Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can a judge be disqualified from a Florida family law case for holding an evidentiary hearing without notice to one party? Depending on the circumstances, this may be enough to create a well-founded fear that a party will not receive a fair trial before the judge. This was an issue in the case Erren v. Marin, 4D22-2515 (Fla. 4th DCA March 8, 2023).
After the former husband did not pursue his petition for modification of alimony for a long period of time, the former wife moved to dismiss an order of referral to mediation and to dismiss for lack of prosecution, This motion was set for hearing on the non-evidentiary calendar. One day before the hearing, the former husband filed a motion to compel mediation and for attorney’s fees and costs. His notice of hearing did not indicate the hearing would be evidentiary in nature. The former wife did not appear at the hearing, and the judge granted the former husband’s motion noting “[I]t is undisputed that, Former Wife’s office scheduled the August 16, 2022 hearing while the Former Husband’s counsel was out of the office ill with COVID-19 and thereafter kept the hearing date when informed that Former Husband’s counsel was and is ill with COVID-19 against the Florida Bar Mental Health and Wellness initiative and The Florida Bar professional expectations.”
The former wife filed a motion for rehearing arguing the court “rubber-stamped” a proposed order submitted by the former husband ex-parte and that it was improper for the court to make evidentiary findings at a non-evidentiary hearing. The motion was denied, and the former wife filed a motion to disqualify the judge alleging that she had a reasonable fear that she would not receive a fair trial before the presiding judge. This motion was denied by that judge and she filed a writ of prohibition with the appellate court.
The appellate court granted the writ, disqualifying the judge and holding “The Florida Supreme Court has recognized that ‘[n]othing is more dangerous and destructive of the impartiality of the judiciary than a onesided communication between a judge and a single litigant.’ [internal citation omitted]. We have also opined that the trial court’s failure to allow a party the opportunity to review an opposing order before issuing that order constitutes egregious error. [internal citation omitted] This is because even a single act of ex parte communication can be sufficient for judicial disqualification. [internal citations omitted]. It is also concerning that, following a scheduled non-evidentiary hearing, the trial court’s order “finds” that Former Wife violated the ‘Florida Bar Mental Health and Wellness initiative’ and ‘The Florida Bar professional expectations.’ The order provides no explanation how the purported ‘Florida Bar Mental Health and Wellness initiative’ was violated, or which ‘Florida Bar professional expectations’ were not met. Expanding a non-evidentiary hearing into an evidentiary one without prior notice to the parties is generally inappropriate. [internal citations omitted]. As such, the trial court violated Former Wife’s right to ‘a full and fair opportunity to be heard in judicial proceedings.’”
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