Moore v. Moore

they important purpose. serve an Kane v.

Kane, (Wyo.1978), P.2d 172 aff'd (Wyo.1980), P.2d P.2d 676 Annotation,

(Wyo.1985); Proprie Divorce: Leaving ty Property Distribution Both Ownership In

Parties with Substantial Business, 56 A.L.R.4th 862

terest in Same

The order of the district court is re-

versed, case is remanded directions that it vacate contempt wife, against the citation of See also P.2d 255. require accounting by property subject the de- division possibili- cree of divorce. Because of a real

ty par- case that the failure of the comply

ties to with the decree terms of the

relating property may division of eq-

have resulted frustration of par-

uitable division of the

ties, court, in the trial the exercise of its powers,

equitable is free to conduct such proceedings

additional as it neces- deems

sary to effectuate the divorce in a decree equitable

reasonable manner. MOORE,

Susan Marie

Appellant (Defendant),

Jerry Wayne MOORE, (Plaintiff).

Appellee

No. 89-261.

Supreme Wyoming. Court of

April CARDINE, C.J.,* and

Before URBIGKIT, THOMAS, and MACY GOLDEN, JJ.

THOMAS, Justice. question to this

The main be addressed adjudication of child is whether in a divorce must be re- custody action of an conference versed because between the and appointed represent the minor parties. questions child of the are Other posed relating to of abuse of discre- claims adjudicating by tion the trial court in custo- dy dividing property. marital recognizing impropriety While discussion between the ad judge, the trial conclude that we prejudicial no error is manifested if appellant, instance and offended occurrence, ignored opportunity to address the on the record adjudication trial court. The property and the division the marital recognized both occurred within the realm court, of discretion afforded to the trial in the trial Decree of Divorce entered court is affirmed. Moore, appellant,

Susan Marie states appeal in this as: issues “I. its Did the trial court abuse discre- allowing ex-parte tion with the litem ? Did the court its discretion “II. abuse concerning the determi- the evidence for custody minor child? nation of Relationship The Wife’s with Jet- “A. Harvey Have ty Lee Should Not a Custody Effect on Determination Clearly “B. The Evidence Established Primarily Moore Had Cared Sue for the Child “HI. Did the court divide marital equitably?” Moore, Jerry appellee, encom- Wayne Shoumaker, Sheridan, ap- Michael K. for passes a more elaborate statement pellant. Appellee, Brief of which is: issues in his Wilson, Wayne Daly, Tay- R. & Anderson or not the “I. the issue of whether Is lor, Gillette, appellee. for trial court communication between the Patchen, Morgan, Arp, litem was Michael Price & appel- Gillette, appeal since proper preserved Litem. Guardian Ad argument. at * ChiefJustice time of oral child who was born on December 1980. object to this communication

lant did Moore, Jerry Wayne appellee, institut- the time of trial? at May ed this divorce action on communication between “II. Was the After an Answer and Counterclaim the guardian ad judge and the the trial court wife, proceedings or not the occurred in the regarding whether various a recommendation guardian including application by appel- would make the custody improper ex on child appointment guardian lee for the of a ad counsel for communication because appellant agreed ap- litem. The present? parties were not litem, pointment guardian but opposed appointment If communication between of the individual “III. Nevertheless, judge court and appellee. trial selected preju- improper, was this error appointed litem was trial court that individual. After appellant? dicial to the trial, entered a Decree of Divorce the court improperly or- Did the trial court on October “IV. ad li- payment der the bench, In the course of remarks from the tem fees? judge the trial stated: judge court exceed the “V. Did the trial * * * “THE COURT: That leaves us reason under the circum-

bounds of question custody. And then with the case so as to constitute a stances of question. extremely it is an difficult clear abuse of discretion? sure, weighed, many “I have as I am ap- “A. Was the consideration things that Mr. Patchen has. the same Jetty pellant’s relationship with Lee making Harvey improper in a child parties, spoke I “Just so it’s clear for the custody determination? him for a few minutes we before “B. What did the evidence establish preparing you came in while were back parent primarily regarding which your closings. me at that time He told the child? cared for going not to make a recom- that he was Is evidence that the marital “VI. there I him at that time mendation. assured equitably?” was not divided if upset not at him he did that would be not, responsi- believing that the ultimate by a Brief of Guardian We were favored court, even as bility always lies with the issues are stated to Ad Litem which the might sometimes be. distasteful as that be: appellant object “1. Did failure of matter has measured “The court payment ex things, and at a number of or has looked preserve ’s fees these ad litem apprise of them.” I want to appeal? for issues to relate the The court then went on preserve If appellant “2. did incorporated that had various factors been appeal, issue for was the custody. respect to No decision with its injured there prejudiced and and would the confer- any complaint about one made possibility a reasonable the verdict be guardian ad litem ence between her if would have been more favorable to judge that was disclosed the trial error had not occurred? such judge’s remarks. Conse- course of the court, as finder of “3. Does the that event is only record of quently, the fact, custo- have the discretion award the trial in the remarks of found evidence, dy parent, part to one if quoted above. psychological report, suggests a placed parent? with the other should be arising begin with the We pay the fees and costs “4. Who should We parte communication. out of the ex be- incurred can occurrence that such an are satisfied appeal?” cause of this In the Code of ethically justified. not be Conduct, of this adopted by order married Judicial appellee were is: pertinent statement February a female on 1979 and have Podell, judge.” The Role the Guardi- every per- accord to “(4) A 1989). Litem, (April pro- in a 25 Trial legally interested an Ad son who pears: Attorneys at In the Rules of Professional permitted Rules of Professional Conduct neys at Law. before cial heard tions issue before concerning any proceeding.” consider cial Conduct. authorized “(2) “(1) ceeding, “A “(b) the lawyer ^[*] opposing counsel has such communicate ex acting concerning pending or according to him, unless: following pertinent or ^[*] communication is otherwise Law, shall in an his him, Canon law; law, substantive lawyer, full ^[*] adopted by this a not: or which is adjudicative law, and, except as neither 3A.(4),Code of Judi- * * other communica- # consented, or language ap- with Conduct right to initiate nor likely ^[*] procedural impending for Attor- Rule capacity court in an offi- to be ^[*] 3.5, or justice, we look to to evaluate ed to substance al The rule we reversal of a cumstances. court considered the child; appellee. currence of the ex was a decree ty. the issue. stances demands a manifest reversal of a priety cation does did not party history; relationship We surrounding participate who was are convinced that to Identification of the ethical It primary injustice must the not judgment under these circum judgment in determined that both espouse is of divorce entered in favor of In this gender presence serve, however, judgment more than abuse in, care the parte stability the ethical appellant; issue; responsible instance, totality provider that, problems appear. of a manifest such in this instance communication. simply to lead to a justify the illicit sexu of the cir improprie to resolve and allud the minor communi the trial instance, in terms for, In order by the parties the oc impro in custody of the proper parties are to have satisfied that those rules We are proper par guardi child and that both are fit and applicable in this instance. A were Nothing in the record indicates that attorney is the for the minor ents. an ad litem upon any private in appointed Veazey to serve. v. the trial relied whom he is 1977). (Alaska guardian P.2d 382 He from the Veazey, 560 formation obtained and, participates proceedings apparently, in the as an advo there evidence litem Veazey. Riley v. Erie Lacka the court argument presented cate. or with 619, 463 Company, R. 119 Misc.2d were respect wanna to the several factors that custody. N.Y.S.2d 986 De Los Santos Su adjudicating in We considered County, perior Angeles Los injustice arising Court out of discern no manifest P.2d 233 Cal.Rptr. Cal.3d the ex contact. rule consistent Wyoming, In legislature Furthermore, in policy with articulated a claim of error re requiring, permit specific susceptible two statutes parte contact is lating to ex ting, appointment of a ad waiver, most claims of error. as is true of since, statute, each certainly made known to The trial representing the child. Sec charged with contact. parties fact of the ex 14-3-211(a), 14-2-312 and W.S.1977 tions object at that time. appellant did not The In (July Repl.). accordance with explore appellant The did not seek foregoing authority, perceive Instead, it to we contact. tenor of unequivocal that the has said as accepted what the court responsibilities pro the same ethical It was of the event. being a full disclosure ceeding any attorney. specif of an adverse only after the articulation succinctly subject ic matter of this case is concerned ruling became way: summarized in this That parte contact. the matter of ex about “ * ** raised and ex have been may not matter should Guardians ad litem plored trial. at the have ex communications with parties. balance, to the of whether respect We turn then With to the there was an abuse of discretion award- equitable court endeavored to effect an di appellee, ing custody vision, to the the father. and we find no fault with that. The rule is that this court does: Our aspect relating of the divorce decree “ * * * interfere division is affirmed. decision [N]ot child-custody ques- of the district court In the Brief of Guardian Li Ad procedural error, tions unless there is a tem, respect the matter of fees with to this or unless there is shown to be a clear appeal is raised. We have no difficulty in discretion, and, further, abuse of that a sustaining the order of the trial court that court does not its discretion unless abuse provided payment for the of the fees of the it acts a manner which exceeds the Apollo ad litem out of the bounds of reason under the circum- Moore Mineral moneys. guardi Trust stances as is said to mean an error of law complains an ad litem moneys that those committed the circum- court under actually were divided and that did Ayling Ayling, supra stances. [661 pay her justification share. We find no (Wyo.1983)]; P.2d 1054 Bereman v. appellate pursue for the par court to Bereman, Wyo., 645 P.2d 1155 problem, ticular and we content ourselves State, Wyo., Martinez v. 611 P.2d 831 simple ruling with a charges that the (1980).” Fanning Fanning, P.2d pursuit appeal by guardian of the the (Wyo.1986). managed exactly litem be in the Uhls, (Wyo.1990); 794 P.2d 894 Uhls way same in fees the trial court Goss, (Wyo.1989); Goss v. 780 P.2d 306 were. Deen, (Wyo.1989). Deen v. P.2d 621 In summary, we conclude that no reversi- analysis by Our of the rationale articulated improper ble error is to be found in the judge in making the district his custodial guardian contact between the ad li- determination satisfies us that there is no judge. tem and the trial There was no showing and, of a clear abuse of discretion in custody abuse of discretion the award of problem the previously than ethical property or in the division. The Decree of discussed, procedural there was no error. Divorce is affirmed. affirm We the Decree of Divorce insofar as custody it appellee. awards URBIGKIT, C.J., dissenting filed a complaint about division of opinion. property emphasized marital was not by MACY, J., dissenting opinion.

the in filed a her brief. We know that govern no hard and fast rules property URBIGKIT, Justice, dissenting. Chief Dennis, division. Dennis v. 675 P.2d 265 by I am more than offended Klatt, (Wyo.1984); Klatt v. 654 P.2d 733 discussions the trial court the between and Paul, (Wyo.1982); Paul v. 616 P.2d 707 the ad litem. first consider (Wyo.1980). aspect This of the dissolution majority’s evaluation of the circumstances marriage of a is also vested in the discre exposure of the of the ex discussions and, just tion of the trial court to be and majority in is confined its review. equitable, equal. the division need not be misguided doing nothing except discuss- Blanchard, Blanchard v. 770 P.2d 227 ing ethics. (Wyo.1989); Dennis. Our examination of property the record and the division that or non-enforced ethical miscon- Enforced by attorney made the was court satisfies us that duct of both and does not protect litigant there was no abuse of discretion the in whose interest ethical making property adopted court in are to en- division. Ini standards were and bar, tially, part we note that a of the forced the state trial courts and substantial agreed upon by division was this tribunal.1 accept proper Wyoming pamphlet 1. I will not studies which in- for a stan- Institute of court dard a statement made in a 1990 State Justice decision, prin- significant portion of which on the legal system is based Our fair, litigants’ com- independent, custody young and ciple that an interpret apply daughter. will and judiciary petent us. The role of the govern laws that case, dispute developed In this a about concepts American central to judiciary is problem improvi- appellee’s alcohol of law. Intrinsic justice and rule having sexual rela- dence of pre- of this Code are to all sections a man after normal relations tions with individually collec- cepts judges, parties had the marital ended. between judi- respect and honor tively, must present Adding difficulty to decision strive public trust and cial office as reference record that in our maintain confidence enhance and had ex discussions with judge is an arbiter of system. The legal scope ad litem. The of those discussions resolution of dis- and law for the facts was undisclosed and undeterminable symbol highly visible putes and a except record rule of law. government under the a re- who not testified filed Conduct, Pream- Wyoming Code of Judicial port, whenever the discussions 1990). (December ble occurred, may have did tell the trial court Moore, ap- Appellant, Marie Susan not to make a about his decision Moore, Jerry Wayne were married pellee, recommendation. * Douglas, Wyoming and were presents unpleasant This Tiffany Sue daughter, with a favored inquiry relationship of a difficult Moore, 1980. Care and born December litigative process ad litem to the pre daughter became the custody of the counsel, whether witness or confidant Ultimately, dominating in case. issue Accordingly, the nature of the court. custody granted appellee to in her was responsibility is in put issue and the effect complexities decree. Trial 1989 divorce communications, parte ex which are un- of appointment of a engendered were disclosed, presented. designation guardian ad litem whose was specifically in The issue is more defined especially so on opposed appellant, and appellee’s appellant that brief on the basis learning guardian ad litem appeal after subject of the cannot establish what the parte had discussed the case ex with and, lacking that communication was shortly after the trial court Appel- knowledge, prove prejudice. cannot argument during had heard final court lee ad litem further con- al its of the decision which announcement objection tend that immediate should have appellee.2 completely favored most when, rendering in its final been taken recognized It must be that trial court decision, the trial court announced parte given the ex contact notice about parte occurred. contact had orally stating of the final came its course decision, The it announced the most trial court stated: but before version, published Wyoming as which referred to custom several courts directed to eluded practice parte with of contact common one of those studied: where, incidentally, judges Wyoming re heavily relies on the bar to re- The case, Wyoming view facts death most issues in criminal and civil cases solve penalty Osborn v. Shil was reversed for retrial. appearing Attorneys in court. are wel- before (10th Cir.1988). linger, F.2d parte to have ex conversations in cham- come * appellate date The briefs reflected an erroneous agreements proposal to if or settle- bers see (cid:127) acceptable judge. are These con- ments to Genden, accepted practice. appear Legal Separate Representation versations to be As 2. See for Rights attorney explained, Protecting “We trust each other. and Interests one Children: go judge, Proceedings, Harv. One time I see the the next time the C.R.-C. Minors in Judicial Hansen, guy Li We to." Guardians Ad does. have L.L.Rev. 565 Justice, Custody Geiger, Cases: Protection

K. Fahnestock & M. Time to tem in Divorce and (1964) Interests, (March 1990). the Child's 4 J.Fam.L. Note, Right to Counsel in clearly unacceptable A Child’s Due Process is a comment about Also Proceedings, Hastings Custody LJ. in a Divorce the same court that found footnote opinion being out in the circulated before edited That leaves us then with the guardian’s concerned the recom- mendation about custody. extremely And it to concluding difficult that relating the issues to Mr. Harvey question. appellant and where would live were also sure, weighed, I am many I have * * * during discussed parte the ex com- [guardian things that the same litem] munication. has. parties, for the Just so it’s clear I objection B. No by appellant made spoke guardian ad for a litem] [the parties court informed the that it few minutes before we came back in communication with the you preparing your closings. while were prior litem rendering its He told me at that time that he was not concerning decision custody of minor going to make a recommendation. as- * * * child. party objected Neither sured him at that time that I would not and, the ex communication as a not, upset believing at him if he did result, party preserved neither this issue that responsibility always the ultimate appeal. This court will not consider court, lies with the even as distasteful as questions appeal on prop- that were not might sometimes be. erly raised in the trial court. ABC Builders, posture Phillips, ad litem in Inc. v. 632 P.2d 925 (Wyo.1981). appellate brief is informative:

Had the timely objected im- A. Lack of record about communication mediately after the court informed the conversation, of the ex Appellant argument makes the appellant could have done things several agreed guardi- since the court with the challenge including communication an ad concerning several issues putting testimony on as to the extent of including where would be liv- the conversation and appel- whether the ing once the divorce was and her final prejudiced by lant was com- relationship Jetty with Mr. Harvey that However, appellant munication. failed these issues must have been discussed object to the ex during this ex communication. preserve and therefore has failed to The record does not when or how reflect appeal. issue on guardian expressed the his object goes Failure to also to the mat- appellant concern where the would be involving guardian ter the ad litem’s fees living relationship or her with Mr. Har- paid which were to be from the monies closing vey. arguments The were never Apollo the and Moore Mineral Trust. just recorded * * * logical, and it is if not guardian The ad litem’s fees were so, more to assume these issues were paid to be out of the trust fund and then during closing arguments discussed the what was left in the trust fund would be guardian ad litem rather than with equally parties. Ap- divided the between parte the in the ex communication. pellant object guardi- did not to how the suggest

The record does these issues paid. an ad litem’s fees were to be The during were not discussed appellant object did not to the amount of communication because the court did not appellant object the fees. The did not tell the that issues other than the that the amount had not been shown to [guardian GAL’s ad appellant object recommen- be reasonable nor did litem’s] dation were discussed. that no amount had been submitted at Again, that time. failure to raise this Because the record does not reflect issue at the trial court level is failure to that the two by appel- issues raised appeal. preserve this issue for lant were discussed in the ex com- added.) (Emphasis munication, cannot, ap- this court as the done, pellant’s attorney has make a difficulty presented is further ad- The Quantum leap from the court’s statement dressed later comment brief guardian guardian that his conversation with the ad litem: on I would determine the basis ex If the court’s participants to the ex dis- ad is [guardian error GAL litem] provide, by did not whatever meth- cussion The can error. it is harmless available, a record what was con- od issue, than any show that not ex parte in the conference or con- sidered would be recommendation whether a and, consequence, presump- as a ferences during the made, conver was discussed respon- The tive error exists. vice of not show that Appellant does sation. argument is that trial court’s deci- sive whether recom this discussion about made before information was sion been custody would be regarding mendation litigant furnished unadvised injurious to her prejudicial is or made re- parte session had occurred. The ex Court’s no of the District thus reversal quirement to sustain events that occurred State, Spilman v. ruling is warranted. upon record by inclusion rested Even if the (Wyo.1981). P.2d 183 participants, upon not attor- uninvited where the would issues about ney guardian not when the ad did Harvey Mr. relationship with and her live testify so it provide information parte, this discussion were discussed for review in the record. would available brought out dur only restated evidence guardian participating The ad litem is a any so error was ing proper trial Superior advocate. De Los v. Santos County Dept. v. harmless. Laramie CP County, 27 Cal.3d Angeles Court Los Public Assistance and Social Servic of es, 172, 677, Cal.Rptr. (1980); 613 P.2d 233 (Wyo.1982).[3] 648 P.2d 512 Co., 119 Riley v. Erie R. Lackawanna (1983). difficulty that the writer of Misc.2d 463 N.Y.S.2d 986 The real Hammill, Marriage participant likewise In re quoted was a in the brief (1987); 732 P.2d 403 refuge Mont. Wendland now discussions undisclosed Wendland, Wis.2d 138 N.W.2d by him in the lack disclosure taken Edwards, and Edwards v. say that error cannot be demonstrated. Wis. 71 N.W.2d litem serves as the child’s The attorney, expert as an witness. He is ad litem is no more entitled advocacy contributing respon- counsel with testify guise argument of final sibility. Veazey Veazey, 560 P.2d 382 provide testimony acceptably he than can (Alaska 1977). First notice of the during proceeding. contact litem’s discussions with the subject ad litem was provided were in the trial court’s oral state- Po- thoughtfully examined Richard J. Except by dell, ment of its final decision. inter- Chairman of the American Bar Associ- ruption during trial court its an- Family Law Section and editor of ation Law, decision, opportunity Family in a re- nouncement of the no Wisconsin Journal of the admonition: during process was cent article which included entire trial avail- disadvantaged litigant. Specifi- trial, able to guardians ad litem have a Before evidence, cally, responsibility to define what duty investigate, marshal witnesses, equally very directly and subpoena occurred rested file motions when necessary, prepare and the to tes- with both the trial court witnesses tify at completely sympathetic trial. litem. I am only with counsel for must be of Guardians ad litem aware remaining by problems, effective was test as rel- evidentiary resource certain such trial, impropriety evancy hearsay. then an- the rules appeal this obvious At vary. but state apply, as the determined deci- of evidence laws predating nounced guardians usually afforded The are sion. 3(A)(4) rep- the Code of Judicial Conduct. of 3. This is not unlike communications with Annotation, Party party applicable disciplinary With resented within the also Communication compare lawyers. Rules 3.5 Disciplin- rules for See and Represented by as Counsel Ground for Wyoming (1983). and 4.2 of the Rules for Professional ing Attorney, 26 102 A.L.R.4A Attorneys at with Canon Conduct for Law

269 rights parties’ attorneys same as the Department La Prade v. Water and of (e.g., making opening City Angeles, of statements and Power Los 47, 27 Cal.2d of of 13, (1945). 162 P.2d closing arguments). 16 Guardians cannot be called as witnesses. Guardians ad The in right confrontation to cross-exam- may not have ex communi- respond ine and deeply steeped both in judge. cations procedure normalized trial requirements and in basic constitutional process. due In Podell, The Role Guardian Ad Li of Seaton, 535, Vitarelli v. 359 U.S. 79 S.Ct. tem, 31, 1989) (April (emphasis 25 Trial 34 968, (1959), 3 L.Ed.2d 1012 Justice Harlan added). enunciated a long standard established in scope responsibility guard- The for the English-American law that ex infor- ian ad litem and avenues of evidentiary production mational adjudi- determinate presentation firmly prece- are centered in subject cation was process to a due stan- Joens, dent. In re Marriage 284 provided by dard agency’s own rules. 326, (Iowa 1979) N.W.2d states: consequent employment termination attorney appointed guardi- be a illegal [to decision was and had no effect. then, litem], an ad attorney like the for Seaton followed the hysteria-in- earlier client, any is to see that the interests of duced case Dulles, of Service v. 354 U.S. 363, those he represents get 1152, a full and fair (1957), S.Ct. 1 L.Ed.2d 1403 airing by at the presentation also authored Justice Harlan. Vitarelli competent McDonnell, relevant evidence. followed What Wolff 539, 2963, U.S. attorney S.Ct. frequently discovers is hear- L.Ed.2d 935 (1974), with say, delivering Justice White only gos- sometimes rank rumor or opinion of the court. sip. The intrinsic Therefore issue those who know facts continuing through these pro- cases due testify provide order to a reli- cess right identification is notification and able basis for the trail court’s ultimate respond present witnesses to which decision. communications for decision is This does not conflict with In re Mar- inimical. Winter, riage (Iowa N.W.2d 165 [223 It should be the present lesson of this 1974)], where we listed as one of the case and our any decision here that infor factors to be in deciding used who should proceeding by mational communi report have “The and recommen- cation deciding with the trial court or au attorney dation of the for the child.” thority right violates the fundamental 223 N.W.2d at 167. We intended this to presentation litigant witnesses only mean that such matters should be (or prosecution). for defense Chambers v. considered properly when before 284, 1038, Mississippi, 410 U.S. 93 S.Ct. by agreement court stipulation, Brewer, L.Ed.2d 297 Morrissey v. they frequently are and as was the case 471, 2593, 408 U.S. 92 S.Ct. 33 L.Ed.2d 484 appeal now before us. The statute “recog The Due Process Clause provide does not say did we in Win- —nor higher nizes speed values than or efficien ter—that the trial accept untested cy.” Shevin, Fuentes v. U.S. n. hearsay in lieu of sworn testimony for 92 S.Ct. 32 reh’g L.Ed.2d deciding an issue important as child 902, 177, denied 409 93 U.S. S.Ct. 34 custody. (1972). Wolff, L.Ed.2d 165 418 See also In context, federal administrative law it 583, 2988, Marshall, J., U.S. at 94 at S.Ct. explained: was concurring dissenting. Emplaced Nothing may be treated as evidence process respond. due opportunity is the to such, which has not been introduced as Loudermill, Cleveland Bd. v. 470 of Educ. hearing inasmuch requires as a 532, 1487, that the U.S. 105 S.Ct. 84 L.Ed.2d 494 party apprised be against (1985), 941, of the evidence cert. denied 488 U.S. 109 S.Ct. refute, him in may 363, 353, order that he test and 102 L.Ed.2d cert. 488 U.S. denied explain 946, 377, (1988). it. 109 S.Ct. 102 L.Ed.2d 365

270 the trial court and the the Due Pro curred between that is determined

Once it guardian ad litem. applies, remains Clause cess Loudermill, 105 is due? process what of argue parte I not some con- do that ex 471, Morrissey, 408 U.S. 1493; 92 at S.Ct. tact, always wrong, inevitably although found ex is not to be at 2593. It S.Ct. for reversal. What should deter- cause to decision mak parte communications if the record does not estab- mined that process er, if the denies arranged, however harmless, lish the error the non- was litigant to opposing fac for the opportunity presume litigant attendant is entitled to Department v. tually contest. Sullivan events and circum- harmful error when the (Fed.Cir.1983); Ryder Navy, 720 F.2d 1266 him factually not available to stances were 289, States, 218 F.2d 585 v. United Ct.Cl. v. Horton response. or for record review States, v. (1978); 179 Camero United 482 Driskell, (1904); 66, Wyo. 13 77 P. 354 (1967). “If 520, 375 F.2d 777 Ct.Cl. Sullivan, 720 F.2d 1266. charges or evi considers decisionmaker adopted has the 1990 This court now i.e., parte, it ex have come to dence which for American Bar Association’s standard to re opportunity notice and without judicial separately each conduct we D’Acquis process is violated.” spond, due compli for jointly responsibility have the 594, F.Supp. Washington, 640 621 to v. Hill, re In 152 568 A.2d 361 ance. Vt. v. Alabama Davis (N.D.Ill.1986). Appli (1989); State v. American TV and (M.D.Ala.1985). University, 613 F.Supp. 134 State Madison, Inc., ance 443 Wis.2d Napue, v. States United . Cf meantime, (1989). In the mis N.W.2d (7th Cir.1987). Conversely, 834 F.2d disregard application intentional or Disciplinary Proceedings see Matter of litigant remedy, leave the without Aulik, N.W.2d Against 146 Wis.2d or not we enforce our code whether (1988), recognizes concern which a Ac Liljeberg Health Services ethics. presented in the facts of this is not which 847, 108 quisition Corp., 486 U.S. S.Ct. concepts relating inevitably to ethical Note, Lilje 100 L.Ed.2d 855 parte presented ex contacts. Acquisition Corp.: berg v. Health Services repetitive, during the announce- Supreme Encourages Disquali To be Court decision, counsel Judges Federal Under Section ment of the trial court’s fication position (1989). 455(a), certainly not a This was 1989 Wis.L.Rev. Zebre, judge case, Brooks interrupt to or irritate the trial court like 792 P.2d J., dissenting, pro challenge (Wyo.1990), Urbigkit, his the decision or ethics before completely reject perspective finally presented. a result-oriented which vides justice non-present the state’s responsibility of the liti- demeans and diminishes delivery system.4 explore improprieties oc- gant to what (ii) judicial regarding judge provision promptly to makes code section provides: notify parties contact all of the substance of oppor- (7) every judge person and allows accord who A shall to legal proceeding, tunity respond. a in a or that has interest lawyer, right according person's to be heard (b) judge may the advice a disin- A obtain initiate, judge permit, or to law. A shall not communications, applicable a expert on law terested consider consider ex or judge gives judge proceeding if the before the out- other communications made person parties consulted notice concerning presence parties side the advice, and affords substance of impending proceeding except pending or that: respond. parties opportunity to reasonable (a) require, ex Where circumstances Conduct, 3(B) Canon Wyoming of Judicial Code scheduling, administra- communications for comment, code "A In states: emergencies purposes not deal tive do all all ex commu- must disclose to with substantive matters or issues on mer- 3B(7)(a) and Sections nications described in authorized; provided: its are 3B(7)(b) regarding pending proceeding or im- a (i) judge reasonably believes that no judge.” pending Id. before party gain procedural a or tactical advan- will tage as a result of communica- tion, and

271 process. I would reverse and remand for an order Judicial economy should not be provide a fair trial to a before underlying guideline. impartial judge. See disinterested and Lavoie, 813,

Aetna Ins. v. Co. 475 U.S. Life 1580, (1986); 106 S.Ct. 89 L.Ed.2d 823 Monroeville, Ohio, Village Ward v. 409 of 57, 80, (1972); 93 34

U.S. S.Ct. L.Ed.2d 267 Murchison, 133,

In re 349 U.S. 75 S.Ct.

623, (1955); Turney v. State of 99 L.Ed. 942

Ohio, 510, 437, 273 47 U.S. S.Ct. 71 L.Ed. (1927); County Aiken 749 v. BSP Div. McGUIRE, Appellant Thomas Corp.,

Envirotech (4th 866 661 F.2d Cir. (Petitioner), McKenzie, 1989); Rice v. 581 F.2d 1114 v. State, (4th Cir.1978); Oglesby v. 299 Ark. 403, (1989); People Ross, 773 443 S.W.2d Wyoming, STATE of DEPARTMENT Mich.App. 89, (1989); 181 449 N.W.2d 107 TAXATION, OF REVENUE AND State, West v. (Miss.1988); 519 So.2d 418 Appellee (Respondent). Barker, State v. 842, 227 Neb. 420 N.W.2d No. 90-197. McFall, (1988); In Interest 695 Pa. 383 356, Super. (1989); and Liv 556 A.2d 1370 Supreme Wyoming. Court of State, ingston 12 (Tex.App.1989). S.W.2d 17, April Hanson, Parliament Ins. v.Co. . Cf 1069, reh'g denied 688 F.2d 839 676 F.2d (5th Cir.1982) Marriage and In re Goell ner, P.2d (Colo.App.1989).

also Ryan v. on Commission Judicial

Performance, 247 Cal.Rptr. Cal.3d Levine, (1988); Matter of 754 P.2d 724 N.Y.2d 546 N.Y.S.2d (1989); Kaufman,

N.E.2d 1205 Judicial Questions,

Ethics: Asked Less-Often 64 Wash.L.Rev. 851 and Recent De cision, Responsibility. Judi Professional Disqualification cial Appearance Sterlacci,

Bias — Jenkins v. 849 F.2d 627

(D.C.Cir.1988), Temp.L.Rev.

MACY, Justice, dissenting. majority opinion dissent. The in effect only practical purpose

states that

prohibiting communications is to

prevent a injustice.” “manifest I strongly

disagree with such standard as well as concept Court,

with the “waiver,”

name of should condone such

violation the Code of Judicial Conduct Rules of Professional Conduct for

Attorneys being merely at ignora- Law procedural

ble Although error. the result

may change, appropriate just

remedy to remand this case for a new Appellant,

trial to ensure that as well as child, guaranteed

her right to due

Case Details

Case Name: Moore v. Moore

Court Name: Wyoming Supreme Court

Date Published: Apr 12, 1991

Citation: 809 P.2d 261

Docket Number: 89-261

Court Abbreviation: Wyo.