Piercy v. Piercy

774 S.W.2d 539, 1989 Mo. App. LEXIS 1087
CourtMissouri Court of Appeals
DecidedJuly 26, 1989
DocketNo. 15804
StatusPublished

This text of 774 S.W.2d 539 (Piercy v. Piercy) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Piercy v. Piercy, 774 S.W.2d 539, 1989 Mo. App. LEXIS 1087 (Mo. Ct. App. 1989).

Opinion

MAUS, Judge.

In this dissolution action the circuit court dissolved the marriage, denied the wife the limited maintenance she requested, divided the marital property and set apart the non-marital property. By his one point on appeal, the husband contends the circuit court erred by becoming an advocate for the wife by repeated questions and comments and by failing to maintain an impartial attitude. He asserts he was denied a fair trial. The husband-appellant seeks reversal and a new trial.

The husband’s point requires only a bare outline of the facts. The parties were married on July 29, 1984. The age of the parties does not appear in the record. It was a second marriage for each. The wife was employed at the time of their marriage. The husband was a disabled military man engaged in farming. He owned 145 acres, farm machinery and livestock. The wife quit her job. During the marriage she labored in the farming operations with her husband. During that time, the parties acquired an additional farm and a smaller tract of 17.9 acres and certain personal property.

The dissolution action was tried on May 11, 1988. Each party testified. The wife called her daughter by a previous marriage as a brief rebuttal witness. The transcript consists of 162 pages. The basis of the husband’s stated point is that the circuit court impermissibly questioned witnesses or interfered in the formulation of questions posed by counsel.

He relies upon three cases, which do not aid his position. In Roe v. Ross, 701 S.W.2d 799, 804 (Mo.App.1985), “the trial judge here demonstrated his own lack of impartiality by indicating that he had already decided one of the ultimate issues of [541]*541the case before the mother had an opportunity to present any of her evidence.” In Bova v. Bova, 135 S.W.2d 384, 385 (Mo.App.1940), after counsel asked a few initial questions, the circuit court took over the examination. No objection was voiced by the husband and “after a prolonged examination, more in the nature of a lecture than an endeavor to elicit information, dismissed him from the stand.” The judgment was affirmed. These cases are not factually applicable. Cundiff v. Cline, 752 S.W.2d 409 (Mo.App.1988), does observe that questions by the court left the impression it was an advocate and cautioned against such a practice. However, the questions by the court do not appear.

The duty of a judge to maintain impartiality is unquestioned.

“[Wjhether the case is to be tried to the court or to the jury a judge presiding at a trial should at all times maintain an impartial attitude and a status of neutrality. He should exercise the highest degree of patience and forbearance consistent with decorum and an orderly trial.”

Crimi v. Crimi, 479 S.W.2d 195, 197 (Mo.App.1972). However, the duty does not bar a court from propounding questions to witnesses within the limits of propriety. Such limits, as well as factors establishing prejudice demanding reversal, may vary between a criminal and a civil trial, State v. Farmer, 536 S.W.2d 748 (Mo.App.1976), and between a jury and a non-jury trial. State v. Tosh, 528 S.W.2d 775 (Mo.App.1975). Expressions of the delineation of such limits also vary with the underlying facts. There is a plethora of cases in which the applicable principles have been expressed. Those interested may consult 42 Mo.Dig.2d, Witnesses, Key No. 246, and 39 Mo.Dig.2d, Trial, Key No. 29. Also see Annot., Judge’s Examination — Witnesses— Civil Case, 6 A.L.R.4th 951 (1981).

The resolution of this appeal is guided by applicable basic principles which have received the following expressions.

“It is the judge’s duty to put such questions to the witnesses as seem to him desirable to elicit the truth more fully. State v. James, 321 S.W.2d 698, 704[2] (Mo.1959). The judge's discretionary power to interrogate witnesses is not unlimited and should be exercised with greater caution in criminal than in civil cases.” State v. Farmer, supra, 536 S.W.2d at 751.
“The record reveals that the line of questions propounded by the trial court were inquisitorial in nature, directed to the plaintiff, and sought to clarify the issues of the contract terms and payment. The trial judge is privileged to ask such questions, and here the judicial inquiry was within proper bounds.” (citations omitted.) Inloes v. Inloes, 567 S.W.2d 732, 735 (Mo.App.1978).
“A trial judge has not only the discretion but it is his duty in conducting a fair and orderly trial, to assist in a proper way a witness who has become confused.” Schonlau v. Terminal R. Ass’n of St. Louis, 357 Mo. 1108, 1116, 212 S.W.2d 420, 424 (1948).

Nonetheless, “it is a trial court’s duty to maintain an impartial attitude and a status of neutrality, and keep its questions and comments to a minimum.” Cundiff v. Cline, supra, 752 S.W.2d at 412.

“The trial judge should ‘listen, hear and from the evidence determine the issues raised by the pleadings....’ Chalfin v. Chalfin, 121 Cal.App.2d 229, 263 P.2d 16, 19 (1953). To fulfill this duty, the judge, by his manner and conduct, should not prevent a full presentation of relevant evidence. The court should not adopt or exhibit a hostile attitude toward a party, his counsel, or a witness.” Matter of Crist, 732 S.W.2d 587, 589-590 (Mo.App.1987).

Also see Rutlader v. Rutlader, 411 S.W.2d 826 (Mo.App.1967).

To support his point, the husband cites the fact that after counsel’s examination, the circuit court questioned the wife for six and one half pages and the husband for fourteen pages. That fact, as well as other instances cited by the husband, must be considered in the context of the circumstances. Those circumstances include many factors such as the nature of the action, the issues raised by the parties and [542]*542the adequacy of the examination by counsel. In this action the parties completed and filed required DR Form 1 — “Summary of Marital and Non-Marital Property and Liabilities”. The first column of that form called for assets to be listed. The six adjoining columns had the following headings: “Present Value — W”, “Present Value —H”, “Debt — W”, “Debt — H”, “Proposed Disposition — W” and “Proposed Disposition — H”. The completed form consisted of five pages listing numerous items with corollary entries. In some instances the entries are cryptic. The completed form was placed in evidence. The document was referred to by the parties and their counsel. The circuit court was required to deal with the issues raised by that form. The extensive examinations by the circuit court were obviously for the purpose of clarifying those issues and were proper.

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Related

Chalfin v. Chalfin
263 P.2d 16 (California Court of Appeal, 1953)
Rutlader v. Rutlader
411 S.W.2d 826 (Missouri Court of Appeals, 1967)
State v. Tash
528 S.W.2d 775 (Missouri Court of Appeals, 1975)
Myers v. Myers
586 S.W.2d 797 (Missouri Court of Appeals, 1979)
McClelland v. Williamson
627 S.W.2d 94 (Missouri Court of Appeals, 1982)
State v. Farmer
536 S.W.2d 748 (Missouri Court of Appeals, 1976)
Matter of Crist
732 S.W.2d 587 (Missouri Court of Appeals, 1987)
Crimi v. Crimi
479 S.W.2d 195 (Missouri Court of Appeals, 1972)
State v. James
321 S.W.2d 698 (Supreme Court of Missouri, 1959)
Inloes v. Inloes
567 S.W.2d 732 (Missouri Court of Appeals, 1978)
Cundiff v. Cline
752 S.W.2d 409 (Missouri Court of Appeals, 1988)
True v. True
762 S.W.2d 489 (Missouri Court of Appeals, 1988)
Schonlau v. Terminal Railroad Assn. of St. Louis
212 S.W.2d 420 (Supreme Court of Missouri, 1948)
Roe v. Ross
701 S.W.2d 799 (Missouri Court of Appeals, 1985)

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Bluebook (online)
774 S.W.2d 539, 1989 Mo. App. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piercy-v-piercy-moctapp-1989.