ANALYSIS OF MARCH 25, 2008 CAV OPINION

[Posted March 26, 2008]  I’ve been traveling for a couple of days now, so I’m only now getting to yesterday’s published opinion from the Court of Appeals in
Alexander v. Flowers .  It’s a domestic relations case, but it affects just about any case that can be appealed from the district court level to circuit court.

 

This is a case about child custody. The JDR judge saw things the husband’s way, and awarded custody to him. The wife, as was her right, appealed that judgment to the circuit court where the statutes say she gets a trial de novo. But before trial could commence, the husband filed in the circuit court a transcript of the proceedings in the juvenile court. When the circuit court hearing began, the judge, who had read the transcript, asked the parties if there would be any evidence different from what was presented below. He promised the parties that if the evidence turned out to be the same as in the juvenile court, then the ruling would be the same, too.

 

The wife objected to the filing of the transcript, claiming that the review by the court of the transcript deprived her of a trial de novo. And since the judge had already indicated that the transcript had persuaded him of the merits of the case, the wife moved the judge to recuse himself from the case. No one, after all, should be compelled to consign his case to a decisionmaker who has made up his mind before the first witness takes the stand.

 

The circuit court judge was unimpressed with this argument. Not only did he reaffirm the JDR ruling, he also imposed some $20,000 in fees and costs against the wife for having brought such a meritless appeal.

Yesterday, the Court of Appeals laid waste to this ruling, in a strongly worded opinion that gives the reader more than a couple “oh, MY” moments. Here’s the gist of the ruling:

 

An appeal of a JDR ruling, or any district court ruling, for that matter, is indeed de novo, and the previous ruling is a nullity as soon as the circuit court trial starts. The circuit court here impermissibly took on the role of an appellate court, instead of starting from square one, as state law requires. My sense here is that a circuit court probably could do what this court did, and review the transcript of a lower court proceeding in order to get a feel for the case, but only if all parties consent.

 

The Court of Appeals thus remands for a new hearing that is truly de novo. The court also reverses the award of attorney’s fees, reading the circuit court’s clear, on-the-record statements to mean that that court was punishing the wife for exercising her statutory right to appeal.

This short (9 ½ pages) opinion is well worth a read by anyone who handles any sort of case that can be appealed from the district court level to the circuit court for a trial de novo.