In Re the Marriage of Clinton

579 N.W.2d 835, 1998 Iowa App. LEXIS 27, 1998 WL 288734
CourtCourt of Appeals of Iowa
DecidedMarch 27, 1998
Docket97-1092
StatusPublished
Cited by8 cases

This text of 579 N.W.2d 835 (In Re the Marriage of Clinton) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Clinton, 579 N.W.2d 835, 1998 Iowa App. LEXIS 27, 1998 WL 288734 (iowactapp 1998).

Opinion

SACKETT, Judge.

Petitioner-appellant Robert Norman Clinton appeals from the decree dissolving his twenty-six year marriage to respondent-ap-pellee Patricia K. Clinton. We affirm as modified.

We first address Robert’s contention the trial judge should have recused himself. Before hearing evidence in the case, Judge Thomas M. Horan told the parties that twenty-four years earlier while he was serving as an assistant county attorney he was named in that capacity as a defendant in a suit filed by Robert on behalf of a Missouri prisoner. Robert filed the suit as a part of his duties at the Iowa Law School’s legal clinic. Judge Horan told Robert the prior litigation would not affect his judgment in this case. Robert did not object to Judge Horan hearing the case. Robert’s attorney assured Judge Hor-an he did not want him to withdraw.

Robert now contends he did not object to Judge Horan hearing his case because he took the judge at his word and was assured he would not be biased. Robert argues he had the first clear indication of bias on receiving the decree dissolving the marriage. After the decree was filed, Robert raised the issue in a motion for new trial, which was overruled.

Robert now contends Judge Horan abused his discretion in not disqualifying himself, and the judge was required to get a written agreement signed indicating the relationship was immaterial.

Iowa Code of Judicial Conduct Canon 3D(l)(a) appears to be the section Robert relies on. It reads as follows:

D. Disqualification.

(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

Iowa Code of Judicial Conduct Canon 3D(l)(a) (1998). Canon 3D(l)(a) is basically a broad standard by which a judge should sua sponte determine the matter of self-recusation. Stated otherwise, followed by specifies (interest and relationship), it stands as a guiding precept upon which every judge, by an objective in-depth search of his or her own conscience, must decide whether a fair trial dictates he or she should make way for another judge to preside in a given justicia-ble controversy, be it civil, criminal, or otherwise. Forsmark v. State, 349 N.W.2d 763, 767 (Iowa 1984); State v. Smith, 242 N.W.2d 320,323-24 (Iowa 1976).

The burden is on a party seeking recusal to establish the basis for it, and the determination is committed to the judge’s discretion. Abuse of discretion must appear before an appellate court will interfere. See Smith, 242 N.W.2d at 324. Judge Horan did not abuse his discretion in not recusing himself. Robert has failed to show the trial judge should have recused himself.

*838 We also disagree with Robert the writing required in Canon 3E applied to a disqualification under 3D(l)(a). The section specifies the written agreement is only applicable to Canon 3D(l)(c) and 3D(l)(d).

Robert’s other challenges to Judge Hor-an’s impartiality hinge on Robert’s dissatis: faction with the financial provisions in the decree. We do not accept Robert’s contention these provisions reflect bias on the part of the trial judge.

Additionally, we review de novo Robert’s challenges to the economic provisions of the decree, primarily the alimony awarded to Patricia. In re Marriage of Craig, 462 N.W.2d 692, 693 (Iowa App.1990). While not bound by the trial court’s factual findings, we give them weight in considering the credibility of witnesses. In re Marriage of Farrell, 481 N.W.2d 528, 530 (Iowa App.1991).

Robert was ordered to pay Patricia spousal support of $1200 per month until she reaches sixty-two years of age, dies, or remarries, whichever occurs first. Robert contends the issue of alimony was not before the district court, he had insufficient time to prepare to litigate the issue of alimony, and his constitutional rights of due process were violated.

Robert filed the dissolution action. Patricia’s answer did not specifically request alimony but asked for general equitable relief. Robert contends as a consequence alimony was not an issue before the trial court.

Robert acknowledged after the pretrial conference on January 16, 1997, he knew Patricia was asking for spousal support. The pretrial order specifically listed alimony as an issue to be tried. At that time, no trial date had been fixed. The trial was subsequently fixed for April 3, 1997. Robert filed a motion for continuance. The trial was continued to May 6,1997.

Iowa Code section 598.5(9) provides a petition in a dissolution shall set forth an application for permanent alimony. In Hopping v. Hopping, 233 Iowa 993,10 N.W.2d 87 (1943), the Iowa court rejected the argument alimony was waived where it was not specifically included in the prayer of the petition. The court said a party to a divorce suit should recognize the statutes dealing with divorce provide the court can award alimony. Id. at 997, 10 N.W.2d at 90. In In re Marriage of Miller, 475 N.W.2d 675 (Iowa App.1991), we found no abuse of discretion in the trial court’s decision to allow a wife to amend her petition at the time of trial to request alimony where she had earlier made a general request for support and equitable relief. Id. at 677.

The issue of alimony was before the trial court. Patricia’s prayer was for equitable relief. Robert was notified in the pretrial order alimony would be an issue. With more than three months between the pretrial conference and trial, Robert was afforded ample time for discovery and preparation necessary to challenge Patricia’s claim. We reject his arguments on this issue.

Robert next contends Patricia is not entitled to alimony.

Both parties are fifty years of age. Robert is a lawyer and his income without summer school teaching is $127,500. He receives annual income from royalties and consulting fees and as a trial judge. Patricia is a nurse who holds bachelor’s, master’s, and doctorate degrees; her annual earnings are less than $50,000.

In reviewing this issue, we consider, among other things, the parties’ income potential. In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa App.1984). Yet, each party has chosen his or her respective field. Their entry into their chosen field was the result of certain personal aptitudes and abilities.

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