Appeals from the Superior Court of the District of Columbia (CA-830-99) (Hon. Robert E. Morin, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before RUIZ and REID, Associate Judges, and NEBEKER, Senior Judge.
Appellant Oscar S. Mayers appeals from two orders of the trial court entered in a domestic relations case filed by appellee, Sheila T. Mayers, in the Superior Court of the District of Columbia seeking a decree of divorce and other relief.*fn1 The first trial court order, dated May 11, 2001, granted Ms. Mayers an absolute divorce, and resolved custody, child support, and other issues relating to the divorce. The second order, dated November 19, 2003, mainly denied Mr. Mayers' motion to terminate child support and found him in civil contempt for "willful failure to pay $12,250 in child support." Mr. Mayers makes two main arguments on appeal: (1) the trial court erred in failing to conclude that the delay in receiving the February 1, 2001 transcript of a hearing adversely affected his substantial rights; and (2) the trial judge, the Honorable Robert E. Morin, erred in refusing to recuse himself from the case due to alleged bias, and therefore all orders entered by him are void. Discerning no error, we affirm the trial court's judgment granting an absolute divorce and its order denying the motion to terminate child support.
The record shows that after reconciling following their 1991 divorce, Mr. and Ms. Mayers, both attorneys, married for the second time on July 17, 1994. On March 12, 1999, Ms. Mayers filed for divorce from Mr. Mayers. She was given pendente lite custody of Elizabeth and Gabriel Mayers, and Mr. Mayers was given pendente lite custody of Carolene Mayers and Robert Mayers.*fn2 Mr. Mayers was ordered to pay child support bi-weekly to Ms. Mayers for the children in her care.
After the temporary child custody decisions were made, the parties filed various motions in the years 1999 and 2000. One of those motions, filed by Ms. Mayers, was an October 2000, emergency supplemental motion to modify child support as well as the custody designation for Carolene Mayers, and for an award of alimony pendente lite. The motion indicated that Ms. Mayers' income had decreased. Mr. Mayers lodged an opposition to the motion. At a February 1, 2001 hearing on the motion, Mr. Mayers indicated that he was paying $500 bi-weekly in child support. Judge Morin increased Mr. Mayers' child support payments to $1,000 bi-weekly, retroactive to October 23, 2000, pending trial and decision on Ms. Mayers' action for divorce and related relief.
Prior to the scheduled trial on Ms. Mayers' action, Mr. Mayers filed a motion on March 8, 2001, to disqualify Judge Morin from the case, based on the judge's statements during the February 1, 2001 hearing; Mr. Mayers believed that the judge's statements revealed prejudice. In his motion, Mr. Mayers requested that Judge Morin's previous orders be vacated due to his consideration of personal knowledge outside the record, specifically that Ms. Mayers was not selected for the list of attorneys eligible to handle Criminal Justice Act ("CJA") cases. Mr. Mayers alleged that during the February 1, 2001 hearing, the trial court had taken "judicial notice that [Ms. Mayers] did nothing voluntarily to cause the los[s] of her CJA eligibility, and thus rejected [Mr. Mayers'] argument that the los[s] of CJA status was a result of [Ms. Mayers'] affiliation with her client and CJA investigator, Stanley Harris,*fn3 to whom she deliberately authorized CJA payments at the same time she received CJA payments to represent him as a client." Mr. Mayers also alleged that the trial judge violated Canon 3(C)(1)(a) of the American Bar Association's ("ABA") Code of Judicial Conduct.*fn4 On March 14, 2001, Ms. Mayers filed an opposition to Mr. Mayers' motion for recusal and to vacate child support order. Judge Morin refused to recuse himself, and trial commenced on March 19, 2001.
On May 11, 2001, the trial court docketed "findings of facts and conclusions of law and final judgment" awarding (1) Ms. Mayers an absolute divorce from Mr. Mayers; (2) both parties joint legal custody of both Elizabeth and Gabriel with primary physical custody awarded to Ms. Mayers; (3) child support from Mr. Mayers in the amount of $1,195 biweekly ($500 of which was ordered to be given directly to Elizabeth Mayers or the college she is attending); (4) to Mr. and Ms. Mayers each, a 50% interest in a piece of property located in Herndon, Virginia, which was ordered to be sold; and (5) to Mr. and Ms. Mayers each, a 50% interest in a timeshare property in Williamsburg, Virginia. In addition, the trial court disposed of issues related to Mr. Mayers' pension and thrift savings plan. Ms. Mayers' request for alimony was denied, but she was awarded $17,750.00 in attorney's fees.
Mr. Mayers filed notice of appeal on June 6, 2001. Subsequently, on April 16, 2002, he moved "for leave to prepare a statement of proceedings [for February 1, 2001,] in lieu of a reporter's transcript. On May 17, 2002, this court entered an order granting his motion. On June 4, 2002, Mr. Mayers submitted a proposed statement of the February 1, 2001 proceedings to the trial court. However, the statement was disapproved by Judge Morin on June 13, 2002. In response, Mr. Mayers filed a motion to reconsider the court's notice of disapproval. As a basis for his motion, he argued that he had ordered the transcript, and that the court reporter's office indicated that it could not produce it. In an order dated September 23, 2002, the trial judge stated that appellant was "correct in his statement that the court was not aware that the Court of Appeals had directed him to prepare a statement of proceedings because of the unavailability of a transcript due to technical difficulties," and that he had received correspondence from Elizabeth Mayers advising that Mr. Mayers had not made the required child support payments ordered in her behalf. The trial court set a hearing date on these matters.
On November 14, 2002, Mr. Mayers submitted a memorandum of law, citing Cross v. District of Columbia, 292 A.2d 794 (D.C. 1972), and Cole v. United States, 478 A.2d 277 (D.C. 1984), contending that the trial judge should set aside the judgment and order a new trial because there was no transcript for the February 1, 2001 hearing. Thereafter, he filed a motion to dismiss or vacate on December 9, 2002. The trial judge, in his January 27, 2003 order, stated in response to appellant's motion, "[t]he court has ordered the production of the earlier proceedings for its review to determine whether any portion of the earlier proceedings can be discerned." On May 19, 2003, Mr. Mayers filed a motion to vacate the trial judge's "findings of facts and conclusions [of] law entered May 11, 2001, an order vacating its order of February 1, 2001, and order for a new trial pursuant to the holdings of [Cross and Cole]."
On October 16, 2003, the trial judge issued an order to show cause relating to Mr. Mayers' failure to pay child support. A hearing was held on November 17, 2003. On November 19, 2003, the trial judge issued an order finding that Mr. Mayers was "in [civil] contempt of [the] court's order due to his willful failure to pay $12,250 in child support to his daughter Elizabeth . . . ." With respect to Mr. Mayers' "assertion that the trial judge made comments during a pendente lite hearing that formed a basis for a subsequent motion for recusal," Judge Morin stated that "although the Office of Court Reporters initially informed the parties and the court that equipment malfunction prevented transcription of the proceedings [of February 1, 2001], it later discovered that the hearing was recorded." In the November 19, 2003 order, the court found "that Mr. Mayers' testimony in regards to the alleged statements made by the court was false. The transcript of the February 1st hearing comports with the court's memory of the hearing." The court concluded that "Mr. Mayers' testimony to the contrary constitutes an intentional misrepresentation by him in order to inject fabricated issues into the proceedings and is part of his pattern of making false statements and giving false testimony." The court found Mr. Mayers in contempt, ordered the United States Marshal to take him into custody, and committed him to the D.C. Jail "for a period of 90 days or until such earlier time as he shall purge himself of his contempt by paying . . . the sum of $12,250, or until further order of the court." The trial court stayed its order pending a hearing scheduled for January 6, 2004. Mr. Mayers filed an appeal on December 3, 2003.
The February 1, 2001 Transcript Issue
Mr. Mayers argues that the February 1, 2001 transcript is unreliable for appellate review due to numerous "inaudibles," and partial transcription. He also maintains that he was prejudiced by the two-year delay in the production of the transcript, and that the trial court should have vacated its 2001 and 2003 orders, and granted him a new trial. Ms. Mayers contends that the trial court did not abuse its discretion ...