Zurosky v. Shaffer , 242 N.C. App. 523 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-954
Filed: 4 August 2015
Mecklenburg County, No. 9 CVD 30462
KIRK S. ZUROSKY, Plaintiff,
v.
ALYSON G. SHAFFER, Defendant.
Appeal by plaintiff from orders entered 21 February 2014 and
27 February 2014 by Judge Paige B. McThenia in Mecklenburg County District
Court. Heard in the Court of Appeals 20 January 2015.
Marshall & Taylor, PLLC, by Travis R. Taylor, for plaintiff-appellant.
Hamilton Stephens Steele + Martin, PLLC, by Amy Simpson Fiorenza, for
defendant-appellee.
McCULLOUGH, Judge.
Kirk S. Zurosky (“Zurosky”) appeals from the following orders by the trial
court: (1) an order denying his motion to recuse filed 21 February 2014, (2) an
amended contempt order filed 27 February 2014, and (3) an order granting his motion
to alter or amend the contempt order filed 27 February 2014. For the following
reasons, we reverse and remand.
I. Background
ZUROSKY V. SHAFFER
Opinion of the Court
Zurosky and Alyson G. Shaffer (“Shaffer”) are former husband and wife. They
married on 1 July 1995, separated in January 2009, and divorced in June 2010.
Zurosky and Shaffer have two minor children from their marriage.
Since Zurosky initiated the underlying lawsuit on 23 December 2009 by filing
a complaint for child custody and equitable distribution and a motion for a
psychological evaluation of Shaffer, Zurosky and Shaffer have been involved in
contentious litigation over child support, spousal support, equitable distribution, and
other matters related to their divorce. That litigation includes a prior appeal to this
Court and an opinion, see Zurosky v. Shaffer, __ N.C. App. __, 763 S.E.2d 755 (2014),
in which a more detailed background of the case can be found.
Pertinent to this appeal, the trial court entered a temporary child support and
postseparation support order on 31 August 2011 and a subsequent order regarding
temporary child support on 10 May 2012. Those temporary support orders required
Zurosky to make support payments. On 25 February 2013, Shaffer filed a motion to
find Zurosky in contempt of the temporary support orders. Prior to ruling on Shaffer’s
contempt motion, on 10 April 2013, the trial court entered an equitable distribution
judgment and permanent child support and alimony order. Pursuant to the terms of
the judgment and permanent support order, Zurosky was required to continue paying
child support and alimony; the amount of those obligations, however, increased. Both
parties appealed from the 10 April 2013 judgment and permanent support order.
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Opinion of the Court
With Zurosky’s and Shaffer’s appeals pending, on 22 May 2013, Shaffer filed an
amended motion to find Zurosky in contempt of the judgment and permanent support
order. Shaffer later filed two additional motions on 13 June 2013 to find Zurosky in
contempt; one motion for failure to comply with a subpoena duces tecum and one
motion for failure to comply with the judgment and permanent support order. Shaffer
sought to recover attorney’s fees in each of her motions to find Zurosky in contempt,
as well as other matters litigated.
On 13 June 2013, the presiding judge, the Honorable Paige B. McThenia,
issued an order, sua sponte, in which she voluntarily recused herself from the issue
of attorney’s fees. Her decision was based on the following findings of fact provided
in the order of recusal:
2. On February 24, 2010, [Shaffer], represented by
attorney Amy Simpson Fiorenza ("Ms. Fiorenza"), filed her
Answer and Counterclaims seeking temporary and
permanent child custody pursuant to N.C. Gen. Stat. § 50-
13.2, temporary child support and permanent child support
pursuant to N.C. Gen. Stat. § 50-13.4, post-separation
support pursuant to N.C. Gen. Stat. § 50-16.2A, alimony
pursuant to N.C. Gen. Stat. § 50-16.3A, equitable
distribution pursuant to N.C. Gen. Stat. § 50-20 et seq., and
attorney's fees pursuant to N.C. Gen. Stat. § 50-13.6 and §
50-16.4.
3. On the date that Ms. Fiorenza filed the Answer and
Counterclaims on behalf of [Shaffer], she was employed at
the law firm of James, McElroy & Diehl, PA.
4. On June 13, 2011, Ms. Fiorenza joined the law firm
of Hamilton Stephens Steele & Martin, PLLC.
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ZUROSKY V. SHAFFER
Opinion of the Court
5. The undersigned Judge is married to Thomas
Jonathan Adams ("Mr. Adams"), a partner practicing in the
areas of commercial litigation and employment law at the
firm of Hamilton Stephens Steele & Martin, PLLC.
6. In an effort to avoid any appearance of impropriety
or partiality, this Judge disclosed on the record the basis of
her potential disqualification as soon as she became aware
of Ms. Fiorenza's affiliation with Hamilton Stephens Steele
& Martin, PLLC. After discussion between each attorney
and her respective client outside of the presence of this
Judge, the parties and their attorneys all agreed on the
record that the basis for the potential disqualification
would not prohibit this Judge from participating in the
proceeding.
7. The Court has entered copious Orders in this
case. . . .
....
17. Currently pending before the Court are, inter alia,
[Shaffer’s] claim for attorney fees for approximately three
and a half years of legal services amounting to a figure in
excess of $300,000.
18. Given that Mr. Adams has at least an indirect
financial interest in any fees paid to the firm of Hamilton
Stephens Steele & Martin, PLLC, this Judge has
determined that in order to promote justice, and comply
with Canon 3C(1) of the North Carolina Code of Judicial
Conduct, recusal from this case on the issue of attorney's
fees only is appropriate to prevent the calling into question
of this Judge's impartiality.
The order further provided that Judge McThenia would continue to participate in all
other proceedings in the case.
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ZUROSKY V. SHAFFER
Opinion of the Court
On 23 July 2013, Shaffer’s motions to hold Zurosky in contempt came on for
hearing. Prior to the Court hearing evidence on Shaffer’s motions, Ms. Fiorenza
indicated the only outstanding issues for resolution besides the contempt motions
were attorney’s fees and costs, which had been calendared for 6 August before a
different judge. At that time, Zurosky’s counsel, attorney Tamela P. Wallace (“Ms.
Wallace”), voiced concern over Judge McThenia’s partial recusal and, citing Phillips
v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), asserted that Judge McThenia
could not enter further orders in the case once she had entered a recusal order. Ms.
Wallace argued the issues of contempt and attorney’s fees associated with the
contempt motions were related and should not be bifurcated between different judges.
In response, Judge McThenia distinguished Phillips on the basis that the judge’s
recusal in Phillips was a complete recusal from the matter and determined based on
her research and consultation with Judicial Standards that a recusal from only the
issue of attorney’s fees was appropriate in this case. At that time, Ms. Wallace
reiterated Zurosky’s objection and the hearing on Shaffer’s contempt motions
proceeded.
Zurosky testified for the remainder of the afternoon until the hearing on
Shaffer’s contempt motions was continued to a later date.
On 29 July 2013, Shaffer filed a motion for relief pursuant to Rule 60 in which
she requested an order amending the judgment and permanent support order to
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Opinion of the Court
include exhibits referenced in the judgment and permanent support order but not
attached to it when it was filed. The trial court heard arguments on the motion for
relief on 7 October 2013.
On 8 November 2014, Shaffer’s motions to find Zurosky in contempt came back
on for hearing. Before further evidence was heard concerning the contempt motions,
Judge McThenia signed an order granting Shaffer’s motion for Rule 60 relief and an
amended equitable distribution judgment and permanent child support and alimony
order with the referenced exhibits attached. The contempt hearing was then
concluded.
On 26 November 2013, Judge McThenia filed a contempt order holding
Zurosky in civil contempt for failure to make timely child support payments, alimony
payments, and payments of arrears arising therefrom.
The contempt order came on for a review hearing on 3 February 2014. At that
time, Judge McThenia also considered a Rule 59 motion by Zurosky to amend the
contempt order for purposes of clarification.
On 21 February 2014, the trial court entered a written order denying Zurosky’s
23 July 2013 oral motion to recuse during the original hearing on Shaffer’s contempt
motions. In the order, Judge McThenia found she “does not find that her recusal from
[Shaffer’s] claim for attorney fees prohibits her from hearing other claims in the
action.” Therefore, Judge McThenia concluded she “shall continue to preside over
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ZUROSKY V. SHAFFER
Opinion of the Court
matters not related to [Shaffer’s] claim for attorney fees pursuant to Canon 3C(1) of
the North Carolina Code of Judicial Conduct.” The trial court then entered an order
granting Zurosky’s motion to amend the contempt order and an amended contempt
order on 27 February 2014.
On 21 March 2014, Zurosky filed notices of appeal from the 21 February 2014
order denying his motion to recuse, the 27 February 2014 amended contempt order,
and the 27 February 2014 order granting Zurosky’s motion to amend the contempt
order.
II. Discussion
In the first issue on appeal, Zurosky argues the trial judge erred in denying his
motion to recuse and by continuing to preside over matters in the case following her
partial recusal. Upon review, we agree the trial judge erred.
Canon 3 of the North Carolina Code of Judicial Conduct provides that “[a]
judge should perform the duties of the judge’s office impartially and diligently.” Code
of Judicial Conduct Canon 3 (2015). In furtherance of Canon 3’s general rule,
subsection (C)(1) provides in pertinent part:
On motion of any party, a judge should disqualify
himself/herself in a proceeding in which the judge’s
impartiality may reasonably be questioned, including but
not limited to instances where:
....
(c) The judge knows that he/she, individually or as a
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ZUROSKY V. SHAFFER
Opinion of the Court
fiduciary, or the judge’s spouse or minor child residing in
the judge’s household, has a financial interest in the
subject matter in controversy or in a party to the
proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;
(d) The judge or the judge’s spouse, or a person within
the third degree of relationship to either of them, or the
spouse of such a person: . . . (iii) Is known by the judge to
have an interest that could be substantially affected by the
outcome of the proceeding[.] . . .
Code of Judicial Conduct Canon 3(C)(1) (2015). Subsection (D) adds:
Nothing in this Canon shall preclude a judge from
disqualifying himself/herself from participating in any
proceeding upon the judge’s own initiative. Also, a judge
potentially disqualified by the terms of Canon 3C may,
instead of withdrawing from the proceeding, disclose on the
record the basis of the judge’s potential disqualification. If
based on such disclosure, the parties and lawyers, on
behalf of their clients and independently of the judge’s
participation, all agree in writing that the judge’s basis for
potential disqualification is immaterial or insubstantial,
the judge is no longer disqualified, and may participate in
the proceeding. The agreement, signed by all lawyers,
shall be incorporated in the record of the proceeding. . . .
Code of Judicial Conduct Canon 3(D) (2015).
When a party moves for recusal by the trial judge,
[t]he burden is on the party moving for recusal to
demonstrate objectively that grounds for disqualification
actually exist. The moving party may carry this burden
with a showing of substantial evidence that there exists
such a personal bias, prejudice or interest on the part of the
judge that [she] would be unable to rule impartially, or a
showing that the circumstances are such that a reasonable
person would question whether the judge could rule
impartially.
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Opinion of the Court
Harrington v. Wall, 212 N.C. App. 25, 28, 710 S.E.2d 364, 367 (2011) (quotations and
citations omitted).
This Court reviews de novo whether a party has met the
burden of showing through substantial evidence that the
judge has such a personal bias, prejudice or interest that
he would be unable to rule impartially. Where there is
sufficient force to the allegations to proceed to find facts, or
an objective basis for doubt as to the trial court's
impartiality, the trial judge should recuse himself or refer
the motion to another judge.
Dalenko v. Peden Gen. Contractors, Inc., 197 N.C. App. 115, 123-24, 676 S.E.2d 625,
631 (2009) (quotations and citations omitted).
Unlike the majority of recusal cases in which this Court must review the record
to determine whether the moving party has shown through substantial evidence that
recusal is necessary, in this case, the basis for recusal was made clear when the trial
judge issued the partial recusal order. As detailed above, in that order the trial judge
acknowledged that her spouse, a partner at the firm Ms. Fiorenza joined during the
pendency of this case, had “at least an indirect financial interest in any fees paid to
the firm” and determined that interest was sufficient to warrant recusal from the
case on the issue of attorney’s fees “to prevent the calling into question of [her]
impartiality.” Thus, it was clear there was a question as to the judge’s impartiality
or, at the very least, the appearance of impartiality.
The issue now before this Court is whether the trial judge erred in denying
Zurosky’s motion to recuse at the beginning of the contempt hearing. Upon review,
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Opinion of the Court
we hold the trial judge did err because the ruling on Shaffer’s contempt motions are
determinative on whether Shaffer’s claims for attorney’s fees associated with the
contempt motions can move forward. In so holding, we make no determination that
the trial judge’s contempt ruling, or other subsequent rulings, were in fact influenced
by her spouse’s interest. We hold only that, keeping in mind that “[n]ext in
importance to the duty of rendering a righteous judgment is that of doing it in such a
manner as will beget no suspicion of the fairness and integrity of the judge[,]” Ponder
v. Davis, 233 N.C. 699, 705-06, 65 S.E.2d 356, 360 (1951) (quotation marks omitted),
recusal was appropriate to avoid the appearance of impropriety and maintain
confidence in the judiciary.
Furthermore, we make no determination as to whether a partial recusal is
appropriate in other cases or under different circumstances. We simply hold that in
the present case, where the trial judge recused herself on the issue of attorney’s fees
due to her spouse’s interest as a partner of the firm seeking recovery of the fees, the
underlying motions for which attorney’s fees are sought are amply intertwined with
the claims for attorney’s fees so that recusal from both issues is proper.
In addition to responding to the merits of Zurosky’s argument on appeal
concerning the denial of the recusal motion, Shaffer asserts the recusal issue was
conclusively determined as a matter of law in the partial recusal order. Thus, Shaffer
contends Zurosky abandoned any remedies available to him by failing to challenge
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Opinion of the Court
the partial recusal order and Zurosky is collaterally estopped from rearguing the
issue. We disagree.
It is important to recognize the partial recusal order in this case was entered
by the trial judge sua sponte and the issue of recusal was not “actually litigated” by
the parties. Thus, collateral estoppel does not bar Zurosky from later raising the
recusal issue. See State ex rel. Tucker v. Frinzi, 344 N.C. 411, 414, 474 S.E.2d 127,
128-29 (1996) (Among other elements, “[a] party asserting collateral estoppel is
required to show . . . that the issue in question was identical to an issue actually
litigated and necessary to the judgment . . . .”) (quotation marks omitted) (emphasis
added). Moreover, while the trial judge did issue a finding indicating that she
“disclosed on the record the basis of her potential disqualification as soon as she
became aware of Ms. Fiorenza’s affiliation with Hamilton Stephens Steele & Martin,
PLLC[,]” and “[a]fter discussion between each attorney and her respective client . . .
the parties and their attorneys all agreed on the record that the basis for the potential
disqualification would not prohibit this Judge from participating in the
proceeding[s,]” there is no evidence in the record before this Court that the parties
came to an agreement and there was certainly no written agreement comporting with
the requirements of Canon 3(D) waiving the conflict. Thus, the issue of recusal from
the contempt hearings and other matters in this case was not conclusively determined
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Opinion of the Court
by the partial recusal order and Zurosky’s motion to recuse at the beginning of the
contempt hearing was properly considered by the trial court.
In addition to challenging the denial of his motion to recuse, Zurosky also
challenges portions of the order holding him in contempt. Because we hold the trial
court erred in denying Zurosky’s motion to recuse, we need not address these
arguments as the contempt orders entered following the denial of the motion to recuse
are of no effect. We do not rule on the merits of the contempt issues, but leave those
issues for determination upon remand to the trial court.
III. Conclusion
For the reasons discussed, we hold the trial judge erred in denying Zurosky’s
motion to recuse. Therefore, we reverse and remand to the trial court.
REVERSED AND REMANDED.
Chief Judge McGEE and Judge CALABRIA concur.
Report per Rule 30(e).
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