Youngstrom v Youngstrom [1992] FMSC 26; 5 FSM Intrm. 385 (Pon. 1992) (26 November 1992)

[1992] FMSC 26; 5 FSM Intrm 385 (Pon 1992)

FEDERATED STATES OF MICRONESIA
SUPREME COURT
TRIAL DIVISION
FSM CIVIL ACTION 1990-067

VERNON YOUNGSTROM
Petitioner

V

NEWS YOUNGSTROM
Respondent

OPINION: November 26, 1992

BEFORE: Honorable Andon L. Amaraich, Associate Justice

APPEARANCES: For the Petitioner: Matt Mix, Attorney at Law; For the Respondent: Daniel J. Berman, Attorney at Law

HEADNOTES

Courts - Recusal
Even if neither party alleges or moves for disqualification a judge may disqualify himself if he believes sufficient grounds exist. Youngstrom v. Youngstrom, [1992] FMSC 26; 5 FSM Intrm. 385, 386 (Pon. 1992).

Courts- Recusal
In order for a judge's personal bias or prejudice to be disqualifying it must stem from an extrajudicial source or conduct, not from information learned or events occurring during the course of a trial. Youngstrom v. Youngstrom, [1992] FMSC 26; 5 FSM Intrm. 385, 387 (Pon. 1992).

Courts - Recusal
Before a judge disqualifies himself from a case he should also consider whether his disqualification will cause considerable delay, require substantial expense and effort, and cause undue disruption in the advancement of the matter. Youngstrom v. Youngstrom, [1992] FMSC 26; 5 FSM Intrm. 385, 387 (Pon. 1992).

COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:

BACKGROUND

This matter came before me for trial on August 28, 1992. Both the petitioner, Vernon Youngstrom, and the respondent, News Youngstrom, seek the dissolution of their marriage.^[1] The parties stipulated to a divorce pursuant to 6 F.S.M.C. 1626(8) and/or its state counterpart, 39 TTC 201(8) as adopted by the State of Pohnpei. The issues at trial were the amount of future child support the respondent is to receive and whether past, or prejudgment, child support should awarded. Among the witnesses at trial was the petitioner's new wife, Raysleen. Her testimony concerned her ownership of the family business and the amount of income it generated. These were at issue insofar as they related to the ability of the petitioner, Vernon Youngstrom, to pay child support.

After trial was had and while judgment in this case was pending, the current wife of the petitioner approached some of my close relatives with a request that they speak to me to encourage a ruling in the petitioner's favor. Unwittingly, my relatives informed me of this approach. I am incensed that a party, or someone in close relationship to a party, believes that she could, and in fact did try to, influence this court in a such a manner, that I now find myself to have such personal bias or prejudice toward the petitioner that I must disqualify myself pursuant to 4 F.S.M.C. 124(2)(a).

DISQUALIFICATION

Neither party has moved that I disqualify myself. Nor has anyone alleged that I should. However, "[e]ven when sufficient allegations have not been made, a judge may disqualify himself if he believes sufficient grounds exist." Jano v. King, [1992] FMSC 2; 5 FSM Intrm. 266, 271 (Pon. 1992). See also FSM v. Jonas (II), [1983] FMSC 9; 1 FSM Intrm. 306, 315 (Pon. 1983). The pertinent statute requires that a judge "shall . . . disqualify himself . . . where he has a personal bias or prejudice concerning a party or his counsel . . . ." 4 F.S.M.C. 124(2)(a).

"Courts normally adhere to the rule that any alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source." FSM v. Skilling, [1984] FMSC 6; 1 FSM Intrm. 464, 483 (Kos. 1984), aff'd[1986] FMSC 6; , 2 FSM Intrm. 209 (App. 1986). See also In re Main[1990] FMSC 14; , 4 FSM Intrm. 255, 261 (App. 1990). Information learned, or events occurring during the course of a trial cannot be used by a judge to disqualify himself on the grounds that these events or this information have now caused him to be biased or prejudiced. FSM v. Jonas (II), [1983] FMSC 9; 1 FSM Intrm. 306, 317-19 (Pon. 1983). Any disqualification must "be made on the basis of conduct which is extrajudicial in nature." Id. at 318.

My bias or prejudice stems from the misconduct of the petitioner's new wife, Raysleen, in seeking to influence this court's decision in an extrajudicial manner. Therefore it may form the basis for my recusal from further proceedings in this matter if I believe that sufficient grounds exist. I conclude that they do.

Before a judge disqualifies himself from a case he should also consider whether his disqualification will cause considerable delay, require substantial expense and effort, and cause undue disruption in the advancement of the matter. Jonas (II), 1 FSM Intrm. at 315. Trial in this matter took less than one day. The witnesses who testified were all residents on Pohnpei. The attorneys should require little or no further preparation. Therefore my disqualification and a new trial should not unduly burden the advancement of this matter. In light of this, the court will order a new trial and assign another justice to the matter.

DIVORCE AND RETRIAL

However, since both parties have already stipulated as to the divorce itself this court will grant the divorce. The court finds as fact that the parties have been separated for more than two consecutive years without cohabitation. This is sufficient grounds for divorce pursuant to 39 TTC 201(8) as adopted in Pohnpei, and 6 F.S.M.C. 1626(8). Therefore the clerk shall enter a decree of divorce.

Retrial will be confined solely to the issues of the amount of future child support and whether past, or prejudgment child support can and ought to be awarded, and if so, in what amount. Until the new justice has ruled otherwise, this court's order, entered July 3, 1992, granting the respondent child support pendente lite in the amount of $30 per month per child under the age of eighteen in her custody, is continued in force.

The court would also like to warn all current and future litigants that steps have been taken to insure there are no future occurrences of this kind. Furthermore, any attempt to influence this court extrajudicially, or to use such attempt to force a change of justices, will be dealt with in the sternest manner possible.

ENDNOTE:

¹A recitation of the facts and earlier proceedings in this case may be found in Youngstrom v. Youngstrom, [1992] FMSC 13; 5 FSM Intrm. 335 (Pon. 1992). Therein the respondent was awarded child support pendente lite of $30 per month child in her custody under the age of eighteen.

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^[1]A recitation of the facts and earlier proceedings in this case may be found in Youngstrom v. Youngstrom, [1992] FMSC 13; 5 FSM Intrm. 335 (Pon. 1992). Therein the respondent was awarded child support pendente lite of $30 per month child in her custody under the age of eighteen.