APPEAL FROM THE Circuit Court for Baltimore City. Edward J. Angeletti, JUDGE
Argued Before Wilner, C.J., Bishop, and Levitz (Dana M., Specially Assigned), JJ.
The odyssey of the young children of Aron and Esther Goldberger has led them from Lakewood, New Jersey, to Israel, to Belgium and England, and finally to Baltimore, Maryland. These children have been the subject of the attention of various courts including: The High Court of Justice, Family Division, London, England; the Ecclesiastical Court of the Chief Rabbi of London (Beth Din); and, finally, the Circuit Court for Baltimore City.
Prior to the trial of this matter before the Circuit Court, the parties and their children had been examined and evaluated by ten physicians or psychologists. When the trial began, Esther and Aron Goldberger were fighting only about the custody of their children and related matters of support and visitation. Allegations of sexual child abuse, kidnapping, insanity and unfitness were made by one or the other of the parents. Other extended family members were brought into the conflict and took an active part in it. Since both parties are devout Orthodox Jews, noted Rabbis in this country and in Europe and Israel were consulted by the parties for advice, guidance and support.
After resolving the pre-trial motions, participating in pre-trial conferences with the attorneys and the parties, and conducting a four day trial, the Court divorced the parties and determined that Esther Goldberger should be the custodian of the children: Chana Frumit, age 11; Mamele, age 10; Meir, age 9; Chaim Tzvi, age 7, Eliezer, age 6; Yaacov, age 3. The Court further ordered that visitation with Mr. Goldberger take place only under supervised conditions in the presence of professionals. Further, in determining the issue of child support, the Court found that Mr. Goldberger had impoverished himself voluntarily and that his potential income was $60,000 per year. The Court ordered him to pay $4,066.00 per month in child support for the six children.
Mr. Goldberger appeals. Interestingly, he does not directly allege that the Chancellor erred in determining that it would be harmful to these children to be in his custody. Nor does he challenge directly the necessity for any visitation to be closely supervised. Instead, he raises two questions in his appeal to this Court:
(1) Did the trial court err in attributing $60,000 earning potential to Appellant, based solely upon the ability of others to raise funds to finance his custody litigation?
(2) Whether the trial court's refusal to recuse itself was clearly erroneous where trial court manifested clear prejudice to Appellant prior to trial, or in the alternative, violated Appellant's rights to due process of law?
Were this Court to agree that the Chancellor abused his discretion in not granting appellant's recusal motion made on the first day of trial, the entire decision of the Chancellor would have to be set aside and a new trial ordered. Accordingly, we shall address this issue first.
The Court of Appeals has recently reiterated that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified. Barry Jefferson El v. State, Md. (1993); citing Boyd v. State, 321 Md. 69, 581 A.2d 1 (1990); Doering v. Fader, 316 Md. 351, 558 A.2d 733 (1989). A fair and impartial trial is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry and renders judgment only after receiving evidence. Spence v. State, 296 Md. 416, 463 A.2d 808 (1983). Unquestionably, cases involving innocent children who are caught up in ugly and divisive disputes between their parents are some of the most difficult that trial judges are called upon to decide. These cases sometimes require extraordinary effort to remain dispassionate, particularly when it becomes clear that a party has acted unreasonably to the detriment of the children.
Recusal is a discretionary matter, and the judge's decision denying recusal should not be overturned unless clearly wrong. Surratt v. Prince George's County, 320 Md. 439, 578 A.2d 745 (1990); In re Turney, 311 Md. 246, 533 A.2d 916 (1987). In the case sub judice there is no question that it was up to the trial judge to decide the recusal motion. No allegations of bias derived from an extrajudicial source are alleged. Nor were there any allegations of personal misconduct such as those alleged in the Surratt or Turney cases.
The appellant argues that "the content of the pre-trial proceedings in this case permanently tainted and polluted the remainder of the case." Where the bias of a trial judge against a party is alleged as the basis for recusal, the bias must have derived from a "personal," rather than judicial source. Boyd v. State, 321 Md. 69, 581 A.2d 1 (1990). Where knowledge is acquired in a judicial setting, or an opinion expressing bias is formed on the basis of information acquired from evidence presented in the course of a judicial proceeding before that judge, neither that knowledge nor that opinion qualifies as "personal." Boyd v. State, at 77; Doering v. Fader, 316 Md. 351, 356, 558 A.2d 733, 736 (1989).
The trial judge's first contact with this case came in the first week of March, 1992. Having just rotated into the domestic assignment,*fn1 the court noted that a four day trial was scheduled for this case to begin the end of the month. The court reviewed the file and noted that seven other judges of the Circuit Court for Baltimore City (nearly 30% of the Bench) had been involved in this case. To assure consistency, the trial judge requested the Administrative Judge to assign the case to one judge for all pending motions and trial. Based on that entirely proper request, the case was assigned to the trial judge to handle all further matters.
A pre-trial conference was scheduled on March 4, 1992. Subsequent pre-trial conferences were held on March 5, 9, 11 and 13. It was at one of the pre-trial conferences that the court was made aware of the fact that appellant had failed to pay any child support in spite of agreeing to pay same. He was $3,000 in arrears. Also, appellant had failed to pay one-half of the fee of Dr. Lehne, the court-appointed mental health expert, or one-half of the fee of counsel for the children. Also, the court learned that appellant had avoided the effect of a previous court order to surrender his passport to counsel by applying for a duplicate passport, falsely claiming that the previous passport was lost.
At the first pre-trial conference, the court requested that the parties submit a list of proposed witnesses and a summary of their testimony. At the pre-trial conference of March 11, 1992, the court indicated that it would not permit either side to call any of the numerous witnesses the parties proposed because it appeared from the summaries that those witnesses, other than the experts, could provide only anecdotal information that would be of little assistance to the court. This ruling was reversed on March 13, 1992. On that day, the court told the parties at a chambers conference that each party would be permitted to call any and all witnesses he or she desired and that no witnesses were being precluded from testifying. Also at this conference, it was agreed that the court-appointed experts, Dr. Gregory Lehne and Dr. P. Gayle O'Callaghan, would be called by counsel for the children. At the trial, which began on March 31, 1992, the court permitted the parties to call the witnesses they desired.
Undeniably, some of the statements the trial judge made during the various pre-trial conferences clearly revealed the court's displeasure with the conduct of appellant. Also obvious is the fact that the trial judge was attempting to encourage the parties to settle their dispute for two compelling reasons: first, because the unanimous opinions of all of the experts were that custody must be awarded to the appellee; and second, because of the sensitive and potentially embarrassing nature of likely trial testimony. Although experienced trial judges know the value to the parties of settlements in domestic cases, the fact is that some litigants need their day in court. That they are entitled to it cannot be denied. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).
Some of the comments of the trial judge regarding appellant were injudicious. Statements regarding appellant's possible (but uncharged and unadjudicated) perjury in his passport application and his disqualification as a witness were unnecessarily harsh.*fn2 More egregious were the court's pre-trial comments indicating that no witnesses would be heard other than the parties.*fn3 The trial court's function is to hear witnesses. Spence v. State, 296 Md. 416, 463 A.2d 808 (1983). While appellant's failure to pay child support and fees of the experts and counsel for his children, to which he had agreed, was inexcusable, the court's threatening comments regarding leg irons and handcuffs were improper.
The Court of Appeals in Jefferson-El v. State, Md. (1993), recognized that recusal may be required not only when the trial judge has an actual personal bias against a party, but also when the trial judge creates a situation in which it would appear that he could not, with impartiality, preside at the subsequent trial. It is the appearance of impropriety that requires the judge to be recused.
At the hearing on the recusal motion, heard at the beginning of the first day of trial, the court commenced on the allegations made by appellant regarding the court's personal animosity and misconduct. "I'm kind of amused by that because the only thing I haven't been accused of is prejudging the major issue before the ...