Bell v. Dilorenzo

In the Matter of the Marriage of PATRICIA ANN BELL, Appellant, v. CARLO ALEXANDER DILORENZO, Respondent.

No. 55328-7-II

Court of Appeals of Washington, Division 2

April 19, 2022

UNPUBLISHED OPINION

CRUSER, A.C.J.

Patricia Bell and Carlo DiLorenzo ended their marriage in 2016. In 2017, DiLorenzo sought modification of the temporary parenting plan that the parties were subject to while they litigated a final parenting plan and child support obligations. Under the temporary plan, DiLorenzo's visits with his children were supervised by Kate Lee. Bell hired a private investigator, who revealed that Lee had previously been convicted of perjury and other felonies. Bell filed this information with the court, and a local news outlet ran a story about Bell uncovering Lee's prior convictions. Before the parties' trial, Bell moved for a change of venue because she believed that no judge on the Pierce County Superior Court could fairly hear the case. The trial judge denied the motion, and Division Three of this court affirmed the judgment of the trial court on appeal. That trial is not the subject of this appeal, although facts from that earlier case play a role in the current appeal.

In 2019, DiLorenzo filed a petition to modify the final parenting plan. In this petition, DiLorenzo sought to relocate with his children to New York, primary residential placement, sole decision-making, a Guardian ad Litem appointment, and a continuation of an order restraining Bell. After the court found adequate cause for the petition to proceed, Bell filed several motions, including a motion for a new trial judge. The court denied all of Bell's motions and the case proceeded to trial. Following the trial, in August 2020, the trial court granted DiLorenzo's petition and entered a final order and findings on objection about moving with children, final order and findings on petition to change parenting plan, final parenting plan, child support order, restraining order, and judgment.

Bell appeals, arguing that the trial judge should have recused himself prior to trial because various actions on the part of the trial judge violated the appearance of fairness doctrine because the judge exhibited actual bias, and because the judge violated the Code of Judicial Conduct (CJC) 2.9 by having ex parte contact with the Washington State Bar Association about Bell's lawyer without notifying the parties. We hold that the trial judge was not required to recuse himself because there was no violation of the appearance of fairness doctrine, the trial judge did not exhibit actual bias, and Bell has not shown a violation of CJC 2.9. Accordingly, we affirm the trial court's November 1, 2019 order denying Bell's motions and the final orders entered by the trial court on August 24, 2020 regarding DiLorenzo's petition to modify the parenting plan. In addition, we grant DiLorenzo's request for attorney fees on appeal.

FACTS

Bell and DiLorenzo were married in New York in December 2014 and had two children together. The family moved to Washington in May 2016, and the parties separated in October of that year. A New York court retained jurisdiction over property division, but Bell and DiLorenzo litigated their parenting plan and child support issues in Pierce County.

From March to December 2017, while the parties were subject to a temporary parenting plan, DiLorenzo's visits with the children were supervised by Lee, who the parties agreed on as the visitation supervisor. In October 2017, Bell hired a private investigator, and the investigation revealed that Lee was convicted of identity theft, forgery, and perjury. Lee withdrew from the case and filed a declaration with the court to "clear [her] name." Clerk's Papers (CP) at 161. The declaration was later determined by then Presiding Judge Elizabeth Martin to be misleading because it strongly implied that Lee had no criminal history.

In December 2017, the trial court held a hearing on DiLorenzo's motion for revision to modify the temporary parenting plan. DiLorenzo requested unsupervised visits and entry of a restraining order preventing Bell from "keeping him under surveillance." Id. at 170. Prior to the confirmation that Lee had, in fact, been convicted of several felonies, Judge Kitty-Ann van Doorninck addressed Bell's investigation of Lee, "a respected professional person in the community for a long time." Id. at 178. The judge explained:

[Y]ou have requested, and I have put in orders multiple times, that Ms. Lee be the supervisor. And to have this kind of declaration in this court file is, frankly, appalling to me, without the courtesy of talking to her about whatever the issue was. And just putting it all in for the public.

Id.

In January 2018, the Tacoma News Tribune published an article about Bell exposing Lee's criminal history. The article quoted an interview with Judge Martin, who explained that the superior court would likely not approve Lee as a visitation supervisor in future cases due to a concern that Lee is impeachable as a witness. Judge Martin had sent an email to the Pierce County Superior Court judges and commissioners advising them that Lee should not be approved or recommended as a visitation supervisor, and she noted that Lee may have misled the court about her convictions in her declaration. In the interview Judge Martin also stated that Lee had been a visitation supervisor for a long time and "[n]o one's ever had any basis to question the quality of her work. We're all just trying the best we can for children. I have no reason to think Ms. Lee was doing anything other than that. It's a really sad situation." Id. at 445. The News Tribune also included an interview with Judge van Doorninck, who explained that she relied on Lee's declaration and did not believe that the allegations were true.

Prior to the 2018 trial on the permanent parenting plan, Bell moved to change venue, alleging that no judge on the Pierce County Superior Court could fairly conduct the trial. Bell argued that Judge Martin's comments in the article and emails between the judges relating to Lee created an appearance of impropriety. Judge Karena Kirkendoll denied the motion, and the case proceeded to trial in June 2018. Following the trial, Bell appealed and Division Three of this court affirmed the trial court. Bell v. DiLorenzo, No. 37359-2-III, slip op. at 1 (Wash.Ct.App. Aug. 18, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/373592_unp.pdf.

In July 2019, DiLorenzo filed a petition to modify the June 2018 parenting plan, seeking to relocate to New York with the children, as well as primary residential placement, sole decision-making, a Guardian ad Litem appointment, and a continuation of the order restraining Bell. A court commissioner entered an order granting adequate cause, and the case was set for trial before Judge Michael Schwartz.

In response, Bell filed many motions. Relevant to this appeal, Bell filed a motion for a new trial judge, seeking to have the case removed from Judge Schwartz. This motion asserted ethical violations by the judges of the Pierce County Superior Court. Once again, Bell contended that Judge Martin's comments in the News Tribune article, particularly that it was a" 'really sad situation, '" raised a question of bias. CP at 148. Specifically regarding Judge Schwartz, the motion argued that he should recuse himself because (1) he was specially assigned to the case by Presiding Judge Martin "due to the unpopularity of litigant Patricia Bell," (2) he participated in a bar complaint against her attorney, James Egan, and (3) he inadvertently referred to Bell as "Ms. Lee" at a hearing. Id. at 149.

On October 25, 2019, Judge Schwartz held a hearing on all of Bell's motions, cross-motions for sanctions, and DiLorenzo's motion to continue the trial date. At the hearing, Judge Schwartz stated that he was asked to be on the case after "two or three other judges recused themselves," but he did not know their reasons for doing so. Verbatim Report of Proceedings (VRP) (Oct. 25, 2019) at 19. Judge Schwartz also explained that he believed the bar complaint against Egan was filed by then Presiding Judge Garold Johnson, that he was interviewed by bar counsel regarding the complaint, and that he "said Mr. Egan has not been a problem to me. Okay. It makes no difference whether he is in my court or not in my court." Id. at 22. Egan argued that he should have been "provided a copy of that interview" and should have known about Judge Schwartz's communications with the bar association right away. Id.

On November 1, 2019, Judge Schwartz denied Bell's motions. Regarding the motion for new trial judge, Judge Schwartz explained that he

is not influenced by prior judicial officers' decisions to recuse themselves from this matter. Other [j]udges' decisions to recuse themselves is not germane to whether Judge Schwartz can oversee the matter with impartiality or an appearance of impartiality. Judge Schwartz is not a grievant in any bar complaint that may be filed against James Egan. Judge Schwartz was interviewed by the Washington State Bar Association and stated that James Egan had not been a problem in his court room. Judge Schwartz's impartiality cannot reasonably be questioned.

CP at 359.

In January 2020, Bell requested a trial continuance, and in that motion she included an email dated September 20, 2018 from Judge Schwartz's judicial assistant to a person named Rodger Leach^[1] which stated:

We have a potential security issue tomorrow:

Patricia Bell v. Carlo Dilorenzo 16-3-04479-3

This involves Atty James Egan - let me know if you need additional information. Id. 544. She later included this same email in a motion for Judge Schwartz to recuse himself based on actual bias.

The trial on...