Luce v. Cushing
Annotate this Case
Luce v. Cushing (2003-344); 177 Vt. 600; 868 A.2d 672
2004 VT 117
[Filed 02-Dec-2004]
ENTRY ORDER
2004 VT 117
SUPREME COURT DOCKET NO. 2003-344
SEPTEMBER TERM, 2004
Denise E. Luce } APPEALED FROM:
}
}
v. } Chittenden Family Court
}
Jeffrey E. Cushing }
} DOCKET NO. 495-6-00 CnDm
Trial Judge: Linda Levitt
In the above-entitled cause, the Clerk will enter:
¶ 1. Father appeals from a family court judgment awarding mother
sole parental rights and responsibilities for the parties' two minor
children and granting father visitation. Father contends: (1) the court
abused its discretion by awarding parental rights and responsibilities
without making the requisite findings concerning the best interests of the
children; (2) the court improperly refused to allow father to present
evidence and cross-examine witnesses; and (3) the administrative judge
erroneously denied father's motion to disqualify the trial judge. We
affirm.
¶ 2. This case presents a long and tortured factual and procedural
history. Events material to the resolution of the instant appeal may be
summarized as follows. Although never married, the parties are the parents
of two minor children, born in March 1996 and December 1997. Mother filed
a parentage action in June 2000, seeking parental rights and
responsibilities and child support. The following month, attorney Karen
Shingler filed an appearance on behalf of father. Based on a personal
friendship with attorney Shingler, Judge Levitt - who had previously heard
several relief-from-abuse motions filed by the parties - recused herself.
¶ 3. The parties eventually stipulated to a temporary shared
custody arrangement, and agreed to postpone the parentage hearing while
they continued to mediate the matter. In January 2001, however, mother
filed a petition for relief from abuse, alleging that father had sexually
abused the children. Following a hearing, the court found that father had
inappropriately touched the private parts of one of the children, and
granted a final relief-from-abuse order, awarding mother sole parental
rights and responsibilities and limiting father's parent-child contact to
supervised visitation. In March, attorney Karen Villemaire of Schoenberg &
Associates entered an appearance on behalf of father, and the court granted
attorney Shingler's motion to withdraw.
¶ 4. In late March, father filed a V.R.C.P. 60(b) motion for
relief from the abuse-prevention order. At a hearing in May, the parties
stipulated to an order in which father agreed to withdraw the Rule 60(b)
motion, and the parties agreed that mother be awarded parental rights and
responsibilities, that the parties submit to a forensic evaluation by Dr.
Joseph E. Hasazi, and that "the award of parental rights and
responsibilities to [mother] shall remain in effect unless Dr. Hasazi's
report recommends that parental rights and responsibilities should switch
to [father] or unless such report recommends that there be a significant
change in the parental rights and responsibilities order," in which event
the report would "be considered a material and unanticipated change in
circumstances."
¶ 5. A docket entry in late October 2001 indicates that the family
court clerk asked the current presiding judge, Judge Kupersmith, whether
Judge Levitt could preside over the case in light of attorney Shingler's
withdrawal. Judge Kupersmith directed the clerk to schedule a status
conference with Judge Levitt to see if the parties objected. There is no
indication in the record that the status conference took place. The record
is clear, however, that Judge Levitt explained at the next scheduled
hearing in November that, in light of attorney Shingler's withdrawal, "the
reason that I wasn't on this case is no longer in effect" and thus there
was "no reason that I couldn't handle the case as part of . . . regular
Family Court business." Neither party objected to Judge Levitt's
participation at that time, or at any point during the numerous subsequent
proceedings over which she presided until January 2003 - some fourteen
months later - when father filed a motion to disqualify Judge Levitt. The
basis of the motion and the administrative judge's ruling denying it will
be discussed more fully below.
¶ 6. Dr. Hasazi filed his report with the court in April 2002. He
did not conclude that father had sexually abused the children, but found
rather that he had engaged in certain interactions with the children that
were "developmentally inappropriate." Based on his review of the case
history, testing, and interviews, Dr. Hasazi recommended that mother retain
parental rights and responsibilities and that father have parent-child
contact for three to five days during each two week period, transitioning
from supervised to unsupervised overnight visits.
¶ 7. The court (Judge Levitt) presided over a three-day
evidentiary hearing on the parentage action from March through May 2003.
In light of the parties' earlier stipulation and Dr. Hasazi's
recommendation that mother retain custody, the court ruled that the only
salient issue was parent-child contact. The court denied father's several
requests to introduce evidence allegedly showing that mother was unfit to
serve as the custodial parent because she had coached the children to make
false accusations of abuse. The court also sustained objections to
attempts to cross-examine mother on the same issue. The court issued a
written decision in June. Its key findings, which father has not
challenged on appeal, include findings that, while father enjoys a close
and loving relationship with the children, he has difficulty acting as a
parent, setting limits and putting the interests of the children ahead of
his own. The court further found that the alleged inappropriate touching
was not sexual in nature, but instead the result of father's lack of
boundaries, and that father had benefitted from counseling in this regard.
¶ 8. The court also found that father had been hypercritical of
mother's parenting skills and unduly obsessive about the children's care,
resulting in mother's feelings of anger toward father and her efforts to
thwart his contact with the children. The court found that mother is a
good and adequate parent, provides the children with guidance, support and
protection, and understands and meets their developmental, emotional, and
physical needs. While mindful of mother's previously obstructionist
actions toward father, the court found that the children's interests were
best served by spending more time with mother than father. Accordingly, the
court awarded mother parental rights and responsibilities, and ordered
parent-child contact with father every other Wednesday afternoon through
Monday morning, and alternating holidays. This appeal followed.
¶ 9. Father contends the court abused its discretion and abrogated
its responsibility by basing the award of parental rights and
responsibilities on the parties' stipulation and Dr. Hasazi's report,
rather than on detailed findings concerning the best interests of the
children under 15 V.S.A. § 665(b). Father's argument is essentially
twofold. First, he asserts that the stipulation and order were not
intended to serve as a final determination of parental rights and
responsibilities. As noted, the stipulation and order provided that the
agreed upon award of parental rights and responsibilities to mother would
"remain in effect" unless Dr. Hasazi recommended otherwise. Father observes
that the order incorporating the stipulation specifically provided that
mother "is awarded temporary rights and responsibilities." (Emphasis
added.) The trial court acknowledged the temporary nature of the order
pending the completion of Dr. Hasazi's evaluation, but also found that the
parties plainly intended the award to become permanent and final absent a
contrary recommendation by Dr. Hasazi. As the court succinctly explained,
"it was a temporary award to become final if the Hasazi report suggested
that [mother] should . . . retain parental rights." The plain language of
the stipulation and order amply supports the court's interpretation. See
Lussier v. Lussier, 174 Vt. 454, 455, 807 A.2d 374, 376 (2002) (mem.)
("[a]greements must be interpreted according to the parties' intent as
expressed in the writing").
¶ 10. Father's second argument is more compelling. He
asserts that the court abrogated its judicial responsibility to determine
the best interests of the children by effectively delegating that
responsibility to the parties' chosen expert. In addressing the claim, we
note that the order in question implicates two competing policies. On the
one hand, the Legislature has expressly determined that an agreement
between the parties on the issue of parental rights and responsibilities is
presumptively in the best interests of the child. See 15 V.S.A. § 666(a)
("Any agreement between the parents which divides or shares parental rights
and responsibilities shall be presumed to be in the best interests of the
child."); see also Harris v. Harris, 149 Vt. 410, 420, 546 A.2d 208, 215
(1988) ("We have a strong policy in favor of voluntary settlement of
contested custody matters."). We have held, in light of that policy, that
such agreements cannot be "lightly overturned." Damone v. Damone, 172 Vt.
504, 511, 782 A.2d 1208, 1214 (2001). On the other hand, we have
recognized that the parties cannot conclusively bind the trial court's
custody decision when the facts and circumstances establish that their
agreement is not in the best interests of the child or was not reached
voluntarily. Harris, 149 Vt. at 420, 546 A.2d at 215. Together, these
policies suggest that while the parties may agree to follow the custody
recommendation of a jointly selected mental health expert, the court cannot
be bound by that agreement or the by expert's recommendation when the
evidence demonstrates that the best interests of the child requires a
different result. See, e.g., In re J.M.D., 857 P.2d 708, 712 (Mont. 1993)
(noting that court "is free to consider the parties' stipulation" agreeing
to base custody award on expert's recommendation but cautioning that court
must exercise independent regarding child's best interest); P.T. v. M.S.,
738 A.2d 385, 396 (N.J. Super. Ct. App. Div. 1999) ("Parties cannot by
agreement relieve the court of its obligation to safeguard the best
interests of the child.").
¶ 11. Father asserts that the court improperly deferred to the
stipulation in rejecting his efforts to introduce evidence allegedly
showing that mother coached the children to charge father with sexual
abuse. Although either party should generally be free to introduce
evidence that a custody agreement is not in the child's best interests, we
are persuaded - in light of the particular facts and circumstances
presented - that no prejudicial error occurred in this case. Father's
claim must be understood in context. The custody dispute with mother had
begun several years prior to the parties' agreement, and had included
charges of inappropriate sexual behavior, investigations by the Department
of Social and Rehabilitation Services, and several relief-from-abuse
hearings.
¶ 12. To resolve the on-going conflict, the parties entered into
the agreement to refer the matter to Dr. Hasazi. Indeed, the court found
that father's claim of improper coaching by mother was one of the
principal issues that impelled the parties to refer the matter to Dr.
Hasazi for resolution. Dr. Hasazi was well aware of the issue, testifying
that "in light of the allegations and cross-allegations, [I] tried to
investigate the coaching issue as much as I did the child sexual abuse
issue." In this regard, Dr. Hasazi testified, and his report indicated,
that he conducted extensive interviews with family members, friends, and
physicians, administered psychological tests, reviewed all of the previous
motions and orders in the case, and read the SRS investigative files and
reports, among other materials. These included an "assessment of written
materials" prepared by Dr. William Nash, a psychologist that father had
engaged to critique the SRS investigation. Dr. Nash's report concluded
that statements by one of the children in one of the interviews had been
"influenced" by a variety of sources and that he had received "specific
coaching" relating to "superior injunctives concerning touching of his
genital areas."
¶ 13. Dr. Hasazi's ultimate conclusion in this regard was not that
father had sexually abused his children, but that he had failed to
understand and observe appropriate developmental boundaries. He also
testified that he had reviewed Dr. Nash's assessment of the SRS
investigation, as well as a second evaluation conducted for father by Dr.
John Donnelly, and did not find any support for father's assertion that
mother had coached the children to fabricate allegations of sexual abuse.
¶ 14. It was against this factual backdrop that the court
considered father's request at the final hearing to introduce several
pieces of allegedly new evidence that mother had coached the children.
Father's proffer referred to the Nash and Donnelly reports, a
pediatrician's report finding no observed evidence of sexual abuse in
either child, and the affidavit of a licensed mental health counselor, Aida
Reed, stating that she had reviewed the SRS interviews and concluded that
the mother's allegations were "highly suspect" and that one of the children
had been "highly influence[d]." The court denied the request, observing
that the parties had agreed to refer the coaching issue, among others, to
Dr. Hasazi, and that the proffered materials were not significantly
different in kind from earlier adduced evidence; they buttressed father's
claim, and the Nash report's conclusion, that the SRS interviews had been
poorly conducted and that the children had likely been influenced by
outside sources.
¶ 15. Although a close question, we cannot conclude that the
court's decision to exclude the proffered evidence was a clear and
prejudicial abuse of discretion. While the court may have relied too
heavily on the parties' agreement as a basis for exclusion, it was correct
in observing that the proffered material added little to the Nash report,
whose critique of the SRS interviews and conclusion that the children's
statements had been influenced by outside sources were already familiar to
the court. The additional materials were consistent with the Nash report,
but also stop short of asserting that mother had coached the children to
fabricate charges of sexual abuse. Furthermore, the court expressly found
that father had not sexually abused the children, that he had failed, at
most, to observe developmentally appropriate boundaries, and that he had
profited from parenting classes and counseling - findings that father has
not challenged on appeal. Thus, we are persuaded that even if the
additional materials in question had been admitted, they would not have
affected the award of parental rights and responsibilities to mother. See
Greene v. Bell, 171 Vt. 280, 288, 762 A.2d 865, 873 (2000) (any error in
exclusion of evidence is ground for reversal only if it resulted in
prejudice affecting a substantial right of the party).
¶ 16. Finally, father contends the administrative judge abused his
discretion in denying father's motion to disqualify Judge Levitt. His
argument is two-fold. First, he relies on a Florida rule that
categorically precludes a judge from reasserting judicial authority over a
case once a recusal order has been entered. See Margulies v. Margulies,
528 So. 2d 957, 960 (Fla. Dist. Ct. App. 1988) ("[O]nce a trial judge
disqualifies himself, he may not 'requalify' himself on removal of the
reasons for disqualification."). No other jurisdiction appears to have
adopted such a categorical rule, or the variation suggested by father
requiring an express waiver of any objection by the parties. On the
contrary, the majority of jurisdictions that have addressed the issue hold
that a judge may rescind a recusal where valid grounds appear on the
record. See Morrison v. Bd. of Zoning Adjustment, 422 A.2d 347, 350 (D.C.
1980) (rule that change of circumstances may be grounds for court to revoke
recusal "represents the majority position among courts which have
considered the issue"); Matthews v. State, 854 S.W.2d 339, 341-42 (Ark.
1993) (judge who recused himself from pretrial motion based on
landlord-tenant relationship with counsel could preside at trial because
relationship had ended); Flannery v. Flannery, 452 P.2d 846, 849 (Kan.
1969) (judge may reassume jurisdiction over case where "the reason for his
prior disqualification has been resolved"); Dotson v. Burchett, 190 S.W.2d 697, 699 (Ky. 1945) (court may reenter case where earlier decision to step
aside was based on erroneous assumption of fact or "some condition which
passes away"); In re Odineal, 368 N.W.2d 800, 804 (Neb. 1985) ("When the
cause for [the court's] disqualification in the first instance has been
removed, a judge may assume supervision and jurisdiction in the case.").
¶ 17. Along with the majority of jurisdictions, we discern no need
to adopt a special rule or procedure in cases, such as this, where a judge
reenters a case based on his or her determination that the basis for an
earlier recusal has been removed, and thereupon apprises the parties of the
reasons for the decision. Here, it is undisputed that Judge Levitt recused
herself solely on the basis of her friendship with father's attorney, Karen
Shingler, and reentered the case only after attorney Shingler's withdrawal.
The record also reveals that Judge Levitt explained the reason for her
decision at the first hearing following her reassumption of authority, and
that neither party registered any objection. Accordingly, we discern no
basis to disturb the administrative judge's denial of the disqualification
motion on this basis.
¶ 18. Apart from the trial court's reentry into the case, father
also contends the motion for disqualification should have been granted on
the ground that Judge Levitt "took numerous actions" that demonstrated bias
or prejudice. The determining standard for disqualification is whether
"the judge's impartiality might reasonably be questioned," A.O. 10, Vt.
Code of Judicial Conduct, Canon 3.E(1), and in resolving that issue the
judge is "accorded a presumption of honesty and integrity, with [the]
burden on the moving party to show otherwise in the circumstances of the
case." Ball v. Melsur, 161 Vt. 35, 39, 633 A.2d 705, 709 (1993)
(quotation omitted). We review the administrative judge's decision for
abuse of discretion, and will reverse only if the record reveals no
reasonable basis for the ruling. State v. Lincoln, 165 Vt. 570, 571, 680 A.2d 110, 112 (1996) (mem.).
¶ 19. Father's assertion of judicial bias rest on several claims.
First, he cites a colloquy between Judge Levitt and father's attorney, Ben
King of Schoenberg & Associates, at the child-support hearing in November
2001. Judge Kupersmith had denied the firm's earlier motion to withdraw
premised on father's non-payment of attorney's fees, and Judge Levitt
indicated at the November hearing that she might reconsider the motion,
explaining that she did not believe the firm should be compelled to proceed
pro bono and counseling father that he should either pay for an attorney or
find one to represent him free of charge. The firm renewed its motion
several days later, and the court granted the motion.
¶ 20. Father contends the court's statements interfered with his
attorney-client relationship by causing the firm's withdrawal. The record
discloses, however, that father filed a memorandum in support of the firm's
withdrawal, citing on-going conflicts over non-payment of fees and
"irreconcilable differences between counsel and myself," and arguing that
the firm's continued representation "would be an impingement upon due
process [and] the best interest of [the] minor children." Accordingly, the
record does not support father's claim that the court's remarks caused the
loss of counsel or unduly interfered with the attorney-client relationship.
¶ 21. Father next contends that, notwithstanding attorney
Shingler's withdrawal, Judge Levitt's impartiality remained at issue
because the withdrawal had resulted from a fee dispute. Father's only
evidentiary support for the claim is attorney Shingler's deposition
testimony that she had once mentioned the fee dispute while having lunch
with Judge Levitt. Apart from the bare assertion of bias, the record
contains no evidence that Judge Levitt was predisposed against father
because of a past fee dispute, and there was no evidence that the dispute
continued after attorney Shingler's withdrawal. No appearance or "per se
lack of impartiality" arises from father's allegation, which is
insufficient to overcome the presumption of judicial honesty and integrity.
Ball, 161 Vt. at 39, 633 A.2d at 709.
¶ 22. Father additionally asserts that a lack of impartiality may
be inferred from Judge Levitt's alleged failure to rule promptly on his
motions to enforce a telephone parent-contact order, and from comments by
the court at the motion hearing. The docket entries suggest that the delay
between father's motions in July and September 2002, and the hearing in
November, were due at least in part to difficulties in acquiring parent
coordinators to facilitate contact, and to Judge Levitt's inability to
attend a scheduled October hearing because she had to be in district court.
The record thus does not support an inference of bias from the delay in
hearing the motion sufficient to overcome the presumption of judicial
impartiality. Ball, 161 Vt. at 39, 633 A.2d at 709; see also Cliche v.
Fair, 145 Vt. 258, 262, 487 A.2d 145, 148 (1984) (prejudice on the part of
the court must be affirmatively and clearly shown).
¶ 23. Finally, father cites the court's response to an argument by
father's counsel that the children's allegations of inappropriate touching
had been fabricated by mother. The court explained that it did not
consider the argument to be relevant to the enforcement proceeding, that it
was concerned rather with father's emotional stability and its impact on
the children during the parent-contact sessions. As we have observed, to
establish prejudice "it is not enough merely to show the existence of
adverse rulings, no matter how erroneous or numerous, or that the judge
expressed a comment or opinion, uttered in the course of judicial duty,
based upon evidence in the case." Gallipo v. City of Rutland, 163 Vt. 83,
96, 656 A.2d 635, 644 (1994). The court's remarks in this case fall well
short of the clear and affirmative showing required to raise a reasonable
doubt about the court's impartiality. Accordingly, we discern no basis to
disturb the administrative judge's decision.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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