Lange v. Lange

605 S.E.2d 732, 167 N.C. App. 426, 2004 N.C. App. LEXIS 2334
CourtCourt of Appeals of North Carolina
DecidedDecember 21, 2004
DocketCOA02-567-2
StatusPublished
Cited by4 cases

This text of 605 S.E.2d 732 (Lange v. Lange) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lange v. Lange, 605 S.E.2d 732, 167 N.C. App. 426, 2004 N.C. App. LEXIS 2334 (N.C. Ct. App. 2004).

Opinions

[427]*427STEELMAN, Judge.

Our Supreme Court remanded this case to the Court of Appeals for consideration of the appeal on its merits. Accordingly, we review defendant’s appeal to determine whether Judge Christian erred in granting plaintiff’s motion to recuse Judge Jones. We reverse and remand this matter to the trial court for further proceedings under Rule 63 of the Rules of Civil Procedure.

A more detailed recitation of the facts can be found in our first opinion, Lange v. Lange, 157 N.C. App. 310, 578 S.E.2d 677 (2003), and the Supreme Court’s opinion, Lange v. Lange, 357 N.C. 645, 588 S.E.2d 877 (2003). We review only those facts pertinent to this opinion.

Plaintiff, Katherine T. Lange, and defendant, David R. Lange, were married in 1989. Following their divorce in 1998, the court entered an order approving a parenting agreement that provided for the parties’ two minor children to live in Mecklenburg County pursuant tó a shared custody arrangement. In March 2000, plaintiff filed a motion to modify custody because she was engaged and wished to move her family to Southern Pines. Defendant responded to the motion asking the court to grant him primary physical custody of the children if his ex-wife moved from Mecklenburg County. A hearing on the parties’ motion to modify custody was held before Judge William G. Jones in the District Court of Mecklenburg County during the week of 13 June 2000. By letter dated 30 June 2000, Judge Jones announced his decision in the matter, requiring the children to continue to reside in Mecklenburg County, and directing counsel for the defendant to submit a proposed order. Over the next several months, the parties discussed the precise language and provisions of the order. In November 2000, prior to Judge Jones signing the order, plaintiff’s counsel moved for Judge Jones to recuse himself because Judge Jones and Katherine S. Holliday, counsel for the defendant, were among a group of people who jointly owned a vacation property located in the mountains.

Judge William Christian was assigned to hear plaintiff’s recusal motion. On 14 October 2001, Judge Christian entered an order which concluded that Judge Jones had not violated any specific provisions of Cannons 2, 3, or 5 of the North Carolina Code of Judicial Conduct, and that there was no evidence of actual bias or partiality on the part of Judge Jones and his conduct in the case. However, Judge Christian concluded that it was not necessary for there to be a showing of actual bias or a violation of a specific provision of the Code of [428]*428Judicial Conduct for a judge to be required to be recused from a case. Holding the mere appearance of bias or prejudice was sufficient to require recusal, Judge Christian ordered that Judge Jones be recused from the case, and ordered a new trial in the matter. Defendant appealed. Plaintiff cross-appealed, asserting that Judge Christian erred in not finding that Judge Jones had violated specific provisions of the Code of Judicial Conduct.

I. Standard for Disqualification

Our Supreme Court directed that upon remand, our first inquiry shall be whether Judge Christian’s findings of fact that Judge Jones did not violate the Code of Judicial Conduct are supported by the evidence. Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003). The proper standard by which we review the trial court’s findings of fact is limited to a determination of (1) whether those “ ‘findings are supported by competent evidence, in which event they are conclusively binding on appeal[;]’ ” and (2) “ ‘whether those factual findings in turn support the judge’s ultimate conclusions of law.’ ” State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 631 (2000) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).

II. Analysis

Judge Christian made the following findings of fact, which are germane to this determination:

IV: That since approximately 1986, the Honorable William G. Jones and Katherine S. Holliday, together with other persons, have been co-owners of a vacation property in Yancy County, North Carolina near Mount Mitchell; and that Katherine S. Holliday currently owns a l/6th undivided interest and the Honorable William G. Jones and wife own a 1/2 undivided interest in the property.
V. That in 1987 the Honorable William G. Jones gave public notice of the co-ownership in the vacation property by posting a notification in the courthouse and circulating a memorandum about the joint ownership to members of the bar regularly practicing in the local juvenile and domestic courts; that Judge Jones was also in the habit of disclosing the joint ownership to litigant in his Court; that this joint ownership was common knowledge in the domestic bar of Mecklenburg County; that at some later point, the disclosure ceased; that at the time of the hearing of this matter, the information had become stale and some members of the [429]*429bar, including Mr. Gunter, did not know of the co-ownership; and that Plaintiff did not know of the co-ownership.
VI. That at the hearing of this matter in June, 2000, no disclosure of the co-ownership was made by the Honorable William G. Jones, or Katherine S. Holliday, as Judge Jones erroneously assumed that Plaintiffs attorney knew of the joint ownership.
VII. That the owners of the vacation property, including the Honorable William G. Jones, and Katherine S. Holliday, occupy, maintain, and finance the property pursuant to an informal agreement based on mutual trust, communication, and friendship; that the property was designed, constructed, furnished, and financed by joint efforts and cooperation among the co-owners; and that the co-owners meet annually to provide for their occupancy of the property, make joint decisions on the maintenance and preservation of the property, and provide twelve (12) checks which are held by the Honorable William G. Jones, and deposited into an account he and his wife solely own, and from which he pays the mortgage debt service, and expenses of the property with no obligation to make an accounting to anyone.
VIII. That the Honorable William G. Jones did not violate any specifically enumerated canon of ethics set forth in the North Carolina Code of Judicial Conduct in terms of his relationship with Katherine S. Holliday, or any other party or counsel in this case; that the financial dealings between the Honorable William G. Jones, and other co-owners of the vacation property, including Katherine S. Holliday were not so “frequent” as to violate Canon 5 of the North Carolina Code of Judicial Conduct; and that the annual meeting in which the monthly checks are provided en masse for monthly deposit do not cause the frequent contact which the canon contemplates; and that similarly, the annual meetings that were held to divide the use of the property between the co-owners is so infrequent and perfunctory as to not constitute the frequent contact that the canon of judicial conduct contemplate [s].
IX.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bodie v. Bodie
727 S.E.2d 11 (Court of Appeals of North Carolina, 2012)
Hodges v. Hodges
687 S.E.2d 710 (Court of Appeals of North Carolina, 2009)
Knight v. Higgs
659 S.E.2d 742 (Court of Appeals of North Carolina, 2008)
Lange v. Lange
605 S.E.2d 732 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
605 S.E.2d 732, 167 N.C. App. 426, 2004 N.C. App. LEXIS 2334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lange-v-lange-ncctapp-2004.