Noland v. Noland

William R. NOLAND v. Olivia L. NOLAND

96-430                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 18, 1996


1.   Judges -- recusal -- when judge must disqualify. --  A
     chancellor shall not sit on the determination of any cause or
     proceeding in which he or she is interested, or is related to
     either party within the fourth degree of consanguinity or
     affinity, or shall have been of counsel; the interest that is
     disqualifying is a personal proprietary or pecuniary interest
     or one affecting the individual rights of the judge; the
     liability, gain, or relief to the judge must turn on the
     outcome of the suit. 

2.   Judges -- bias discussed -- when judge's decision will be
     reversed on disqualification. -- Where a judge exhibits bias
     or the appearance of bias, the court will reverse; the proper
     administration of the law requires not only that judges
     refrain from actual bias but also that they avoid all
     appearances of unfairness; the fact a judge may have, or
     develop during the trial, an opinion or a bias or prejudice
     does not make the trial judge so biased and prejudiced as to
     require his or her disqualification; whether a judge has
     become biased to the point that he or she should disqualify is
     a matter to be confined to the conscience of the judge,
     because bias is a subjective matter peculiarly within the
     knowledge of the trial judge; absent some objective
     demonstration of prejudice, it is a communication of bias that
     will cause the appellate court to reverse a judge's decision
     on disqualification.  

3.   Judges -- chancellor's explanation adequate -- chancellor
     absolved herself of actual or statutory bias that would
     mandate recusal. -- Where the chancellor explained the
     circumstances surrounding appellee's counsel having
     represented her on her personal-injury claim, which had been
     settled three years earlier, and she said that the attorney's
     prior representation of her would not prevent her from
     rendering a fair decision in the case, the chancellor absolved
     herself of any actual or statutory bias that would mandate
     recusal.

4.   Judges -- recusal -- failure to show actual bias resulted in
     appellant's having burden to show some objective demonstration
     of prejudice. -- Because appellant failed to show any actual
     bias that mandated the chancellor's recusal, it was then his
     burden to show some objective demonstration of prejudice that
     compelled disqualification. 

5.   Judges -- chancellor's questions of witness were needed for
     clarification -- no prejudice shown. -- Appellant's argument
     that the chancellor demonstrated prejudice when she questioned
     the appellee during the trial was meritless where it was
     evident that either the chancellor or the appellee was
     confused when discussing the mortgage payments, utility bills,
     and need for spousal support, and it was clearly appropriate
     for the chancellor to ask questions that touched on that
     issue.  

6.   Judges -- chancellor's award did not demonstrate any need for
     recusal -- trial court affirmed. -- Where the chancellor's
     award did not demonstrate any prejudice or reason for her
     recusal, the trial court's award was affirmed.


     Appeal from Pulaski Chancery Court; Alice Gray, Chancellor;
affirmed.
     Montgomery & Wyatt, by:  Orin Eddy Montgomery, for appellant.
     Mays & Crutcher, P.A., by:  Arkie Byrd, for appellee.

     Tom Glaze, Justice.
     This appeal is from a divorce case between appellant William
Noland and appellee Olivia Noland, but the sole issue is whether
the chancery judge erred in denying William's motion for the
chancellor to recuse.  We affirm the chancery judge's decision.
     The Nolands had been married for twenty-six years, but had
lived separately during most of their marriage.  The parties agreed
William would take the divorce as an uncontested matter, and their
home would be sold, but William contested the award of any alimony
and Olivia's proposed division of marital debts and property,
including his retirement pay.  
     Prior to trial, on October 16, 1995, William had learned that
Olivia's attorney, Arkie Byrd, had previously represented the
chancellor involving a personal injury claim in 1992.  He stated
Byrd's representation reflected an actual conflict of interest and
an appearance of impropriety which required the chancellor's
recusal.  A telephone-conference hearing was conducted on William's
motion, and immediately following that hearing, the chancery judge
denied William's request.  On October 25, 1995, the parties tried
the remaining alimony and property issues and the chancellor
entered her decree on all matters on December 4, 1995.  In
William's appeal from that December 4, 1995 decree, William raises
no points for reversal regarding the divorce decree, but instead
only argues the chancellor erred in failing to recuse.
     Arkansas law is clear that a chancellor shall not sit on the
determination of any cause or proceeding in which he or she is
interested, or related to either party within the fourth degree of
consanguinity or affinity, or shall have been of counsel.  See Ark.
Code Ann.  16-13-312 (1987); Ark. Const. art. 7,  20.  The
interest which is disqualifying under these provisions is a
personal proprietary or pecuniary interest or one affecting the
individual rights of the judge.  The liability, gain, or relief to
the judge must turn on the outcome of the suit.  Mears, Co.
Judge v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1987).  None of these
statutory or constitutional grounds are applicable to the present
case.
     Nonetheless, William contends the chancellor's prior business
relationship with Ms. Byrd runs afoul of Canons 2 and 3 of the
Arkansas Code of Judicial Conduct which generally provide a judge
shall avoid impropriety and the appearance of impropriety in all of
the judge's duties, and shall perform his or her duties impartially
and diligently.  William particularly mentions Canon 3E(1)(a) which
requires a judge to disqualify himself or herself in a proceeding
in which the judge's impartiality might reasonably be questioned,
including where the judge has a personal bias or prejudice
concerning a party or a party's lawyer.
     In considering Canon 3, this court has stated that, where a
judge exhibits bias or the appearance of bias, it will reverse. 
City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478
(1990).  This court has also held that the proper administration of
the law requires not only that judges refrain from actual bias, but
also that they avoid all appearances of unfairness.  Id.  When it
comes to applying or implementing these principles, the court has
said that the fact a judge may have, or develop during the trial,
an opinion, or a bias or prejudice, does not make the trial judge
so biased and prejudiced as to require his or her disqualification. 
Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).  The
Matthews court further ruled that, whether a judge has become
biased to the point that he or she should disqualify is a matter to
be confined to the conscience of the judge, since bias is a
subjective matter peculiarly within the knowledge of the trial
judge.  The Matthews court concluded that, absent some objective
demonstration of prejudice, it is a communication of bias which
will cause us to reverse a judge's decision on disqualification. 
Matthews, 279 Ark. at 331, 651 S.W.2d  at 455.
     As mentioned earlier, the chancellor explained the
circumstances surrounding Ms. Byrd's having represented her on her
personal injury claim and that the claim had been settled three
years ago.  She said she had paid Ms. Byrd a fee at the time of
settlement, and that Ms. Byrd's prior representation of her would
not prevent her from rendering a fair decision in the Nolands'
case.  On these facts, we believe the chancellor absolved herself
of any actual or statutory bias that would mandate recusal.
     Because William has failed to show any actual bias that
mandated the chancellor's recusal, it was his burden to show some
objective demonstration of prejudice which compelled
disqualification.  Matthews, 279 Ark. 328, 651 S.W.2d 453 (1983);
Venhaus, 302 Ark. 204, 788 S.W.2d 478.  In this respect, William
argued the chancellor demonstrated such prejudice when she
questioned Olivia Noland during the trial.
     Olivia testified on direct examination concerning her income
and expenses, and among other things, she related William had been
paying the mortgage and utility payments.  When asked about her
need for support, Olivia said that she would like for William to
pay her $300 per month.  After Olivia was cross-examined by
William's attorney, the chancellor said she was uncertain as to the
amount of Olivia's income and whether the $300 Olivia was
requesting was support in addition to the mortgage and utility
payments already being paid by William.  Olivia responded, "I
want -- he won't be making my utility bill when this is settled,
when I have to move out of the house, the house has been sold.  I'm
asking $300 a month until I can finish school to help me be able to
pay my bills."  The chancellor then asked, "Until the house is sold
are you asking that he pay the house note . . . and utilities?" 
Olivia said, "No, ma'am.  I'm not asking him to pay the house note
or utilities because we have agreed to sell the house."  Olivia
then left the witness stand, but the chancellor recalled her
because the judge believed Olivia did not understand the judge's
earlier questions.  Olivia expressed confusion, and over William's
objection, she retook the stand and stated she would like for
William to continue paying the house note and utilities until the
house sold, but that she did not need the $300 per month support
until after the house was sold.
     William claims the foregoing reflects the chancellor's
prejudice when she improperly recalled Olivia to the stand and
permitted Olivia to clarify her request for support.  Citing to
Olivia's added testimony, William argues the chancellor wrongly
awarded Olivia more support than she had previously requested.  The
chancellor's decree actually provided that William should make the
mortgage ($677.50) and utility payment through November 1995, and
if the house had not sold by then, he would pay $600.00 towards the
mortgage payment, but Olivia would pay the balance of the payment
and all the utility bills.  The chancellor further ordered if the
house was not sold before October 31, 1996, William would pay only
$300 on the mortgage payment for six more months and afterwards
Olivia would pay all mortgage and utility payments until the house
sold.  Commencing in November 1996, William was ordered to pay
Olivia temporary spousal support of $300 per month for a period of
one year.
     In carefully reviewing the record, we believe either the
chancellor or Olivia was confused when discussing the mortgage
payments, utility bills, and need for spousal support.  William had
been paying the mortgage and utility payments at the time of trial,
but Olivia was requesting temporary alimony to allow her time to
finish school.  The question arose during Olivia's examination as
to when such support would be needed, and it was clearly
appropriate for the chancellor to ask questions that touched on
that issue.  See Rule 614(a) of the Arkansas Rules of Evidence.
     William also complains that he does not have the income to
satisfy the chancellor's awards, but as noted earlier, he fails to
argue reversal on those grounds or contend the awards were clearly
erroneous.  Instead, he generally discusses the parties' affidavits
of financial means, and concludes he is unable to make the payments
directed and the awards exhibit actual bias on the part of the
chancellor.  In reviewing the parties' affidavits and testimony,
one could argue that neither party could meet his or her expenses
under the decree.  Nonetheless, in her decree, the chancellor's
award actually favored William by reducing his monthly payments and
responsibility for the marital house as time passes and no sale
occurs.  The announced intention by the chancellor was to force
Olivia to do her part to sell the house so both parties could
benefit from the sale.  
     Contrary to William's argument, we hold the chancellor's award
did not demonstrate any prejudice or reason for her recusal.  For
the reasons above, we affirm.