IN RE THE MARRIAGE OF LOLITA MARGARET McGRUDER AND HENRY CLARENCE McGRUDER Upon the Petition of LOLITA MARGARET McGRUDER, Petitioner-Appellee, And Concerning HENRY CLARENCE McGRUDER, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-539 / 06-1089
Filed November 15, 2007
IN RE THE MARRIAGE OF LOLITA MARGARET McGRUDER
AND HENRY CLARENCE McGRUDER
Upon the Petition of
LOLITA MARGARET McGRUDER,
Petitioner-Appellee,
And Concerning
HENRY CLARENCE McGRUDER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Peter A. Keller,
Judge.
Henry McGruder appeals from the property division provisions of the
decree dissolving the parties’ marriage. AFFIRMED.
Patricia K. Wengert, Des Moines, for appellant.
John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
ZIMMER, J.
Henry McGruder appeals from the provisions of the decree dissolving the
parties’ marriage.
He claims the court erred in not granting his motion for
mistrial. He further claims the district court erred in ordering him to purchase a
vehicle for Lolita McGruder. Upon our de novo review, we affirm the judgment of
the district court.
I. Background Facts and Proceedings.
Henry and Lolita McGruder were married in 1981. Two children were born
of this marriage, both of whom are now adults. In July 2005 Lolita moved out of
the marital home in Sioux City, Iowa, and moved in with her mother and two
sisters in Des Moines, Iowa. Lolita filed a petition for dissolution of marriage in
July 2005, and trial on the petition commenced April 6, 2006.
Henry obtained a bachelor’s degree in theology in 1985. He has been a
minister at the Mount Olive Baptist Church in Sioux City, Iowa, since 1987. At
the time of the trial, Henry claimed he earned no appreciable income as a
minister. He testified he lived “day to day by faith.” However, the parties’ tax
returns for 2002, 2003, and 2004 show Henry earned approximately $18,000
each year as a minister.
Lolita has not been employed outside of the home since 1987 when she
contracted lupus, which was in remission at the time of trial. She also suffers
from fibromyalgia. Due to her health problems, Lolita receives Social Security
disability benefits of $767 per month.
In the late 1990s or early 2000, Henry and Lolita established a used car
dealership known as International Auto Brokers, Inc. in South Sioux City,
3
Nebraska. 1 The 2003 and 2004 tax returns for the corporation list Henry as the
sole shareholder. Lolita testified that she assisted Henry with the bookkeeping
for the church and the dealership. Henry, on the other hand, testified Lolita was
completely in charge of all of the finances for the family and the dealership. He
claimed ignorance regarding the details of the parties’ joint tax returns and the
tax returns for the corporation, stating Lolita would take “everything to the tax
preparer” while he “would just go and sign” the tax returns without “really
read[ing]” them.
The parties’ joint tax returns from 2002, 2003, and 2004 do not report any
income from the corporation. At the time of trial, Henry initially maintained he did
not earn any money from the dealership, testifying the corporation “show[s] a
loss every year.” However, he later admitted the dealership “pays, you know, for
the house note and bills. I don’t . . . show an income, it’s not an income, it pays
expenses . . . [a]t home and the business.” He then acknowledged he “usually”
earned “3 to 400 a week” from the dealership. The dealership also apparently
provided the family with transportation. Lolita testified that Henry would “come
home” with “whatever kind of car he wanted to drive” from the dealership.
When the parties separated, Lolita was driving a 1998 Lincoln Navigator.
She took that vehicle with her when she moved from Sioux City to Des Moines.
At some point, Henry drove to Des Moines and picked up the Navigator, which
he later sold “on payments.” He left a 1994 Jeep Cherokee in its place on a lot
next door to Lolita’s mother’s house. Lolita testified the Cherokee would not
start, and it was eventually towed because it was on her neighbor’s property.
1
The dealership is incorporated in Iowa.
4
Following cross-examination of Henry by Lolita’s counsel, the trial judge
questioned Henry concerning apparent discrepancies between his testimony, the
corporation’s tax returns, and the parties’ joint tax returns.
Henry’s counsel
objected to the court’s questioning. A recess was taken, during which Henry’s
counsel moved for a mistrial, stating her client was not “getting a fair trial
because of [his] color.” 2 The court denied the motion and proceeded with the
trial.
In a decree entered on June 8, 2006, the district court divided the parties’
property and awarded Lolita spousal support.
The court valued the marital
residence, which was encumbered by two mortgages totaling $55,986.58, at
$70,000. The court awarded the parties’ home to Henry and ordered him to pay
the debt associated therewith. The court found it could not “determine the value
of the corporation from the evidence, nor can it determine if there is any value to
the stock for purposes of establishing its value for distribution.”
The court
awarded all of the assets and liabilities of the corporation, “whatever its value
may be,” to Henry.
Henry was ordered to pay Lolita a property settlement of $31,500. From
this amount, the court directed him to provide Lolita with a “1999 or newer model”
vehicle “worth Blue Book trade-in value of no less than $11,500 nor more than
$13,000.” Finally, the court ordered Henry to pay Lolita $500.00 per month in
spousal support “for the remainder of [her] life . . . .”
Henry appeals. He has framed the issues he presents on appeal in the
following manner:
2
The record reveals that Henry and Lolita are African-Americans.
5
I.
II.
The court erred in not granting Respondent’s motion for
mistrial.
The substantial evidence in the record shows there were no
assets for distribution as the court ordered; the court erred in
ordering respondent to purchase a vehicle for petitioner
when the record is clear the parties owned no vehicles, and
further petitioner had admittedly wasted an asset, a vehicle
respondent had provided her for transportation.
II. Scope and Standards of Review.
Our review of the district court’s denial of the motion for mistrial on the
basis of judicial impartiality is for abuse of discretion.
State v. Cuevas, 288
N.W.2d 525, 532 (Iowa 1980).
We review Henry’s challenge to the property division provisions of the
decree de novo. Iowa R. App. P. 6.4. Although not bound by the district court's
factual findings, we give them weight, especially when assessing the credibility of
witnesses. Iowa R. App. P. 6.14(6)(g).
III. Discussion.
A. Judicial Impartiality.
There is a constitutional right to have a neutral and detached judge. In re
Marriage of Ricklefs, 726 N.W.2d 359, 362 (Iowa 2007). “‘A fair trial in a fair
tribunal is a basic requirement of due process. Fairness of course requires an
absence of actual bias in the trial of cases.’” Id. (quoting In re Murchison, 349
U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 (1955)). Henry claims he
was denied a fair trial in this case when the district court judge engaged in a line
of questioning that he asserts demonstrated racial bias. He asks that we order
this case to be retried.
6
“The authority of a judge to question witnesses is well established.” In re
S.P., 719 N.W.2d 535, 539 (Iowa 2006).
However, our supreme court has
cautioned judges who decide to question witnesses, stating,
We do not encourage judges to enter the fray with their own
interrogation of witnesses. And when cause to do so exists,
restraint must be used. By engaging in the examination of
witnesses the court becomes vulnerable to a multiplicity of
criticisms; bias, prejudice or advocacy are some of those.
Cuevas, 288 N.W.2d at 533.
In this case, the record reveals the trial court asked Henry a series of
questions in an attempt to learn the true financial picture of Henry’s used auto
dealership. 3 Henry’s counsel eventually objected, and a recess was taken during
which counsel expressed her concern about the “tone and tenor of the
questioning by the Court of Mr. McGruder” and the “Court’s attitude towards my
African American client.” Henry’s counsel then moved for a mistrial because she
did not believe the judge could render “a fair decision for my African American
minister.” At one point Henry’s counsel asked, “Why, why don’t we have one of
the African-American judges deciding this case?” Lolita’s counsel resisted the
motion for mistrial and stated that he “had seen nothing from the Court’s
demeanor or the Court’s questions . . . that would in any way indicate the need
for the Court to recuse itself.” The judge denied the motion for mistrial and
request for recusal, assuring counsel he could render “an equitable, fair decision
in this case.”
3
It is fair to say that Henry’s testimony regarding the parties’ financial circumstances is
difficult to reconcile with information contained in the parties’ tax returns, particularly the
corporate balance sheet. It is also fair to say that the trial court was skeptical of much of
Henry’s testimony regarding financial matters.
7
According to the Iowa Judicial Code, a judge must recuse himself in any
proceeding where his impartiality might reasonably be questioned. See Iowa
Code of Judicial Conduct, Canon 3C(1). “Before recusal is necessary, actual
prejudice must be shown.” State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002).
“The test is whether a reasonable person would question the judge’s impartiality.”
Id. “The burden is on a party seeking recusal to establish the basis for it, and the
determination is committed to the judge’s discretion.” In re Marriage of Clinton,
579 N.W.2d 835, 837 (Iowa Ct. App. 1998). A judge has an obligation not to
recuse himself “when there is no occasion for him to do so” because of the “‘ever
mounting sea of litigation’ and the need to maximize all available judicial power.”
State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994).
After reviewing the entire record and the context of the judge’s questions,
we disagree with Henry’s assertion that the judge’s questions exhibited racial
bias. 4 The judge acted only to clarify the nebulous evidence regarding Henry’s
income from the corporation. He explained to the parties that he questioned
Henry in order “to find the truth to be able to render an equitable decision in this
case.” The underlying evidence of Henry’s income from the corporation had
already been presented. The judge’s questions were an attempt to “straighten
the record out” in light of the serious contradictions presented by Henry’s
testimony and the tax returns for the parties and the corporation. See Cuevas,
288 N.W.2d at 533 (finding the court’s questioning of a medical examiner in order
to clarify his testimony regarding the time of death was appropriate because the
4
In her brief on appeal, Lolita again argues that her former spouse has failed to
demonstrate any bias or prejudice on the part of the trial court.
8
court “did not undertake the introduction of evidence”). The judge acted within
his “power to clarify evidence through the questioning of witnesses when in the
exercise of sound discretion it is reasonably deemed necessary.” Id.
We also do not believe Henry established he was prejudiced by the
judge’s refusal to recuse himself. The judge attempted to divide the parties’
property “as equal as possible” given the conflicting evidence before him and
taking into account his assessments of credibility. The court awarded Henry the
parties’ home and the corporation 5 while Lolita was awarded a property
settlement and alimony. For the reasons addressed in the next section of this
opinion, we find such a distribution to be fair and equitable under the
circumstances. See In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.
App. 1991).
We reject Henry’s contention that the property division provisions of the
parties’ decree reflected any bias on the part of the district court judge.
Therefore, we conclude the judge did not abuse his discretion in denying the
motion for mistrial and refusing to recuse himself at the end of a two-day trial.
B. Property Settlement.
In allocating the parties’ assets and debts, the court strives to make a
division that is fair and equitable under the circumstances. Id. Iowa courts do
not require an equal division or percentage distribution; rather, the decisive factor
5
Although the district court did not place a value on the corporation, we note the 2004
tax return for the corporation shows that at the end of the tax year the corporation owned
assets in the amount of $74,857 and had no liabilities. See In re Marriage of Moffatt,
279 N.W.2d 15, 19 (Iowa 1979) (stating the intrinsic value of closely-held corporations
should be determined through the admission of evidence of the assets and liabilities of
the corporation).
9
is what is fair and equitable in each particular case. Id. In determining what
division would be equitable, courts are guided by the criteria set forth in Iowa
Code section 598.21(5) (Supp. 2005). In re Marriage of Goodwin, 606 N.W.2d
315, 319 (Iowa 2000). “Equitable distributions require flexibility and concrete
rules of distribution may frustrate the court’s goal of obtaining equitable results.”
In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997).
Henry argues the district court erred in awarding assets “that are nonexistent” because the parties “owned no vehicles to distribute.”
He further
argues the court erred in ordering him to purchase a vehicle for Lolita as a part of
the property settlement. We do not agree. We first note that “[a]lthough our
review is de novo, we will defer to the trial court when valuations are
accompanied with supporting credibility findings or corroborating evidence.” In re
Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999).
The court
determined that some of Henry’s testimony regarding financial matters was not
credible. We give “strong deference to the trial court which, after sorting through
the economic details of the parties, made a fair division supported by the record.”
Id. at 641.
The record reflects Henry owned and operated a used car dealership,
which the parties used as a source for their personal vehicles throughout their
marriage. 6 Lolita testified her Social Security disability benefits were used to
6
It appears this is a case where the parties are confused about corporate ownership.
Henry listed the Navigator and the Cherokee as marital assets on his financial affidavit.
Marital funds were used to make payments on the Navigator, and Henry used the
proceeds from the sale of the Navigator to pay Lolita’s temporary alimony. Yet he
testified at trial that the vehicles were owned by the dealership. We note that Henry
does not argue the district court erred in including these vehicles in the marital estate.
Nor does he argue the district court erred in including a certificate of deposit valued at
10
make payments on the Navigator, which she drove during the parties’ marriage.
Henry “repossessed” and sold that vehicle, leaving in its place the Cherokee that
would not start. 7 At trial, he agreed at to provide Lolita with a vehicle, testifying,
“I’ll do my best to provide her with transportation.”
Given the unique
circumstances presented by this case, we are not inclined to disturb the district
court’s decision to order Henry to provide Lolita with a vehicle as a part of the
property settlement.
IV. Conclusion.
We conclude the district court judge did not abuse his discretion in
denying the motion for mistrial and refusing to recuse himself on the basis of
judicial impartiality. Given the unique circumstances presented by this case, we
are not inclined to disturb the district court’s decision to order Henry to provide
Lolita with a vehicle as a part of the property settlement. The judgment of the
district court is accordingly affirmed.
AFFIRMED.
$39,000, which he listed as a marital asset on his financial affidavit but testified at trial
was owned by the dealership, in the marital estate. Therefore, we will not address
whether the district court correctly characterized these items as marital assets.
7
We reject Henry’s contention that Lolita “wasted” marital assets by allowing the
Cherokee to be towed. He parked it on a neighbor’s property. Lolita testified she
attempted to move the vehicle, but it would not start. She told Henry to “come and get it
because somebody will tow it away.”
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