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In re Wolters

Supreme Court of New Hampshire

September 15, 2015

In the Matter of Diana Wolters and John Wolters

Argued April 9, 2015.

7th Circuit Court - Rochester Family Division.

Sulloway & Hollis, PLLC, of Concord ( Patrick J. Sheehan on the brief and orally), for the petitioner.

Primmer Piper Eggleston & Cramer PC, of Manchester ( Doreen F. Connor on the brief and orally), for the respondent.

CONBOY, J. DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred.

OPINION

Page 1009

Conboy, J.

In these consolidated appeals, the petitioner, Diana Wolters, and the respondent, John Wolters, appeal orders of the Circuit Court in their divorce proceeding. The petitioner argues that the original trial judge erred by denying her motion to recuse the trial judge and to vacate all orders issued by her, and erred by considering tax consequences when determining the value of the parties' property. The respondent contends that the subsequent trial judge erred by denying his motion to dismiss the petitioner's motion to correct property distribution and by awarding a certain percentage of eminent domain litigation proceeds to the petitioner. The petitioner cross-appeals, arguing that the court erred by not awarding her a greater percentage of the eminent domain litigation proceeds. We affirm in part, vacate in part, and remand.

I. Motion to Recuse

The petitioner argues that the original Trial Judge ( Sadler, J.) erred by not recusing herself earlier in the case and, later, by declining to vacate all prior orders issued by her. The respondent counters that the petitioner waived her recusal argument because she did not timely raise it, but that even if she did not waive this argument, there was no basis for recusal. Assuming, without deciding, that the petitioner did not waive her recusal argument, but see Fam. Div. R. 1.10, we conclude that the original trial judge was not required to recuse herself from this case.

Following nine days of hearings, the original trial judge granted the parties a divorce based upon irreconcilable differences and issued a lengthy and detailed final order. Twelve days later, the petitioner requested that the judge recuse herself and vacate all prior orders. She argued that the judge was required to disclose that an attorney from the same law firm as the attorney representing the petitioner had signed a document on behalf of the judge's former spouse in the judge's separation action. She asserted that the judge's failure to disclose this connection warranted disqualification under Rule 2.11 of the Code of Judicial Conduct and required the judge to vacate all prior orders. See S.Ct. R. 38, Canon 2.11(A).

The judge denied the motion, stating that " she neither held any bias, lack of objectivity or lack of impartiality toward" the petitioner or her counsel, nor was there any evidence from an objective standpoint of bias or partiality. The judge did, however, recuse herself from any future proceedings. Following the judge's recusal, the case was transferred to a Marital Master ( Foley, M.). Upon reconsideration of the final divorce order, the marital master recommended, and the Circuit Court ( Ashley, J.) approved, amendments to the final divorce decree that are not relevant to this appeal.

Page 1010

The petitioner argues that the original trial judge erred by not disqualifying herself at the inception of the case. The Code of Judicial Conduct requires a judge to disqualify herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which " [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer." S.Ct. R. 38, Canon 2.11(A)(1). " The party claiming bias must show the existence of bias, the likelihood of bias, or an appearance of such bias that the judge is unable to hold the balance between vindicating the interests of the court and the interests of a party." In the Matter of Tapply & Zukatis, 162 N.H. 285, 297, 27 A.3d 628 (2011) (quotation omitted). " The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case." Id. (quotation omitted).

Here, the petitioner argues that the judge's impartiality could reasonably be questioned because when the judge " began hearing this case ... her own divorce matter was still pending" and the judge's former " spouse was represented at one point during the process by an attorney of the same firm representing [the petitioner] in this matter." As a result, she contends that the judge should have initially disqualified ...


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