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Click here for the full text of this decision FACTS:Much of the controversy surrounding the divorce of Archie and Rebecca Samford concerned the conservatorship and possession of the couple’s son, as well as property issues. Several hearings were conducted on the case before the first trial judge recused himself. The second judge presided over the final two hearings and the resulting divorce. Before the final hearing, the parties and their attorneys conducted a mediation settlement and settled all issues in writing. The final hearing incorporated the mediated settlement agreement. However, Rebecca subsequently appealed the divorce judgment and argued that the first judge erred in “disqualifying/removing himself” from the proceedings and that, because the first judge was disqualified, all orders/rulings and other related matters were void. HOLDING:Affirmed. The court first considers whether the first judge was disqualified from hearing the Samfords’ case. The court holds that he was not. The court reasons that the case was a divorce proceeding filed by a lawyer practicing in a small community. Apparently the first judge was a neighbor of the litigants and not only knew Archie professionally but also knew the child, who was the subject of the conservatorship action. The court states that was not an unusual situation faced by trial judges in small communities. The court rejects Rebecca’s argument that Judge Bailey displayed the requisite disqualifying “interest” in the litigation when he expressed that the child meant a lot to him. The court held that the judge’s comments merely expressed that he would be vigilant to “protect that child,” which was his duty. The court also rejects Rebecca’s argument that the judge erred in failing to recuse himself sooner in the proceedings, because his orders set the tenor for all future rulings by the new trial judge. The court points out that that a motion to recuse the judge was never filed. The attorneys and the judge discussed the issue, and in fact the judge recused himself before the final hearing was conducted. The court states that the distinguishing feature between disqualification and recusal is that recusal may be waived if not raised by a proper motion. The court holds that the issue was waived, because such a motion was not filed. Finally, the court points out that the judgment rendered was in accordance with a mediated settlement agreement entered by the parties and their attorneys. The court therefore finds no way that the first judge’s participation in temporary hearings could in any way affect the final judgment rendered by the second judge, based on a written agreement of the parties. OPINION:Carter, J.; Morriss, C.J., Carter and Cornelius, JJ.

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