Lasher
v.
Lasher

Not overruled or negatively treated on appealinfoCoverage
COMMONWEALTH OF MASSACHUSETTS APPEALS COURTMar 27, 2017
81 N.E.3d 826 (Mass. App. Ct. 2017)

16-P-1023

03-27-2017

Jeffrey M. LASHER v. Tricia L. LASHER.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, pro se, appeals from an order denying his motion under Mass.R.Dom.Rel.P. 60(b)(2) and 60(b)(3) for relief from a judgment of divorce nisi (60[b] motion). The sole issue presented is whether the judge erred in ruling on the 60(b) motion after having decided to recuse himself from the case on the ground that his impartiality could reasonably be questioned. We conclude that the judge should not have ruled on the motion and therefore vacate the order.

The defendant has not filed a brief on appeal.

The plaintiff filed a complaint for divorce in March of 2013, and a judgment of divorce nisi entered in March of 2014. On March 23, 2015, the plaintiff filed his 60(b) motion. Two days later, at a hearing on a different motion, the judge informed the parties that a Bible inscribed with his name had been delivered to his office, and that the bill indicated it had been purchased by the defendant. The defendant then admitted that she had sent the Bible to the judge as a gift.

At that point the judge invited the plaintiff to file a motion for recusal, stating that he (the judge) would see it as a "valid motion." After a brief recess so that the plaintiff could consult with his then-attorney, the plaintiff proceeded to file such a motion. The judge allowed the motion on the basis that "an objective person ... could say" that receiving a Bible from a litigant "could reasonably affect [a] judge's impartiality."

Subsequently, the judge called a recess so that he could confer with the first justice about the case and the plaintiff's 60(b) motion. Upon resuming the bench, the judge told the parties that he was going to rule on the 60(b) motion "regardless of this recusal issue" and asked the plaintiff whether that would affect his motion to recuse. When the plaintiff stated that it would not, the judge reiterated that he was allowing the motion to recuse but that "the recusal will take place after [he] rule[d] on the [60(b) motion]." In an order entered on May 8, 2015, the judge denied the 60(b) motion, and this appeal followed.

Before filing this appeal, the plaintiff sought to challenge the judge's order through a petition under G. L. c. 231, § 118. Initially, a single justice of this court remanded the case "for clarification on the status of the plaintiff's motion to recuse and [the judge's] ruling on that motion." In response the judge issued "clarification and findings" (which the plaintiff has included in the record appendix), explaining that he allowed the motion to recuse because his "impartiality might reasonably be questioned," but decided the 60(b) motion "because [he] had already taken [that] matter[ ] under advisement, prior to recusal, and because [he] was very familiar with the parties and the substance of the [m]otion[ ]." After considering this explanation, the single justice denied the plaintiff's petition. Later, a different single justice allowed the plaintiff's motion for leave to file a late notice of appeal. In light of that ruling, we conclude that the plaintiff's appeal is properly before us.
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In deciding a motion for recusal, a judge must "consult first [his] own emotions and conscience" to ascertain whether he is subjectively free from bias. Commonwealth v. Morgan RV Resorts, LLC , 84 Mass. App. Ct. 1, 9 (2013), quoting from Lena v. Commonwealth , 369 Mass. 571, 575 (1976). If the judge "subjectively believes [he] can rule impartially," he "must next attempt an objective appraisal of whether ... [his] impartiality might reasonably be questioned." Ibid . (quotation omitted). We review a judge's decision on a recusal motion only for abuse of discretion. See Parenteau v. Jacobson , 32 Mass. App. Ct. 97, 99 (1992) ; Morgan RV Resorts, LLC , 84 Mass. App. Ct. at 9.

In the unusual circumstances of this case, we are constrained to agree with the plaintiff that the judge abused his discretion by deciding the 60(b) motion. At the time he ruled on the motion, the judge had already determined that an objective observer could reasonably question his impartiality. Having made that determination, the judge could not then proceed to decide the motion. "Once a judge concludes that there are grounds for recusal, he must completely dissociate himself from participating in the case." Parenteau , 32 Mass. App. Ct. at 104. While we are cognizant of the fact that the judge presided over the trial and was familiar with the substance of the 60(b) motion and the case in general, the importance of avoiding "even the appearance of partiality" required the judge to disqualify himself from all aspects of the proceeding once he determined that there was reason for his recusal. Morgan RV Resorts, LLC , 84 Mass. App. Ct. at 9. See Parenteau , 32 Mass. App. Ct. at 104.

Accordingly, the order entered on May 8, 2015, denying the plaintiff's motion for relief from judgment is vacated, and the case is remanded for consideration of the motion by a different judge.

So ordered .

Vacated and remanded.