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reviewing the findings of fact and conclusions of law to determine the appropriateness of a denied recusal motion
Summary of this case from Knight v. HiggsOpinion
No. COA02-567-2
Filed 21 December 2004
Judges — recusal — vacation house jointly owned with attorney
The recusal of a judge was remanded where defendant either did not assign error or did not argue assignments of error about findings; the evidence supported findings that contacts between the judge and defendant's counsel about jointly owned vacation property were not so frequent as to violate the Code of Judicial Conduct; and the findings supported the conclusion of no bias.
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. A divided panel of this Court dismissed as moot. See Lange v. Lange, 157 N.C. App. 310, 578 S.E.2d 677 (2003). The North Carolina Supreme Court vacated and, by opinion entered 5 December 2003, remanded to this Court for consideration of the appeal on its merits. See Lange v. Lange, 357 N.C. 645, 588 S.E.2d 877 (2003).
Casstevens, Hanner, Genter Riopel, P.A., by Dorian H. Gunter and Reid, Lewis, Deese, Nace Person, L.L.P., by Renny W. Deese, for plaintiff-appellee. James, McElroy Diehl, P.A., by William K. Diehl, Jr., Katherine S. Holliday, Richard S. Wright, and Preston O. Odom, III, for defendant-appellant.
Our Supreme Court remanded this case to the Court of Appeals for consideration of the appeal on its merits. Accordingly, we review defendant's appeal to determine whether Judge Christian erred in granting plaintiff's motion to recuse Judge Jones. We reverse and remand this matter to the trial court for further proceedings under Rule 63 of the Rules of Civil Procedure.
A more detailed recitation of the facts can be found in our first opinion, Lange v. Lange, 157 N.C. App. 310, 578 S.E.2d 677 (2003), and the Supreme Court's opinion, Lange v. Lange, 357 N.C. 645, 588 S.E.2d 877 (2003). We review only those facts pertinent to this opinion.
Plaintiff, Katherine T. Lange, and defendant, David R. Lange, were married in 1989. Following their divorce in 1998, the court entered an order approving a parenting agreement that provided for the parties' two minor children to live in Mecklenburg County pursuant to a shared custody arrangement. In March 2000, plaintiff filed a motion to modify custody because she was engaged and wished to move her family to Southern Pines. Defendant responded to the motion asking the court to grant him primary physical custody of the children if his ex-wife moved from Mecklenburg County. A hearing on the parties' motion to modify custody was held before Judge William G. Jones in the District Court of Mecklenburg County during the week of 13 June 2000. By letter dated 30 June 2000, Judge Jones announced his decision in the matter, requiring the children to continue to reside in Mecklenburg County, and directing counsel for the defendant to submit a proposed order. Over the next several months, the parties discussed the precise language and provisions of the order. In November 2000, prior to Judge Jones signing the order, plaintiff's counsel moved for Judge Jones to recuse himself because Judge Jones and Katherine S. Holliday, counsel for the defendant, were among a group of people who jointly owned a vacation property located in the mountains.
Judge William Christian was assigned to hear plaintiff's recusal motion. On 14 October 2001, Judge Christian entered an order which concluded that Judge Jones had not violated any specific provisions of Cannons 2, 3, or 5 of the North Carolina Code of Judicial Conduct, and that there was no evidence of actual bias or partiality on the part of Judge Jones and his conduct in the case. However, Judge Christian concluded that it was not necessary for there to be a showing of actual bias or a violation of a specific provision of the Code of Judicial Conduct for a judge to be required to be recused from a case. Holding the mere appearance of bias or prejudice was sufficient to require recusal, Judge Christian ordered that Judge Jones be recused from the case, and ordered a new trial in the matter. Defendant appealed. Plaintiff cross-appealed, asserting that Judge Christian erred in not finding that Judge Jones had violated specific provisions of the Code of Judicial Conduct.
I. Standard for Disqualification
Our Supreme Court directed that upon remand, our first inquiry shall be whether Judge Christian's findings of fact that Judge Jones did not violate the Code of Judicial Conduct are supported by the evidence. Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003). The proper standard by which we review the trial court's findings of fact is limited to a determination of (1) whether those "`findings are supported by competent evidence, in which event they are conclusively binding on appeal[;]'" and (2) "`whether those factual findings in turn support the judge's ultimate conclusions of law.'" State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 631 (2000) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
II. Analysis
Judge Christian made the following findings of fact, which are germane to this determination:
IV: That since approximately 1986, the Honorable William G. Jones and Katherine S. Holliday, together with other persons, have been co-owners of a vacation property in Yancy County, North Carolina near Mount Mitchell; and that Katherine S. Holliday currently owns a 1/6th undivided interest and the Honorable William G. Jones and wife own a 1/2 undivided interest in the property.
V. That in 1987 the Honorable William G. Jones gave public notice of the co-ownership in the vacation property by posting a notification in the courthouse and circulating a memorandum about the joint ownership to members of the bar regularly practicing in the local juvenile and domestic courts; that Judge Jones was also in the habit of disclosing the joint ownership to litigant in his Court; that this joint ownership was common knowledge in the domestic bar of Mecklenburg County; that at some later point, the disclosure ceased; that at the time of the hearing of this matter, the information had become stale and some members of the bar, including Mr. Gunter, did not know of the co-ownership; and that Plaintiff did not know of the co-ownership.
VI. That at the hearing of this matter in June, 2000, no disclosure of the co-ownership was made by the Honorable William G. Jones, or Katherine S. Holliday, as Judge Jones erroneously assumed that Plaintiff's attorney knew of the joint ownership.
VII. That the owners of the vacation property, including the Honorable William G. Jones, and Katherine S. Holliday, occupy, maintain, and finance the property pursuant to an informal agreement based on mutual trust, communication, and friendship; that the property was designed, constructed, furnished, and financed by joint efforts and cooperation among the co-owners; and that the co-owners meet annually to provide for their occupancy of the property, make joint decisions on the maintenance and preservation of the property, and provide twelve (12) checks which are held by the Honorable William G. Jones, and deposited into an account he and his wife solely own, and from which he pays the mortgage debt service, and expenses of the property with no obligation to make an accounting to anyone.
VIII. That the Honorable William G. Jones did not violate any specifically enumerated canon of ethics set forth in the North Carolina Code of Judicial Conduct in terms of his relationship with Katherine S. Holliday, or any other party or counsel in this case; that the financial dealings between the Honorable William G. Jones, and other co-owners of the vacation property, including Katherine S. Holliday were not so "frequent" as to violate Canon 5 of the North Carolina Code of Judicial Conduct; and that the annual meeting in which the monthly checks are provided en masse for monthly deposit do not cause the frequent contact which the canon contemplates; and that similarly, the annual meetings that were held to divide the use of the property between the co-owners is so infrequent and perfunctory as to not constitute the frequent contact that the canon of judicial conduct contemplate[s].
IX. That the Plaintiff concedes and the Court finds that no evidence was presented that tended to show that at any time during the hearing of this matter, the Honorable William G. Jones displayed any actual bias, or partiality against Plaintiff by any ruling, decision or result in the case on account of his relationship with Katherine S. Holliday; that their prior public notification of their co-ownership of the vacation property indicates no subterfuge or bad faith on the part of either Katherine S. Holliday or the Honorable William G. Jones in failing to make the disclosure of their co-ownership of the vacation property.
XII. That the Honorable William G. Jones does have a fiduciary responsibility to the owner's of the property, including, Katherine S. Holliday; that there is a continuing financial connection between the Honorable William G. Jones, and Katherine S. Holliday in relation to the vacation property especially as it relates to debt service, tax payments, and maintenance fees; and that a reasonable person would question the impartiality of the Honorable G. Jones based upon the facts found herein, although no actual bias nor specifically enumerated violation of the Canons of Judicial Conduct has been shown.
Defendant does not specifically assign as error any of the above findings of fact, but does assign as error that the trial court failed to make findings of fact based upon evidence presented at the hearing by defendant. Defendant does not argue these assignments of error (numbered 13 and 15 in the record on appeal) in his brief. As a result they are deemed abandoned. N.C.R. App. P. 28(b)(6). As findings of fact IV, V, VI, VII, and XII are unchallenged on appeal, they are presumed correct and binding on this Court. See In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001). Furthermore, we hold that there is sufficient evidence in the record to support each of these findings.
Plaintiff cross-assigned as error finding of fact VIII in the record on appeal, and does bring forward, in her brief, this cross-assignment of error.
Plaintiff contends Judge Christian improperly failed to find a violation of North Carolina Code of Judicial Conduct Canon 5(C)(1), which provides "[a] judge should refrain from financial and business dealings that . . . involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves." Code of Judicial Conduct, Canon 5(C)(1) (2004). Judge Christian found as fact that the contact between Judge Jones and Holliday was "not so `frequent' as to violate Canon 5 of the North Carolina Code of Judicial Conduct[.]" Judge Christian further found that the annual meetings at which the owners divided use of the property and provided checks to Judge Jones en masse for monthly deposit were "so infrequent and perfunctory as to not constitute the frequent contact that the canon of judicial conduct contemplate[s]." There is substantial evidence to support this finding of fact.
The above recited findings of fact, in turn support Judge Christian's conclusion of law:
II. That no specifically enumerated violation of Canons 2, 3, or 5 of the North Carolina Code of Judicial Conduct has been shown; and that no evidence of actual bias or partiality exists on the part of William G. Jones, and his conduct in [t]his case.
Having found that the findings of fact are supported by competent evidence, and that those findings in turn support the conclusions of law, we are mandated by the Supreme Court to find that "Judge Christian erred by ordering Judge Jones' recusal." Lange, 357 N.C. at 649, 588 S.E.2d at 880.
In light of this holding, we remand this matter to the trial court for further proceedings in accordance with Rule 63. Id. at 648, 588 S.E.2d at 879. The judge assigned to conduct these proceedings shall have the discretion either to enter Judge Jones' order or to hold a new custody modification hearing. Id.
III. Dissent
Our Supreme Court's ruling in this matter clearly and concisely set forth the standard of review this Court was to apply upon remand. It has long been established that "`[o]n the remand of a case after appeal, the mandate of the reviewing court is binding on the lower court, and must be strictly followed, without variation and departure.'" Couch v. Private Diagnostic Clinic, 146 N.C. App. 658, 667, 554 S.E.2d 356, 363 (2001) (quoting Collins v. Simms, 257 N.C. 1, 11, 125 S.E.2d 298, 306 (1962) (Parker, J., concurring in the result)). We, therefore, do not reach the issues set forth in the dissent.
REVERSED AND REMANDED.
Judge McCULLOUGH concurs.
Judge CALABRIA dissents.