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09/29/92 CAROLYN A. CARTER v. JAMES L. CARTER

September 29, 1992

CAROLYN A. CARTER, APPELLANT
v.
JAMES L. CARTER, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Virginia Riley, 1st Trial Judge); (Hon. Nan R. Huhn, Second Trial Judge)

Before Schwelb and Wagner, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge:

At the Conclusion of a bitterly contested divorce trial which featured disputes over alimony, distribution of assets, and counsel fees, Judge Virginia Riley issued a judgment of divorce in which she resolved most of the questions raised by the parties. Unfortunately, Judge Riley died shortly thereafter. Mrs. Carolyn Carter (the wife) filed a timely appeal to this court from Judge Riley's decision.

The case was argued on October 18, 1990. On March 29, 1991, this court entered an unpublished order sustaining in substantial part Judge Riley's Disposition of the case. We remanded the record, however, for further proceedings regarding four specific issues.

On remand, the case was assigned to Judge Nan R. Huhn. Judge Huhn held a hearing on the remanded issues and subsequently entered three separate written orders in which she decided all of the matters which remained in controversy. These orders are now before us for review. *fn1 We remand for further findings on the issues of alimony and counsel fees. In all other respects, we affirm the trial court's decision, largely for the reasons stated by Judge Huhn.

I

Following this court's remand of the record, the wife filed an "Affidavit of Bias or Prejudice" against Judge Huhn. In her affidavit, the wife represented primarily that at the memorial service following Judge Riley's death, Judge Huhn delivered the eulogy. In her remarks, according to the affidavit, Judge Huhn referred to her admiration for Judge Riley. The wife claimed that Judge Huhn would be required by this court's remand to reconsider some of Judge Riley's rulings, and that

Appellant verily believes that Judge Huhn is inherently bias and prejudiced against the legal and equitable merits of the Appellant's causes on remand; because of Judge Huhn's deference to her admiration for Judge Riley's failing health -- especially during the last case over which her Honor presided (i.e., the Appellant's trial).

Judge Huhn declined to disqualify herself, holding that "the Defendant's Affidavit of Bias or Prejudice contains no legal or factual basis to support the contention that this Court recuse itself from this case."

Superior Court Civil Rule 63-I provides that wherever a party has filed a "sufficient" affidavit alleging that the assigned Judge "has a personal bias or prejudice against the party or in favor of any adverse party," that Judge shall proceed no further therein. The question presented is whether the wife's affidavit in this case was "sufficient" within the meaning of Rule 63-I. We are satisfied that it was not.

This court has applied a three-part test for determining the legal sufficiency of such an affidavit:

1. The facts must be material and stated with particularity;

2. The facts must be such that, if true they would convince a reasonable ...


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