RICHARD J. MIDDLETON v. VICKY MULLINS MIDDLETON
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RENDERED: August 27, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002761-MR
RICHARD J. MIDDLETON
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY WINCHESTER, JUDGE
ACTION NO. 94-CI-00655
v.
VICKY MULLINS MIDDLETON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from orders denying
appellant’s post-decree motions for modification of custody, for
permission to take the minor child out of private school, and for
recusal.
Appellant argues that he was denied procedural due
process when the court did not conduct an evidentiary hearing on
his motions and when the court denied his motion for recusal.
Upon reviewing appellant’s arguments in light of the record
herein and the applicable law, we adjudge that the first argument
was not properly preserved for review.
The remaining argument
regarding the motion to recuse is without merit.
Thus, we affirm.
Appellant, Richard Middleton, and appellee, Vicky
Mullins Middleton, were divorced by a decree of dissolution
entered on November 20, 1996.
The decree granted joint custody
of the parties’ minor child, Meghan, born February 21, 1993, with
Vicky being designated as the primary residential custodian and
Richard being granted visitation.
The decree also provided that
Vicky shall not enroll the child in any public daycare without
first consulting Richard.
On June 29, 1998, Richard made a motion to modify
custody so as to award him primary residential custody.
Subsequently, Richard also moved to have the child taken out of a
private school in which she had been enrolled in the fall of
1998.
Vicky enrolled Meghan in Oak Grove Elementary School
against the wishes of Richard who wanted the child to go to
Corbin Elementary School.
Both of these motions and numerous
other motions of the parties were set for hearing by the court on
October 16, 1998.
On that date, a hearing was held on the
motions, but it was not a formal hearing in which evidence was
put on by the parties.
Rather, counsel for both parties argued
their positions before the court, and that apparently was the
basis for the court’s rulings thereon.
On October 26, 1998, the
court entered its order denying appellant’s motions for
modification of custody and to withdraw the child from Oak Grove
Elementary School.
The court did, however, grant appellant’s
motion to be put on the sign-out sheet at the school.
Thereafter, appellant made a motion for the trial judge to recuse
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himself from the case on grounds of bias.
on January 12, 1999.
This motion was denied
From the orders of October 26, 1998 and
January 12, 1999, appellant now appeals.
Appellant first argues that he was denied his
procedural due process rights when the court failed to conduct a
full evidentiary hearing on his motions.
In reviewing the record
of the hearing of October 16, 1998, we do not see that appellant
ever asked for a full evidentiary hearing or sought to introduce
evidence at the hearing.
Nor did appellant express any
dissatisfaction with the hearing.
In fact, when asked by the
court what relief appellant sought, appellant’s counsel responded
only that her client wanted to be put on the school’s sign-out
sheet for the child, which the court ordered.
Further, during
the discussion regarding the enrollment of the child in Oak Grove
Elementary School, when the court asked appellant’s counsel what
was wrong with the school, counsel responded, “Well there isn’t
anything really. . . .”
Appellant’s counsel goes on to say,
“Well, we don’t want her removed from Oak Grove Elementary
because it would be highly disruptive to her.
five and a half year old girl.
sign-out sheet.”
She is a little
We want Mr. Middleton on the
There was also no mention by either party of
the custody issue at the hearing.
Where the trial court has not been given an opportunity
to pass upon appellant’s contentions of error, there could be no
appellate review of the alleged errors.
Kaplon v. Chase, Ky.
App., 690 S.W.2d 761 (1985); Payne Hall, Ky., 423 S.W.2d 530
(1968).
In the instant case, appellant did not raise the issue
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of the adequacy of the hearing until January 4, 1999 during the
hearing on the recusal motion.
properly preserved.
In our view, the issue was not
Thus, it is precluded from our review.
Appellant next argues that the court denied his due
process rights to an impartial decision maker when it denied his
motion to recuse.
KRS 26A.015(2)(a) and SCR 4.300, Canon 3C(1)
require a judge to recuse himself if he has personal bias or
prejudice concerning a party.
The burden of proof is on the
individual alleging such bias or prejudice.
Carter, Ky., 701 S.W.2d 409 (1985).
Commonwealth v.
A motion to recuse must have
been made before the appearance at a hearing on the merits of the
action unless based on facts discovered after the issue has been
decided.
Mills v. Mills, Ky., 429 S.W.2d 852 (1968).
In
reviewing the record, we see no indication that the trial judge
was biased against appellant.
The appellant’s recusal motion,
which was made after the October 26, 1998 order denying his
motions, alleged only that the trial judge summarily ruled
against him.
The fact that a judge ruled against the party
seeking recusal is not sufficient evidence of bias.
Id.
It is
also worth noting that appellant previously sought the recusal of
two domestic relations commissioners on the case.
In our view,
the motion to recuse was properly denied.
For the reasons stated above, the orders of the Whitley
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Elliott Yeager
Barbourville, Kentucky
Jane R. Butcher
Williamsburg, Kentucky
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