Scott R. Davis v. Vicky F. Lutz-Patrick

 

Civil Action-Family Law-Support-Paternity-Establishment-Recusal of Jurist-Bias-Prejudice

 

Scott R. Davis (“Plaintiff”) filed an appeal to the Pennsylvania Superior Court of On order of support entered regarding support of the parties’ child.  On appeal, Plaintiff argues that the uudge entering the Order erred by failing to recuse himself after declining to order genetic testing based upon allegations of fraud in the establishment of paternity.

 

1. The party asserting that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating recusal.

 

2. There is a presumption that a judge has the ability to determine whether he or she is able to rule impartially and without prejudice.

 

3. Evidence supporting a recusal motion must raise a substantial doubt as to the jurist’s ability to preside impartially.

 

4. After first making a conscientious determination of the ability to assess the case in an impartial manner, the judge must consider whether continued involvement in the case creates an appearance of impropriety or would tend to undermine public confidence in the judiciary.

 

5. Where a judge rules that he or she can hear a case fairly and without prejudice, that decision will not be overturned but for an abuse of discretion.

 

6. In light of the fact that the judge had no prior knowledge of or contact with the parties, the sole desire of the judge was to make a decision supported by the law that guided communications with counsel for the parties and the judge did not display any bias against Plaintiff, the judge committed no error or abuse of discretion in ruling upon the case without recusing himself.

 

L.C.C.C.P. No. 2020-50545, Opinion by Bradford H. Charles, Judge, March 31, 2022.

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

SCOTT R. DAVIS                             : 

          Plaintiff                                   :        NO. 2020-5-0545                                                                                                 :         

1. :       

                                                          :

VICKY F. LUTZ-PATRICK              :

Defendant                               :

ORDER OF COURT

 

AND NOW, this 31st day of March, 2022, in accordance with the attached Supplemental Opinion and in accordance with our prior Opinions dated April 27, 2021 and February 18, 2022, we send the above-referenced dispute to the Pennsylvania Superior Court for its analysis.  The Lebanon County Domestic Relations Office and/or the Lebanon County Prothonotary are directed to forward the entire file in the above-referenced matter to the Pennsylvania Superior Court Prothonotary’s Office as promptly as possible.

 

BY THE COURT:

 

 

 

BRADFORD H. CHARLES

BHC/pmd

 

cc:     Domestic Relations

Scott R. Davis// 5054 Irene Dr., Harrisburg PA 17112

Vicky Lutz-Patrick// 1308 Birch Road, Lebanon PA 17042

Heather S. Paterno, Esq.// 11 E. Chocolate Ave., Suite 300, Hershey PA  17033-0650

Andrew J. Morrow, Esq.// 522 S. Eighth Street, Lebanon PA  17042

David Wingert, Esq., MAMFT, 220 S. Railroad St., #1, Palmyra PA 17078

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

DOMESTIC RELATIONS SECTION

 

 

SCOTT R. DAVIS                             : 

          Plaintiff                                   :        NO. 2020-5-0545                                                                                                 :         

1. :       

                                                          :

VICKY F. LUTZ-PATRICK              :

Defendant                               :

APPEARANCES

 

Heather L. Paterno, Esquire                            For Scott R. Davis

 

 

Andrew J. Morrow, Esquire                              For Vicky F. Lutz-Patrick

 

OPINION BY CHARLES, J., March 31, 2022

 

We issue this Opinion under Pa.R.C.P. 1925 to supplement a decision and Opinion we rendered on February 18, 2022.  Most of the issues raised by Appellant Scott R. Davis (hereafter SCOTT) pertain to his theory that his allegations of fraud should trump all other considerations, including the best interests of a child.  We addressed SCOTT’s primary argument extensively in our Opinion dated February 18, 2022 and we incorporate said Opinion by reference.

In addition to his primary argument focusing upon fraud, SCOTT also alleges that this jurist should have recused himself.  In our February 18, 2022 Opinion, we perceived that the Motion for Recusal was filed because this Court would not order genetic testing based exclusively upon fraud.  In his Motion for Reconsideration, and in his Statement of Errors Complained of on Appeal, SCOTT alleged that an email sent by this Court constituted evidence of “bias” that required recusal.  Because we were somewhat confused about this argument, we pulled copies of all emails sent and received by this jurist during the lengthy course of the above-referenced litigation.  As best as we can determine, SCOTT’s argument is predicated upon events that occurred in March of 2021.  We will endeavor to explain.

When SCOTT filed his initial Motion Seeking Genetic Testing, we issued a Court Order dated March 16, 2021 in which we solicited legal briefs to address the manner by which the Court should proceed.  Truthfully, we questioned the scope of what testimony should be presented when an allegation of fraud is raised in the context of a paternity dispute.  In its entirety, our March 16, 2021 Court Order read:

“AND NOW, to wit, this 16^th day of March, 2021, after consultation with counsel, the Court determines that briefs are necessary in order to assist the Court to ascertain the procedural process by which the Complaint to Establish Paternity should be resolved.  At this point in time, we will accept from the record that Scott R. Davis acknowledged paternity of [A.D.] 12 years ago when she was born.  We will also accept that [A.D] is now 12 years old and has not viewed any other man as her father.  Beyond that, we will accept no other facts today.  Based only upon the above facts, the parties are to file briefs advocating the method by which each party believes this Court should proceed on the issue now before this Court.  Said briefs are to be filed within 30 days from today’s date.  Following the filing of briefs, we will issue a Court Order in order to advise the parties of how we will proceed.”

 

Following our Court Order, both counsel communicated an agreement to the Court that a Factual Hearing would be necessary.  Because we were still concerned and unsure about the scope of what could and should be presented, we sent an email to all parties.  In its entirety, our email stated:

“RE: Scott Davis v. Vicky Lutz-Patrick 2020-5-0545

Dear counsel –

I have received your emails indicating concurrence that a Factual Hearing is necessary.  I will work with the Domestic Relations Office to schedule a date and time for such a hearing.

 

The above being said, I would still like a Memorandum of Law from both of you.  I have looked briefly at the law pertaining to paternity by estoppel.  With all due respect, I do not believe it is as clear as you make it out to be.  While some factual issues may need to be resolved, I am not willing to entertain a proceeding without being able to establish parameters in advance.

 

I am concerned about the precedent of enabling a man to obtain a Factual Hearing that could involve questions to a woman about her sexual history.  If all a father needs to do in order to open the door  to such sensitive topics is allege fraud in a petition, there exists a significant danger of mischief occurring.  I have encountered men in my years on the bench who would use such a process simply to harass or gain leverage over women who are objects of their ire.

 

Because I would like to know how to set parameters in the above-referenced case, I still need you to file legal briefs as previously directed.  Thank you for understanding my position.

 

Very truly yours,

Bradford H. Charles, J.”

 

It is apparently this email that SCOTT now relies upon in support of his Motion for Recusal.

Before we address the substance of SCOTT’s recusal request, we need to point out the following as it relates to what transpired during subsequent proceedings:

• We did receive briefs from the parties regarding the scope of factual testimony. We relied upon those briefs and we issued a written Opinion dated April 27, 2021 to address the scope of the Factual Hearing to be conducted.  Said Opinion is incorporated by reference.
• Pursuant to our Opinion outlining the scope of the proceeding, we proceeded to schedule Factual Hearings. Some of these hearings were postponed at the request of the parties and/or due to COVID issues.  However, we ultimately received factual testimony on two separate days.
• One of the primary concerns of the Court involved the ability of an estranged man to be able to question a woman who was the object of his ire about her sexual history. We did not view this type of inquiry to be something that a court should blithely allow.  Nevertheless, based in part upon SCOTT’s brief, we advised both parties at the outset of the Factual Hearing that we would permit SCOTT to question Vicky Lutz-Patrick (hereafter VICKY) regarding her sexual history.  Effectively, we ruled in favor of SCOTT regarding the scope of the proceeding and we permitted SCOTT to fully explore in a Factual Hearing his claim of being defrauded by VICKY about paternity.
• During her testimony in the Factual Hearing, VICKY was questioned extensively about whether and when she had sex with other men.
• Ultimately, the decision we rendered adverse to SCOTT was rendered for reasons having nothing to do with our concern about questioning VICKY about her sexual history.

Pennsylvania law pertaining to recusal is well settled.  The party who asserts that a Trial Judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. See, e.g. Commonwealth v. Jones, 663 A.2d 142 (Pa.1995); Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983). Evidence supporting a recusal motion must raise a substantial doubt as to the jurist’s ability to preside impartially. In re: Bridgeport Fire Litigation, 5 A.3d 1250 (Pa. Super. 2010). There is a presumption that a judge has the ability to determine whether he or she is able to rule impartially and without prejudice. Id. The Pennsylvania Supreme Court stated the following standard of review,

[I]n considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner…. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety [or] would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal but for an abuse of discretion.

 

Commonwealth v. Abu-Jamal, 729 A.2d 79, 89 (Pa. 1998).

As a general rule, a Motion for Recusal should be initially directed to and decided by the Judge whose impartiality is being challenged.  See Commonwealth v. Abu-Jamal, 729 A.2d 79, 89 (Pa. 1998).  The issue must be raised “at the earliest possible moment.”  Commonwealth v. Miller, 951 A.2d 322, 325 (Pa. 2008).  When a Judge rules that he or she can hear a case fairly, that decision should not be overruled on appeal absent an abuse of discretion.  See Commonwealth v. White, 910 A.2d 648 (Pa. 2006).  This is because Pennsylvania’s appellate courts have recognized “that the Judge himself is best qualified to gage his ability to preside impartially.”  Commonwealth v. Harris, 979 A.2d 387, 392 (Pa. Super. 2009).

In this case, this jurist had no prior knowledge or contact with either VICKY or SCOTT.  Before presiding over the above-referenced case, this jurist had limited experience dealing with the issue of paternity by estoppel and fraud in the context of paternity.  Because of this, we solicited legal briefs from the parties.  The email sent by this jurist on March 31, 2021 merely advised about a concern of the Court so that said concern could be addressed in the parties’ briefs.  At no time in our email did we accuse SCOTT of any misconduct or improper motive.  The third paragraph of the email made clear that this jurist had concerns because he had “encountered men in my years on the bench who would use such a process simply to harass or gain leverage over women who are the objects of their ire.”  It became clear to this Court as the matter progressed that the motivation of SCOTT transcended the concern articulated in the March 31, 2021 email.  In fact, this Court permitted SCOTT to pursue his theory of fraud by asking questions to VICKY about her sexual history.  Moreover, in our final Opinion issued on February 18, 2022, we characterized SCOTT as a “victim in some respects” and we concluded that the reason VICKY would not agree to genetic testing was because she was unsure what the outcome of that testing would show.

From the beginning of this case, the sole desire of this Court was to make a decision that was supported by Pennsylvania law.  In our final analysis, we acknowledged some uncertainty about the law, but we elevated the best interests of a child, A.D., over the interest of SCOTT.  That decision was rendered in good faith and not because of some “bias” against SCOTT.

Notwithstanding his current claim that this jurist was “biased”, we continue to believe that SCOTT is upset with this jurist because we did not quickly and completely adopt his legal theory that fraud in paternity should trump everything else.[1]  Ultimately, we ruled that fraud in paternity cannot trump the best interest of a child.  SCOTT has appealed this decision.  The question of how fraud and the best interests of a child should intersect in a paternity by estoppel context will be decided by a Court with greater judicial horsepower than our own.  That is the way our judicial system is intended to operate, and we are confident that it will result in an appropriate decision.

At no time did this jurist have or display any “bias” against SCOTT.  We confronted a difficult legal question and a unique fact pattern as best as we could, and we confronted that question impartially and fairly without bias or prejudice.  We understand that SCOTT disagrees and he can argue his disagreement to Pennsylvania’s Superior Court.  However, this case should not be decided based upon a spurious recusal motion based upon “bias” that simply did not exist.

With the above being said, we turn the above-referenced case over to the Pennsylvania Superior Court and we eagerly await its analysis regarding the unsettled issue of how fraud and the best interest of a child should be evaluated in a paternity by estoppel dispute.

 

 

 

[1] It is becoming increasingly common for litigants who dislike a court’s message to attack the integrity of the messenger.