Wilson v. Wilson

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
December 21, 1998 FOR PUBLICATION

Cecil W. Crowson
JENNIFER O. WILSON, )
Appellate Court Clerk Filed: December 21, 1998
)
Appellee, ) Hon. Muriel Robinson,
) Judge,
Vs. )
) DAVIDSON CIRCUIT
LARRY ARNOLD WILSON, )
) Supreme Court
Appellant. ) No. 01S01-9807-CV-00130

FOR APPELLANT: FOR APPELLEE:
Earl J. Porter, Jr., John Herbison
Nashville, Tennessee Nashville, Tennessee

John J. Hollins, Sr.
David L. Raybin
Hollins, Wagster & Yarbrough, P.C.
Nashville, Tennessee

FOR AMICUS CURIAE:

Richardson and Baker Family Law Section of the
Clark Lee Shaw Memphis Bar Association
Nashville, Tennessee Joy Tanner Bomar
Memphis, Tennessee
State of Tennessee
John Knox W alkup Family Law Section of the
Attorney General & Reporter Tennessee Bar Association
Larry Rice
Michael E. Moore Memphis, Tennessee
Solicitor General

Kathy M orante
Deputy Attorney General
Nashville, Tennessee

OPINION

COURT OF APPEALS REVERSED. DROWOTA, J.
 We granted this appeal to determine whether a private attorney representing the

beneficiary of a court order in a civil case may prosecute a criminal contempt action

alleging a violation of the order. After due consideration, we conclude that no

constitutional principle nor ethical standard automatically disqualifies the private attorney

for the beneficiary of the order from prosecuting a contempt action for a violation of the

order. Accordingly, we reverse the judgment of the Court of Appeals which adopted an

automatic rule of disqualification and remand this cause to the trial court for further

proceedings consistent with this decision.

BACKGROUND

The plaintiff, Jennifer O. Wilson, filed suit for divorce against the defendant, Larry

A. Wilson, in the Circuit Court of Davidson County. During the course of this litigation,

certain restraining orders were issued by the court, and thereafter, the defendant filed a

petition for contempt against the plaintiff alleging that she had violated an order of the trial

court. The petition failed to specify whether civil or criminal sanctions were being sought.

The plaintiff responded by filing a counterclaim for contempt against the defendant,

and a motion to disqualify the defendant’s private counsel from prosecuting the contempt

action. The trial court denied the motion to disqualify, but granted the plaintiff permission

to seek an interlocutory appeal from the ruling. See Tenn. R. App. P. 9

The defendant thereafter filed a second petition for contempt alleging a violation of

an order of the trial court. This petition was accompanied by a notice of constitutional

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rights. The trial court issued an order to show cause. In response, the plaintiff again filed a

motion to disqualify defendant’s private counsel from prosecuting the criminal contempt

action on the basis that counsel was simultaneously representing the defendant in the

underlying divorce proceedings. The trial court again denied the motion but granted the

plaintiff permission to seek an extraordinary appeal. See Tenn. R. App. P. 10.

The Court of Appeals granted and consolidated the interlocutory and extraordinary

appeals. Relying upon a decision of the United States Supreme Court,1 the Court of

Appeals reversed the trial court’s denial of the motions to disqualify and held that “an

appointment of an ‘interested’ special prosecutor in a criminal contempt proceeding is

contrary to the ethical standards required of lawyers in the practice of law, as well as the

high ethical standard required of the judicial process and is thereby prohibited.”

Thereafter, we granted the defendant’s application for permission to appeal, and for

the reasons that follow, now conclude that no constitutional principle nor ethical standard

automatically precludes a private attorney representing the beneficiary of a court order

from prosecuting a contempt action for an alleged violation of the order. Accordingly, we

reverse the judgment of the Court of Appeals and remand to the trial court for further

proceedings consistent with this decision.

ANALYSIS

A. Standard of Review

1
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95
L.Ed.2d 740 (1987).

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 Recently, in Black v. Blount, 938 S.W.2d 394 (Tenn. 1996), this Court held that trial

courts have both the inherent authority to initiate contempt proceedings and the

concomitant authority to appoint private attorneys to prosecute such contempt actions. Id.

at 402-03. Unlike this case, however, the conduct in Black for which contempt

proceedings had been instituted did not involve the alleged violation of a court order. Also

unlike this case, the private attorney appointed by the trial court to prosecute the contempt

proceeding in Black did not represent any of the litigants in the underlying action from

which the contempt charges arose. Accordingly, in Black we did not address, and in fact

expressly reserved for a case in which it was squarely presented, the question of whether a

private attorney already representing the beneficiary of a court order in a civil case may

prosecute a contempt action alleging a violation of that order. Id. at 402. It is that narrow

question of law which now is squarely presented in this appeal.2 Since this is a

question of law, our review is de novo upon the record before this Court with no

presumption of correctness attaching to the decisions of the lower courts. Warren

v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997); Bain v. Wells, 936 S.W.2d

618, 622 (Tenn. 1997).

B. The Young Decision

Prior to 1987, the leading case on this issue was McCann v. New York Stock

Exchange, 80 F.2d 211 (2nd Cir. 1935), in which Judge Learned Hand commented that to

2
The briefs of the parties to this appeal as well as the briefs filed on behalf of the amicus
curiae urge us to decide other issues relating to contempt proceedings. We decline to address
issu es no t pres ente d by th is app eal.

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prosecute an indirect criminal contempt, committed outside the presence of the court, “the

judge may prefer to use the attorney of a party, who will indeed ordinarily be his only

means of information.... There is no reason why he should not do so, and every reason why

he should....” Id. at 214. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.

787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), however, the United States Supreme Court

parted company with Judge Hand when it held that federal judges could no longer appoint

a private lawyer representing the beneficiary of a court order to also prosecute a criminal

contempt action alleging a violation of the order.

Young began as a trademark infringement action brought by Vuitton et Fils, S.A.,

(Vuitton), a manufacturer of expensive handbags, against several businesses which were

manufacturing and selling inexpensive imitations of Vuitton’s merchandise. In July of

1982, the parties settled the trademark infringement case. Under the settlement agreement,

the defendants were required to pay damages and enjoined from using Vuitton’s registered

trademark. Suspecting that the defendants had violated the injunction, Vuitton in early

1983 commissioned a private firm to conduct an undercover investigation. Upon

discovering evidence of noncompliance, Vuitton’s attorney asked the district court to

appoint him and his colleagues as special counsel to prosecute a criminal contempt action

for violation of the injunction. The district court found probable cause to believe that the

defendants were violating the injunction and appointed Vuitton’s attorney and his

colleagues to represent the United States in continuing the investigation and in prosecuting

the contempt action. Significantly, the appointment conferred upon Vuitton’s attorneys all

the powers ordinarily possessed by a government prosecutor, yet the United States

Attorney’s Office took no part in the prosecution of the case beyond wishing the special

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prosecutor “good luck.” Id., 481 U.S. at 791-92, 107 S.Ct. at 2129.

Over the next month, the special prosecutor compiled more than 100 audio and video

tapes of meetings and wiretapped telephone conversations between the defendants and

investigators. With that evidence, the special prosecutor requested and obtained an order

from the district court directing the defendants to show cause why they should not be cited

for contempt for either violating or aiding and abetting the violation of the injunction. The

defendants filed motions opposing both the show cause order and the appointment of

Vuitton’s attorneys as special prosecutor. The defense motions were denied, and

eventually two of the defendants entered guilty pleas to contempt. Several other

defendants were tried and convicted of contempt. Id., 481 U.S. at 792, 107 S.Ct. at 2129.

Before the United States Supreme Court, the defendants advanced two primary

arguments as grounds for reversal of their convictions. First, they contended that a district

court lacks authority to appoint private counsel to prosecute a contempt action and that

only the U.S. Attorney may initiate a criminal contempt prosecution. Id., 481 U.S. at 793,

107 S.Ct. at 2130. Alternatively, the defendants maintained that a district court may not

appoint an attorney representing the beneficiary of a court order to prosecute a criminal

contempt action alleging a violation of that order. Id., 481 U.S. at 802-14, 107 S.Ct. at

2135-38.

In rejecting the defendants’ first argument, the Court held that district courts have

inherent power both to initiate contempt proceedings to punish disobedience to their orders

and to appoint a private attorney to prosecute such contempt actions. Id., 481 U.S. at 793,

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107 S.Ct. at 2130.3 The Court commented that this power to appoint should be exercised

sparingly, and only after the public prosecutor has denied a district court’s request to

prosecute a contempt. Id., 481 U.S. at 801, 107 S.Ct. at 2133.

The Supreme Court, however, agreed with the defendants’ second argument and

found that the district court erred by appointing an attorney who was representing the

beneficiary of a court order to prosecute a criminal contempt for an alleged violation of the

order. The Court first emphasized that private attorneys appointed to prosecute criminal

contempt actions represent the interest of the United States in vindicating a court’s

authority. Id., 481 U.S. at 804, 107 S.Ct. at 2136. A private attorney prosecuting a

criminal contempt, therefore, must assume the unique responsibility of a government

prosecutor which is to pursue justice and guarantee that “guilt shall not escape nor

innocence suffer.” Young, 481 U.S. at 802-03, 107 S.Ct. at 2135 (quoting Berger v.

United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)).

While recognizing that a private party’s interest in obtaining the benefits of a court

order may sometimes coincide with the special prosecutor’s pursuit of justice, the Court

stressed that the two interests may also at times diverge. Young, 481 U.S. at 805, 107 S.Ct.

at 2136. As examples of the possible divergence, the Court hypothesized that an attorney

for a private client serving as special prosecutor of a contempt action may be tempted

either to bring a tenuously supported prosecution or to abandon a meritorious prosecution

if either action would inure to the benefit of his or her private client. The Court declared

3
This Court in Black relied upon this portion of the Young decision as support for our
holding that trial courts in Tennessee have both the inherent power to initiate contempt proceedings
and the concomitant power to appoint private counsel to prosecute such contempt actions.

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that appointing counsel for an interested party to prosecute a criminal contempt action “at a

minimum create[s] opportunities for conflicts to arise and create[s] at least the appearance

of impropriety.” Id., 481 U.S. at 806, 107 S.Ct. at 2137. In concluding that lawyers

already representing an interested party have an insurmountable conflict of interest if they

also undertake to prosecute a criminal contempt case, the Court stated:

Between the private life of the citizen and the public glare of criminal
accusation stands the prosecutor. That state official has the power to employ
the full machinery of the state in scrutinizing any given individual. Even if a
defendant is ultimately acquitted, forced immersion in criminal investigation
and adjudication is a wrenching disruption of everyday life. For this reason,
we must have assurance that those who would wield this power will be guided
solely by their sense of public responsibility for the attainment of justice. A
prosecutor of a contempt action who represents the private beneficiary of the
court order allegedly violated cannot provide such assurance, for such an
attorney is required by the very standards of the profession to serve two
masters.

Id., 481 U.S. at 805, 107 S.Ct. at 2138.

The Young Court did not base its decision upon constitutional grounds but instead

announced the rule of disqualification in its supervisory role over lower federal courts.

Though we are not constitutionally bound to follow Young, the rationale for the decision

was based largely upon the Model Code of Professional Responsibility which, as modified,

currently governs the conduct of attorneys in Tennessee. See Tenn. Sup. Ct. R. 8. As

explained below, however, we decline to adopt the rule of automatic disqualification

announced in Young.

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 C. Constitutional Principles

Although appellate courts ordinarily do not address constitutional issues if a case

may be decided upon non-constitutional grounds, in this case a decision on the

constitutional issue is necessary to fully determine the case and the rights of the parties.

State v. Hall, 958 S.W.2d 679, 695 n. 15 (Tenn. 1995). This Court previously has opined

that “[d]ue process . . . calls for such procedural protections as the particular situation

demands.” Phillips v. State Board of Regents, 863 S.W.2d 45, 50 (Tenn. 1993) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In

determining what procedural protections a particular situation demands, three factors must

be considered: (1) the private interest at stake; (2) the risk of erroneous deprivation of the

interest through the procedures used and the probable value, if any, of additional or

substitute procedural safeguards; and finally, (3) the government’s interest, including the

function involved and the fiscal and administrative burdens that the additional or substitute

procedural requirement would entail. Phillips, 863 S.W.2d at 50; Matthews v. Eldridge,

424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Though we have found no

other judicial decision 4 addressing the constitutional aspect of the issue in this appeal, in

our view, application of the three-pronged balancing test clearly indicates that due process

does not preclude allowing an attorney who represents the beneficiary of a civil court order

to simultaneously prosecute a contempt action for an alleged violation of the order.5

4
The plaintiff cites several cases in which courts have held that due process precludes a
private attorney from representing a victim in civil litigation and simultaneously serving as special
prosec utor in a crim inal case involving the s ame condu ct. See e.g. State v. Eldridge, 951 S.W.2d
775 (T enn. Cr im. Ap p. 1997) ; Comm onwealth v. Hubbard , 777 S.W .2d 882 ( Ky. 1989) ; State v.
Storm , 661 A.2d 790 (N .J. 1995) ; Kerns v. Wolverton, 381 S.E .2d 258 ( W .Va. 198 9); but see
Hopk ins v. State , 429 So.2 d 114 6 (Ala . Crim . App . 198 3). T hos e cas es c learly a re dis tingu isha ble
from the issue in this appe al.

5
But see John D . Bessler , The P ublic Interes t and the U ncons titutionality of Private
Prosecutors , 47 Ark .L.Rev. 5 11, 575 ( 1994); P atricia Mo ran, No te, Private Prosecutors in Criminal
Contem pt Actions Under Rule 42(b) of the F ederal Rules of Criminal Proced ure, 54 Fordham L.

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 At stake is a contempt defendant’s liberty or property interest. A defendant found

guilty of general contempt in Tennessee may be punished by fine or by imprisonment, or

both. However, any fine imposed may not exceed fifty dollars and any term of

imprisonment may not exceed ten days. Tenn. Code Ann. § 29-9-103 (Supp. 1998). The

risk that a defendant’s liberty interest will be erroneously deprived by the current practice

which allows a litigant’s private attorney to prosecute contempt is slight because it is the

trial judge, not the private attorney, who actually decides whether a contempt action may

proceed. See Tenn. R.Crim. P. 42(b). Since the risk of erroneous deprivation is minimal,

there is no real benefit or value in adopting a rule which would preclude a litigant’s private

attorney from prosecuting a contempt. Finally, tremendous fiscal and administrative

burdens would result from a substitute procedural requirement. Contempt proceedings

often arise in domestic relations cases in state courts. However, unlike the federal system,

there is no fund in Tennessee from which to compensate private counsel appointed to

prosecute criminal contempt actions.6 It is unrealistic to expect district attorneys to

Rev. 1141, 1149-51 (1986) (applying the three-pronged balancing test and concluding that Due
Process precludes allowing an attorney representing the beneficiary of a court order to also
prosec ute a con temp t action allegin g a violation o f the orde r).

6
Contrary to the plaintiff’s assertions, our decision in Black, supra, does not support the
propos ition that a trial cou rt may ro utinely tax attorn ey’s fees a s costs in contem pt proce edings. In
fact, the rule of Ferguson v. Paycheck, 672 S.W.2d 746 (Tenn. 1984), which was applied in Black,
specifically does not allow a trial court to tax as costs fees for attorneys appointed to serve the
interests of litigants. Though the only interest at issue in Black was the vin dica tion o f the c ourt’s
authority, m ost con temp t cases will serve to bo th vindicate the cour t’s authority and to benef it a
litigant by enforcing a court order. Thus in the vast m ajority of contempt proceedings, a trial court
may not tax attorney’s fees as costs.

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prosecute contempt actions arising from alleged violations of civil court orders.7 District

attorneys already have a heavy case load prosecuting violations of the general criminal

laws. See State ex rel O’Brien v. Moreland, 778 S.W.2d 400, 406 (Mo. App.

1989)(discussing similar practical problems surrounding the rule of automatic

disqualification). Were we to hold that due process precludes a litigant’s private attorney

from prosecuting contempt proceedings, many citizens would be deprived of the benefits to

which they already have been adjudged entitled by state courts and many state court orders

would remain unenforced. The minimal risk that a defendant will be erroneously deprived

of his or her liberty interest if a litigant’s private attorney prosecutes a contempt proceeding

is far outweighed by the very real fiscal and administrative burdens certain to accompany

the adoption of a substitute procedure.8 We hold that Due Process does not mandate

adoption of a rule which automatically disqualifies a litigant’s private counsel from

prosecuting a contempt action.

7
While this Court stated in Black, supra, that a trial court should appoint a private attorney
only after the district attorney refuses a request of the court to prosecute a contempt action, that
statem ent applies only if no attorn ey fam iliar with the grou nds for c ontem pt is readily ava ilable to
prosecute the action. For example, in Black the o nly atto rney f am iliar with the b eha vior a lleged ly
constituting contem pt was a lso the prim ary witness in the cas e and the refore c ould not p rosecu te
the con temp t action. See Tenn . Sup. Ct. R . 8, DR 5 -101 (“law yer shall not a ccept e mplo ymen t in ...
litigation if the lawyer k nows o r it is obvious th at the lawyer ... o ught to be called as a witness” ).

8
Despite the dissent’s criticism, it is entirely appropriate under both the state and federal
con stitutio ns to cons ider th e fisc al bur den s wh ich w ould r esu lt from adop tion o f a rule of au tom atic
disqualifica tion. See Phillips, 863 S.W.2d at 50. Consideration of the “checkbook” in fact was
mandated by the United States Supreme Court in Matthews, 424 U.S . at 335, 96 S.Ct. at 90 3.
Since the dissent a grees w ith the m ajority’s conc lusion that D ue Proc ess do es not m andate
adoption of a rule of a utom atic disqua lification, its criticism of the und erlying analysis is puzzling.
Significantly, in all the cases cited by the dissent in support of its criticism, either this Court or the
United States Supreme Court concluded that the constitution al rights of the defendants outweighed
the fiscal or administrative burdens associated with the new procedures. In none of those cases
was the recognition of additional procedures based solely upon a potential and theoretical ethical
conflict of interest, which is the only ground advanced by the dissent in this case to support
adoption of a rule of automatic disqualification.

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 D. Ethical Standards

We have also found no ethical standard which mandates adoption of an automatic

rule of disqualification. While the Young decision is theoretically attractive, many

practical differences between the federal judicial system and the courts of Tennessee exist

which ameliorate the perceived conflict of interest identified in Young. For example,

unlike the private attorneys appointed as special prosecutors in Young, private attorneys

prosecuting criminal contempt actions in Tennessee are not ordinarily clothed with all the

powers of a public prosecutor. Indeed, there is no hint in this appeal that the defendant’s

attorney has been given the powers of the public prosecutor in pursuing these contempt

actions. Here, unlike Young, we simply are not dealing with a private attorney who has

“the power to employ the full machinery of the state in scrutinizing any given individual.”

Young, 481 U.S. at 805, 107 S.Ct. at 2138. The potential for abuse and overreaching about

which the Young Court expressed concern therefore does not exist in Tennessee.

Furthermore, we do not believe that appointing a private attorney who represents the

beneficiary of a court order to prosecute a contempt action for an alleged violation of that

order creates the potential for conflict and the appearance of impropriety. Contempt of

court is intended to vindicate a court’s authority and to maintain the integrity of court

orders. State v. Winningham, 958 S.W.2d 740 (Tenn. 1997). In a contempt proceeding

alleging a violation of a court order, therefore, the interest of the private litigant coincides

with the interest of the court. The common goal is to force compliance with the court

order. Although the motivational reasons may differ, the interest is the same. The private

lawyer is ethically obligated to exercise his or her independent professional judgment to

protect the common interest. Tenn. Sup. Ct. R. 8, DR 5-105. That a private lawyer is

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“interested” in protecting the interest of his or her client and the legitimate concern of the

court does not detract from the integrity of the judicial process when the interest of the

client and the concern of the court is the same -- enforcement of a court order.

Additionally, in our view a litigant’s private attorney is no less likely to seek justice

and no more likely to be influenced by improper motives than a public prosecutor or a

disinterested private attorney. We readily acknowledge that an attorney representing the

beneficiary of a court order will zealously attempt to enforce compliance with the order if

allowed to prosecute a contempt proceeding. There is, however, nothing improper about

zealous prosecution. Even the Young Court recognized that in our adversary system,

“prosecutors are necessarily permitted to be zealous in their enforcement of the law.”

Young, 481 U.S. at 806, 107 S.Ct. at 2137. If a prosecutor is “honestly convinced of the

defendant’s guilt, the prosecutor is free, indeed obliged, to be deeply interested in urging

that view by any fair means. True disinterest on the issue of such a defendant’s guilt is the

domain of the judge and the jury--not the prosecutor.” Wright v. United States, 732 F.2d

1048, 1056 (2nd Cir. 1984). While prosecutors are expected to proceed with “eagerness

and vigor” and are permitted to “strike hard blows,” they may not strike “foul ones.”

Berger, 295 U.S. at 85, 55 S.Ct. at 633. The ethical rules governing the conduct of all

attorneys in Tennessee should prevent a private attorney representing the beneficiary of a

court order from becoming overzealous or from striking foul blows.

Furthermore, the procedural safeguards of Tenn. R. Crim. P. 42(b) ameliorate

concerns that a private attorney will improperly institute a contempt proceeding in

contravention of the interests of justice. In pertinent part that rule provides as follows:

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 A criminal contempt . . . shall be prosecuted on notice. The notice shall state
the time and place of hearing, allowing a reasonable time for the preparation of
the defense, and shall state the essential facts constituting the criminal
contempt charged and describe it as such. The notice shall be given orally by
the judge in open court in the presence of the defendant, or on application of
the district attorney general or an attorney appointed by the court for that
purpose, by an order to show cause or an order of arrest. The defendant is
entitled to admission to bail as provided in these rules. If the contempt charged
involves disrespect to or criticism of a judge, that judge is disqualified from
presiding at the hearing except with the defendant’s consent. Upon a verdict of
finding of guilt the court shall enter an order fixing the punishment.

Tenn. R. Crim. P. 42(b) (emphasis added.) Under this rule, a contempt action can not

proceed unless the trial court issues an order to show cause after reviewing a written

application of the private attorney. The trial court obviously will realize when the attorney

representing the beneficiary of the court order in the underlying civil litigation is also the

attorney filing the application to institute contempt. The trial court will be in a position to

carefully scrutinize the application. The judicial oversight prescribed by Rule 42 virtually

eliminates any danger that contempt actions will proceed if instituted for improper motives

or without regard to the interests of justice. To further guard against the possibility of

abuse, however, we hold that the provisions of Tenn. R. Civ. P. 11 apply to the written

applications which attorneys must file with the trial court to institute contempt

proceedings. It is certainly unlikely that attorneys will risk Rule 11 sanctions by filing

unjustified or improper contempt applications.

Accordingly, we hold that allowing an attorney for the beneficiary of a court order to

prosecute a contempt proceeding alleging a violation of that order does not involve an

inherent or potential conflict of interest sufficient to warrant adoption of an automatic rule

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of disqualification.9

CONCLUSION

For the reasons previously explained, we conclude that no constitutional principle

nor ethical standard automatically disqualifies a private attorney representing the

beneficiary of a court order from simultaneously prosecuting a contempt action which

alleges a violation of the order. Accordingly, we reverse the judgment of the Court of

Appeals which adopted an automatic rule of disqualification and remand this cause to the

trial court for further proceedings consistent with this decision.

__________________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:

Anderson, C.J.
Holder, Barker, JJ.

Birch, J. - Separate Dissenting Opinion

9
Surprisingly few state courts have addressed the issue in this appeal. In a decision
rendered before Young, the West Virginia Supreme Court employed similar rationale and adopted a
rule of auto matic d isqualification . State ex re l. Kop pers Co. In c. v. In terna tiona l Unio n of O il,
Chem ical and Atomic W orkers, 298 S.E.2d 827 (W. Va. 1982). Some state courts have followed
Young with little or no ana lysis of the issu e. See DiSaba tino v. Salicete , 671 A.2d 1344 (Del. 1996);
Departme nt of Social Services ex rel. Montero v. Montero , 758 P.2d 690 (Haw. App. 1988). Other
states c ourts, also with little or no disc ussion, h ave not a pplied a rule of autom atic disqua lification.
Marcisz v. Marcisz, 357 N.E .2d 477 ( Ill. 1976); Lamb v. Fowler, 574 So .2d 262 ( Fla. App . 1991); In
re Marr iage of B etts, 558 N.E.2d 404 (Ill. App. 1990).

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