Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Is a judge allowed to ask questions in a Florida family law proceeding? According to Section 90.615 of the Florida Statutes: “When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.” However this interrogation is limited as explained in the case Marwan v. Sahmoud, 3D19-1798 (Fla. 3d DCA June 17, 2020).

The parties’ divorce decree required the former husband to make alimony payments to the former wife. When he failed to do so, the former wife filed a motion for contempt. At the hearing on the motion, the former wife’s counsel conducted a direct examination of the former husband to elicit testimony about his financial circumstances. When the former husband presented his side of the case, he testified to his financial circumstances that prevented him from making payments.

To determine whether the former husband had the ability to pay his overdue alimony, the trial court judge then began asking the former husband questions about matters not inquired about by either party during their presentations of their cases. The court also sought to have counsel for the former wife introduce evidence not requested by either party. The former husband’s counsel expressed concern about the court’s questioning, believing it went beyond the scope of the judge’s authority under Section 90.615 of the Florida Statutes. The judge then requested that both parties submit their proposed orders on the motion and their closing arguments. The former husband then filed a motion to recuse the judge which was denied as legally insufficient. The former husband appealed.

On appeal, the former husband argued: “(1) the trial judge “expressed its concern about the lack of evidence of [his] ‘present ability to pay,’ and commenced a lengthy, detailed, aggressive, and prosecutorial questioning of [him];” (2) its subject of inquiry had not been inquired about by either party’s lawyer; (3) the court “invited and encouraged” former wife’s counsel “to present new evidence” that he had not sought to introduce; (4) the court’s inquiry went far beyond the scope of the questioning of either party before they rested; (5) the court’s questions did not serve or intend to clarify his testimony, but to develop information not requested by either side; and (6) the trial court asked the former husband and his counsel to provide it with documents to substantiate his testimony.”

Acknowledging that a judge has the power to question witnesses, the appellate court noted “This statute gives the court discretion to ‘seek clarification of an issue and in an effort to ascertain the truth.’ [. . .] However, a court’s use of this latitude to independently inquire as a means to supply or develop evidence for an essential element in a party’s claim or defense signals bias and is reversible error.” The court further opined “The fact that a judge asks a disproportionally higher amount of questions of a witness on an issue than the parties do can also suggest biased and active participation.” The court therefore found the trial court abused its discretion and that the judge should be recused, holding “Here, the record supports the former husband’s assertion of reasonable fear that he would not receive a fair hearing based on the nature and extent of the court’s questioning. Accordingly, his motion was legally sufficient and should have been granted. Having failed to grant it, the trial court necessarily abused its discretion.”

If you believe you may not receive a fair trial in front of a judge, you should speak to a Florida family law attorney right away about your concerns. Schedule a consultation with one to discuss your case.