from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
Malcolm Pippin, Williston, ND, for plaintiff and appellee.
M. Boughey, Bismarck, ND, for defendant and appellant.
1] Gene Grasser appeals from an amended judgment entered on
March 17, 2017, awarding primary residential responsibility
to Stephanie Grasser and distributing marital property and
debts. We conclude the district court did not abuse its
discretion by denying Gene's request for recusal or by
finding Gene in contempt and awarding sanctions which it did
not reimburse. We further conclude the court did not clearly
err by awarding Stephanie primary residential responsibility
of the parties' child or by distributing the parties'
marital property and debts. We affirm.
2] Gene and Stephanie Grasser were married in October 2000,
and had a child, S.G., born in 2004. The marriage was
tumultuous, and the record reflects Gene's conduct
included violence, criminal conduct, threats of violence,
hostile and vulgar language, and substance abuse. During the
marriage, Stephanie left the marital home for extended
periods of time. In July 2014, Stephanie filed for a divorce.
3] On October 3, 2014, Gene filed a motion to continue an
interim hearing. In the same motion, Gene indicated he was
filing a demand for recusal. On October 8, 2014, Gene filed a
motion for demand for a change of judge requesting the judge
recuse himself, indicating he had concerns about prior
relationships between the court and Stephanie as well as
between the court and witnesses involved in the case.
Stephanie responded to the demanded recusal and requested an
emergency telephonic hearing. During the telephonic hearing
on October 8, 2014, the judge acknowledged he knew who
Stephanie was, but denied any type of relationship between
Stephanie or the other witnesses. The court denied the demand
for recusal on the record.
4] On October 10, 2014, the district court held a hearing for
an interim order and again addressed the motion demanding a
change of judge. The judge reiterated that he recollected who
Stephanie was, but had no relationship with her. The court
indicated Gene could bring another motion if he had any
information he thought was relevant. The court stated "I
do take the appearance of impropriety very seriously, "
and from what had been presented, the judge did not find
grounds to recuse himself. A written order followed denying
the motion for reasons stated on the record.
5] On multiple occasions throughout the divorce proceeding,
Stephanie moved the district court to find Gene in contempt,
to compel discovery, and award her sanctions and
attorney's fees. The court found Gene in contempt of
court, and awarded sanctions and attorney's fees. The
court also ordered Gene to produce the discovery requested
6] The district court entered a partial summary judgment in
May 2015, granting the parties' divorce, reserving issues
to be addressed at trial. The court held a trial on September
21 and 23, 2016, regarding primary residential responsibility
of their child and division of marital property and debts.
The judgment was filed in March 2017. Gene filed a notice of
appeal in May 2017.
7] Gene argues the district court erred in addressing the
motion for recusal. At the October 8 and 10, 2014 hearings,
Gene indicated he had concerns about prior relationships
between the court and Stephanie as well as the court and
8] Gene labeled his written motion as a demand for a change
of judge and cited to N.D.C.C. § 29-15-21 in his brief
supporting the motion. However, Gene argued in his brief and
during the hearings for the judge to recuse himself based on
impartiality. A motion for recusal and a demand for a change
of judge are two separate motions. This Court is not bound by
a party's label and may look to the substance of the
motion to determine the proper classification. Eagleman
v. State, 2016 ND 54, ¶ 18, 877 N.W.2d 1. Based on
his position in the district court we will review Gene's
argument as a motion for recusal.
9] A motion for recusal is reviewed under the abuse of
discretion standard. Rath v. Rath, 2013 ND 243,
¶ 14, 840 N.W.2d 656. A court abuses its discretion if
it acts in an arbitrary, unreasonable, or unconscionable
manner, its decision is not the product of a rational mental
process leading to a reasoned determination, or it
misinterprets or misapplies the law. Lizakowski v.
Lizakowski, 2017 ND 91, ¶ 26, 893 N.W.2d 508.
The rules of judicial conduct provide that a judge is
required to avoid impropriety and the appearance of
impropriety in all of the judge's activities.
"'The law presumes a judge is unbiased and not
prejudiced.'" We have said "[a] ruling adverse
to a party in the same or prior proceeding does not render a
judge biased so as to require disqualification." The
test for the appearance of impartiality is one of
reasonableness and recusal is not required in response to
spurious or vague charges of impartiality.
Rath, at ¶ 14 (citations omitted). "Unlike
a demand under N.D.C.C. § 29-15-21, a district court
judge is not immediately divested of authority upon the
filing of a motion to recuse." Schweitzer v.
Mattingley, 2016 ND 231, ¶ 15, 887 N.W.2d 541.
"While a judge has a duty to recuse when required by the
Code of Judicial Conduct, a judge also has an equally strong
duty not to recuse when the facts do not require
recusal." Id. at ¶ 13. A judge shall not
permit relationships to influence the judge's judicial
conduct or judgment. N.D. Code Jud. Conduct Canon 2.4(B).
10] Gene made vague charges of potential lack of impartiality
based on "concerns about prior relationships."
However, when the district court asked about the substance of
the concerns during the emergency telephonic hearing,
Gene's attorney indicated "I have no information one
way or the other--but it's my client's position that
Your Honor has previously spent time, like quality time, with
Stephanie, as well as a long standing friendship with her
that stems from high school interaction." The judge
responded a dating relationship never happened. The judge
indicated he knew who Stephanie was, but was never in any
type of relationship with her. The judge concluded he was not
inclined to recuse himself without Gene's attorney
providing affidavits showing information of a closer
relationship to the individuals involved. Gene did not
provide any evidence other than the initial allegations of
potential partiality. Therefore, the court did not abuse its
discretion by denying Gene's request for recusal.
11] Gene argues the district court erred in failing to order
reimbursement to him for sanctions and attorney's fees
entered against him. Throughout the divorce proceedings, the
court entered multiple orders finding Gene in contempt and
awarded sanctions and attorney's fees to Stephanie. Gene
argues the court sanctioned him for failing to provide full
and complete discovery at a time when his attorney failed to
properly represent him. Attorney Nicole Foster represented
Gene when the divorce began. There were three orders awarding
sanctions during the time Foster represented Gene. Another
attorney took over Gene's case and the court ...