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ROBIN JOYCE ROBINSON (IRWIN) v. STEVEN JAY IRWIN

JUNE 21, 1989

ROBIN JOYCE ROBINSON (IRWIN)
v.
STEVEN JAY IRWIN



BEFORE HAWKINS, P.J., ROBERTSON AND PITTMAN, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

This appeal arises from a divorce proceeding brought in the Chancery Court of Jones County, Mississippi. We affirm in part, and reverse and remand in part.

I.

 Robin Joyce Robinson and Steven J. Irwin were married on August 29, 1980. Robin was employed as an accountant with Sanderson Farms in Laurel, and Steven was employed as an investigator by the District Attorney's Office in Jones County. Both were graduates of the University of Southern Mississippi. In the spring of 1981 the couple decided that Steven would attend law school at the University of Mississippi in Oxford on a full-time basis and Robin would remain in Laurel and continue to provide support for the couple from her job at Sanderson Farms. While in law school, Steven did not hold a full-time job; however, he did work on a part-time basis doing research work and did receive some monies from his research. Robin was the major source of income for the couple, including Steven's expenses while in law school. After Steven completed law school, he returned to Laurel, opened a law office and began the practice of law.

 Difficulty arose between the couple over the next couple of years. Steven began making trips out of town without his wife, and eventually Robin, because of suspicion that Steven was having an affair, refused to allow him back into the home of her parents where the couple had lived since their marriage. On May 28, 1986, Steven and Robin separated and Robin filed for divorce based on the grounds of adultery or in the alternative habitual cruel and inhuman treatment.

 On September 26, 1986, the Honorable Shannon Clark, Chancellor of the Nineteenth Chancery District, recused himself from hearing the case. A Special Chancellor was appointed by the then-Governor Bill Allain to hear the case. The Honorable David Massey of Laurel was appointed. Robin filed a motion for the Special Chancellor to recuse himself based upon (1) he and Steven both practiced law in Jones County, (2) Mr. Massey and Steven played golf together, and (3) she felt that there was a sufficiently close relationship existing between the two. The Special Chancellor refused to recuse himself, and the case proceeded to trial on December 16, 1986.

 Robin moved the court to grant her permanent alimony and an equitable share of all the money generated by Steven Irwin from his legal education, the ownership and possession of at least one car, the stock in the Laurel Country Club, her equitable share of those monies located in a savings account and IRA's in a local bank, grant to her an equitable share of the personal property accumulated by the parties and to reimburse her for all money she had spent in sending Steven Irwin to law school. At the conclusion of the trial, the court awarded both cars to Steven as well as the stock in the Laurel Country Club. Steven was ordered to pay Robin $5,400.00 as lump-sum alimony, $500.00 per month for twenty-four months as monthly alimony, $2,000.00 attorney's fees and the amount of $5,441.82 which was the amount in an IRA account. Robin also had her maiden name of Robinson restored. Robin appealed to this Court from the lower court's decision.

 II.

 Robin assigned as error of the chancery court the failure of the Special Chancellor to recuse himself. Robin contends that because of the relationship that existed between the Special Chancellor and Steven that the Special Chancellor should have recused himself from the case based upon the fact that (1) David Massey was a member of the Jones County Bar and had his office in Laurel as did Steven; (2) Mr. Massey and Steven had played golf together on several occasions; (3) Steven and Mr. Massey dined together in May, 1986, at the Laurel Country Club and Steven had paid for Mr. Massey's meal and (4) both attorneys practice in the same county and city and know each other intimately. Robin feared that she would not receive fair treatment from the Special Chancellor because of the relationship she assumed existed between David Massey and Steven.

 Steven and Mr. Massey both admitted to having played golf on perhaps two or no more than three occasions and only then in an effort to complete a foursome. Both Steven and David Massey stated that it was not their practice to play golf together on a regular basis. The luncheon date that Robin alluded to took place when Mr. Massey had a case pending before the municipal court in which Steven was the city prosecutor. Mr. Massey joined Steven in an attempt to discuss the case before the city court. After the meal, the two flipped a coin to see who would pay for the meal, and Steven lost. Therefore, he paid for the meal. To the best of the knowledge of both Steven and Mr. Massey, this is the only time the two had ever had lunch together and neither Robin, Steven nor Mr. Massey could remember any time in which the couples had had social contact. Robin cites Canon 2 of the Code of Judicial Conduct as her reason for

 having Mr. Massey recuse himself as Special Chancellor from hearing the case. The Canon states:

 A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

 In the comments following the Canon there is a statement which reads, "Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant scrutiny." Robin asserts that because of the contact between Mr. Massey and Steven that there was the cloud of impropriety over his sitting as Special Chancellor to hear their divorce suit.

 This Court recognizes the fact that there are suits brought before a chancellor in which he knows one or both of the parties. Most chancellors adhere to an unwritten rule not to hear the personal divorce suits of lawyers who routinely practice before their courts. This Court commends such a practice, and it would be wise for appointing authorities and local lawyers to adhere to such practice. This divorce was such a case to Chancellor Shannon Clark, and he properly recused himself. It is incumbent upon a judge to respect the Judicial Canons and as the Biblical standard dictates, "Flee the appearance of evil" . This Court would have preferred that the ...


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