Kopko v. Kopko

215 N.Y.S.3d 581

229 A.D.3d 974

Kimberly A. KOPKO, Respondent,

v.Edward E. KOPKO, Appellant

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 29, 2024

Decided and Entered: July 18, 2024

Edward E. Kopko, Ithaca, appellant pro se.

Miller Mayer, LLP, Ithaca (R. James Miller of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Lynch, Ceresia and Mackey, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the Supreme Court (Mark G. Masler, J.), entered February 6, 2023 in Tompkins County, granting, among other things, plaintiff a divorce, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in 1992 and have one child (bom in 1996). In 2019, the wife commenced this divorce action. The husband, a practicing attorney, answered and in June 2022 – one month before trial – moved for ancillary relief, including temporary maintenance and interim expert witness and counsel fees. In that regard, he maintained that he was the less monied spouse and that his health issues prohibited him from generating sufficient income to effectively litigate this matter. Supreme Court deferred resolution of the husband’s motion pending trial given a dispute as to which party had the higher income, but allowed each party to withdraw $8,000 from a jointly-held bank account.

In July 2022, the husband moved to recuse the presiding trial judge arguing, among other things, that certain statements made during a recent virtual status conference evinced his inability to remain fair and impartial. The husband declined the opportunity to have a hearing on the recusal issue and, following oral argument, Supreme Court denied the motion. After a trial held in July 2022, the court issued a decision granting the parties a divorce and distributing the marital property. The court denied the husband’s request for maintenance, as well as his request for expert witness and counsel fees. An amended decision was subsequently issued detailing the parties’ rights in a. jointly-owned savings account. The decision and amended decision were incorporated into a judgment of divorce entered February 6, 2023. The husband appeals.¹

[1–4] We turn first to the husband’s contention that Supreme Court abused its discretion in denying his motion for recusal. Where, as here, disqualification is not required under Judiciary Law § 14, "a judge’s decision on a recusal motion is one of discretion, and when recusal is sought based upon impropriety, as distinguished from legal disqualification, the judge is the sole arbiter" (McAuliffe v. McAuliffe, 209 A.D.3d 1119, 1120, 175 N.Y.S.3d 791 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Patrick UU. v. Frances VV., 200 A.D.3d 1156, 1161, 160 N.Y.S.3d 367 [3d Dept. 2021]). "However, that discretion is not unlimited, and judges must still recuse in cases where their impartiality might be reasonably questioned" (Minckler v. D’Ella, Inc., 223 A.D.3d 980, 981, 202 N.Y.S.3d 808 [3d Dept. 2024] [internal quotation marks and citations omitted]). For the appearance of impropriety to be disqualifying, the alleged bias and prejudice "must stem from an extrajudicial source and result in an opinion on the merits" based on the outside source (People v. Glynn, 21 N.Y.3d 614, 618, 977 N.Y.S.2d 692, 999 N.E.2d 1137 [2013] [internal quotation marks and citations omitted]; see Concord Assoc., L.P, v. EPT Concord, LLC, 130 A.D.3d 1404, 1406, 15 N.Y.S.3d 270 [3d Dept. 2015], lv denied 26 N.Y.3d 912, 2015 WL 7374175 [2015]).

The husband’s bias claim was largely premised upon statements made during a June 22, 2022 status conference when the trial judge allegedly questioned the legitimacy of the husband’s health problems, emphasizing that he continued to appear as an attorney in other matters without issue. The judge also allegedly stated that the case was "presumed to be a 50/50 distribution of marital assets" subject to review of the husband’s health issues, which he warned would need to be established with medical documentation. In the husband’s view, these statements indicated that the judge had predetermined the case against him. To the contrary, the record demonstrates that Supreme Court had already accommodated several adjournment requests by the husband on account of his health issues while warning that additional adjournment requests would require a doctor’s note. Given that the wife challenged the extent of the husband’s health limitations, the court’s statements do not evidence bias. Nor were the statements indicative of a predetermined outcome – a conclusion confirmed by the fact that the court ultimately imputed the husband’s income at "50% of his historical earnings" due to the medical evidence presented at trial (see generally Matter of Gilio v. Adult Career & Continuing Educ. Servs. - Vocational Rehabilitation, 218 A.D.3d 871, 872–873, 192 N.Y.S.3d 716 [3d Dept. 2023]; Matter of Bowe v. Bowe, 124 A.D.3d 645, 646, 1 N.Y.S.3d 301 [2d Dept. 2015]). Moreover, the court reasonably deferred the husband’s motion for interim relief while granting him access to additional funds for litigation expenses. The judge did not, as the husband suggests, have a conflict of interest by virtue of the husband having filed a complaint against him with the Commission on Judicial Conduct (see Matter of Patrick UU. v. Frances VV., 200 A.D.3d at 1161, 160 N.Y.S.3d 367; Matter of Wilson v. Brown, 162 A.D.3d 1054, 1056, 80 N.Y.S.3d 343 [2d Dept. 2018]).² Stated succinctly, the record reflects that the trial judge engaged in a fair consideration of the issues before him and rendered a determination grounded in the evidence. In these circumstances, we find that the trial judge did not improvidently exercise his discretion in denying the recusal motion (see McAuliffe v. McAuliffe, 209 A.D.3d at 1121, 175 N.Y.S.3d 791; Matter of Patrick UU. v. Frances VV., 200 A.D.3d at 1161, 160 N.Y.S.3d 367; Matter of Adams v. Bracci, 100 A.D.3d 1214, 1215–1216, 955 N.Y.S.2d 659 [3d Dept. 2012]).

[5] As a separate – albeit related – claim of bias, the husband points to the fact that the trial judge filed an ethics complaint against him with the Attorney Grievance Committee (hereinafter AGC) shortly after the judgment was issued. By letter dated February 9, 2023, the trial judge advised AGC that he had "become aware of information" that, in his view, called into question the husband’s "honesty, trustworthiness, or fitness as a lawyer," and that he had "waited until the divorce action concluded – including the resolution of motions for contempt that were made following trial – before acting on this information." The judge was "concerned by the striking inconsistency in" the husband’s asserted health limitations juxtaposed against his continued practice of law. Concurrent with the filing of this complaint, the judge recused from presiding over any action in which the husband was involved, as required (see Advisory Comm on Jud Ethics Op 19–35 [2019]). The complaint was ultimately dismissed when the judge did not respond to an invitation from AGC to provide more information.

Highlighting the timing of the ethics complaint filed against him – i.e., just three days after the divorce judgment was issued, even though the information forming the basis of the complaint came to light prior to and during the trial – the husband argues that the court "concealed [its] concerns" and deprived him of due process. When a judge receives information during an ongoing proceeding "indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct," the judge is required to "take appropriate action" (22 NYCRR 100.3[D][2]; see Advisory Comm on Jud Ethics Ops 19–35 [2019]; 17–07 [2017]). In deciding whether and when to do so, a judge may wait to file an ethics complaint until after the proceeding has terminated (see Advisory Comm on Jud Ethics Ops 20–213 [2021]; 19–107 [2019]; 18–29 [2018]; 15–231 [2016]). As we will discuss in greater detail, the divorce judgment reflects a balanced decision on the merits and, on the record before us, we cannot conclude that the filing and timing of the complaint was indicative of bias or that the husband’s due process rights were violated.

[6, 7] "It is well settled that Supreme Court’s equitable distribution award will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d)" (Smith v. Smith, 152 A.D.3d 847, 848, 57 N.Y.S.3d 769 [3d Dept. 2017] [internal quotation marks, brackets and citations omitted]; see McGovern v. McGovern, 218 A.D.3d 1067, 1070, 193 N.Y.S.3d 729 [3d Dept. 2023]). Those factors include "the income and property of each party[,] … the duration of the marriage and the age and health of both parties," the contributions of one party to the other’s career and education, "the probable future financial circumstances of each party," the parties’ business interests, "the wasteful dissipation of assets by either spouse" and "any other factor which the court shall expressly find to be just and proper" (Domestic Relations Law § 236[B][5][d]). The statutory factors need not be "specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered" (Ramadan v. Ramadan, 195 A.D.3d 1174, 1175, 150 N.Y.S.3d 365 [3d Dept. 2021] [internal quotation marks and citation omitted]).

The husband argues that Supreme Court improperly applied the pertinent statutory factors in distributing the marital property and inadequately considered the impact of his health on his earning capacity. At the time of trial, the wife was 58 and the husband was 73. During the trial, the husband revealed that, due to serious health issues, he experiences "profound fatigue." While he continued to appear as counsel of record in other matters, he...