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

A judge is required maintain impartiality in a Florida family law case. This includes giving advice to one side or the other about how to proceed in the case. This was an issue in Torres v. Orlick, 6D24-469 (Fla. 6th DCA April 19, 2024).

A default was entered against the respondent on the trial court level. The respondent moved to set aside the default, alleging counsel for the respondent accidentally forgot to calendar the due-date for the response to the petition. The petitioner opposed the motion, arguing it was legally insufficient because it was not supported by any affidavits. At the hearing on the motion, the following exchange occurred between the judge and the respondent’s lawyer:

THE COURT: . . . [Respondent], why is there no

affidavit in this case?

[RESPONDENT]: The motion was signed and filed by the attorney of record . . . setting forth as an officer of the court certain facts and circumstances. Certainly I can supplement it with an affidavit of those specific individuals involved that are referenced in the motion. But

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THE COURT: Okay. . . . I tried to stay off in my lane. But there was no affidavit and I usually get an answer to (sic) affirmative defenses and an affidavit. So [Respondent], prepare an order that I’m going to continue the hearing on this. You have ten days to file affidavits in support of your motion and get it reset for hearing.

The Petitioner then filed a sworn motion to disqualify the judge, alleging her fear that she would not receive a fair trial based on this exchange. The motion was denied, and she filed a petition for writ of prohibition with the appellate court.

The appellate court agreed with the petitioner that the motion to disqualify should have been granted. It held “The trial judge’s actions support disqualification because he abdicated his position of neutrality, gave unsolicited and strategically beneficial legal advice to Respondent, and then continued the proceeding without request so Respondent could act on this advice. [. . .] ‘A trial judge crosses the line when he becomes an active participant in the adversarial process, i.e., gives ‘tips’ to either side.’ [internal citations omitted].”

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