), for appellant.
Glenn C. Lewis (Wendy H. Schwartz; Leslie Brasch Weber; Lewis, Dack, Paradiso, O'Connor Good, on brief), for appellee.
Present: Chief Judge Moon, Judge Baker and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the trial court is affirmed.
I. APPOINTMENT OF JUDGE PRO TEMPORE UNDER CONSTITUTION OF VIRGINIA
Assuming but not deciding that the appointment of a judge pro tempore is in violation of Code Sections 17-9 through 17-10 of the Virginia Constitution, appellant has waived and is estopped from asserting such appointment is unconstitutional"Waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it." Roenke v. Virginia Farm Bureau Mutual Ins. Co., 209 Va. 128, 135, 161 S.E.2d 704, 708-09 (1968). Appellant knew he had a right to a trial before a circuit court judge, but agreed to the selection of a judge pro tempore because it was to his benefit to obtain a continuance in his pending divorce action. In doing so he knowingly waived his right to challenge the constitutionality of the judge pro tempore statute. Bisping v. Commonwealth, 218 Va. 753, 755, 240 S.E.2d 656, 657, cert. denied, 453 U.S. 1007 (1978).
"[E]stoppel . . . enjoins one whose action or inaction has induced reliance by another from benefiting from a change in his position at the expense of the other." Employers Commercial Union Ins. Co. of America v. Great American Ins. Co., 214 Va. 410, 412, 200 S.E.2d 560, 562 (1973). The record shows that when this case was originally set for trial before a judge, appellant was seeking a continuance which, if granted, would have delayed the trial for over a year. Appellee consented to the continuance if a judge pro tempore were appointed because the delay of trial would only be for a few weeks. Thus, appellant's agreement to the judge pro tempore caused appellee to change her position.
II. JUDGE PRO TEMPORE'S AUTHORITY AND ABUSE OF DISCRETION
We have previously ruled that with regard to the "issues of custody, visitation, residency or the status of the minor children, a judge pro tempore has jurisdiction over the subject matter and the parties." Ferry v. Ferry, No. 0100-91-4 (Va.Ct.App. Feb. 14, 1991) (Order denying petition for writ of prohibition). Accordingly, the judge pro tempore did not exceed his authority by considering the custody dispute.
Under familiar principles, [the appellate court] reviews the evidence in the light most favorable to . . . the prevailing party below. . . . The judgment of a trial court sitting in equity, when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it.
Peple v. Peple, 5 Va. App. 414, 422, 364 S.E.2d 232, 237 (1988). Appellant violated a court order by attempting to enroll his son in a New York boarding school. He later left his older child alone for over a week, forcing the appellee to become the child's de facto custodian. Appellant failed to attend the custody hearing and did not testify, so these charges are unrefuted. Accordingly, the judge pro tempore's decision to transfer custody to the appellee was not "plainly wrong or without evidence to support it," and should not be disturbed on appeal.
When reviewing an equitable distribution award on appeal, "[t]he trial court's findings must be accorded a great deference. Its judgment on appeal will not be disturbed unless plainly wrong or without evidence to support it." Keyser v. Keyser, 7 Va. App. 405, 409, 374 S.E.2d 698, 701 (1988) (citing Code Sec. 8.01-680). "Where an equitable distribution award is appropriate, then all of the provisions of Code Sec. 20-107.3 must be followed." Artis v. Artis, 4 Va. App. 132, 136, 354 S.E.2d 812, 814 (1987).
Appellant argues that the judge pro tempore did not properly consider:
1) Appellant's expenses;
2) Appellant's debts;
3) Appellant's cerebral disorder;
4) Appellant's current and past employment status;
5) Appellant's income potential; and
6) The most recent available calculations of appellant's assets.
The judge pro tempore properly addressed all considerations in his June 7, 1993 letter opinion to counsel, which was adopted in the June 17, 1993 final decree.
In determining spousal and child support, the judge pro tempore made a careful analysis of appellant's expenses, which appellant alleges amount to more than $25,000 a month. Since appellant failed to testify at the April 21, 1993 hearing, he has provided no evidence to support this assertion. In November 1990, appellant had monthly expenses of $34,917, which the judge pro tempore termed "excessive" given appellant's economic situation. Appellant has more recently represented his monthly expenditures to average $3,282. This sum equals the average of his monthly expenses between January and March 1991, as represented by appellant to the bankruptcy court. While "[t]he station to which a party may have grown accustomed during marriage is to be considered in determining support," see Keyser v. Keyser, 7 Va. App. 405, 415, 374 S.E.2d 698, 704 (1988), it does not follow that the court must maintain that standard in the face of changed conditions. As the judge pro tempore pointed out, the parties "enjoyed a lavish standard of living in the later years of the marriage, but it was a lifestyle artificially based on consumption of the corpus of the marital estate rather than income." The judge pro tempore correctly observed that "the needs of the alimony recipient must be balanced against the paying spouse," and that "[n]either party [could] expect to continue to enjoy their prior standard of living." Appellant's expenses were considered excessive and did not justify penalizing appellee with a reduced award.
Likewise, appellant's debts were adequately considered in the judge pro tempore's ruling. On June 23, 1989, a pendente lite restraining order was issued which prohibited appellant from disposing of any marital asset greater than $10,000. On November 30, 1990, the judge pro tempore issued a pendente lite decree limiting appellant's expenditures from the marital funds to $25,000 a month, barring appellant from using the marital credit lines or from obtaining additional credit. Appellant now claims that he has been forced to sell some of the marital property in order to satisfy his significant debts, including attorneys' fees and a $228,000 second line of credit on an investment property. Appellant did not testify as to the sale of these properties and has failed to provide a justification for his violation of the June 23, 1989 order. When the November 30, 1990 decree was entered, the $25,000 a month was intended to satisfy the appellant's expenses, including repayment of debts. The appellee should not be penalized because the appellant instead used the allowance to maintain his inflated standard of living.
Appellant suffers from a brain lesion. In considering the statutory factors for a monetary award, the judge pro tempore noted, "Mr. Ferry suffers from a medical condition that causes him to have periodic seizure-like episodes. Understandably, the condition is a source of great concern to him, but it has not been shown to be either life-threatening or disabling." Contrary to appellant's assertion, the judge pro tempore considered appellant's medical condition, but obviously did not feel that it warranted a material effect on the award. This conclusion does not appear plainly wrong.
The judge pro tempore also considered appellant's current and past employment status, noting that appellant had not held a salaried position since 1983. In 1990, appellant told the court that he would be forced to seek employment if a business venture was unsuccessful. Since that time, appellant has not been employed, justifying the judge pro tempore's conclusion that appellant is voluntarily underemployed. The judge pro tempore observed that appellant continued to draw "loan repayments" from an alter ego company, CBF, Inc., by whom appellant recently had been employed as a consultant at $15,000 a month.
With appellant's employment status in mind, the judge pro tempore determined that appellant's earning potential was $15,000 per month. The judge pro tempore noted that appellant was "a hard worker, possessed of considerable creative and managerial abilities and business acumen." Based on the totality of the evidence, it was not "plainly wrong or without evidence" for the judge pro tempore to conclude that appellant's potential income was $15,000.
On April 21, 1993, the judge pro tempore held a hearing to determine the updated value of the parties' assets, income, and debts. Appellant had the opportunity to be present and testify, but chose otherwise. On June 2, 1993, the judge pro tempore sent a letter to counsel for both parties informing them that the court's letter opinion was being completed. On June 4, 1993, appellant filed a motion and affidavit to supplement the record regarding the value of his assets and liabilities. This consisted of a three page spreadsheet entitled "John P. Betsy Ferry Asset Listing (Detail)," upon which appellant had made handwritten notations of the current value of his assets. On June 7, 1993, the judge pro tempore provided the parties with a detailed, twenty-nine page letter opinion analyzing and determining the proper equitable distribution. The opinion also denied appellant's June 4, 1993 motion, stating that appellant "had the opportunity . . . to be present and testify [at the April 21, 1993 hearing]. The evidence in this case is closed."
It is well settled that the reopening of a case and the admission of additional evidence after one or both parties have rested is a matter within the discretion of the trial court and its action will not be reviewed unless it affirmatively appears that this discretion has been abused or unless the admission of such additional evidence works surprise or injustice to the other party.
Laughlin v. Rose, 200 Va. 127, 129, 104 S.E.2d 782, 784 (1958). Appellant attempted to introduce evidence after the evidence had been closed for several months, at which time the judge pro tempore was in the midst of writing his decision. Accordingly, it was not an abuse of discretion to deny appellant's motion to admit the late evidence.
III. CONFLICT OF INTEREST AND RECUSAL
"In Virginia, whether a trial judge should recuse himself or herself is measured by whether he or she harbors 'such bias or prejudice as would deny the defendant a fair trial,' and is a matter left to the reasonable discretion of the trial court." Welsh v. Commonwealth, 14 Va. App. 300, 315, 416 S.E.2d 451, 459-60 (1992) (citations omitted), aff'd, 246 Va. 337, 437 S.E.2d 914 (1993). "As a constitutional matter, due process considerations mandate recusal only where the judge has 'a direct, personal, substantial, pecuniary interest' in the outcome of a case. While bias may be so pervasive as to offend due process, 'only in the most extreme cases would disqualification on this basis be constitutionally required.' " Id. at 314, 416 S.E.2d at 459 (citations omitted).
In the instant case, the judge pro tempore took pains to make clear that he had no "such bias or prejudice as would deny [appellant] a fair trial." After a hearing in which the issue had been fully briefed and argued, the judge pro tempore issued a seven-page statement regarding appellant's motion for recusal. In the statement, the judge pro tempore noted that no evidence had ever been presented to demonstrate bias. The judge pro tempore continued, explaining that he "had and continue[d] to enjoy both personal and professional dealings with all counsel of record with the exception of Ms. Hammond, whom [he had] only known professionally." After reviewing his relationship with counsel for both parties, the judge pro tempore observed that "the mere existence of such relationship does not suggest that [he] would deny a fair trial to either of [counsel's] litigant clients." Canon III(C) (a) of the Canons of Judicial Conduct provides that "[a] judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." There is, however, no evidence that the judge pro tempore's impartiality might reasonably be questioned. Adverse rulings against appellant are not evidence of prejudice. Stamper v. Commonwealth, 228 Va. 707, 714, 324 S.E.2d 682, 686 (1985).
Likewise, the judge pro tempore does not have "direct, personal, substantial, [or] pecuniary interest" in the case. Welsh, 14 Va. App. at 314, 416 S.E.2d at 459. Regardless of which party prevails, the judge pro tempore will be compensated for his services. He has no personal or substantial ties to the parties, only "friendly and cordial" relations with the attorneys; he does not "have an intimate relationship with any one of them." Any pecuniary interest of the judge pro tempore was created by the stipulation which appointed him, and does not favor either party.
Finally, appellant will not be allowed to establish judicial conflict of interest simply by filing a lawsuit against the judge pro tempore. To do so would provide an incentive to all disgruntled litigants to dispatch their judges simply by filing a lawsuit. Appellant's lawsuit against the judge pro tempore was dismissed. The judge pro tempore maintains he has no bias against appellant. Accordingly, the judge pro tempore did not commit reversible error in failing to recuse himself.
The judge pro tempore determined that the oral agreement entered into by the parties during the course of appellant's then-pending bankruptcy proceedings was sufficient to constitute an agreement per Richardson, but was not valid absent approval by the bankruptcy court. Since the approval was never granted, there was not a prior settlement agreement. This decision was not plainly wrong.
Appellant attempts to establish that appellee improperly blocked approval of the bankruptcy court because appellee thought that the deal was not favorable to her. Apart from a citation to another of appellant's briefs in a collateral proceeding, appellant does not provide any support for this assertion. On the contrary, the record suggests that appellant misrepresented to appellee the amount of money in the bank accounts by as much as a third. Appellant has failed to establish that appellee improperly blocked approval of the settlement; bankruptcy court approval, therefore, is still required for the settlement to be valid. When appellant undertook to dismiss the bankruptcy action, the proposed settlement became void, and the property revested with appellant. See 11 U.S.C. § 349(b) (3). Accordingly, the judge pro tempore was correct in finding a prior settlement did not exist, and in ruling on the equitable distribution of the marital property.
Affirmed.