In Re The Marriage Of: ELIZABETH D. FARRIS and ERIC A. FARRIS ELIZABETH D. FARRIS, Petitioner-Respondent v. ERIC A. FARRIS , 485 S.W.3d 827 ( 2016 )

In Re The Marriage Of: )
ELIZABETH D. FARRIS and )
ERIC A. FARRIS )
)
ELIZABETH D. FARRIS, )
)
Petitioner-Respondent, )
)
v. ) No. SD33837
)
ERIC A. FARRIS, ) Filed: Apr. 18, 2016
)
Respondent-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Cynthia A. MacPherson, Associate Circuit Judge
REVERSED AND REMANDED
Eric A. Farris (“Husband”) appeals the judgment that dissolved his marriage to
Elizabeth D. Farris (“Wife”). Husband alleges eleven points of reversible error, but we need
address only two. Because Husband was deprived of his right to present relevant evidence
and have his case tried before an impartial fact-finder, we reverse the judgment and remand
the case for a new trial before a different judge.1
1
Husband’s fourth point claims that the trial judge announced substantive rulings “in the middle of trial prior
to hearing all of the evidence[.]” Husband’s eleventh point claims that the trial judge erred by not granting his
application for change of judge or “otherwise recusing on her own motion” because remarks she made during
the trial “demonstrated her bias and prejudice against” Husband.
1
Usual Standard of Review
In reviewing a dissolution judgment, we would typically reverse only if we
concluded that the judgment was against the weight of the evidence, was not supported by
substantial evidence, or misstated or misapplied the law. Ludwig v. Ludwig, 126 S.W.3d
466, 474 (Mo. App. W.D. 2004). In this case, however, because a reasonable person would
find an appearance of impropriety and doubt the impartiality of the trial court, we must
reverse the judgment without reaching the merits of any of Husband’s challenges to its
content.
Applicable Due-Process Standards
“Under both the federal and state constitutions, [t]he fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful manner.”
Jamison v. Dept. of Soc. Servs., Div. of Family Servs., 218 S.W.3d 399, 405 (Mo. banc
2007) (internal quotations omitted). Implicit in the opportunity to be heard in a meaningful
manner is the notion of an impartial decision maker.2 “Although the trial court has broad
discretion in the conduct of a trial, its power is not without limitation.” In re Crist, 732
S.W.2d 587, 589 (Mo. App. E.D. 1987). A trial court “should not prevent a full presentation
of relevant evidence. The court should not adopt or exhibit a hostile attitude toward a party,
his counsel, or a witness.” Id. at 590.
We must base our review on the objective facts of the record from the perspective of
a reasonable and disinterested bystander, unacquainted with the personality, integrity, and
2
Rule 2-2.2(A) states: “A judge shall uphold and apply the law, and shall perform all duties of judicial office
promptly, efficiently, fairly and impartially.” Rule 2-2.3(A) states: “A judge shall perform the duties of
judicial office without bias or prejudice.” Rule 2-2.11(A) provides that “[a] judge shall recuse himself or
herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” then provides a
non-exhaustive list of circumstances requiring recusal. Unless otherwise indicated, all rule references are to
Missouri Court Rules (2015).
2
dedication of the judge. State v. Lovelady, 691 S.W.2d 364, 367 (Mo. App. W.D. 1985).
We presume that a judge will act honestly and with integrity and will not preside over a trial
if he or she cannot be impartial. Smulls v. State, 10 S.W.3d 497, 499 (Mo. banc 2000).
“This presumption is overcome and disqualification is required if a reasonable person would
find an appearance of impropriety and doubt the impartiality of the court.” Id. Indeed, the
recusal rule, Rule 2-2.11(A), “is not limited to actual prejudice[.]” Anderson v. State, 402
S.W.3d 86, 91 (Mo. banc 2013). We must review the entire record when determining
whether the facts support disqualification. Id. at 92.
The trial judge’s comments must also be considered in the context of all the judge’s
statements and the circumstances surrounding such statements. Haynes v. State, 937
S.W.2d 199, 204 (Mo. banc 1996). The common theme in cases requiring recusal “is either
a fact from which prejudgment of some evidentiary issue in the case by the judge may be
inferred or facts indicating the judge considered some evidence properly in the case for an
illegitimate purpose.” Id.
Background
Husband and Wife married on December 3, 1994, and they separated on April 23,
2013. Wife filed her petition for dissolution of marriage on June 21, 2013. Husband and
Wife have four children, D.F., I.F., N.F., and A.F., who at the time of trial were,
respectively, 9, 11, 13, and 16 years old.
From its commencement, this was a highly contentious dissolution case that could be
expected to challenge the patience of any trial judge. Multiple pre-trial motions were filed
and heard, several judges recused during the course of the case, and several guardians ad
litem (“GAL”) were appointed and later allowed to withdraw. Husband and Wife each filed
3
motions seeking a psychological evaluation of the other, and Wife filed a motion requesting
the appointment of a GAL for the minor children.3 Wife’s motion for psychological
evaluation of Husband alleged, inter alia, that Husband “hit [D.F.] on the head and dragged
him by the arm.” The motion also alleged that Husband had threatened to abandon D.F. if
he misbehaved. Husband’s motion for a psychological evaluation of Wife questioned
Wife’s ability to care for and parent the children, and it claimed that Wife had “encouraged
an alienation of the children toward [Husband].” An amended motion for temporary
custody filed by Husband alleged that Wife had psychologically abused the children.
A judge previously assigned to the case granted the parties an interlocutory
dissolution of marriage on July 17, 2014.4 By the time the case was tried on January 9,
2015, Husband had filed eight motions for contempt. Four of the motions, which alleged
that Wife had contumaciously dissipated marital property during the pendency of the case,
were to be heard with the trial. The day before trial, Husband’s attorney filed a motion for
continuance that claimed his wife had a medical emergency. The trial court denied the
motion, and Husband, a licensed attorney at the time, proceeded to trial pro se.
On January 20, 2015, eleven days after the “trial”5 concluded, the trial court sent an
email (the subject line of which was entitled “Judgment”) to the parties and court clerk that
included findings of fact and conclusions of law. Earlier that same day, Husband had filed
3
The first GAL’s motion to withdraw was granted in April 2014, the second GAL was granted leave to
withdraw in November 2014, and Husband’s subsequent motion for appointment of a GAL was denied. As a
result, no GAL was present to represent the best interests of the children at trial.
4
Several different judges had presided over this case before it was assigned to Judge MacPherson on October
20, 2014. Unless otherwise indicated, all references to the “court,” “trial court,” or “trial judge” are to Judge
MacPherson.
5
We put the word “trial” in quotation marks as the parties were only partially permitted to present relevant
evidence during this proceeding. In some instances, we refer to members of Husband’s and Wife’s families by
their first names if they share the same surname. We do so purely for clarity and not as a sign of any disrespect
or familiarity.
4
an application for change of judge.6 The next day, the trial court made a docket entry that it
had failed to address the issue of GAL fees, and it directed that the remaining fees would be
taxed to Husband as costs. The parties and the trial court continued to exchange multiple
emails about requested corrections or modifications to Wife’s proposed parenting plan until
the judgment Husband now appeals (“the judgment”) was entered on February 13, 2015.
The judgment awarded the parties joint legal and physical custody of the children,
and it granted Husband limited parenting time with the children that included overnights on
alternating holidays and a week during the summer. The judgment ordered Husband to pay
monthly child support of $1,000.00, awarded each party the property he or she had in their
physical possession, equally divided the life insurance policy proceeds of $68,000.00, and
awarded Husband a real estate lot and a vehicle. The judgment allocated the parties’ debts
equally, except for a mortgage debt on the real estate lot awarded to Husband, and it denied
Husband’s application for change of judge as untimely brought.
On March 9, 2015, Husband filed a motion for new trial or, in the alternative, to
vacate, reopen, correct, amend or modify the judgment. The motion was denied, and this
appeal timely followed.
Analysis
Husband’s fourth and eleventh points claim that the trial court misapplied the law by
denying him minimal due process as evidenced by multiple statements the trial court made
throughout the trial that demonstrated both a pre-judgment of the factual and legal issues
6
The exact time that the application for change of judge was filed is not clear from the record because no file
stamp is affixed to Husband’s application. However, the trial court’s email stated that the application had been
filed earlier the same day and denied the application as untimely.
5
prior to the close of evidence and a “bias and prejudice” against Husband.7 Based on our
review of the trial transcript, we must agree.
Our analysis of Husband’s due process claims necessarily focuses upon a subset of
the comments made by the trial judge during the course of the trial. In compliance with our
obligation to review such comments within the context of all the judge’s statements and the
circumstances surrounding such statements, Haynes, 937 S.W.2d at 204 (Mo. banc 1996),
we have set forth in the appendix that follows this opinion those portions of the trial
transcript relevant to Husband’s complaints.
The trial judge’s commentary during the trial that Husband was “just wasting
everyone’s time” -- and the repeated statements that the trial court did not “care” about
particular evidence -- communicated disdain for Husband’s evidence before the trial was
over.8 Indeed, the trial judge expressly admitted having pre-judged evidentiary issues on
more than one occasion during the trial. For instance, when Husband was presenting
evidence about items of property, the trial judge stated, “None of it is going to make any
difference how I rule in this case. I know how I’m going to rule in this case[.]” When
Husband indicated he would call Dr. Bradford, a psychologist, as a witness, the trial court
stated, “I have got all the evidence I need and all you’re doing is, as you have done all day,
is beat a dead horse[.]” Added to these pronouncements was the trial court’s extended
7
Husband preserved these complaints by making them at trial and then including them in his motion for new
trial.
8
At some points, the trial court made inconsistent pronouncements. During Husband’s testimony regarding
the disposition of marital property, the trial court stated, “I’m finding you both guilty of misconduct and
ignoring you both.” Then, on the very next transcript page, she stated, “I’m going to find as a matter of finding
of this Court right now this instance that I’m finding no misconduct on the part of [Wife]. None. Zero. And I
will not consider any misconduct in the dividing of the property.” Such conflicting statements would still
cause a reasonable person to conclude that the trial court had determined contested factual issues before the
trial was completed.
6
statement of findings and opinions consuming multiple pages of transcript before Husband
was permitted an opportunity to testify concerning custody of the children.9
Viewing this cause from the perspective of a reasonable person familiar with the
entire record but unfamiliar with the dedication, integrity, and personality of the trial judge,
numerous comments from the trial court also indicate a lack of impartiality. See Roe v.
Ross, 701 S.W.2d 799, 804 (Mo. App. W.D. 1985); Rutlader v. Rutlader, 411 S.W.2d 826,
831 (Mo. App. K.C.D. 1967).
A judge presiding at a trial should at all times maintain an impartial attitude
and a status of neutrality between contending parties. [He or she] should not
conclude in advance of the end of the trial what [he or she] will do at that
time. For this is to adjudge the controversy without hearing the evidence that
ought to resolve it. [He or she] should exercise the highest degree of patience
and forbearance toward the parties, consistent with decorum and an orderly
trial, however irritating their emotional upset or personality may be, and any
different attitude on [his or her] part is incompatible with that fair and
impartial trial which courts require as due process.
Rutlader, 411 S.W.2d at 831.10
The trial judge’s comments to Husband during the trial that indicated a lack of the
requisite impartiality included: “somehow your egocentrical, self-centered arrogance has
9
We should point out that “when it is necessary, a trial judge may step in to stop unnecessary waste of time or
to restrain improper conduct on the part of counsel.” McDaniels v. Ehrhard, 877 S.W.2d 688, 690 (Mo. App.
E.D. 1994). Indeed, a trial court may limit the time for the presentation of evidence, but “[t]ime limitations
should be imposed only after consultation with the parties.” Colquitt v. Muhammad, 86 S.W.3d 144, 152
(Mo. App. E.D. 2002).
If the evidence on essential points cannot be fully developed within the allotted time the
court must show some flexibility. Counsel are normally the best judges of the time they
require to develop their cases and of the need for cross-examination, which often depends on
the clarity and candor of the direct testimony. Intervention by the court may sometimes be
necessary but should not be the rule. The court’s primary responsibility is to see that the
issues are fully presented.
B.J.D. v. L.A.D., 23 S.W.3d 793, 797 (Mo. App. E.D. 2000). Here, there was no indication in the record that
the trial court consulted the parties on the time necessary to present their cases, and Wife cites no such advance
consultation in her statement of facts or argument concerning this point. Instead, “[t]he old maxim that ‘haste
makes waste’ is manifest here.” Id.
10
In the instant case, based upon the trial judge’s repeated use of the pronoun “we” after having provided
Wife’s counsel with unsolicited favorable rulings and advice, a reasonable party might become convinced that
he or she was facing two opponents instead of one.
7
taken over”; “I’m going to admit [the exhibit] into evidence because it shows just how
foolish you are”; “ any more stupid, stupid, stupid questions, I’m going to terminate this
examination”; “[y]ou’re almost spooky”; “you are a narcissistic who can’t be dealt with
under any circumstances”; “[y]ou’re a drama queen”; “I have listened to you whine all day”;
and “most of the stuff we saw today is you belly-aching[.]”11
If the record demonstrates that a reasonable person would find an appearance of
impropriety, recusal is compulsory. Anderson, 402 S.W.3d at 91; State v. Nunley, 923
S.W.2d 911, 918 (Mo. banc 1996). When viewed from that reasonable person perspective,
the record here demonstrates, at the very least, an appearance of impropriety. Accordingly,
the judgment is reversed, the trial judge is directed to grant Husband’s application for
change of judge, and the matter is remanded for a new trial before another judge. See
Buschardt v. Jones, 998 S.W.2d 791, 804 (Mo. App. W.D. 1999).
DON E. BURRELL, P.J. – OPINION AUTHOR
GARY W. LYNCH, J. – CONCURS
WILLIAM W. FRANCIS, JR., J. – CONCURS
11
Wife’s one-paragraph response to Husband’s fourth point begins with Rule 2-2.3(D)’s provision that judges
are not “preclude[d] . . . from making legitimate reference to personal factors or characteristics, when they are
relevant to an issue in a proceeding[,]” but she offers no citations to the record or any additional legal authority
demonstrating that the trial court’s behavior toward Husband during the trial was appropriate. Wife also
contends that the trial judge “was patient and allowed [Husband] to present a full presentation of evidence,
over 13 hours[,]” and that while the trial court “may have had ‘harsh’ words for [Husband], he faired quite well
in visitation, custody and division of property.” Again, Wife offers no citations or authority for these
assertions, and we do not reach any issues regarding the substance of the judgment. Rather, we find that both
parties must be heard in a meaningful manner, Jamison, 218 S.W.3d at 405, such that a reasonable person
would not “find an appearance of impropriety and doubt the impartiality of the court.” Smulls, 10 S.W.3d at
499.
8
APPENDIX
The “Trial”
The trial commenced at 9:10 a.m. on January 9, 2015, and it concluded at 10:37 that
evening. Pursuant to our obligation to review the entire record before determining whether
it supports Husband’s claim that he was deprived of his constitutional right to an impartial
decision maker, we will set forth the portions of the trial transcript that we believe
demonstrate the appearance of prejudgment and a lack of impartiality. This opinion should
not be read as holding that any particular comment by the trial court, when viewed in
isolation, would be sufficient in itself to require either a reversal of the judgment or a
mandatory recusal by the trial judge; our ruling is based on the effect of the comments when
viewed in their entirety. See Anderson v. State, 402 S.W.3d at 92. We will present the
relevant excerpts in the order in which they occurred, provide some brief context, and
identify the testifying witness by name and any relation to the parties.12 Our references to
specific evidence are solely for purposes of providing context for the trial judge’s remarks.
The first witness, Dr. Alan Aram (Husband’s designated expert witness on the issue of
parental alienation), testifying out of order before Wife’s case-in-chief.
Dr. Aram was testifying about various lists of indicators for parental alienation. The
trial court requested such a list and then engaged in the following dialogue with the witness.
THE COURT: But the word narcissism, I never had
really used that word and it has been in
this case in almost every filing, on
Facebook. It’s -- the word narcissism
just is -- and I think it’s well served.
THE WITNESS: You think it’s accurate.
THE COURT: I think it’s very accurate.
12
We do not identify by name witnesses providing educational and mental health services to the children.
9
Husband’s request to make an offer of proof of the answer he expected from Dr.
Aram to a question that the trial court did not allow the witness to answer was rebuffed by
the trial court in the following manner.
Q Second part of that question was what types of responses might a
child give in regard to questions that would be indicative that a child
has been subject of parental alienation?
[WIFE’S COUNSEL]: Objection.
THE COURT: Sustained.
[Husband]: I’d just make an offer of proof as to his
answer.
THE COURT: You are pushing your limits here and
the thing is, I have got from him the
most important thing I needed to hear
from him, which is there is a diagnostic
recognized criteria of personality
disorder of narcissism and that’s what
I’m dealing with and this alienation, I
can’t trust either parent based on that. I
am going to interview these children. I
am going to talk with these children. I
am going to allow their psychologist to
testify, but I’ve got a brain. I have
education. I know where we need to go
with this.
Wife begins her presentation of evidence with her own testimony
The trial court informed the parties that it was restricting the remaining morning
testimony to property issues and would then focus on child-related issues in the afternoon.
When Husband asked Wife if certain items of marital property were in her possession,
despite her previous indication that her uncle had taken them, the trial judge indicated that
she had already credited Wife’s prior testimony on the matter.
THE COURT: Why do we care? I mean, she said she
has [some items]. She said you sold
10
them to [Wife’s uncle]. Where they
gained [sic] between the time you sold
them as per allegations and her coming
back to her, where they were during
inspection means nothing.
[HUSBAND]: Judge, I believe they were stashed, quite
frankly. I don’t think any of this story
is true. And I think they were stashed,
and she tried to get away with it.
And it makes sense. How is it
that it’s not there but yet all of a sudden
she moves when there is no right of
inspection into her new house and all of
a sudden this stuff suddenly appears?
THE COURT: [Wife] said [her uncle] took them over a
period of time. Let’s go with that. I
mean, she has given you -- if you have
some -- The Court has got it 23, 24, 25,
45, 67, 108 and 112 [from the list of
items]. You’re beating a dead horse.
Husband then questioned Wife about when she became aware that she was
prohibited by court order from disposing of marital property while the case was pending,
and the following exchange occurred.
Q Are you claiming that you sold items, just -- you just didn’t know that
you weren’t supposed to?
THE COURT: She has asked and answered that. Now,
I’m going to hold you in contempt of
court if you keep insisting on beating a
horse. I have told you to back off this.
I don’t care. It’s not relevant evidence.
You’re trying to harass this witness, and
this Court is not going to put up with it.
[HUSBAND]: I was just -- I was trying to determine
what her -- you know what, I’ll ask a
different --
11
THE COURT: I told you I have determined she knew
September 11.
Husband next attempted to ask Wife about whether she had received child support
funds he alleged he had paid.
Q Now, you just mentioned about the fact you didn’t get child support
for some period of time. You have learned that even after the order is
paid when you pay it through the state, it takes awhile for them to set
it up and things like that?
A No.
THE WITNESS: May I speak to that?
THE COURT: I know how the state works and it don’t
take no three months. Trust me.
THE WITNESS: I know. Okay. Thank you.
The trial judge also interposed as follows when Husband asked Wife about her
statement that she used cash she received from selling items to pay attorney fees even
though her attorney had not yet charged for attorney fees.
THE COURT: I’m cutting you off here, sir. You’re
done. You’re done because the bottom
line is simply this. She listed a whole
number of things she spent that for.
And from the amount of filings you
have filed in this case, from the amount
of obstructionist behavior you have had
since day one of this divorce, there is no
way that the money she said she cashed
out could have paid attorney fees in the
normal course of things and I’m an
expert on attorney fees.
So beating this up is ridiculous.
I don’t know where you’re going.
You’re cutting your own throat. She is
going to get her attorneys’ fees out of
this. She is going to get her attorneys’
fees and you’re going to pay them
12
because all you want to do is pick on
her and beat up.
You don’t care about the truth.
You don’t care about facts. You don’t
care about evidence. You care about
the ability to pick on her, and I’ve seen
it throughout these pleadings. It’s that
narcissistic behavior that “I have not
done anything wrong. This is everyone
else’s fault.” We’re not buying it.
Nobody is buying it. Only you’re
buying it. Only you’re buying it.
Now, I don’t care about these
nickel and dime items. She has
admitted selling stuff. I’m going to find
she knew she wasn’t supposed to sell
this. I’m going to find I’m not holding
her in contempt. So there’s no
contempt here. You can quit it.
The only contempt I see, and
I’m saying it again, is yours. Contempt
for the process. Contempt for this
Court. Contempt for your former
spouse. You have no respect for
anyone and you don’t care about getting
this divorce over with. You have
thrown up every roadblock that you
possibly can in this world to make sure
you can drag this on and continue to
beat up on your ex-spouse and your
children.
And you do this out of some
idea that you want custody of them is,
to this court, developing into a joke.
You would rather take the rest of the
day picking on her than getting to the
real issue, what’s going on with your
children. So go ahead, keep picking on
her and it will buy you a large attorney
fee because she is having to sit through
this and pay an attorney and all these
13
motions you filed. All this paperwork.
And it’s --
I’ve got 40 years at this game,
and you know what, this is the worst
I’ve ever seen and I’m laying it at your
doorstep. So proceed.
[HUSBAND]: Judge, I’m concerned that with your
comments that you’re prejudging this
case.
THE COURT: I’m not prejudging. I’m judging your
conduct as of 9:00 this morning and for
the last 18 months. Now, how can you
prejudge conduct that has been
absolutely -- and some appellate court is
going to look at this and they are going
to go, “What in the heck has happened
here.”
So you just keep on. They have
told you take what you want, they will
pay you what you want, but that’s not
what you want. You don’t want money.
You don’t want property. You want to
beat up on her, period. And that’s what
this court has seen. That’s what I -- I
have tried to give you the benefit of the
doubt when we started this, but that was
all in paper before this.
So the bottom line is just
continue your questioning, get to the
heart of this. There is no contempt. I’m
ruling those motions right now. They
are done, all three of them. They are
denied, so now let’s move on.
[HUSBAND]: Judge, we haven’t completed the
evidence --
THE COURT: The motion is denied.
[HUSBAND]: -- on these matters.
14
THE COURT: No. You’re done. I just told you they
are overruled. You better listen to me
or I’m going to have the bailiff put you
in handcuffs. Now you move on.
[HUSBAND]: I will do so, Your Honor. I’m just
trying to try my case.
THE COURT: No, you’re not. And that’s it. If you
were just trying to try your case, you
would be getting to the heart of this.
What you are trying to do -- somehow
your egocentrical, self-centered
arrogance has taken over, and somehow
you see yourself, “Court is wrong, I’m
sure, because she is wrong, every
lawyer, every other judge has been
wrong, your children are wrong” and
you have a very serious problem. But
you move on and you continue to dig
your own grave here.
Later, Husband attempted to ask Wife whether she had participated in certain yard
sales where marital property had been sold after the parties separated. The trial judge
provided the following commentary about such evidence.
Q Show you what’s marked as Exhibit 3. You have a friend named
Sandra Steele; is that correct?
A Mm-hmm.
Q And she is on Facebook as well; is that correct?
A Yes.
Q And, in fact, I think that you refer to her and she refers to you as
besties. You guys are best friends?
A Yes.
THE COURT: Does this have anything to do with the
property?
[HUSBAND]: It does.
15
THE COURT: Does it have anything to do with what
you want on this list [of marital
property], that something was sold there
that you want on this list?
[HUSBAND]: It has to do with the items were sold, I
believe, and contend and I think the
evidence will show, that items were
sold at this garage sale that were marital
property items. That is a violation of
The Court Order and should be
considered by The Court.
THE COURT: It won’t be, and that’s why you are just
wasting everyone’s time. I’ve got a list
of what the property is. She said stuff
went in garage sales. You don’t have to
nitpick as to what and nitpick it to what
garage sale and if it did and I rejected
hurts [sic] you so bad. I’m going to
reverse myself rejected by Court
Respondent’s Exhibit 2.
I’m going to admit it into
evidence because it shows just how
foolish you are. I mean, these pictures
are of kids dressing up and you want to
make some big deal like there’s some
man there.
[HUSBAND]: Judge, I wasn’t there. I didn’t
participate.
THE COURT: I don’t care who was there.
[HUSBAND]: I didn’t participate in the garage sale.
The testimony by the petitioner is false.
THE COURT: How does having a garage sale have
anything to do with dividing this marital
property?
[HUSBAND]: Because the marital property was sold.
The marital property was sold right out
from under me.
16
THE COURT: That has nothing to do with the garage
sale. All you have to do is say these are
items I insist were sold. I want them or
I want credit in my column for those.
That’s all you got to do.
Thereafter, Husband continued to question Wife about whether a list of items sold at
a yard sale held at her boyfriend’s residence were items of marital property. The trial judge
sustained as follows a non-legal objection made by Wife’s counsel:
Q So [Wife’s boyfriend] who has children that are in their 20s has kids’
clothes size five to seven that would match clothes that, for example,
the two youngest children of the marriage had just grown out of?
A I don’t know.
[WIFE’S COUNSEL]: Now here I will make one objection.
THE COURT: Go ahead.
[WIFE’S COUNSEL]: Is he saying that she -- that he is --
wants the children’s old clothes and that
selling the children’s old clothes would
be marital property? I just want to hear
him say that that is what he’s saying.
[HUSBAND]: It’s not about trying to pick and choose
and negotiate something here. It’s
about the fact that the stuff is not to
have been sold, is to be valued.
THE COURT: Objection sustained. Move on.
Husband again attempted to ask Wife about marital property sold at yard/garage
sales.
Q Where did Sandra Steele get this information about posting this ad?
THE COURT: All right. If you ask one more question
about a garage sale, a yard sale, any
more stupid, stupid, stupid questions,
17
I’m going to terminate this examination.
Now, you have got it. Move on.
I don’t want to hear another
word. You better not say garage sale
again or I will terminate this
immediately.
Don’t go there with me. Don’t
look at me like that. Don’t roll your
head. Go sit down, sir. We’re going to
take a recess and you’re going to get
yourself together or you’re going to be
held in contempt. And I don’t like your
open displays in this courtroom.
All right, five-minute recess.
(Recess taken.)
THE COURT: Before you continue your questioning,
The Court would suggest that as offered
early in the day, that you submit
whatever you feel on this list you’re
entitled to that you have been deprived
of, or valuation, and submit that to The
Court and The Court will consider that.
But it does no further good and I will
not allow any further testimony about
yard sales, about where this property is
or isn’t. I think she has thoroughly
answered that, and I think any efforts
now are just harassment.
So if you have a list you want to
submit to this Court, I will allow it after
today, if necessary, in order to make
sure you are heard on your property
rights. But this has nothing to do with
property rights. So I’m going to
terminate this questioning unless you
have some other area you want to go
into.
18
[A discussion followed regarding Husband’s filing of “form 2” and
that the trial court would permit either party to file a “form 9” after
the trial.]
[HUSBAND]: . . . . I do have some additional
questions and Judge --.
THE COURT: Tell me what area. It better not have
anything to do with a garage sale.
[HUSBAND]: I would have to look through the
information I have. I know that one
thing that I would like at least to follow
up on is, and it’s for impeachment
purposes, is [Wife] answered request
for admissions and I will tell you that, if
given the latitude to go into that, I
believe that you will see that there was
an inconsistent answer given on that.
THE COURT: Submit the request for admissions. I
will review them. That’s all we need.
We don’t need any more than that.
Husband offered a request for admissions, went on to question Wife about a series of
exhibits, then alerted the trial court about the nature of additional exhibits he wished to
address.
[HUSBAND:] Judge, I want to be up front with you.
On the issue of garage sales, I do have
some exhibits that do relate to those.
THE COURT: I don’t care if she had a garage sale. I
am ruling them immaterial and
irrelevant. If you want to offer them
and I’ll put them in the file. Give them
to the court reporter to mark and she
can show them rejected.
[HUSBAND]: I will do that. So would this be
considered to be an offer of proof, then,
and they are rejected?
19
THE COURT: You’re offering these exhibits. I’m
finding anything to do with garage sales
from before the break forward, I have
already said as immaterial and
irrelevant. If you want to put them in
there for whatever purpose, I have no
intention of looking at any garage sale
exhibits, but put them in there, if that’s
what you want to dirty the record up
with.
[HUSBAND]: Well, Exhibit 6.
THE COURT: Let the court reporter mark them and
hand them up. We’ll be done.
[HUSBAND]: Judge, as I come across garage sale
stuff, I’ll follow that procedure.
THE COURT: That will be fine.
[HUSBAND]: Otherwise is it okay if I ask questions of
[Wife] if it’s not garage sale related?
THE COURT: I have asked you to submit your list.
What area are you wanting to go into
now? If you have items -- the whole
purpose of this is to determine what
items you want that you think you’re
not getting.
[Wife’s] position is everything
has been divided. She wants nothing
you have got. You can have anything
she has, and yet you still keep beating
and beating and beating a dead horse.
You won’t tell us what you want. You
want to play hide the ball with that.
[HUSBAND]: I haven’t taken the stand yet, and when
I do, I have my form 2 that I will testify
about.
THE COURT: Okay, fine. Then the rest of this -- she
can step down. We don’t need any
more.
20
[HUSBAND]: So you want me to mark up any and all
remainder of these documents and just
give them to the court reporter and they
will be refused?
THE COURT: Just list them off to me and I’ll refuse
them on the record.
[Husband then described Exhibit 7 “show[ing] some of the
property[.]”]
THE COURT: Mark it as Exhibit 7. I will admit it for
the weight of it, which the Court finds
minimal to none.
[The trial court then admitted Exhibit 8.]
[HUSBAND]: Judge, for the next item, could I ask
[Wife] some questions and the
questions --
THE COURT: What is it?
[HUSBAND]: The question I would ask is one of the
items on exhibit [sic] you just received
shows this longhorn skull and horns,
okay? And what I want to ask her is
where it is currently, if she knows what
happened to it and where is it currently
located. And it relates to the next
exhibit, which is a photograph that I
want to show her.
[WIFE’S COUNSEL]: May I see that?
[HUSBAND]: Not yet.
THE COURT: Show her the exhibit. We are through
with playing hide the ball.
[WIFE’S COUNSEL]: Doesn’t mean anything to me.
THE COURT: Ask your questions. I just can’t believe
you insist on shooting yourself in the
foot. You know, I make good notes for
21
you and then you turn around and it just
-- I don’t know why you do this. I
haven’t seen an exhibit you have
admitted yet that doesn’t help her into
the case, but keep going. You’re
building her case for her.
[Husband questioned Wife about Exhibit 9 and offered it into
evidence.]
[WIFE’S COUNSEL]: That one I will object to only as it’s
been identified as not having any
particular relevance.
THE COURT: I don’t think any of this does so, you
know, we’ll admit it just for the sake of
-- I don’t see anything -- he’s hurt
anything but himself in this.
[WIFE’S COUNSEL]: Then I withdraw my objection.
Husband questioned Wife about the location of certain jewelry and whether Wife
asked the insurance company to “bypass” Husband as one of the insured’s following her
report that her wedding ring had been lost or stolen.
Q So if I have documentation from State Farm that you --
THE COURT: If you have it, pull it out.
[HUSBAND]: I will, Your Honor. I will produce it.
THE COURT: Stop it. You’re done. You’re done. I
don’t care.
Now, either show her the
documents and quit playing like Perry
Mason out there over this silliness.
You’re almost spooky. But you follow
up on the State Farm and then you’re
done because you’re not going
anywhere.
[HUSBAND]: Can I show her this exhibit?
22
THE COURT: Yes.
BY [HUSBAND]:
Q Exhibit 10 shows you with a variety of jewelry. These are screen
shots from, I believe, your Facebook page.
THE COURT: What are we alleging? I don’t even
know what you’re alleging. I got your
contempt. They have already been --
where are you going with this?
[HUSBAND]: Judge, when you look at the dates of
these and these are expensive items and
at least two of them are still insured by
State Farm. These are substantial
priced items. I mean, in the tens of
thousands of dollars, okay. State Farm
alone on two items insures them for
$15,000, I believe. Okay?
THE COURT: Then cut to the chase.
[HUSBAND]: That’s what I’m trying to do.
THE COURT: And quit dancing around the courtroom
like you’re trying to trap her. All
you’re doing is irritating The Court.
The following exchange occurred after Husband had offered Exhibit 10.
[WIFE’S COUNSEL]: You know what’s really funny about
this is that I’m looking at some pictures
and two of these pictures show her with
nothing on but that cross, so I don’t
know how far back it goes.
THE COURT: I told you he’s done nothing but shoot
himself in the foot with this.
Exhibit 10 was admitted and Husband returned to his cross-examination of Wife.
Q You have testified that property went to your uncle, went to your
parents, etcetera [sic]. Did you have anyone sell property or attempt
to sell property to you since the separation, not sell to you but for
you?
23
A Um, since the separation?
THE COURT: Limit it to property that’s on her list or
not on her list.
[HUSBAND]: Certainly.
THE COURT: Is there something not on her list that
you think should be there? Let’s talk
about it. Is it on your list?
[HUSBAND]: It is on my list.
THE COURT: Fine. You can testify to it and compare
the two lists, but to sit here, did you do
this. I don’t care who sold it or why. If
you say she had this, if she wants to put
her on rebuttal as to what you say or
don’t say but we’re pretty well done
here.
[HUSBAND]: May I have this marked?
THE COURT: Mark everything you want and this
testimony is done. You may step down.
Testimony From Wife’s Third Witness, Her Brother, Peter Tsahiridis
Peter testified about a gun collection that Wife alleged Husband owned and was
hiding. As Wife’s counsel questioned Peter, the trial judge interjected to give Wife’s
counsel advice as follows:
Q Are [the pistols depicted in pictures] all the same or are they
different? I don’t need two pictures of the same thing.
A That I wouldn’t be able to know, but it looks like a Glock series.
THE COURT: This is going pretty afar. He’s having
trouble. I would just withdraw them.
We’ve got some pretty good testimony.
During Husband’s cross-examination, the trial judge sustained an objection before it
was completed.
24
Q Peter, you and your children and your wife are estranged from your
in-laws, her parents, aren’t you?
A No. We just talked to them when our baby was born, in fact, by
email.
Q You haven’t cut them off from contact?
A No. We talk to them.
Q From seeing your kids?
A No. I can’t force people into my house.
[WIFE’S COUNSEL]: I will object as to --
THE COURT: Sustained.
Additional Exchange with the Trial Court about Property Issues
Husband attempted to further address property issues before Wife finished her case-
in-chief, and the following occurred.
THE COURT: It’s a math problem, you know. I don’t care
what she sold. I’m not going to find any
misconduct whatsoever on either party
whatsoever. I think we just now need to crunch
the numbers.
....
[HUSBAND]: Well, Judge, I still think there are property
issues that should be in front of The Court.
THE COURT: Like what?
[HUSBAND]: I have additional -- I haven’t testified on any
property issues. I have my own form 2 that I
need to be able to testify before The Court and
testify about it, and I have additional
information that I want to provide to The Court.
THE COURT: About what?
25
[HUSBAND]: Well, my form 2 goes through -- a variety of
the property goes through valuation issues,
things like that. I have got information related
to the garage sale that was held.
THE COURT: We’re not saying garage sales. Those are
words of contempt. I’m done with it. I don’t
care. Now get that through your head. I don’t
care if she took the clothes off your back and
sold them in a garage sale. It’s over. We’re
crunching numbers now, so I will not allow
testimony on that.
[HUSBAND]: Then I just need to make a record on that.
THE COURT: You submit whatever because I’m not taking
anymore [sic] testimony. I got exhibit clear up
through 13, and I’m sure some appellate court
is going to wonder why I had so much patience
because they all know me. No, that wasn’t
[Judge MacPherson] sitting through all that
garbage and it’s garbage.
[HUSBAND]: I’ve got additional documentation related to the
property that was basically stripped out of the
house post[-]foreclosure taken by [Wife].
THE COURT: Don’t care.
[HUSBAND]: It’s marital property. I have included it on my
form 2.
THE COURT: Show me your form 2. I just want you to list
what property you think there is. I don’t care if
it was stripped. I will give -- I’m going to give
-- [Wife’s counsel], I’m going to give him 10
days to submit what property he thinks there
should be and the valuation and you have an
opportunity to respond 10 days.
The trial judge then advised that she had the parties’ mandatory disclosures and
stated, “I don’t need testimony. We know what your position is. It’s all gone and it’s her
26
fault. I just summed it up, and I don’t have to listen to two more hours of it’s all gone and
it’s all her fault anymore.”
Wife’s counsel indicated that she had two more witnesses who would address
property issues, and the trial court remarked, “I don’t want to hear either one of those
between you and me, but I think [Husband] indicated he wanted to hear them because I
don’t care to hear either one of them.” Husband denied that he had been paid by Wife’s
uncle for certain items, and Wife’s counsel presented two additional witnesses.
Testimony from Wife’s uncle, John Kastanas
While Husband was cross-examining Kastanas, the trial judge interposed and
sustained her own objection to one of Husband’s questions.
Q Which of the items owned by you under this story is currently held by
her?
THE COURT: Objection to -- I’m not going to allow
this. Sustained.
[WIFE’S COUNSEL]: Thank you.
THE COURT: I mean, I don’t care. We’ve already
been over this. He said he sold you
stuff. I got the amounts, 6 to $7,000
worth. He left some stuff there. He
gave her authority to sell it. He doesn’t
know what amount she paid him for it.
What anyone has at this point is
anybody’s -- it’s ridiculous, so move
on.
After Husband finished his examination of Kastanas, the following exchange
occurred:
[HUSBAND]: Judge, I have witnesses if -- I mean, I
don’t know if you’re finished.
27
[WIFE’S COUNSEL]: On the property, I’m done unless there’s
something you want to hear.
THE COURT: Just so you know, I’m done with the
property, too. What do you need?
[HUSBAND]: I mean, with all due respect, I’m trying
to try my case here and I should have
the right to call witnesses.
THE COURT: Who do you want to call and what is it
about?
[HUSBAND]: I have witnesses in the hallway such as
Christina Tsahiridis, Dimitrios
Tsahiridis, Mark McFadden, Sherry
Harris, Anna VanWinkle, Janette
McFadden. And then, of course, I
would wish to testify myself.
THE COURT: Why don’t we hear you and then I don’t
know of any of these witnesses you
listed that can add one thing to where
we are, which are those four items I
listed for you.
I am not -- now, you listen to me
-- going to -- for another two hours after
three or four hours listening to garage
sale garbage, I’m done. And I have
listed the four, we’re all in agreement.
This is all that counts.
You have wound up with that
$68,000 [life insurance policy] going to
get awarded to [Wife]. This is what
you’re pushing for, keep pushing. Just
keep pushing. Go ahead. Take the
stand.
[HUSBAND]: All I’m trying to do is present evidence.
THE COURT: All you’re trying to do is what you have
done all day, what you have done for 18
months is be obstructionist, to file
motion after motion to never deal with
28
facts. I’ve already been through this.
It’s in the record. I’m making a very
good record of this. The appellate court
is going to see this is all garbage.
We’ve got all these great exhibits to
show.
Now that you have had hours on
garage sales, you go ahead and take the
stand but don’t you dare talk about
garage sales.
Husband’s Testimony
At one point during Husband’s testimony, the trial judge directed Wife’s counsel to
make an objection.
[HUSBAND:] Your Honor, this exhibit marked for
identification as -- identification
purposes 14 is a copy of an invoice and
a check made from the firm’s account
that’s signed by [Wife] whereby it
documents when she changed the locks
on the house and therefore locked me
out of the house. It is dated on July
2nd, 2013. I offer.
THE COURT: I -- Object and it will be sustained[.]
[WIFE’S COUNSEL]: Object.
THE COURT: That will not be admitted. The house
was sold. There is no dispute. We went
through this not once but twice today,
that nobody was disputing anything
about the house. We’re on property
issues. I don’t care if she locked you
out of the house. The house is gone.
[HUSBAND]: Judge, the way that this is relevant is
you heard testimony earlier about the
supposed access I had of the house
during which I was supposedly
removing items from the house.
29
THE COURT: That’s not an issue either.
[HUSBAND]: This contradicts that timeline.
THE COURT: I don’t care. Put it into evidence. And
what we are going to do is let you talk.
I think if we let you talk for about an
hour, you may talk yourself out. None
of it is going to make any difference
how I rule in this case. I know how I’m
going to rule in this case, but go ahead
and hand it up here.
You know, it’s funny to me that
you have exhibits like this and yet you
sit there and tell this Court that you paid
her from the time you separated clear
through last summer July 2014 but you
don’t have those exhibits. Boy, we
have all this other stuff in nice purple
files and marked. Whatever.
[HUSBAND]: Actually, Your Honor, what I told you
was that I may well have it. If not, you
gave a 10-day time period to provide it.
Either I’ll have it today or I’ll provide--
THE COURT: They were all in draft form. So there
you have it.
[HUSBAND]: I haven’t even taken the stand until
now. So of course I wouldn’t have
offered it.
THE COURT: Start marking.
As Husband moved through certain exhibits, and as he described one exhibit, the
trial court remarked, “I don’t see any of those things you’re talking about in these exhibits
but just keep them coming because they carry no weight with this Court[.]” Husband
offered to point out items in the exhibits. The trial court replied:
THE COURT: No. I don’t care. She has already
identified that she has taken a lot of
30
items. I don’t care where they wind up.
I don’t care if she sold them at a garage
sale or they wound up at -- you have
been given the opportunity to list what
items you wanted and their value. I
don’t know where they are and how
they are there makes any difference
whatsoever. The Court has given you
10 days to determine what personal
property you want.
Later during Husband’s testimony, Wife’s counsel interjected, asking Husband
whether he wished to question or release three expert witnesses who were waiting in the
hall, and the trial court offered the following commentary:
THE COURT: What he wants to do is spend hours and
hours showing Facebook pictures of
items we all know were in the home and
everyone has been asked to divide and
he for some reason has this perverse,
perverse need to play yard sale and
Facebook games and put a bunch of
pictures in here that nobody cares about
and I don’t care where this stuff is or to
see pictures of it. And I don’t even
intend to look at it.
You better hurry up because
you’re going to have about -- a very
short time. If you have got witnesses
out there, you need to be putting them
on. I don’t even know what this is. I
haven’t a clue. I’m a lawyer with 40
years experience, I don’t have a clue
what any of this is. Don’t have a clue.
Don’t have a clue how it relates to
anything in this case that is relevant.
It’s totally immaterial and
irrelevant. I’m giving you leeway. I’ve
given you leeway all day. We’re
getting to where you need to -- if you’re
-- obviously, you’re interested in the
property, not the children. The children
31
were right on. Then you better cut to
the chase, I guess, and get on with it.
[HUSBAND]: Judge, you’re making hasty and fast
decisions and prejudging this case.
THE COURT: Yeah, really I am. Yeah. I have
reviewed your lengthy -- no, I’m not
going there with you.
[HUSBAND]: All these exhibits show misconduct.
All these exhibits show basically the
same thing that you’ve charged me
with, which is theft. Theft.
THE COURT: I’m finding you both guilty of
misconduct and ignoring you both.
Finally, Husband’s testimony about property ended with the following
exchange.
THE COURT: All right. We’re done. We’re done. I
told you no more garage sale. I told
you I didn’t care how many thousands
of garage sales she had or what she sold
at them and you know what --
[HUSBAND]: Exhibit 27, Your Honor.
THE COURT: I’m going to find as a matter of finding
of this Court right now this instance that
I’m finding no misconduct on the part
of your ex-wife. None. Zero. And I
will not consider any misconduct in the
dividing of the property. So now we
need to do what I told you to do. List
what the heck you want. There is no
misconduct. You have spent all day
trying to prove it. It doesn’t matter.
The Court is finding there was none,
period. Under the totality of the
circumstances we’ve listened to all day
that there is no misconduct.
32
[HUSBAND]: Exhibit 27, Your Honor, shows that
[Wife] lied on the stand earlier. It
shows that she had a garage sale permit
for February of 2014, Your Honor.
THE COURT: Fine.
[HUSBAND]: She denied that.
THE COURT: Put it in. We’re done. There is still no
misconduct and there is no fraud. I
heard her testimony differently than you
did.
[HUSBAND]: It shows fraud. It shows fraud on The
Court.
THE COURT: If you continue to argue with me, the
bailiff is going to put you in handcuffs
and put you in jail for contempt because
you totally ignore everything I’ve been
telling you for seven, eight hours today.
[HUSBAND]: Your Honor, I would like to testify
about these items of missing property.
THE COURT: No. The property has been listed. They
have offered to give you any property
you want or buy you or pay you off.
Your turn listening to The Court,
period. We’re done with this today.
You’re done. You’re done. Get off the
stand. Get off the stand or I’ll have the
bailiff put you in handcuffs.
[HUSBAND]: Judge, everyone has testified about that
missing property except me. You are
refusing my right to testify --
THE COURT: Yes, I am.
[HUSBAND]: -- on a point that is in controversy in
this trial.
THE COURT: It’s moot. They told you they will give
you the property or the value thereof.
33
Make your list. All you want to do is
stir the pot. You don’t want property.
You don’t care where this property is.
You want to get in this Court’s face.
You want to get --
You are into yourself like no
one I’ve ever met in my entire life.
Your own witness testified that the
personality disorder under my
questioning of narcissism is not
treatable. “You got it, girl,” is what he
said to me. And you are diagnosed with
that, and you are a narcissistic who
can’t be dealt with under any
circumstances. I have the psychological
reports in the file to back me up on this.
You are now abusing The Court.
You’re abusing all the parties to this
case as you have done all along. Now
be seated. Be seated.
Now, if you have other
witnesses you want to call, I am so tired
of this missing property, it’s ridiculous.
It’s done.
[HUSBAND]: Can I -- even if it’s rejected --
THE COURT: Do you have any evidence you want on
your kids?
[HUSBAND]: Of course, Judge, but I mean, I still
have witnesses.
THE COURT: All right, then let’s get to it because
you’re done. I’m done on the property.
[HUSBAND]: I still have witnesses that I should be
allowed to call on the issue of property.
THE COURT: No. I’m done with property.
[HUSBAND]: Can I offer, even if it’s rejected, and I’ll
just put it together as group exhibits.
This is -- shows the property as taken
34
down and stripped from the marital
home.
THE COURT: Nope. Don’t care.
[HUSBAND]: Variety of property that shows up at her
current residence.
THE COURT: You have beat this. Just move on.
[Husband then asked that he be permitted “at least” to mark some
exhibits for the record. The trial court then “accepted” Husband’s
offer of “Group Exhibits 28 and 29”.]
[HUSBAND]: The other exhibits that I offer --
[WIFE’S COUNSEL]: I just want to make sure it’s under
objection.
THE COURT: No, I’m done with property. All you
want to keep -- just keeps going on and
on and on and on and on and on and on
about property and where it’s at and I
don’t care. We have to list.
[HUSBAND]: Judge, the theft of property in this case
went on and on and on and on.
THE COURT: Well, yeah, right, right.
[HUSBAND]: It did, Your Honor.
THE COURT: Then pick out what you want and send
me the list. You have 10 days.
[HUSBAND]: But I should be allowed to provide
testimony. I should be allowed to
provide evidence. I should be allowed
to ask the witnesses to testify.
THE COURT: You take those two last exhibits and
show it to some appellate court and all
this stuff and why it was relevant
because I find it immaterial and
irrelevant. Move on.
35
[HUSBAND]: Well, I have other property witnesses.
Am I not allowed to call them?
THE COURT: Property evidence is closed.
[HUSBAND]: Okay.
Additional Evidence Related to the Children
As Husband outlined the witnesses he intended to call regarding the children, the
trial judge addressed previous testimony from a school principal called by Wife.
THE COURT: Let me tell you guys something. As I
have told you earlier, in hearing the
junior high principal, these are some of
the most incredible kids out there. I
don’t know that we need to keep going
over that. They are incredible.
[WIFE’S COUNSEL]: Judge, that was the next question. I
have got two other principals coming
and I was going to -- because of every
school and I was going to ask Your
Honor if you felt you needed to hear
from more principals.
THE COURT: I met the children. They are
outstanding. They are brilliant.
[WIFE’S COUNSEL]: All the principals are going to tell you
what the first told you. So, I will
release my witnesses that are school
witnesses.
THE COURT: All right.
When Husband called a counselor as a witness, and Wife’s counsel stated that she
had “no use” for the witness, the trial court stated, “Call him or let him go but I don’t need
to hear anything from these counselors. I read the reports that are in the file.”13 Husband
13
Throughout the course of the trial, the trial judge referred to having already read (and apparently relied on)
certain documents contained “in the court file” as support for her prejudgment of some of the issues in the
case. The record on appeal is devoid of any indication that these various documents were received into
36
released the counselor from any confidentiality obligation, but Wife did not, and Husband
asked the court to rule that there was no confidentiality issue. The trial court stated: “It’s
marriage counseling between the two of you. You’re divorced. There is an interlocutory
order of divorce. It’s immaterial and irrelevant and I’m not going to order him to answer
anything. I’m going another direction.”
The counselor was then examined by both parties about counseling sessions with
some of the children. Following his testimony, Wife’s counsel informed the trial court that
there were still “three professionals” to testify, and this exchange occurred:
THE COURT: For what?
[WIFE’S COUNSEL]: Well, they were called by Mr. -- there’s
one for me . . . the childrens’ [sic]
current counselor, which I assume Your
Honor will want to hear from their
current counselor.
THE COURT: No.
[WIFE’S COUNSEL]: Okay. I’ll let him go.
THE COURT: We’ve read all the reports. These
children have been in and out of
counseling. They are normal, healthy
children.
Regarding Dr. Mark Bradford, who was expected to testify as to the parenting skills
of both parties, the trial court stated that she saw no need for any such testimony due to her
reliance on his written report contained in the case file, and Husband responded that the
witness would address an issue previously raised by the trial court.
[HUSBAND]: Your Honor, you commented the other
day when we had pretrial conference
evidence at trial or that the parties had stipulated that they could otherwise be considered as substantive
evidence in the case. “The mere filing of a document does not put it into evidence.” In re Morrison, 987
S.W.2d 475, 479 (Mo. App. S.D. 1999) (citation omitted).
37
that in the reports that I, according to
your words, I did not fare as well in the
report as [Wife] did. You have also
characterized me today as being hyper
narcissistic, I don’t remember the exact
quote. I would like to call him to
address that since, obviously, that’s The
Court’s conclusion. So I want to be
able to address that for The Court.
THE COURT: He found both of you capable of
parenting. I don’t need to hear anymore
from him. I’ve read his report. If you
want to put him on to talk about
narcissism briefly, we will allow that,
but I don’t know that you know how to
do anything briefly. Everything you’ve
told me you would do briefly has gone
on and on and on and on, ad infinitum.
So, if you want to put him on briefly for
that, we’ll allow. It has nothing to do
with custody. This is all we’re dealing
with now. Everything else is done.
[HUSBAND]: Custody is at issue. I mean, that’s what
we’re dealing with now, so custody is at
issue.
THE COURT: Whether or not you’re narcissistic, he
found the traits of narcissism toward
your ex-wife, so, I think you exhibit
narcissistic traits by your conduct here
in the courtroom. That’s my own
observation. He can’t help me with
that. I’m going by what I see based on
your conduct towards your children,
toward The Court, toward everyone,
and the fact that he used that phrase first
doesn’t mean that it’s not what I’m
observing myself.
And whether he says it’s mild or
moderate, I’m going to say you’re full
of it. I have been putting up with it and
you have not. So there you go. He
can’t help me on that issue.
38
[HUSBAND]: With all due respect, Judge, you have
not ever observed me with my children.
To make a comment that you have
attributed that I have had that type of ill
behavior toward my children, I mean,
Judge, that does not match the actual
facts.
THE COURT: This Court will see all the stuff in the
file as to that conduct so it’s all there,
every bit of it’s there.
....
[HUSBAND]: [Wife and her counsel] have alleged in
this case that I was inappropriate during
counseling sessions and that I, you
know, in counseling sessions with the
kids that I interrupted, I wouldn’t let
them speak and I ran over the top of
them.
[WIFE’S COUNSEL]: We all can see that could never have
been true.
....
THE COURT: And I told you guys going in that we’re
playing this straight up on what this
judge hears and what this judge reports,
you have asked me to read which I have
done, and I’m just -- I don’t understand
why you put in a report from a
psychologist your last witness that
totally torpedoes you. I mean,
everything you do.
I actually think that these three
ladies need not have shown up. Had
you come here alone and put the
evidence on, they still would have won.
That’s the kind of evidence you’re
putting on.
39
[HUSBAND]: Judge, with all due respect, I think you
have ruled this case already and that last
comment, I think, underscores --
THE COURT: I think I have. I have got all the
evidence I need and all you’re doing is,
as you have done all day, is beat a dead
horse, whether it’s garage sales or
impotence or children, you just want to
talk about it. If you want to put him on
briefly, it’s not going to change what I
have observed in the record in your
open court conduct.
[HUSBAND]: I will call him, then, Your Honor.
Dr. Bradford’s testimony
During his examination of Dr. Bradford, Husband asked whether either parent
“fare[d] better than the other” in the doctor’s reports concerning Husband and Wife. Dr.
Bradford stated that that was “a real difficult question to answer[,]” and the trial court
interjected the following:
He doesn’t know what we’re
weighing. He doesn’t know what we’re
weighing. He doesn’t know why I said
that. I said that because she showed
interest in the children. She showed
contact with the children. She showed
activities with the children, and I saw in
your report mostly complaining about
your relationship.
The only reason I say that, not
that she was psychologically more
sound or not more sound. It was a basis
as she fared better in terms of her
knowledge and contact and interaction
with her own children, and this has been
through this whole entire case. But I
take it back if that helps anything.
And it was just -- I said it was
benign for both of you but you can’t
40
hear those words. I said it was a totally
benign report that indicated that both of
you were totally capable of parenting.
Both of you might need counseling to
learn how to handle the situation better.
I thought it was a relevant report. I
should not have said that. It’s just that
in terms of the children and that was
what I was talking about at that time.
As to any other issues.
Trial Court Comments On Additional Testimony About the Children
As the trial moved on, one witness, a doctor, expressed “concern” during her
testimony over the scope of information covered by her subpoena.
THE COURT: I’m with you. I see -- I have to tell you,
Ma’am, I’ve read all the reports in the
file. The children have been
extensively counseled. The file is
replete with those counseling sessions,
and I have reviewed them. I have spent
two hours with the children today. I
think we’re all where we need to be but
[Husband] wants to press ahead.
Wife’s counsel outlined additional witness testimony in another exchange with the
trial court.
[WIFE’S COUNSEL]: I have two witnesses who will -- he said
that it was not true that he ever
threatened to arrest the children.
THE COURT: We don’t need to hear that.
[WIFE’S COUNSEL]: You don’t need to hear that.
THE COURT: No, don’t need to. I have four children
who say that’s what happened. It
doesn’t matter whether they did or not,
that’s what they are all sticking to.
41
Record concerning additional witnesses to be offered on behalf of Husband
The trial judge allowed Husband to examine a mutual friend of the parties, Shanna
Tilley, about allegations that Wife had used A.F. to send messages describing why Wife left
Husband, but the trial court stated, “Let’s make this short because it’s not going to impact
anything that happens in this case. If you want to make a record of it, you go right ahead.
When the trial court asked about how many more witnesses Husband planned to call,
the following occurred.
[HUSBAND]: I have one, Judge.
THE COURT: Whatever. You help yourself with the
school witnesses immensely, then you
hurt yourself. You just don’t know
when to quit.
[HUSBAND]: Probably eight witnesses, Your Honor.
THE COURT: About what?
[HUSBAND]: Judge, my children mean everything to
me.
THE COURT: There is nothing you put on except --
[HUSBAND]: I’m here fighting for the best interest of
my children and I should be able to put
on the evidence.
THE COURT: You’re a drama queen. Go ahead.
Later, the trial judge again expressed her displeasure at Husband’s attempts to
present witnesses.
THE COURT: Oh, dear heavens. What are these
witnesses going to testify to?
[HUSBAND]: Trish Tallon is going to testify about
how [Wife] bashed me in front of
[A.F.]. I’m going to talk to [Wife’s
42
mother] about some issues related to,
again, the child issues. I’m going to
talk to [Wife’s father] about how he
kidnapped my son on April 27 of 2014
during one of my visits.
THE COURT: And what does that have to do with
your custody and the mother?
[HUSBAND]: Judge, is that appropriate that a
grandfather would go kidnap a child
during a parent’s parenting time?
THE COURT: All you want to do is fight. You don’t
want to get along with anyone.
[HUSBAND]: Judge, it happened. [Wife] sent her
father in spite of a court ordered visit
that I had, she sent her father to nab
[N.F.] and take him away from me,
which is what he did.
THE COURT: It doesn’t go to affect your right to have
the type of custody this court orders,
period. What he did, period.
[HUSBAND]: I’m standing here. You’re prejudging
this case.
THE COURT: I’m so unhappy you’re sad. You are a
drama queen, prima donna like I have
never seen in 40 years as an attorney.
You start putting these on and I
would caution you just to sit there and
listen. Let’s survive this as best we can.
Call a witness and they better be
relevant to something, and I don’t want
to hear about anyone kidnapping
grandchildren.
Testimony by the parties’ mutual friend, Patricia Tallon
As Tallon was being examined by Husband, the trial court interrupted with the
following direction to Wife’s counsel.
43
Q And at some point, did [A.F.] walk up to the two of you as [Wife] was
talking to you?
A I think so. I think maybe she came and got something from the car.
Honestly, I cannot remember. I don’t think she was part of the
conversation if that’s what you mean at all.
Q She wasn’t actually speaking. She may have been just there within
earshot?
THE COURT: No, you’re not characterizing her
testimony. I got her testimony. You
object.
[WIFE’S COUNSEL]: Objection.
THE COURT: It’s sustained. Don’t try to characterize
her testimony. She is your witness.
You’ve asked the question. She’s
answered. And now you’re re-
answering it for her to fit your purposes.
Question, and don’t lead.
Testimony by Wife’s mother, Christina Tsahiridis
During Husband’s direct examination of Christina, the trial court interrupted again.
Q When you talked to my mom on February 1 of 2014, you admitted
that you told the kids that I was disgusting, correct?
A That is not correct. And I would like to clarify.
THE COURT: No, you don’t need to.
THE WITNESS: Okay.
THE COURT: We’re just indulging him right now.
Testimony by Wife’s father, Dimitrios Tsahiridis
Husband had previously asked Christina about cursing at him in Greek in front of
D.F. Husband then asked Dimitrios the meaning of a particular Greek word, and the trial
judge cut the questioning off.
44
Q What does the word malaka mean?
THE COURT: Irrelevant. He will not answer the
question. It’s withdrawn. Court won’t
allow him to answer that.
[HUSBAND]: Can I make an offer of proof?
THE COURT: Nope. Move on. And let’s not get into
kidnapping either. He’s the
grandfather.
[HUSBAND]: Judge, I’m going to have to ask the
question. I mean, it’s a highly
inappropriate action for any person to
take, regardless of familial relationship,
to take a child away from another -- a
parent during the middle of a visit.
THE COURT: Then make complaints with the juvenile
authorities. This has nothing to do with
custodial [sic] situation here. I’m trying
to determine custody.
[HUSBAND]: What does that reinforce to a child?
Does that not reinforce to a child to
show disrespect to the parent? Does it
not reinforce to a child that if you’re --
whatever you are, just run away, just
run away. Does it not reinforce that?
THE COURT: No, sir, it does not. I don’t have a clue
what you’re talking about and I have
not most of the day. So you seem to
want to -- go ahead. Make it quick.
Dimitrios testified that his daughter asked him “to go pick up [N.F.] and drive away
to take [the child] away from” Husband. Husband asked whether Dimitrios meant Wife, and
the trial court interrupted, stating, “Yes, don’t beat it. It’s done and your [child] has testified
as to why.”
45
When Husband tried to continue his examination as to what happened next, the trial
court again interrupted.
THE COURT: He’s admitted it. Stop it. He’s already
said he did it. All the questions have
been answered.
[HUSBAND]: Judge, the rest of the story--
THE COURT: I know. You claim he hit you and you
had to wear a sling and your son has
testified in counseling that you made
the whole thing up.
[HUSBAND]: Right there. Judge.
THE COURT: I’m sorry, your son said you made the
whole thing up. It’s in the file in the
counseling records that you have
already put in there. I have already read
all that.
Testimony by a movie theatre manager, Ben Michel
Husband questioned Michel about what happened on a particular evening at the
theater involving the parties and the children. When Husband concluded his direct
examination, the following transpired.
[HUSBAND]: Nothing further.
[WIFE’S COUNSEL]: Judge --
THE COURT: This witness may be excused.
[WIFE’S COUNSEL]: Really. Okay. It was a good story.
THE COURT: I don’t even know where that came
from. That’s the first I have heard of it.
[HUSBAND]: It was a good story when I read your
pleadings, too.
THE COURT: That’s all right. Don’t worry about it.
46
Testimony by Husband’s mother, Ila Jean Farris
Husband offered a copy of an email Ila Jean had received into evidence, and
although the trial judge admitted the email, she stated that she would “give it no weight”
because the email dated to 2006. The following exchange then occurred:
[HUSBAND]: Judge, I’m disappointed that you
continue to prejudge the facts and have
already ruled this case.
THE COURT: Oh, yeah, well, fine. I have listened to
you whine all day. That’s Exhibit
Number 14. I will review it and take it
for what it’s worth. I will note that it’s
from November 2006.
When Ila Jean confirmed that Wife had “carr[ied] through on the promise” to keep
the grandmother from seeing the children, Wife’s counsel objected.
[WIFE’S COUNSEL]: Objection.
THE COURT: You start talking about from the time of
the divorce. I don’t care about this
because you were party to it. You want
to put everything at your [sic] door step.
This is your mother. If she couldn’t see
that she saw the grandchildren, I put
that at your doorstep, not hers. So you
cut your own throat with that, Buddy.
[HUSBAND]: I didn’t condone it. You’re assuming
facts that aren’t in evidence, Your
Honor.
THE COURT: I see a 2006 email. I will read it. Now,
let’s move on and talk about the
children.
Husband next attempted to question Ila Jean about a letter purportedly written by one
of the children when the trial court interrupted again.
Q This is a letter that [N.F.] wrote as to what happened that weekend.
47
THE COURT: I’ve seen it. It’s in the file, so let’s just
admit it and move on.
THE WITNESS: May I respond to the out and out lies,
Your Honor?
THE COURT: No, you may not.
[HUSBAND]: Judge, I would like to make an offer of
proof. I think we have the legal right to
address this letter.
THE COURT: It’s written to you. It’s not written to
her. She is the witness. [Eventually,
the trial court instructed Husband to
“[p]roceed” and he went on with
questions about the letter.]
Later, the trial judge made the following inquiry of Husband:
THE COURT: How much longer do you have? I can’t
imagine that you could go through any
more visits. I mean, you’re basically
showing you’re not able to handle your
children during your visitation and I got
it. And you’re trying to blame it on the
mother, I got it. Your relationship has
deteriorated, I got it. This stuff is
already in the file.
[HUSBAND]: It’s inaccurate to blame it on me, Judge,
and you’re prejudging this case. You
have ruled this case -- in fact, I think
you ruled it before we started.
THE COURT: This stuff was in there before we
started.
[HUSBAND]: Well, then, you saw it and you ruled it
this morning before we started at 9:00.
THE COURT: You put it in there. It’s all stuff you put
in the file alleging all kinds of odd
things. So I have reviewed what you
have put in the file and you just keep
48
moving on. And again, I don’t need --
I’m not going to listen to every visit you
ever had with your children and how
they went bad.
As Wife’s counsel was about to begin to question Husband’s mother, the trial judge
advised Wife’s counsel about any need for cross-examination.
[HUSBAND]: Tender the witness.
[WIFE’S COUNSEL]: Oh, good. I really will keep this short.
I know you don’t need it.
THE COURT: This is grandma. She loves her
grandkids, you know.
[WIFE’S COUNSEL]: But she says such good stuff.
THE COURT: I know. But I would let it go. It’s just
like when grandpa was on the stand, I
loved him. He gave the perfect answer.
She has done the best she can to give
good answers. I’m weighing the fact
that he’s the grandpa and she is the
grandma. I know you love your
grandchildren.
Testimony by Husband’s girlfriend, Sindy Kimmis
Husband questioned Kimmis about an occasion when Wife had not arrived to pick
up the children. Kimmis recalled that Husband “said that [he was] going to contact the
police to do a wellness check” on Wife. The trial judge then interjected with her own
question.
Q Did I threaten to have them [the children] arrested that night?
A Of course not.
THE COURT: He was calling the police again? That
seems to be his favorite little card. He
was calling the police?
49
THE WITNESS: He contacted the police. He said he was
going to do a wellness check. He told
them that.
As the examination of Kimmis went on, the trial court inquired about whether some
of the issues addressed in her testimony had been raised by the pleadings, then turned to the
significance of some of the events.
THE COURT: . . . . We’ve been over and over and
over again about all these little
incidents. It’s enough. Obviously, you
do not have any control of your children
when they are in your custody. You
have produced that evidence yourself.
The record is replete with that that you
cannot control your children. So now.
[HUSBAND]: Judge, that’s not the case and I’m
concerned.
THE COURT: I am the judge. Guess what? I get to
decide that and I have decided it.
[HUSBAND]: I know you did. I think you decided
early this morning.
THE COURT: Yeah, right, whatever. . . .
After Kimmis’s testimony, the trial court stated, “Let me talk to you two. I know
you’re down to the last witness.” The trial court then stated findings and opinions, and
commented on the effect of any potential forthcoming testimony by Husband about the
children.
[THE COURT:] . . . .
. . . . I believe that he’s alienated
himself from his own children by his
conduct, which is, as a mother of three
and grandmother of nine, is just off the
charts. It just shows someone who
50
really hasn’t had a long and extensive
background towards those children.
Sure, they got along with him as
long as mom was taking care of things
for him, but the bottom line is you’re
not qualified to do it on your own. I’m
finding that. I am not changing the
[temporary] custody order. There is no
evidence you can put on that hasn’t
already been put on at least twice,
maybe three, maybe four times that
would change that for me.
....
. . . . My legal determination as a judge
in this case is all you wanted to do is
keep sticking it into her. And you no
more wanted this case to be resolved
because you had this perverse idea that
if you can keep it going, you can keep
attacking her.
So the bottom line is I find
you’re the one at fault in this case. I
find you’re the one that’s causing
problems with your children, and I have
looked at everything in this file. I have
read it all.
And in most of the stuff we saw
today is you belly-aching earlier just
like now, “Oh, my kids don’t love me.”
Well of course they don’t. You act like
an idiot around them. Of course they
don’t like you. Just all there is to it.
It’s on your doorstep.
I think you’re a full-blown
narcissist. You’re never going to accept
what I’m saying so I’m wasting my
breath. But the bottom line is it all
revolves around [Husband] always, and
that’s not the way you raise children. It
has to revolve around them.
51
. . . . And until you get your act
together, you’re not going to have any
contact with your children. . . .
....
I think the current visitation
plan, they don’t want to comply with it.
I mean, and I don’t -- that’s why I can’t
put this at [Wife’s] doorstep. The
children don’t want to. And they -- you
have articulate, intelligent children and
they are not having anyone pull the
wool over their eyes. They know what
they feel toward you and it’s not
because their mother has forced that
down their throat. If you want to know,
the only bad words they have heard said
by anyone is you calling your wife a
cunt.
[HUSBAND]: Never happened, Judge. Never
happened.
THE COURT: Well, I’m sorry, your children say it
did.
[HUSBAND]: She put it in their head. She put it in
their head. You haven’t even heard my
testimony.
THE COURT: Well, fine. I’ve heard all the “put in
your head.” You know what, when you
go to the source and you look at your
pleadings, your arrogance is beyond, as
I already said today, anything I’ve ever
seen. Your idea [sic] that through this
entire proceeding for 18 months.
[HUSBAND]: Judge, she is the one who violated
Court Order after Court Order, and yet
I’m at fault for bringing that to your
attention?
52
THE COURT: This is my finding. I’m not changing
custody. You can take the stand and
testify. Only way I would change it
would be to lessen what you’re already
receiving.
[HUSBAND]: So my testimony won’t matter to you?
THE COURT: You can take the stand and testify, but
you better come up with something
other than this -- this garbage parental --
I have listened and listened to how bad
the children are and all that has
convinced me is there no way you can
take those children because they can’t
stand being with you. Your evidence.
Not hers.
You know, you’re going -- how
many times have you threatened to take
these kids to the police? That’s not the
way you raise kids. You handle it
yourself. So bottom line is no, your
testimony probably couldn’t make any
difference but I’m not going to cut you
off if you want to testify.
[HUSBAND]: I’d like to testify.
THE COURT: I’m tired of this.
[HUSBAND]: I’d like to testify, Your Honor. And I
would like you to have an open mind
about my testimony.
THE COURT: I know exactly what you’re going to say
and I have probably heard it already
three times today anyway.
53
Testimony by Husband regarding child-related issues14
During Husband’s testimony, the trial judge repeated that her previously announced
decision was final.
THE COURT: Let’s get these exhibits marked. If
you’ll go over there and stick from 46
through 56 on each one of them and
explain what they are so it will be in the
record and we know what they are.
Then I’ve got all these exhibits -- you
want me to just take all these with me
and then enter my order? How do you
want to do that?
I’ve already told you what I’m
going to do. I can tell you right now
your relief is at the next level. That’s
why I’m letting you mark all these so
you can take them up there and explain
to them why my decision was wrong.
[HUSBAND]: So you’ve ruled?
THE COURT: I’ve ruled. You heard me. I’m letting
you put your exhibits in.
....
THE COURT: You want me to change custody to you,
which I will never do. You don’t want
anything to work to where we might get
a plan together. You don’t want to
propose anything short of everything
and you’re not getting everything.
You are -- that’s it. So you’re
saying like fine, if I can’t have
everything, I want nothing, and that’s
where we’re at right now.
14
The transcript index does not identify Husband as a witness, and it does not indicate that Husband takes the
stand or is re-sworn. Husband simply begins offering evidence to the court after announcing his decision to
testify.
54
So the bottom line is I’m not
encouraging anything. You’re refusing.
You’re absolutely refusing to try and
work out something. This horrible rift
you have with your children that I find
you as my findings and the law of this
case is going to be that you caused the
rift.
Just start telling what those
things are, mark them in groups. Some
other court is going to have to --
[HUSBAND]: Do you want me to start?
THE COURT: Yes, sir, I do.
Before Husband had finished offering exhibits, the trial court suddenly announced
that court was adjourned and “I don’t want anymore [sic] exhibits.” Husband persuaded the
trial court to accept some additional exhibits. As Husband described the content of some of
the exhibits, the trial court stated, “You won’t listen that I don’t care, but go ahead.”
Husband was not given the opportunity to complete his testimony related to child custody,
and neither party was offered the opportunity to make a closing argument.
55