An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA14-954

                                    Filed: 4 August 2015

Mecklenburg County, No. 9 CVD 30462

KIRK S. ZUROSKY, Plaintiff,

              v.

ALYSON G. SHAFFER, Defendant.


       Appeal      by   plaintiff   from   orders   entered   21   February     2014   and

27 February 2014 by Judge Paige B. McThenia in Mecklenburg County District

Court. Heard in the Court of Appeals 20 January 2015.


       Marshall & Taylor, PLLC, by Travis R. Taylor, for plaintiff-appellant.

       Hamilton Stephens Steele + Martin, PLLC, by Amy Simpson Fiorenza, for
       defendant-appellee.


       McCULLOUGH, Judge.


       Kirk S. Zurosky (“Zurosky”) appeals from the following orders by the trial

court: (1) an order denying his motion to recuse filed 21 February 2014, (2) an

amended contempt order filed 27 February 2014, and (3) an order granting his motion

to alter or amend the contempt order filed 27 February 2014. For the following

reasons, we reverse and remand.

                                      I.     Background
                                ZUROSKY V. SHAFFER

                                  Opinion of the Court



      Zurosky and Alyson G. Shaffer (“Shaffer”) are former husband and wife. They

married on 1 July 1995, separated in January 2009, and divorced in June 2010.

Zurosky and Shaffer have two minor children from their marriage.

      Since Zurosky initiated the underlying lawsuit on 23 December 2009 by filing

a complaint for child custody and equitable distribution and a motion for a

psychological evaluation of Shaffer, Zurosky and Shaffer have been involved in

contentious litigation over child support, spousal support, equitable distribution, and

other matters related to their divorce. That litigation includes a prior appeal to this

Court and an opinion, see Zurosky v. Shaffer, __ N.C. App. __, 763 S.E.2d 755 (2014),

in which a more detailed background of the case can be found.

      Pertinent to this appeal, the trial court entered a temporary child support and

postseparation support order on 31 August 2011 and a subsequent order regarding

temporary child support on 10 May 2012. Those temporary support orders required

Zurosky to make support payments. On 25 February 2013, Shaffer filed a motion to

find Zurosky in contempt of the temporary support orders. Prior to ruling on Shaffer’s

contempt motion, on 10 April 2013, the trial court entered an equitable distribution

judgment and permanent child support and alimony order. Pursuant to the terms of

the judgment and permanent support order, Zurosky was required to continue paying

child support and alimony; the amount of those obligations, however, increased. Both

parties appealed from the 10 April 2013 judgment and permanent support order.



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                                 ZUROSKY V. SHAFFER

                                  Opinion of the Court



With Zurosky’s and Shaffer’s appeals pending, on 22 May 2013, Shaffer filed an

amended motion to find Zurosky in contempt of the judgment and permanent support

order. Shaffer later filed two additional motions on 13 June 2013 to find Zurosky in

contempt; one motion for failure to comply with a subpoena duces tecum and one

motion for failure to comply with the judgment and permanent support order. Shaffer

sought to recover attorney’s fees in each of her motions to find Zurosky in contempt,

as well as other matters litigated.

      On 13 June 2013, the presiding judge, the Honorable Paige B. McThenia,

issued an order, sua sponte, in which she voluntarily recused herself from the issue

of attorney’s fees. Her decision was based on the following findings of fact provided

in the order of recusal:

             2.     On February 24, 2010, [Shaffer], represented by
             attorney Amy Simpson Fiorenza ("Ms. Fiorenza"), filed her
             Answer and Counterclaims seeking temporary and
             permanent child custody pursuant to N.C. Gen. Stat. § 50-
             13.2, temporary child support and permanent child support
             pursuant to N.C. Gen. Stat. § 50-13.4, post-separation
             support pursuant to N.C. Gen. Stat. § 50-16.2A, alimony
             pursuant to N.C. Gen. Stat. § 50-16.3A, equitable
             distribution pursuant to N.C. Gen. Stat. § 50-20 et seq., and
             attorney's fees pursuant to N.C. Gen. Stat. § 50-13.6 and §
             50-16.4.

             3.    On the date that Ms. Fiorenza filed the Answer and
             Counterclaims on behalf of [Shaffer], she was employed at
             the law firm of James, McElroy & Diehl, PA.

             4.    On June 13, 2011, Ms. Fiorenza joined the law firm
             of Hamilton Stephens Steele & Martin, PLLC.


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                                 ZUROSKY V. SHAFFER

                                  Opinion of the Court




             5.     The undersigned Judge is married to Thomas
             Jonathan Adams ("Mr. Adams"), a partner practicing in the
             areas of commercial litigation and employment law at the
             firm of Hamilton Stephens Steele & Martin, PLLC.

             6.     In an effort to avoid any appearance of impropriety
             or partiality, this Judge disclosed on the record the basis of
             her potential disqualification as soon as she became aware
             of Ms. Fiorenza's affiliation with Hamilton Stephens Steele
             & Martin, PLLC. After discussion between each attorney
             and her respective client outside of the presence of this
             Judge, the parties and their attorneys all agreed on the
             record that the basis for the potential disqualification
             would not prohibit this Judge from participating in the
             proceeding.

             7.      The Court has entered copious Orders in this
             case. . . .

             ....

             17.   Currently pending before the Court are, inter alia,
             [Shaffer’s] claim for attorney fees for approximately three
             and a half years of legal services amounting to a figure in
             excess of $300,000.

             18.    Given that Mr. Adams has at least an indirect
             financial interest in any fees paid to the firm of Hamilton
             Stephens Steele & Martin, PLLC, this Judge has
             determined that in order to promote justice, and comply
             with Canon 3C(1) of the North Carolina Code of Judicial
             Conduct, recusal from this case on the issue of attorney's
             fees only is appropriate to prevent the calling into question
             of this Judge's impartiality.

The order further provided that Judge McThenia would continue to participate in all

other proceedings in the case.



                                         -4-
                               ZUROSKY V. SHAFFER

                                 Opinion of the Court



      On 23 July 2013, Shaffer’s motions to hold Zurosky in contempt came on for

hearing. Prior to the Court hearing evidence on Shaffer’s motions, Ms. Fiorenza

indicated the only outstanding issues for resolution besides the contempt motions

were attorney’s fees and costs, which had been calendared for 6 August before a

different judge. At that time, Zurosky’s counsel, attorney Tamela P. Wallace (“Ms.

Wallace”), voiced concern over Judge McThenia’s partial recusal and, citing Phillips

v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), asserted that Judge McThenia

could not enter further orders in the case once she had entered a recusal order. Ms.

Wallace argued the issues of contempt and attorney’s fees associated with the

contempt motions were related and should not be bifurcated between different judges.

In response, Judge McThenia distinguished Phillips on the basis that the judge’s

recusal in Phillips was a complete recusal from the matter and determined based on

her research and consultation with Judicial Standards that a recusal from only the

issue of attorney’s fees was appropriate in this case. At that time, Ms. Wallace

reiterated Zurosky’s objection and the hearing on Shaffer’s contempt motions

proceeded.

      Zurosky testified for the remainder of the afternoon until the hearing on

Shaffer’s contempt motions was continued to a later date.

      On 29 July 2013, Shaffer filed a motion for relief pursuant to Rule 60 in which

she requested an order amending the judgment and permanent support order to



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                                ZUROSKY V. SHAFFER

                                  Opinion of the Court



include exhibits referenced in the judgment and permanent support order but not

attached to it when it was filed. The trial court heard arguments on the motion for

relief on 7 October 2013.

      On 8 November 2014, Shaffer’s motions to find Zurosky in contempt came back

on for hearing. Before further evidence was heard concerning the contempt motions,

Judge McThenia signed an order granting Shaffer’s motion for Rule 60 relief and an

amended equitable distribution judgment and permanent child support and alimony

order with the referenced exhibits attached.         The contempt hearing was then

concluded.

      On 26 November 2013, Judge McThenia filed a contempt order holding

Zurosky in civil contempt for failure to make timely child support payments, alimony

payments, and payments of arrears arising therefrom.

      The contempt order came on for a review hearing on 3 February 2014. At that

time, Judge McThenia also considered a Rule 59 motion by Zurosky to amend the

contempt order for purposes of clarification.

      On 21 February 2014, the trial court entered a written order denying Zurosky’s

23 July 2013 oral motion to recuse during the original hearing on Shaffer’s contempt

motions. In the order, Judge McThenia found she “does not find that her recusal from

[Shaffer’s] claim for attorney fees prohibits her from hearing other claims in the

action.” Therefore, Judge McThenia concluded she “shall continue to preside over



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                                   ZUROSKY V. SHAFFER

                                     Opinion of the Court



matters not related to [Shaffer’s] claim for attorney fees pursuant to Canon 3C(1) of

the North Carolina Code of Judicial Conduct.” The trial court then entered an order

granting Zurosky’s motion to amend the contempt order and an amended contempt

order on 27 February 2014.

         On 21 March 2014, Zurosky filed notices of appeal from the 21 February 2014

order denying his motion to recuse, the 27 February 2014 amended contempt order,

and the 27 February 2014 order granting Zurosky’s motion to amend the contempt

order.

                                      II.     Discussion

         In the first issue on appeal, Zurosky argues the trial judge erred in denying his

motion to recuse and by continuing to preside over matters in the case following her

partial recusal. Upon review, we agree the trial judge erred.

         Canon 3 of the North Carolina Code of Judicial Conduct provides that “[a]

judge should perform the duties of the judge’s office impartially and diligently.” Code

of Judicial Conduct Canon 3 (2015).          In furtherance of Canon 3’s general rule,

subsection (C)(1) provides in pertinent part:

               On motion of any party, a judge should disqualify
               himself/herself in a proceeding in which the judge’s
               impartiality may reasonably be questioned, including but
               not limited to instances where:

               ....

               (c)    The judge knows that he/she, individually or as a


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                                ZUROSKY V. SHAFFER

                                 Opinion of the Court



            fiduciary, or the judge’s spouse or minor child residing in
            the judge’s household, has a financial interest in the
            subject matter in controversy or in a party to the
            proceeding, or any other interest that could be
            substantially affected by the outcome of the proceeding;

            (d)   The judge or the judge’s spouse, or a person within
            the third degree of relationship to either of them, or the
            spouse of such a person: . . . (iii) Is known by the judge to
            have an interest that could be substantially affected by the
            outcome of the proceeding[.] . . .

Code of Judicial Conduct Canon 3(C)(1) (2015). Subsection (D) adds:

            Nothing in this Canon shall preclude a judge from
            disqualifying himself/herself from participating in any
            proceeding upon the judge’s own initiative. Also, a judge
            potentially disqualified by the terms of Canon 3C may,
            instead of withdrawing from the proceeding, disclose on the
            record the basis of the judge’s potential disqualification. If
            based on such disclosure, the parties and lawyers, on
            behalf of their clients and independently of the judge’s
            participation, all agree in writing that the judge’s basis for
            potential disqualification is immaterial or insubstantial,
            the judge is no longer disqualified, and may participate in
            the proceeding. The agreement, signed by all lawyers,
            shall be incorporated in the record of the proceeding. . . .

Code of Judicial Conduct Canon 3(D) (2015).

      When a party moves for recusal by the trial judge,

            [t]he burden is on the party moving for recusal to
            demonstrate objectively that grounds for disqualification
            actually exist. The moving party may carry this burden
            with a showing of substantial evidence that there exists
            such a personal bias, prejudice or interest on the part of the
            judge that [she] would be unable to rule impartially, or a
            showing that the circumstances are such that a reasonable
            person would question whether the judge could rule
            impartially.

                                        -8-
                                 ZUROSKY V. SHAFFER

                                   Opinion of the Court



Harrington v. Wall, 212 N.C. App. 25, 28, 710 S.E.2d 364, 367 (2011) (quotations and

citations omitted).

             This Court reviews de novo whether a party has met the
             burden of showing through substantial evidence that the
             judge has such a personal bias, prejudice or interest that
             he would be unable to rule impartially. Where there is
             sufficient force to the allegations to proceed to find facts, or
             an objective basis for doubt as to the trial court's
             impartiality, the trial judge should recuse himself or refer
             the motion to another judge.

Dalenko v. Peden Gen. Contractors, Inc., 197 N.C. App. 115, 123-24, 676 S.E.2d 625,

631 (2009) (quotations and citations omitted).

      Unlike the majority of recusal cases in which this Court must review the record

to determine whether the moving party has shown through substantial evidence that

recusal is necessary, in this case, the basis for recusal was made clear when the trial

judge issued the partial recusal order. As detailed above, in that order the trial judge

acknowledged that her spouse, a partner at the firm Ms. Fiorenza joined during the

pendency of this case, had “at least an indirect financial interest in any fees paid to

the firm” and determined that interest was sufficient to warrant recusal from the

case on the issue of attorney’s fees “to prevent the calling into question of [her]

impartiality.” Thus, it was clear there was a question as to the judge’s impartiality

or, at the very least, the appearance of impartiality.

      The issue now before this Court is whether the trial judge erred in denying

Zurosky’s motion to recuse at the beginning of the contempt hearing. Upon review,


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                                  ZUROSKY V. SHAFFER

                                   Opinion of the Court



we hold the trial judge did err because the ruling on Shaffer’s contempt motions are

determinative on whether Shaffer’s claims for attorney’s fees associated with the

contempt motions can move forward. In so holding, we make no determination that

the trial judge’s contempt ruling, or other subsequent rulings, were in fact influenced

by her spouse’s interest.      We hold only that, keeping in mind that “[n]ext in

importance to the duty of rendering a righteous judgment is that of doing it in such a

manner as will beget no suspicion of the fairness and integrity of the judge[,]” Ponder

v. Davis, 233 N.C. 699, 705-06, 65 S.E.2d 356, 360 (1951) (quotation marks omitted),

recusal was appropriate to avoid the appearance of impropriety and maintain

confidence in the judiciary.

      Furthermore, we make no determination as to whether a partial recusal is

appropriate in other cases or under different circumstances. We simply hold that in

the present case, where the trial judge recused herself on the issue of attorney’s fees

due to her spouse’s interest as a partner of the firm seeking recovery of the fees, the

underlying motions for which attorney’s fees are sought are amply intertwined with

the claims for attorney’s fees so that recusal from both issues is proper.

      In addition to responding to the merits of Zurosky’s argument on appeal

concerning the denial of the recusal motion, Shaffer asserts the recusal issue was

conclusively determined as a matter of law in the partial recusal order. Thus, Shaffer

contends Zurosky abandoned any remedies available to him by failing to challenge



                                          - 10 -
                                 ZUROSKY V. SHAFFER

                                   Opinion of the Court



the partial recusal order and Zurosky is collaterally estopped from rearguing the

issue. We disagree.

      It is important to recognize the partial recusal order in this case was entered

by the trial judge sua sponte and the issue of recusal was not “actually litigated” by

the parties. Thus, collateral estoppel does not bar Zurosky from later raising the

recusal issue. See State ex rel. Tucker v. Frinzi, 344 N.C. 411, 414, 474 S.E.2d 127,

128-29 (1996) (Among other elements, “[a] party asserting collateral estoppel is

required to show . . . that the issue in question was identical to an issue actually

litigated and necessary to the judgment . . . .”) (quotation marks omitted) (emphasis

added).   Moreover, while the trial judge did issue a finding indicating that she

“disclosed on the record the basis of her potential disqualification as soon as she

became aware of Ms. Fiorenza’s affiliation with Hamilton Stephens Steele & Martin,

PLLC[,]” and “[a]fter discussion between each attorney and her respective client . . .

the parties and their attorneys all agreed on the record that the basis for the potential

disqualification would not prohibit this Judge from participating in the

proceeding[s,]” there is no evidence in the record before this Court that the parties

came to an agreement and there was certainly no written agreement comporting with

the requirements of Canon 3(D) waiving the conflict. Thus, the issue of recusal from

the contempt hearings and other matters in this case was not conclusively determined




                                          - 11 -
                                ZUROSKY V. SHAFFER

                                  Opinion of the Court



by the partial recusal order and Zurosky’s motion to recuse at the beginning of the

contempt hearing was properly considered by the trial court.

      In addition to challenging the denial of his motion to recuse, Zurosky also

challenges portions of the order holding him in contempt. Because we hold the trial

court erred in denying Zurosky’s motion to recuse, we need not address these

arguments as the contempt orders entered following the denial of the motion to recuse

are of no effect. We do not rule on the merits of the contempt issues, but leave those

issues for determination upon remand to the trial court.

                                   III.     Conclusion

      For the reasons discussed, we hold the trial judge erred in denying Zurosky’s

motion to recuse. Therefore, we reverse and remand to the trial court.

      REVERSED AND REMANDED.

      Chief Judge McGEE and Judge CALABRIA concur.

      Report per Rule 30(e).




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