In re Marriage of Nusz

1

In the Matter of the Marriage of Shelby L. Nusz, Appellant and Macklin R. Nusz, Appellee.

No. 123, 788

Court of Appeals of Kansas

February 18, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Kiowa District Court; Sidney R. Thomas, judge.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Grant A. Brazill, of Morris, Laing, Evans, Brock & Kennedy Chtd., of Wichita, for appellee. Before Malone, P.J., Powell and Isherwood, JJ.

MEMORANDUM OPINION

Powell, J.:

After seven years of marriage, Shelby L. Nusz (Shelby) sought a divorce from her husband, Macklin R. Nusz (Macklin). The district court conducted a bench trial at which it decided issues concerning property division, child custody, and child support. Unhappy with the district court's decision Shelby moved to alter or amend its judgment, complaining the district court's orders were not supported by the evidence presented and that the district court was biased against her. After a hearing on Shelby's motion, the district court rejected her allegations of error and bias and affirmed most of its findings.

Shelby now appeals and reprises many of the arguments she made before the district court, including her allegations of bias. In particular, Shelby contends the district court's findings are not supported by the evidence and the district court abused its discretion. After a review of the record, we decline to consider Shelby's claims of judicial bias as she failed to follow the proper statutory and appellate procedure for raising such claims. We also find sufficient evidence supports the district court's findings and Shelby has failed to meet her heavy burden that no reasonable person would agree with the district court's judgment. Thus, we affirm.

Factual and Procedural Background

Shelby and Macklin were married on May 4, 2012, and two children were born of the marriage: C.N., born in 2015, and A.N., born in 2017. At the time Shelby petitioned for divorce on July 16, 2019, both parties lived in Haviland, Kansas.

The district court issued a temporary order providing, among other things, that the parties would have joint legal custody and shared residency of C.N. and A.N. and an alternating week-to-week residency schedule. After the parties only achieved limited success at mediation, the district court conducted a bench trial in August 2020 to determine residential custody, parenting time, child support, spousal maintenance, the value of the parties' property, and the equitable division of that property.

At trial, the district court heard from several witnesses including the children's day care provider, Shelby's boss, a certified appraiser who appraised the value of the marital residence, a friend of the parties who worked with them in their outfitting business, and the parties themselves. After hearing the evidence, the district court valued the parties' outfitting business and marital residence, determined each party's income, equitably divided the property, ordered spousal maintenance, and adopted a parenting plan that provided the parties would exercise joint legal custody of the children with shared residential custody on an alternating two-week basis. Shelby would be allowed to exercise her parenting time while residing in Wichita although the children would continue to reside in Pratt. The district court also ordered child support based upon each party's income and shared residency.

Unhappy with the district court's decision, Shelby filed a lengthy (44 pages) motion to alter or amend the judgment, extensively itemizing the errors she alleged the district court had made in its ruling. Moreover, and for the first time, Shelby alleged bias on the part of the district court and asked it to reconsider its ruling free of any bias. After a hearing on Shelby's motion, the district court reaffirmed most of its rulings. The district court also found no bias in its original ruling. However, Shelby filed no affidavit after the ruling as required by K.S.A. 20-311d.

Shelby now appeals. I. Was the District Court Biased Against Shelby?

First, Shelby argues the district court was biased in its assessment of the evidence against her because the district court made factual findings unsupported by the evidence. In response, Macklin argues Shelby cannot raise any claims of judicial bias on appeal. Alternatively, he argues Shelby has failed to establish judicial misconduct that would warrant additional proceedings.

"'We exercise unlimited review over judicial misconduct claims, and review them in light of the particular facts and circumstances surrounding the allegation.' [Citation omitted.]" State v. Boothby, 310 Kan. 619, 624, 448 P.3d 416 (2019). The party alleging judicial misconduct has the burden of establishing that the misconduct occurred and that it prejudiced the party's substantial rights. State v. Miller, 308 Kan. 1119, 1154, 427 P.3d 907 (2018).

A litigant may argue that a judge's recusal is required in accordance with (1) the statutory factors set forth in K.S.A. 20-311d(c); (2) the standards of the Kansas Code of Judicial Conduct, Supreme Court Rule 601B, Canon 2, Rule 2.2 (2022 Kan. S.Ct. R. at 495); and (3) the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. Moyer, 306 Kan. 342, 370, 410 P.3d 71 (2017). Shelby's allegations of judicial bias rest upon statutory and constitutional grounds.

K.S.A. 20-311d(a) provides a statutory procedure for a party or a party's attorney to move for a change of judge based on the belief "that the judge to whom an action is assigned cannot afford that party a fair trial in the action." "Under K.S.A. 20-311d, a party must first file a motion for change of judge; if that motion is denied, then the party must immediately file a legally sufficient affidavit alleging grounds set forth in the statute." State v. Sawyer, 297 Kan. 902, 908, 305 P.3d 608 (2013).

On appeal, Shelby concedes she failed to follow the procedural requirements of K.S.A. 20-311d requesting recusal of the judge but contends that this failure is not fatal to her bias claims. Shelby argues the allegations of judicial bias raised in her motion to alter or amend were sufficient to allow the district court to correct its errors and for appellate review. To support her argument, Shelby directs us to an unpublished opinion from another panel of our court which considered claims of judicial bias despite a lack of compliance with K.S.A. 20-311d. See In re Marriage of Taylor, No. 106, 143, 2012 WL 1352867, at *3 (Kan. App. 2012) (unpublished opinion).

However, more recently, the Kansas Supreme Court has refused to consider a statutory judicial bias claim when the claimant failed to follow the proper statutory procedure. In Sawyer, our Supreme Court stated:

"'When faced with an affidavit of prejudice filed pursuant to K.S.A. 20-311d, this court has unlimited review, and on appeal must decide the legal sufficiency of the affidavit and not the truth of the facts alleged. We examine whether the affidavit provides facts and reasons pertaining to the party or his or her attorney which, if true, give fair support for a well-grounded belief that he or she will not obtain a fair trial. We determine whether the charges are grounded in facts that would create reasonable doubt concerning the court's impartiality, not in the mind of the court itself, or even necessarily in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.' [Citations omitted.]" (Emphasis added.) Sawyer, 297 Kan. at 908.

Relying on the emphasized language from Sawyer, our Supreme Court in Moyer found the claimant's failure to file an affidavit barred it from evaluating the judicial bias claim. The Moyer court held: "Obviously, without an affidavit in the record, we cannot 'decide the legal sufficiency of the affidavit.''' 306 Kan. at 372.

Like Shelby, the Moyer claimant also argued her failure to comply with the statutory procedure should not be fatal to the claim because our Supreme Court had previously considered such a claim despite failing to follow procedure in State v. Alderson, 260 Kan. 445, 454, 922 P.2d 435 (1996). Moyer, 306 Kan. at 372. The Moyer court distinguished Alderson, however, because the trial judge in Alderson informed the parties of his extrajudicial connection the day before the trial began. Due to the late disclosure, our Supreme Court chose to consider the claim in Alderson because it was "'somewhat reluctant to bar the defendant's claim simply because the defendant did not make an effort to comply with K.S.A. 20-311d.' 260 Kan. at 453." Moyer, 306 Kan. at 372.

Despite the claimant's reliance on Alderson, the Moyer court found it nevertheless could not review the judicial bias claim because "a piece that is critical to an effective appellate review of Moyer's statutory claim is missing from [the] record. Accordingly, Moyer's recusal claim under K.S.A. 20-311d is necessarily denied." 306 Kan. at 372.

Apart from alleging some grounds of bias in her motion to alter or amend, Shelby did not comply with the recusal procedure despite having a meaningful opportunity to do so. The evidentiary hearing-where the alleged bias occurred-was held on August 13-14, 2020, and the closing arguments were heard a couple weeks later on August 31, 2020. The district court made its oral findings from the bench the same day. The decree of divorce and parenting plan-detailing the district court's oral findings-was filed by the district court about six weeks later, on October 9, 2020. Shelby filed her motion to alter or amend alleging judicial bias on November 4, 2020. Thus, despite having three months to move for recusal and file an...