No. 5-181 / 04-1720.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for Linn County, Marsha M. Beckelman, Judge.
Rita Skaf Kassouf appeals the parties’ dissolution decree, claiming the district court judge should have recused herself.AFFIRMED.
Ryan P. Tang of the Law Office of Ryan P. Tang, P.C., Cedar Rapids, for appellant.
Barbara H. Liesveld of Thinnes Liesveld, Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
MAHAN, J.
I. Background Facts Proceedings
Tony Kassouf and Rita Skaf Kassouf have one child, Christina, who was born in June 2002. In October 2002 Rita fled with Christina to Canada. Tony filed a petition for dissolution of marriage. Under a temporary order, the parties were to have alternating joint physical care of Christina. Tony was to assume care of Christina in March 2004. Rita did not turn Christina over to Tony’s care. She also failed to appear for a pretrial conference.
The district court found Rita was in contempt. Sentencing on the contempt was scheduled for the same day as the dissolution hearing, September 8, 2004. Rita failed to appear for the dissolution hearing, and counsel did not appear for her. Rather than enter a default judgment against Rita, the court considered the evidence presented by Tony.[1]
At the beginning of the hearing, the district court judge stated:
Also for the record, I would like to state that at one time probably over a year ago when I was still a private practitioner, Mr. Kassouf called me for the purposes of seeking legal advice. At that time I was not accepting cases and referred Mr. Kassouf to other attorneys. There was no client matter set up at my old office for Mr. Kassouf, nor did I give him any legal advice.
I feel duty bound to disclose this contact but also believe very strongly that there is no conflict with my hearing the case today.
Tony testified at the hearing. He also presented the testimony of Nadia Hemaidan, his aunt; Eva Estephan, another aunt; and Marielle Estaphan, his sister. The district court informed the parties as follows:
I would like to make sure that I disclose that I know two of the witnesses who are testifying in this case. First Nadia Hemaidan who is the person that regularly cuts my hair. In no way does my professional relationship with Nadia, will it affect my ruling in this case nor my objectivity in this case.
In addition, I also know the witness, Eva Estephan, who is Nadia’s sister. At one point in time, Eva worked with Nadia at her salon, and Eva would at times also cut my hair.
So again, my position is that neither of these — neither Nadia’s nor Eva’s testimony will in any way affect my ability to render a fair and equitable decision in this case.
In the dissolution decree, the court granted the parties joint legal custody of Christina, with Tony having primary physical care. The court provided a visitation schedule, and ordered Rita to pay child support. The court divided the parties’ property. Rita appeals.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4.
III. Recusal
Rita claims the district court judge should have recused herself because of her familiarity with Tony and two of his witnesses. She believes the court was biased because it ruled for Tony on all issues. Tony claims Rita failed to preserve error on this issue because she did not raise it before the district court. The court raised the issue sua sponte, however, and ruled on it. We conclude the issue had been preserved for our review Cf. State v. Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001) (noting issue of recusal had not been preserved when it had not been raised before district court).
The party seeking recusal of a judge has the burden of showing grounds for the recusal. State v. Mann, 512 N.W.2d 528, 532
(Iowa 1994); Campbell v. Quad Cities Times, 547 N.W.2d 608, 611
(Iowa Ct.App. 1996). The pertinent rule concerning recusal is found in Iowa Court Rule 51, Canon 3(C)(1), which provides, “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. . . .” While there is a constitutional right to a neutral and detached judge, mere speculation as to judicial bias is not sufficient to prove grounds for recusal. Mann, 512 N.W.2d at 532. A party must show actual prejudice before recusal is necessary. McKinley v. Iowa Dist. Court, 542 N.W.2d 822, 827
(Iowa 1996).
A judge must consider “whether reasonable persons with knowledge of all facts would conclude that the judge’s impartiality might be questioned.” Mann, 512 N.W.2d at 532. A judge has as much of an obligation not to recuse when there is no occasion to do so, as to recuse when there is cause for recusal McKinley, 542 N.W.2d at 827. The determination of whether to recuse himself or herself is committed to the judge’s discretion In re Marriage of Clinton, 579 N.W.2d 835, 837 (Iowa Ct.App. 1998). We will not interfere unless there has been an abuse of discretion. Id.
We find no abuse of discretion in the judge’s decision not to recuse herself. The judge revealed her acquaintance with Tony and his two witnesses. There is no indication the judge was biased because of this acquaintance. The court’s ruling is supported by the evidence and does not appear to be the product of bias or prejudice. Under the facts in this case, a reasonable person with knowledge of all facts would not conclude that the judge’s impartiality should be questioned.
We affirm the decision of the district court. Costs of this appeal are assessed to Rita.
AFFIRMED.