Mathiesen v. Michaud

229 A.3d 527

2020 ME 47

Todd E. MATHIESEN

v.Karie Ann (Mathiesen) MICHAUD

Docket: Aro-19-265

Supreme Judicial Court of Maine.

Argued: December 5, 2019

Decided: April 14, 2020

John W. Tebbetts, Esq. (orally), Tebbetts Law Office, LLC, Presque Isle, for appellant Todd Mathiesen

Alan F. Harding, Esq. (orally), Hardings Law Office, Presque Isle, for appellee Karie Ann Mathiesen

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HUMPHREY, JJ.^*

GORMAN, J.

[¶1] Todd E. Mathiesen appeals from a judgment of divorce between the parties entered by the District Court (Fort Kent, Soucy, J. ). Mathiesen argues that the court erred in denying his motion for recusal. We affirm the judgment.

I. BACKGROUND

[¶2] The following facts are undisputed. Mathiesen and Karie Ann (Mathiesen) Michaud were married on August 9, 2014, and have one child together.¹ On June 10, 2018, Mathiesen twice slapped Michaud across the face and was arrested on a charge of domestic violence assault.

[¶3] On June 18, 2018, Mathiesen filed a complaint for divorce. The court held a three-day final hearing in 2019. At that hearing, the parties' primary area of contention was the allocation of parental rights and responsibilities concerning their child.

[¶4] On April 12, 2019, after the close of evidence, but before the court reached a decision in the divorce matter, Mathiesen verbally confronted one of Michaud's relatives at the child's elementary school. Michaud's relative recorded the incident on her phone and provided the recording to law enforcement officials. On May 8, 2019, nearly one month later, Mathiesen was arrested and charged with tampering with a witness and violating conditions of release. See 17-A M.R.S. § 454 (1)(B) (2018) ; 15 M.R.S. § 1092(1)(2018).

[¶5] On May 10, 2019, the judge who had the divorce case under advisement emailed the parties' divorce attorneys that Mathiesen "appears in this morning's in-custody list, facing charges of Tampering with a Witness and VCR." Later that day, the judge presided over Mathiesen's arraignment; Mathiesen was represented by the attorney who represented him in the divorce proceedings. Ten days later, Mathiesen moved to reopen the evidence—not regarding his arrest, but regarding other matters.

[¶6] On May 29, 2019, the court held a conference to discuss with the parties Mathiesen's new criminal charges and his pending motion. At that conference, the judge stated,

[T]here's an issue about information that the Court has in connection with new pending charges against Mr. Mathiesen. I was doing [in-]custodies a couple of weeks ago on a Friday and Mr. Mathiesen appeared in front of me from the Aroostook County Jail, having been charged with a Class B tampering with a witness and some other charges. And in the course of preparing for that initial appearance, I reviewed affidavits in the police report that outlined some of the behavior that formed the basis for the State's charges.

And I thought it important that having taken in that information, that the pertinent portion of it be made part of the record in the divorce proceeding, because I was, at that time, ready to decide or had decided the divorce case and this is material new information.

The judge explained that he understood that Mathiesen's behavior had been recorded and that, although he had not seen the recording, he had read affidavits containing transcriptions of the recording. The judge acknowledged that the affidavits described troubling behavior by Mathiesen:

Now, after that I became aware of a charge brought against Mr. Mathiesen—what we've been talking about here—that includes a recorded video that I have not seen but portions of which were quoted verbatim reportedly in a probable cause affidavit and a police report. And I have to say if true, that changes my thinking in the case. And it will result in a different decision than the one I was prepared to issue before I heard that. I can't unthink that. I can't unring that.

Now, judges do that all the time with respect to some kind of evidence, but I don't think I can do it in this case. And so I have to find a way, in fairness to Mr. Mathiesen, to put this on the record.

Later during the colloquy, counsel for Mathiesen volunteered, as an alternative option, that the judge recuse himself. The judge responded,

I would but frankly, we have months of litigation in this, and the better way is for me to acknowledge on the record, as I have, the evidence that came to me inadvertently. I didn't seek it out. It came to me in the course of doing my work ....

The best way is to put that information on the record in some meaningful way with an opportunity for Mr. Mathiesen, through our due process, to respond to it in a fair way. Otherwise we're abandoning a huge allocation of resource here, and I don't think that's appropriate.

At the conclusion of that conference, the court granted Mathiesen's motion to reopen the evidence.

[¶7] Michaud filed her own motion to reopen the evidence on June 3, 2019, and both motions were then set for hearing on June 13, 2019. On the date of the hearing, Mathiesen filed a motion for recusal.² At that hearing, the court orally denied the motion for recusal:

Now, the fact that the Court is privy to the allegations made, is just an [un]avoidable fact of the practice that we have here in the District Court. So our duty in a situation like that, I don't think is to recuse, having stumbled across evidence that has bearing on the case. I think our duty is to be candid with the parties regarding whether or not it is material in some nature. And if it is, to give the parties an opportunity to address it, fairly, openly in court, which is what we're here to do today.

[¶8] On June 17, 2019, the court issued a divorce judgment that, among other things, awarded primary physical residence of the parties' child to Michaud. Mathiesen timely appealed. See M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶9] On appeal, Mathiesen argues only that the court abused its discretion in denying his motion for recusal. We review decisions on motions to recuse for an abuse of discretion. In re J.R. , 2013 ME 58, ¶ 16, 69 A.3d 406.

[¶10] Pursuant to the Maine Code of Judicial Conduct, a judge must recuse in a matter if the judge's "impartiality might reasonably be questioned," including if "[t]he judge has a personal bias or prejudice concerning a party or a party's lawyer, or the judge has personal knowledge of facts that are in dispute in the proceeding when the personal knowledge that would form the basis for disqualification has been gained outside the regular course of present or prior judicial proceedings." M. Code Jud. Conduct R. 2.11(A)(1)(2017); see Robertson v. Gerakaris , 2015 ME 83, ¶ 10, 119 A.3d 739. In this case, the judge received information concerning Mathiesen's new criminal charges through the regular course of in-custody initial appearances. As we have explained, "information gained or opinions formed by a trial judge based on events or facts presented in the same or other judicial proceedings do not constitute a basis for recusal except in the extraordinary circumstances that demonstrate a deep-seated favoritism or antagonism that would make fair judgment impossible ." State v. Boyce , 1998 ME 219, ¶ 8, 718 A.2d 1097 (quotation marks omitted); State v. Bard , 2018 ME 38, ¶ 43, 181 A.3d 187.

[¶11] Perhaps recognizing that the judge's receipt of new information from this subsequent judicial proceeding did not require his recusal in the divorce proceeding, cf. State v. Rameau , 685 A.2d 761, 763 (Me. 1996) ("Generally,...