The Court of Appeals publishes a very small percentage of its opinions in domestic cases. This one addresses community-property and child-support issues that are apparently thought important but its interest to the rest of us is as an example of the successor-judge problem and, more importantly, as a lesson in what the record is worth nowadays.

Judge A heard some discovery disputes in this dissolution action, tried the case for five days, received and considered written closing arguments, and took the matter under advisement. He then advised himself to resign, which he did without ruling on the case. Judge B watched the movie (the trial had been videotaped) and ruled on the case in a way that inspired both parties to appeal.

There is a rule for this situation. Rule 88 of the Family Law rules is taken from ARCP Rule 63; it allows the successor judge to proceed after “certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.” It also allows the parties to recall witnesses, though the newer Rule 88 conditions this on the unavailability of an “adequate electronic record.”

Husband argued that Judge B didn’t follow the rule.

He claimed that  Judge B didn’t review – and therefore couldn’t certify familiarity with – the entire record. The court held that she had to review only what was relevant to her ruling. And how can a judge who hasn’t reviewed the whole record know what’s relevant to review? Well, that turned out to be a problem in this very case – but not enough of one, apparently, to cause the court any disquiet about its holding. Judge B awarded wife some fees, which required consideration of “the reasonableness of the positions each party has taken throughout the proceedings,” A.R.S. § 25-324(A). But Judge B didn’t review anything about the discovery disputes, including a videotaped discovery-motion hearing. The court reversed the fee award and remanded with instructions to review “that portion of the record necessary” to determine the parties’ reasonableness throughout the case.

So, the law is that the successor judge need not review the whole record. Instead, the parties review the whole record and decide what parts are relevant, they argue that to the judge, the judge makes a decision about what to review, reviews it, then after judgment the parties appeal because the judge allegedly didn’t review the right parts. This contentious, time-consuming, and expensive procedure is consistent with the principle of judicial economy, which is that all law shall be construed so as to lessen judicial workload.

Husband next argued that Judge B erred in failing to recall witnesses. The problem was that he hadn’t asked her to. The court didn’t accept his excuse, which is that Judge B hung up the phone (telephonic status conference) before he could ask. Now you now why judges ask at the end “Is there anything else?”

Finally, Husband argued that the video wasn’t good enough to let the judge make credibility determinations. He said it was jumpy, had gaps, and that there were problems with the audio. He pointed to several places where the written transcript said “indiscernible.” Husband, a pro se, clearly wasn’t aware that indiscernibles and gaps are now a fact of legal life and that to get a court reporter who can actually record what the witnesses really say you need either the knowledge of how to jump through hoops designed to prevent you from getting one or else  the good sense to commit a serious crime. In any event, Judge B said that she could follow the recording just fine, thank you, and that was good enough for the Court of Appeals. The video is not the record, of course, as the opinion admits in a footnote; under ARCAP 11, the record is the transcript. What happened, then, is that the record was full of indiscernibles but the successor judge decided what the the record said by reviewing matters not in the record. In other words, the record of a videotaped trial says whatever the trial judge – including one who wasn’t even there when it was made – says it says. Those of you who think this a giant step backward will rest assured, no doubt, to know that the Court of Appeals watched the movie, too — “only to assess the accuracy” of Judge B’s description of it. What the court thinks that means as a legal and evidentiary matter is beyond us.

Citing Rule 60(c)(6) is normally an act of desperation. But here a litigant not only won the motion, it did so without even making it.

Minjares was hurt in a a car accident in Kingman. She sued the other driver and also sued Kingman, Mohave County, and the State on road-design issues. The County escaped by dismissal before trial, Kingman by JMOL at trial; the jury awarded just over three million dollars and found the State 33% at fault. Judgment was entered accordingly, plus post-judgment interest at 10%

The State appealed the Kingman JMOL; it lost. It then filed a motion in the trial court under 60(a) and 60(b)(2) asking it to “correct” the judgment to state a different interest rate for appeal, pursuant to 41-622f: “Interest on any judgment against this state  . . .  shall accrue at the average yield offered by United States treasury bills during the course of the appeal.”  The court granted the motion.

Minjares appealed, arguing that res judicata barred relief, that the State had waived the issue, and that Rule 60 does not permit amending a judgment after appeal.

It is not clear from the opinion that anybody in the case, including the Court of Appeals, had a very firm grasp of res judicata or collateral estoppel but the opinion decided that they don’t apply.

As to waiver, the State argued in essence that it couldn’t ask that the judgment reflect a reduced interest rate on appeal until it appealed, by which time it couldn’t ask for it because it hadn’t asked for it in the court below, and anyway, if it won the appeal it might not have had to pay interest in the long run anyway, and on top of that, it couldn’t know how much the “average yield” on T-bills would be. Why it couldn’t or didn’t simply request that the judgment incorporate the statute or statutory language is left tantalizingly unexplained. Division One, although with a comment apparently intending to suggest  that to its eye there was a waiver, ruled that it “cannot say” that the trial court committed “clear error” in finding no waiver.

This was, after all, the trial court’s factual finding,  and so the ruling is perhaps correct even though the State’s arguments were silly. (For some reason the opinion does not – contrary to modern convention – explain at great length the applicable standard of review, nor mention it at all. We applaud this – it shouldn’t be necessary to mention the standard unless it is an issue of dispute in the case.)

Judge Norris dissented on the waiver issue, taking the eminently sensible position that the State could have and should have taken care of the matter before judgment was entered. Had she been the trial judge, we would have had a more reasonable result.

Finally, as to Rule 60, the court ruled that 60(a) and 60(b)(2) didn’t apply since the judgment was correct when entered.  The “omission of a proviso that, if the State appealed, the interest rate would be modified to the average interest of treasury bills during the pendency of the appeal” was not a clerical error nor a mistake about money since the trial court hadn’t intended to include it. (Of course, this admits that the court could have included it and therefore that the State’s waiver arguments were ridiculous.)

But the court then considered Rule 60(c)(6), using one of those rules that the courts use or ignore as they please: an appellate court will affirm a trial court’s ruling if there is any reason why the ruling was correct. The Court of Appeals decided that 60(c)(6) relief was appropriate, citing a case in which a wife was allowed to modify her divorce decree when her ex filed bankruptcy, which she hadn’t expected. Why should that allow the party who did the “unexpected” to amend a judgment to its benefit by incorporating after the fact a statute that it knew about  as a matter of law at the time of the original judgment? Also unexplained. The court concludes that the trial court did not abuse its discretion in granting Rule 60 relief for the wrong reasons.

The last several pages of the opinion are devoted to deciding that the statute means what it more-or-less seems to say, namely, that the T-bill interest rate applies to judgments against the State while they are on appeal.