Opinion
No. COA02-567
Filed 15 April 2003
Appeal and Error — appealability — mootness — motion for recusal
Although defendant appeals the trial court's decision in a child custody case concluding that a judge should have recused himself from hearing a motion to modify custody and by ordering a new hearing based on the fact that the judge co-owned a vacation home with defendant's attorney, the appeal is dismissed as moot because the pertinent judge retired, and the proposed custody judgment that led to the motion for recusal was never signed or entered and was not filed with the clerk of court.
Judge CALABRIA dissenting.
Appeal by defendant from order entered 4 October 2001 by Judge William A. Christian in Mecklenburg County District Court. Heard in the Court of Appeals 12 February 2003.
Reid, Lewis, Deese, Nance Person, L.L.P., by Renny W. Deese, for plaintiff-appellee. James, McElroy Diehl, P.A., by William K. Diehl, Jr., Katherine S. Holliday and Preston O. Odom, III, for defendant-appellant.
I. Background
Katherine T. Lange ("plaintiff") and David R. Lange ("defendant") were married on 27 May 1989. Two children were born during the marriage: Jacob Ross Lange on 18 August 1992 and Sophia Katherine Lange on 18 August 1994. Plaintiff and defendant separated in February 1997 and divorced in August of 1998. On 11 September 1998, an Order Approving Parenting Agreement was entered that approved a shared custody arrangement of the children. Plaintiff was granted primary physical custody with defendant having custody on alternating weekends and each Wednesday evening until the Thursday morning. In February 2000, plaintiff informed defendant that she intended to move to Southern Pines in June 2000 and take the children with her. Plaintiff was engaged to a man who lived in Southern Pines and who could not relocate because of his business. On 23 March 2000, plaintiff moved to modify custody. On 26 April 2000, plaintiff made a motion in the cause for contempt for failure to pay child support, and a show cause order was issued by the trial court. On 13 May 2000, defendant remarried. On 2 June 2000, defendant responded to plaintiff's motion to modify custody requesting the original shared custody agreement be continued or the substitution of him as primary custodial parent.
Judge William G. Jones conducted a three-day trial concerning the custody modification dispute between 13 and 16 June 2000. Dorian Gunter ("Gunter") represented plaintiff, and Katherine Holliday ("Holliday") represented defendant at the trial. By letter dated 30 June 2000, Judge Jones announced his decision that the children continue to reside in Charlotte, with the original parenting agreement remaining in effect if plaintiff remained in the Charlotte area. If plaintiff moved to Southern Pines, defendant would be awarded primary physical custody. Judge Jones asked Holliday to draft the order.
Judge Jones, Holliday, and Gunter subsequently met to discuss the details of the order. In early November 2000, before Judge Jones could sign the final order, Gunter informed Judge Jones and Holliday that he was going to file a recusal motion. Judge Jones refused to voluntarily recuse himself but declined to sign the order. Gunter's recusal motion was based upon the co-ownership of Judge Jones and defendant's attorney, Holliday, of a vacation home and was filed on 13 November 2000. Judge Jones referred the matter to the Administrative Office of the Courts ("AOC"). The AOC appointed Judge William Christian to hear plaintiff's motion to recuse Judge Jones.
On 11 June 2001, Judge Christian heard the motion for recusal. Judge Christian issued an order that concluded there had been "no specifically enumerated violation of Canons 2, 3, or 5 of the North Carolina Code of Judicial Conduct." The order granted plaintiff's recusal motion and awarded a new hearing because "a reasonable person [would] question whether [Judge Jones] could rule impartially." Defendant appeals that decision. Judge Jones subsequently retired from the bench.
II. Issue
The issue is whether Judge Christian erred in concluding that Judge Jones should have recused himself from hearing the motion and consequently ordering a new hearing. We find it unnecessary to reach this issue because Judge Jones' retirement renders this appeal moot.
III. Mootness
Mootness arises where the original question in controversy is no longer at issue. In re Denial of Request by Humana Hospital Corp., 78 N.C. App. 637, 640, 338 S.E.2d 139, 141 (1986). "Whenever, during the course of litigation it develops that the relief sought has been granted or that questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law." Id. (quoting In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978)).
The moment Judge Jones retired, all issues regarding recusal became moot. The proposed custody judgment that led to the motion for recusal was never signed or entered, and was not filed with the clerk of court. North Carolina Rule of Civil Procedure 58 governs entry of judgments. "[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court." N.C.G.S. § 1A-1, Rule 58 (2001).
"The announcement of judgment in open court is the mere rendering of judgment, not the entry of judgment. The entry of judgment is the event which vests this Court with jurisdiction." Worsham v. Richbourg's Sales and Rentals, 124 N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996) (citations omitted).
Judge Jones cannot sign the order or preside over any further hearing after retirement. Judge Jones is now retired. He cannot execute any orders, or re-hear the case. See In re Pittman, 151 N.C. App. 112, 564 S.E.2d 899, appeal dismissed, 356 N.C. 163, 568 S.E.2d 609 (2002).
All parties agree that the case must be considered by a new judge, whether Judge Christian's ruling granting a new trial is affirmed or reversed and remanded for a further proceeding under Rule 63 of the North Carolina Rules of Civil Procedure. Judge Jones' retirement ended all issues on appeal, and there is no possibility that the recusal issue regarding Judge Jones will reoccur.
The dissenting opinion would have this Court overcome formidable hurdles of an interlocutory appeal and abuse of discretion review to unnecessarily reach the issue of recusal.
The parties engaged in three days of presenting evidence and argument, and are bound by that evidence if a new hearing is held. Whether a new hearing is held or the new judge enters the prior order as written lies within the new judge's discretion and is irrelevant to the issue on appeal.
We do not reach the merits of the parties' assignments of error. Such action is unnecessary to the issue on appeal. In the interests of judicial economy and judicial restraint, this appeal is dismissed as moot.
Appeal Dismissed.
Judge McCULLOUGH concurs.
Judge CALABRIA dissents.