[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2008
THOMAS K. KAHN
No. 07-14321
CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 06-81149-CV-ASG & 96-33413 BKC-SH
In Re: LAWRENCE B. CUMMINGS,
Debtor.
__________________________________________________
LAWRENCE B. CUMMINGS,
Plaintiff-Appellant,
versus
SUSAN CUMMINGS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 15, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Lawrence B. Cummings (“Lawrence”), proceeding pro se, appeals from the
district court’s affirmance of the bankruptcy court’s orders determining that his
obligations under a state court divorce decree are partially dischargeable and
partially non-dischargeable, and denying recusal of the bankruptcy judge. On
appeal, Lawrence argues that (1) the bankruptcy court erred in finding that it was
barred by the “law of the case” doctrine from independently redetermining what
portion, if any, of the underlying state divorce court judgment was intended to be
in the nature of “support” within the meaning of 11 U.S.C. § 523(a)(5); and (2) the
bankruptcy judge abused his discretion in denying Lawrence’s motion for recusal.
Upon review of the record and the parties’ briefs, we discern no reversible error
and AFFIRM the judgment of the district court.
I. BACKGROUND
Lawrence and Susan Cummings (“Susan”) were divorced in 1996. The state
divorce court awarded Susan $6,300,000 as an “equitable distribution,” payable in
three annual lump sum installments of $2,100,000 each, but did not indicate what
portion of the award, if any, was intended as support. Cummings v. Cummings,
244 F.3d 1263, 1264-65 (11th Cir. 2001) (“Cummings I”). Shortly before the first
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installment was due, Lawrence filed a bankruptcy petition seeking to discharge his
obligation to Susan under the divorce decree. The bankruptcy court initially found
that the entire award was dischargeable as a property settlement, but we vacated
that order discharging the award on appeal. Cummings I at 1267. In particular, we
noted that the state divorce court had concurrent jurisdiction with the bankruptcy
court to determine whether the divorce obligation was “in the nature of support”
for purposes of § 523(a)(5), and we ruled that the bankruptcy court should await
the divorce court’s clarification of its intent regarding the amount of support
provided in its award. Id.
On remand, however, the bankruptcy court entered an order finding that it
had exclusive jurisdiction over the case and enjoining Susan from seeking a
clarification order from the divorce court. R1-26 at 3. Susan petitioned us for a
writ of mandamus, which we granted, directing the bankruptcy court (1) to vacate
its “[e]xclusive [j]urisdiction order,” (2) not to hinder Susan “from obtaining a
clarification from the state divorce court as to what portion, if any, of the equitable
distribution was intended as support,” and (3) “not to schedule further proceedings
on the dischargeability issue until [Susan] had had a reasonable opportunity to
obtain clarification from the [divorce] court. Id. at 3-4. The divorce court then
entered an order clarifying that it intended the first two lump sum payments to
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serve as support, but not the third payment. R1-26 at 4. Lawrence appealed the
merits of that order, and the state appellate court affirmed without opinion the
divorce court’s order. Cummings v. Cummings, 835 So. 2d 1143 (Fla. 4th Dist.
Ct. App. 2002) (table).
Thereafter, based on the divorce court’s clarification order, the bankruptcy
court found that, the first two payments were nondischargeable under § 523(a)(5),
while the third payment was dischargeable. The bankruptcy court refused to
consider Lawrence’s attempt to challenge the divorce court’s finding that the first
two payments were intended to be in the nature of support, finding that the issue
was barred by the “law of the case” doctrine. Accordion Folder 1-11-4 at 8.
Lawrence appealed the bankruptcy court’s ruling, and the district court affirmed.
Meanwhile, Lawrence also had unsuccessfully moved to recuse the
bankruptcy judge for bias, based on two specific statements. The first statement
appeared within a footnote of an order denying Susan’s emergency motion for
financial support; the bankruptcy judge compared Lawrence’s comfortable
lifestyle, based on his apparent ability to pay for the services of a prestigious South
Florida law firm, to Susan’s “deplorable” living conditions and pro se status. R1-
26 at 4-5. The second statement was made during a 2001 hearing in Susan’s
separate bankruptcy proceedings upon the confirmation of Susan’s own bankruptcy
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reorganization plan; the bankruptcy judge expressed “hope that Ms. Cummings is
successful in her pursuit as far as the recovery of moneys owed to her. I sincerely
mean that.” Id. at 5. The bankruptcy court denied the motion for recusal, and the
district court held that the bankruptcy court did not abuse its discretion in denying
the motion because the two challenged comments (1) did not stem from an
extrajudicial source, (2) were “only two fairly innocuous statements” made over
the course of approximately ten years of legal proceedings, and (3) would not lead
“any reasonably objective lay person” to doubt the bankruptcy judge’s impartiality.
Id. at 15-16. Lawrence, who had been represented by counsel throughout the
bankruptcy and district court proceedings, filed a timely appeal pro se.
II. DISCUSSION
First, Lawrence argues that, on remand following Cummings I, neither the
bankruptcy court nor the divorce court followed our “clear guidelines” to
determine the original intent of the divorce court as to what portion of the divorce
judgment should function as support. Appellant’s Br. at 7. Lawrence also asserts
that the first two lump sum installments total more than $4,000,000, well over the
$8,000 per month that the divorce court found that Susan needed to maintain her
accustomed standard of living. In light of that discrepancy, Lawrence maintains
that the divorce court’s clarification that the first two of the three lump sum
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payments were intended as support was arbitrary.1 Id. In his reply brief, Lawrence
explains that he is not trying to “re-litigate” any issue, but rather, he wants “a
court” to consider for the first time his evidence that the divorce court’s 2002
clarification order did not accurately reflect that court’s original intent in its 1996
divorce decree. Reply Br. at 1.
We have “jurisdiction over all final orders of a district court exercising
appellate jurisdiction over bankruptcy court orders.” In re Pugh, 158 F.3d 530, 532
(11th Cir. 1998), (citing 28 U.S.C. § 158(d)). “In exercising such jurisdiction, we
review conclusions of law made by the district and bankruptcy courts de novo.”
Id. Claim preclusion applies to an order or judgment when four conditions are
met: (1) “the prior judgment must be valid in that it was rendered by a court of
competent jurisdiction and in accordance with the requirements of due process”;
(2) “the judgment must be final and on the merits”; (3) “there must be identity of
both parties or their privies”; and (4) “the later proceeding must involve the same
cause of action as involved in the earlier proceeding.” In re Justice Oaks II, Ltd.,
898 F.2d 1544, 1550 (11th Cir. 1990). By contrast, under the closely related
doctrine of the “law of the case,” “when a court decides upon a rule of law, that
1
Lawrence also incorporates by reference his reply brief to the district court, in which he
argued that the bankruptcy court was not prohibited from independently evaluating what portion
of the divorce judgment was in the nature of support because the divorce court never addressed
the issue in the context of federal bankruptcy law.
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decision should continue to govern the same issues of subsequent stages of the
same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16,
108 S. Ct. 2166, 2177 (1988) (citation omitted). We have explained the difference
between claim preclusion and law of the case as follows:
[w]hile the law of the case does not bar litigation of issues ‘which
might have been decided but were not[.]’ [I]t does require a court to
follow what has been decided explicitly, as well as by necessary
implication, in an earlier proceeding. The distinction between law of
the case and claim preclusion is that the former bars relitigation of
legal rules while the latter bars relitigation of claims (i.e., legal rules
applied to the facts of the case). In addition, law of the case bars only
those legal issues that were actually, or by necessary implication,
decided in the former proceeding, while claim preclusion bars
relitigation not only of claims raised but also claims that could have
been raised.
Justice Oaks II, 898 F.2d at 1549 n.3 (citations omitted).
Here, the bankruptcy court correctly found that, in light of the divorce
court’s clarification order, it was precluded by the “law of the case” doctrine from
re-litigating the issue of to what extent the divorce court intended its award to
constitute support. In Cummings I, we expressly acknowledged the state court’s
authority and concurrent jurisdiction to determine whether an obligation is in the
nature of support within the meaning of § 523(a)(5). Cummings I, 244 F.3d
at 1267. We stressed that bankruptcy courts should avoid “incursions into family
law matters out of consideration of court economy, judicial restraint, and our
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deference to our state court brethren and their established expertise in such
matters.” Id. When the bankruptcy court on remand thereafter sought to assert
exclusive jurisdiction over the case and enjoin Susan from seeking the divorce
court’s clarification, we granted mandamus relief and expressly directed the
bankruptcy court to vacate its “[e]xclusive [j]urisdiction order” and abate further
proceedings on the dischargeability issue until Susan had the opportunity to obtain
such clarification. R1-26 at 3-4. As such, our two decisions established the rule
that the bankruptcy court’s review was limited only to determining the intent of the
divorce court when it made the award, not second guessing the amount of the
award that should have been labeled as support. Thus, the bankruptcy court
properly disregarded Lawrence’s attempt to present additional evidence to show
that the award amount was excessive when compared to Susan’s monthly support
needs.
As we noted in Cummings I, the divorce court was a court of competent
jurisdiction to consider the support issue, and neither party disputes that the
divorce court’s decision met the requirements of due process. The divorce court’s
clarification order resolved the support issue on the merits, Lawrence appealed that
order, and the state appellate court affirmed. The parties were identical in both
proceedings. Thus, once the divorce court resolved the issue of its intent,
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Lawrence was precluded from relitigating that claim before the bankruptcy court.
See Justice Oaks II, 898 F.2d at 1550. At that point, the only thing left for the
bankruptcy court to do was to take the final analytical step and apply the divorce
court’s factual clarification to the dischargeability context under § 523(a)(5).
Notably, our decision in Cummings I also spoke to that issue as well, clarifying
that “[t]o the extent the [divorce] court intended a portion of the obligation to
function as support, that debt is nondischargeable under § 523(a)(5).” Cummings
I, 244 F.3d at 1266.
The bankruptcy court correctly found that it was barred by the “law of the
case” doctrine from independently determining to what extent the divorce court’s
judgment was intended to be in the nature of support within the meaning of
§ 523(a)(5). Accordingly, the bankruptcy court properly found that the first two
lump sum payments were not dischargeable under § 523(a)(5) based on the divorce
court’s clarification order.
Second, Lawrence contends that the bankruptcy judge abused his discretion
in failing to recuse himself from the adversary proceeding. In support of his
motion, Lawrence argues that the bankruptcy judge’s comment regarding
Lawrence’s ability to pay for the services of a prestigious South Florida law firm
while Susan and the Cummings’s children “suffer[ed] from deplorable living
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conditions” was directly refuted by overwhelming evidence in the bankruptcy case
establishing his own “dire financial condition,” and thus must have been developed
from an extra-judicial source of information. R1-26 at 4-5. In addition, Lawrence
points to the bankruptcy judge’s on-the-record statement that he “hope[d] that Ms.
Cummings is successful in her pursuit as far as the recovery of moneys owed to
her,” which Lawrence labels as “cheerleading” and evidence of an “obvious bias.”
R1-24 at 13-15.
We review the denial of a motion for recusal for abuse of discretion. Christo
v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). The proper standard under §
455(a) is “whether an objective, fully informed lay observer would entertain
significant doubt about the judge’s impartiality.” Id. A judge must be recused if
the judge is personally biased or prejudiced against a party or in favor of an
adverse party, or whenever the judge’s “impartiality might reasonably be
questioned.” 28 U.S.C. §§ 144, 455(a). “The exception to this rule is when a
judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice
that it constitutes bias against a party.” Id. (internal quotations omitted).
In this case, the bankruptcy judge did not abuse his discretion in denying
Lawrence’s motion for recusal. The only grounds cited in support of the motion
were two isolated comments made over the course of ten years of protracted
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litigation. Despite Lawrence’s suggestion to the contrary, neither of the two
challenged comments was based on information derived from an extra-judicial
source. First, the bankruptcy judge’s juxtaposition of Lawrence’s apparent ability
to afford the services of a prestigious law firm to Susan’s “deplorable” living
conditions and pro se status in that court was a comment based on the judge’s first-
hand knowledge of the bankruptcy pleadings themselves. R1-26 at 5. That
comment directly related to an issue then before the court, namely, Susan’s
asserted entitlement to emergency financial support, a request that the court
coincidentally denied. Lawrence’s contention that the judge necessarily must have
consulted some unidentified extra-judicial source of information, while
disregarding the record evidence of Lawrence’s own “dire financial condition,” is
unsupported and baseless. R1-24 at 14. Second, the bankruptcy judge’s comment
regarding his hope that Susan would be successful in collecting money owed to her
also stemmed solely from a judicial source; it occurred on the occasion of the
confirmation of her own bankruptcy reorganization plan. Contrary to Lawrence’s
claim that the judge was cheerleading Susan’s attempts to collect the equitable
distribution from Lawrence, we agree with the district court that the bankruptcy
judge reasonably could have made this statement as an innocuous expression of
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hope in her ability to one day satisfy her individual debts to her own creditors.
See R1-26 at 14.
In light of the extensive history of this case, we conclude that the two
isolated comments Lawrence relies upon do not evince pervasive bias and
prejudice against Lawrence, and we determine that a reasonable, fully informed
objective observer would not entertain any significant doubt about the bankruptcy
judge’s impartiality in the proceedings. See Christo, 223 F.3d at 1333.
Accordingly, we decide that the bankruptcy judge did not abuse his discretion in
denying Lawrence’s motion for recusal.
III. CONCLUSION
Lawrence appeals the district court’s affirmance of the bankruptcy court’s
orders determining that his obligations under a state court divorce decree are
partially dischargeable and partially non-dischargeable, and denying his motion for
recusal of the bankruptcy judge. Lawrence argues that (1) the bankruptcy court
erred in finding that it was barred by the “law of the case” doctrine from
independently redetermining what portion of the underlying state divorce court
judgment was intended to be “in the nature of support,” as opposed to a property
settlement; and (2) the bankruptcy judge abused his discretion in denying
Lawrence’s motion for recusal. The bankruptcy court correctly held that it was
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bound by the “law of the case” doctrine from reexamining what portion of the
divorce court’s award was in the nature of support, and the bankruptcy judge did
not abuse his discretion in denying Lawrence’s motion for recusal because the two
challenged comments were isolated, did not arise from an extra-judicial source,
and would not lead a reasonable observer to question the judge’s impartiality. The
district court’s order is AFFIRMED.
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