Alabama Court of Civil Appeals Affirms Denial of New Trial Over Trial Court’s Facebook Friendship With Parties’ Daughter

Another week, another new case on Facebook friendships.  This time, it’s Clore v. Clore, No. 2110967 (Ala. Civ. App June 28, 2013), a divorce case in which the wife appealed certain rulings relating to alimony and property-division and challenged the trial court’s denial of a request for a new trial and recusal based on the trial judge’s apparent Facebook friendship with the parties’ adult daughter.

Needless to say, we’re interested in the latter component of this decision by the Alabama Court of Civil Appeals.

Apparently, at a hearing on the wife’ motion for new trial, her lawyer introduced some exhibits printed from Facebook establishing that the trial court judge maintained a Facebook friendship with the adult daughter of the parties. (We wonder how it occurred to them to investigate social media connections in this matter.).  According to the opinion, the issue had never previously been raised by either of the parties, and the court does not offer many details about the nature of the Facebook friendship (i.e. how long the two had been Facebook friends, how many friends the judge and the daughter had on Facebook, et cetera).

In its opinion, the appellate court quote the trial court’s justification for denying the motion for new trial:

“This [Facebook] is a social networking site where the word ‘friend’ is used [in a way] that doesn’t have anything to do with the way before this ever existed—the way we used the word ‘friend.’

“So just because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I’ve heard [the daughter’s] name before we came in here today.

“And in fact, in the course of living here, we have all run into each other before. It—and I can say the same for [the daughter]. I can’t remember a specific time when that happened.

“But the establishment of an electronic friend over Facebook has absolutely no impact on what I have done and what I’m going to do.”

Reviewing the record below, the appellate court declined to reverse the rulings below based upon these issues:

The parties, in their appellate briefs, devote considerable argument to various secondary authorities assessing the abstract propriety of a “Facebook friendship” between, for example, a trial judge and a practicing attorney. However, the husband points out that at the new-trial-motion hearing the wife “offered nothing beyond the bare status of the parties’ daughter as a ‘friend’ of the judge.” Notably, the record reveals that the wife did not make any sort of showing with respect to the second of the two elements necessary to warrant the granting of a new trial based upon newly discovered evidence of a trial judge’s potential bias: that the pertinent evidence indicating bias that was discovered after trial “could not have been discovered before trial by the exercise of due diligence.”

For all that appears in the record in this case, the existence of the electronic connection between the parties’ daughter and the trial judge—whether indicative of a mere acquaintanceship as the trial judge noted on the record or something more private and sinister as insinuated by the wife—was discoverable by the wife’s counsel well before trial and does not amount to a basis for retroactively undoing the work of the trial court, especially given that under the law of Alabama “[p]rejudice on the part of a judge should not be presumed.”

(Citations omitted).

The husband has a point: all that the wife did in this matter was to disclose the existence of the friendship itself.  How long had the two been friends? Who sent the initial friendship request? Had they exchanged private messages? Had they posted on each others’ walls?  What information might the judge have had access to on the daughter’s Facebook wall that might have related to her family situation? None of those issues were explored, and as the court noted, presumably, all of this information could have been discovered before the trial.

A dissent by Presiding Judge Thompson did not discuss the social media issue.