Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
How many times can a party ask to disqualify a judge from a Florida family law case? While there is no known limit, once one judge is disqualified, the standard for disqualifying the second judge is more stringent, and thus it may be more difficult to disqualify a successor judge. This was an issue in the case Delgado v. Miller, 3D22-1826 (Fla. 3d DCA February 22, 2023).
In this paternity action, reportedly due to numerous appeals, disqualifications and recusals, the parties have been litigating for over five years without a final judgment being entered. In this appellate case, the mother filed a writ of prohibition, alleging bias on the part of the assigned judge and asking for disqualification. The mother alleged the trial court’s use of the word “histrionic” in describing her writing style in its order granting her attorney’s fees indicated gender bias. This is because, as noted by the appellate opinion, “[T]he word ‘histrionic’ is derived from the Greek term ‘hysteria,’ meaning uterus.” This was the mother’s eighth motion to disqualify and she successfully disqualified one judge previously.
The appellate court noted “Regarding successor judges, section 38.10, Florida Statutes (2022), provides, in pertinent part: [W]hen any party to any action has suggested the disqualification of a trial judge and an order has been made admitting the disqualification of such judge and another judge has been assigned and transferred to act in lieu of the judge so held to be disqualified, the judge so assigned and transferred is not disqualified on account of alleged prejudice against the party making the suggestion in the first instance, or in favor of the adverse party, unless such judge admits and holds that it is then a fact that he or she does not stand fair and impartial between the parties. § 38.10, Fla. Stat. Similarly, Florida Rule of General Practice and Judicial Administration 2.330(i) states: If a judge has been previously disqualified on motion for alleged prejudice or partiality under subdivision (e), a successor judge cannot be disqualified based on a successive motion by the same party unless the successor judge rules that he or she is in fact not fair or impartial in the case. Such a successor judge may rule on the truth of the facts alleged in support of the motion. Fla. R. Gen. Prac. & Jud. Admin. 2.330(i). Consistent with these sources of authority, an order denying the disqualification of a successor judge is reviewed for an abuse of discretion.”
The appellate denied the mother’s petition, holding “Putting aside the etymology of the word ‘histrionic,’ its contemporary definition is not suggestive of gender, and the complained-of findings are all tethered to factual and legal determinations regarding the disputed authorship of documents and the ensuing compensability of fees. Viewed as a whole, the order merely recounts the protracted case history and takes both parties equally to task for their participation in years of purported scorched earth litigation.”
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