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Circuit judge read lower court transcript before hearing custody appeal

What part of de novo don’t you understand?

That was the question the Virginia Court of Appeals had for Colonial Heights Circuit Judge Timothy J. Hauler.

A mother appealed a juvenile and domestic relations district court’s award of custody of her minor child to its father. At the beginning of the custody hearing Hauler told the mother’s attorney, Neil Kuchinsky, that he had read the transcript of the juvenile court proceeding and the result would be the same unless he presented new evidence. And if it is the same, Hauler said, “it is going to cost you client an awful lot of money” in attorney’s fees.

Kuchinsky objected to Hauler’s having read the transcript and unsuccessfully asked him to recuse himself. Hauler noted that the transcript was in the record, “inexplicably” so, appellate Judge Sam W. Coleman III noted, but Kuchinsky said he had not had a previous opportunity to object to its inclusion.

Hauler also awarded custody to the father and assessed attorneys’ fees of $16,918.50 and $2,507.15 in costs, including an award of fees and costs that was higher than the amounts originally awarded in juvenile court.

The CAV panel reversed and remanded the case for trial before a different judge. “[T]he trial judge abdicated his responsibility to independently weigh the evidence, make his own credibility determinations, and decide in the exercise of his sound discretion in which parent custody should be vested so as to serve the best interest of the child,” Coleman wrote in Alexander v. Flowers. “Instead, as a punitive measure for pursuing her right to a trial de novo the court imposed a punitive award of attorney’s fees.”

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