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In re Marriage of Ramsey

Court of Appeals of Texas, Seventh District, Amarillo

July 30, 2019

IN THE MATTER OF THE MARRIAGE OF LEZLIE SUZANNE RAMSEY AND RAMSAY ALLEN RAMSEY

          On Appeal from the 361st District Court Brazos County, Texas [1] Trial Court No. 12-002915-CVD-361, Honorable Steven Lee Smith, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          JUDY C. PARKER JUSTICE

         Appellant Ramsay Allen Ramsey appeals from a judgment in a divorce action. We affirm the judgment of the trial court.

         Background

         Ramsay Allen Ramsey and Lezlie Suzanne Ramsey were married in 1993 and had two children. In 2012, Lezlie filed a petition for divorce. Ramsay counter-petitioned for divorce in April of 2013.

         Following a jury trial from January 9 through January 13, 2017, the trial court entered a final decree of divorce. Ramsay perfected this appeal. He raises no complaints about the granting of divorce or the division of property, but he seeks a reversal of the judgment and remand for a new trial.

         Analysis

         Denial of Motion to Recuse

         Ramsay raises four issues by this appeal. In his first issue, he asserts that the trial court abused its discretion in denying his motion to recuse Judge Steven Smith.

         Rule 18b of the Texas Rules of Civil Procedure provides that a judge must recuse in any proceeding in which the judge's impartiality might reasonably be questioned or where the judge has a personal bias or prejudice concerning the subject matter or a party. Tex.R.Civ.P. 18b(b)(1), (2). Recusal based on an allegation of bias "is appropriate only if the movant provides sufficient evidence to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the judge." Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.-San Antonio 2007, pet. ref'd). A denial of a motion to recuse is reviewed for abuse of discretion on appeal. Tex.R.Civ.P. 18a(j)(1)(A). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

         Ramsay filed a motion to recuse Judge Smith on May 23, 2014. Ramsay alleged that the judge's impartiality could reasonably be questioned and that the judge could reasonably be perceived to have a personal bias in favor of Lezlie and against Ramsay. Judge Olen Underwood conducted a hearing on Ramsay's motion. At the hearing, Ramsay presented testimony from four witnesses regarding a phone call that Judge Smith made to the intermediate school where one of the witnesses worked as a teacher. Their testimony indicated that Judge Smith called the school on May 21 and spoke with the school's receptionist and the principal's secretary about the teacher's need to attend a hearing on Lezlie's Second Motion for Enforcement of Temporary Orders with Contempt on May 23. The secretary testified that Judge Smith told her that the teacher had to appear in court on May 23 and that he would send a car from the court to the school to get her if necessary. The secretary relayed the message to the school's principal, who then discussed it with the teacher. The teacher testified that she then called both Lezlie's counsel and the court for clarification. She explained that she had been subpoenaed to attend a hearing on May 1, but that hearing was canceled so she did not go to court that day. She did not receive any subsequent subpoena or notice about a hearing on May 23 until Judge Smith's call. She testified that she felt embarrassed and harassed by the judge's call to her workplace. Lezlie's counsel stated that she had "asked the Court what to do procedurally when a witness doesn't show up," but that she did not ask Judge Smith to do anything himself. At the conclusion of the hearing, Judge Underwood denied the motion to recuse.

         In his appellate brief, Ramsay argues that Judge Smith's call to a witness's workplace amounted to "climbing down from the bench to assist [Lezlie]." He asserts that a reasonable member of the public, knowing the facts of Judge Smith's conduct, would question the judge's impartiality. Therefore, he contends, Judge Underwood abused his discretion in denying the motion to recuse.

         A judge may properly intervene in proceedings to maintain control and promote the expedition of matters. See Food Source, Inc. v. Zurich Ins. Co., 751 S.W.2d 596, 600 (Tex. App.-Dallas 1988, writ denied). However, a judge should not attempt to expedite matters by departing from accepted procedures and personally interceding on behalf of a party. See, e.g., In re Barr, 13 S.W.3d 525, 553 (Tex. Rev. Trib. 1998) (op. on reh'g) ("We clearly, absolutely, unequivocally, and unanimously condemn the use of self-help or other personal intervention on the part of a judge in an effort to enforce a judicial order when established judicial remedies are available."). Moreover, a judge should be fair and impartial and should not act as an advocate for or adversary against any party. Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.-Houston [1st Dist.] 1994, writ denied); CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex. App.-Texarkana 1992, writ denied) ("Judicial decisions rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based.").

         In this case, Judge Smith's intervention in Lezlie's effort to secure a witness's attendance at a hearing was inappropriate and we do not condone such action. However, we cannot say that this conduct reflects such a high degree of favoritism that it necessarily would cause a reasonable person to question the judge's impartiality. When judicial conduct serves as the basis for a recusal motion, the movant is required to show a "deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Ramsay does not identify how Judge Smith's actions demonstrate such deep-seated favoritism toward Lezlie, or antagonism toward him, that a fair trial was impossible. Judge Smith's conduct, while unquestionably imprudent, does not reflect the pervasive bias that requires recusal.[2] Accordingly, we conclude that Judge Underwood did not abuse his discretion by denying Ramsay's motion to recuse. Ramsay's first issue is overruled.

         Denial of ...


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