Donnell v. Donnell

567 So. 2d 1143, 1990 WL 140249
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1990
Docket21770-CA
StatusPublished
Cited by3 cases

This text of 567 So. 2d 1143 (Donnell v. Donnell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donnell v. Donnell, 567 So. 2d 1143, 1990 WL 140249 (La. Ct. App. 1990).

Opinion

567 So.2d 1143 (1990)

Jewell N. DONNELL, Jr., Plaintiff-Appellant,
v.
Wanda H. DONNELL, Defendant-Appellee.

No. 21770-CA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 1990.

*1145 James M. Stephens, Winnsboro, Dennis G. Stewart, Delhi, for plaintiff-appellant.

Michael E. Kramer, Winnsboro, for defendant-appellee.

Before SEXTON and LINDSAY, JJ., and JASPER E. JONES, J., Pro Tem.

JASPER E. JONES, Judge, pro tem.

Appellant, Jewell N. Donnell, Jr., and appellee, Wanda H. Donnell, physically separated in March 1982. Mr. Donnell filed a suit for separation in May 1982, and a judgment of divorce subsequently was rendered in August 1983. However, neither party took legal action to partition the former community until Mr. Donnell filed a petition to partition in September 1988. Attached to his petition was a detailed descriptive list of the community assets and liabilities. Ms. Donnell traversed her former husband's detailed descriptive list later that month, and, in January 1989, filed her own detailed descriptive list. The Honorable Chet D. Traylor presided over trial on the merits held in July 1989. After judgment was rendered, Mr. Donnell filed a motion for new trial and a motion to recuse Judge Traylor. An ad hoc judge, appointed to hear the motion for recusal, denied the motion to recuse in August 1989. The following month, Judge Traylor denied the motion for new trial. Appellant then appealed not only the judgment partitioning the former community property, but also the judgment denying the motion to recuse, as well as the judgment denying the motion for new trial.

For the reasons which follow, we affirm both the judgment denying the motion to recuse and the judgment denying the motion for new trial. However, the judgment partitioning the former community property is reversed in part and amended.

THE MOTION FOR RECUSAL

Appellant's motion to recuse Judge Traylor alleged that Judge Traylor and his family were very close personal friends of Ms. Donnell and her alleged fiance, Marvin Cruse. The two groups were alleged to frequent each other's homes on a weekly basis, attend social gatherings together and coordinate leisure time to maximize *1146 contact with each other. However, the proof adduced at the trial of the motion to recuse fell far short of supporting these allegations. At best, appellant showed that Judge Traylor and Marvin Cruse were good friends, and that Marvin Cruse and Ms. Donnell dated each other on a regular basis. The evidence did not show that Marvin Cruse and Ms. Donnell were engaged or had any plans to marry, and did not show that Judge Traylor was a good friend of Ms. Donnell. Instead, the record reveals few contacts between Judge Traylor and Ms. Donnell, especially when one considers the small size of the rural community in which they live. Nor does the record indicate that Ms. Donnell was a close personal friend of any other member of the Traylor family.

The grounds for recusing a trial court judge are listed in LSA-C.C.P. Art. 151. The only ground which possibly could have application in the present case states that a trial judge may be recused when he is biased, prejudiced, or interested in the cause or its outcome, or is biased or prejudiced toward or against the parties or the parties' attorneys to such an extent that the judge would be unable to conduct fair and impartial proceedings. LSA-C.C.P. Art. 151 B(5). There plainly is no evidence of actual bias, prejudice or interest in this case. Nevertheless, appellant argued in the trial court, and argues on appeal, that Judge Traylor also could be recused on the basis of the appearance of impropriety. In support of his argument, appellant relies on the Code of Judicial Conduct Canons 1, 2 A and 2 B which underscore the need for an independent and impartial judiciary in which judges do not allow family, social, or other relationships to influence judicial conduct or judgment.

In Christian v. Christian, 535 So.2d 842 (La.App.2d Cir.1988), a case also involving a motion to recuse a trial court judge, this court expressed concern with the appearance of impropriety, but held that the list of grounds for recusation in Art. 151 is exclusive rather than illustrative. We further note that the Code of Judicial Conduct Canon 3 C provides: "The recusation of judges is governed by law." We believe this to be an obvious reference to LSA-C. C.P. Art. 151, et seq., and to indicate that the procedural articles, rather than the judicial canons, govern a recusation. Accordingly, finding no ground for recusation satisfied in this case, we find no error in the trial court's denial of the motion for recusation.

Moreover, we find that the evidence adduced does not raise even the appearance of impropriety. In rural districts, it is not at all uncommon for a judge to have a friendly relationship with numerous members of the community, but to nevertheless adjudicate legal issues which arise among community members. Appellant merely established that a party to the litigation had a close relationship with an individual who, in turn, was a good friend of the trial judge. No close, direct relationship was established between either the party and the trial judge or the party and the trial judge's family.

DENIAL OF MOTION FOR NEW TRIAL

The trial court minutes reflect that on the hearing of the motion for new trial, counsel for appellant simply offered the transcript of the prior recusation hearing as appellant's evidence. No evidence was offered by appellee. Subsequently, the court denied the motion for new trial.

Similarly, on appeal, appellant reurges the same arguments made in support of his assignments of error concerning recusation of the trial judge. For the same reasons we found no merit in the appellant's assignments of error regarding denial of the motion for recusation, we find no merit in appellant's assignment of error regarding denial of the motion for new trial.

PARTITION OF THE COMMUNITY

The partition of community property and settlement of claims arising from matrimonial regimes are governed by the provisions of LSA-R.S. 9:2801 which state:

When the spouses are unable to agree on a partition of community property or on the settlement of the claims between *1147 the spouses arising from the matrimonial regime, either spouse, upon termination of the matrimonial regime, or as an incident of the action which would result in a termination of the matrimonial regime, may institute a proceeding, which shall be conducted in accordance with the following rules:
(1) Each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party. Amendments to the descriptive lists shall be permitted. No inventory shall be required. Upon motion of either party, the court shall set a time limit for the filing of each detailed descriptive list.
(2) Each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party. Upon motion of either party, the court shall fix a time limit within which each party shall either traverse or concur. The trial of the traverses may be by summary procedure.

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Bluebook (online)
567 So. 2d 1143, 1990 WL 140249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnell-v-donnell-lactapp-1990.