JEFFREY WEINER, APPELLANT,
v.
MARSHA BETH WEINER, APPELLEE
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Trial court's order on temporary relief was reversed as fatally tainted because the judge developed prejudice against appellant before entering the order, violating due process.
An order entered by a judge after he has developed prejudice against a party is fatally tainted and must be reversed regardless of the merits.
[1] An order entered by a trial judge after prejudice against a party has attached is fatally tainted and must be reversed to preserve due process, even when the judge later…
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Join FLexlaw to unlock all legal intelligence“Every litigant is entitled to nothing less than the cold neutrality of an impartial judge.”
Supreme Court statement in State ex rel. Davis v. Parks establishing the fundamental right to an impartial judge.
After a hearing on a motion for temporary relief, the trial judge became aware of a photograph of appellee and others that created prejudice against a…
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HERSEY, Judge.
Subsequent to entering the Order on Relief Pendente Lite appealed here the trial judge recused himself upon his own motion for prejudice against appellant and his former counsel. The evidence which resulted in prejudice, a photograph of appellee and others, came to the attention of the trial judge at the hearing on the motion for temporary relief, and before the order appealed from here was entered.
We commend the trial judge for his candor and for his appropriate action. Under these circumstances, however, it is clear that the order, entered as it was after prejudice attached, is fatally tainted and must be reversed. Any other course would deny appellant due process. State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977).
As our supreme court held in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939):
[Ejvery litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.
We therefore reverse the order and remand for a new hearing on relief pendente lite.
Appellee, awarded attorneys’ fees in the lower court, has moved for such an allowance here. On remand the trial court may grant a reasonable fee for this appeal upon a showing of appellee’s need and appellant’s ability to pay.
REVERSED and REMANDED.
GLICKSTEIN, J., concurs.
ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting:
The record is unclear as to whether the prejudice referred to by the trial judge existed at the time the order for temporary relief was entered. In fact, from the bare-boned record available, it appears that the prejudice referred to may have arisen as a result of conduct which took place well after the order was entered. The appellant has simply failed to clearly demonstrate that the trial court was biased against him at the time the temporary relief order was entered.
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Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)…ioner filed her motion for disqualification, it must be vacated.” 468 So. 2d at 1035. We note that the opinion does not reflect whether the trial judge had previously announced his judgment on the merits. Similar holdings appear in Weiner v. Weiner, 416 So. 2d 1260 (Fla. 4th DCA 1982), and Gilmer v. Shell Oil Co., 324 So. 2d 171 (Fla. 2d DCA 1975). We find it appropriate to restate the principles governing disqualification of judges, as set forth in Livingston v. State, 441 So. 2d 1083, 1086-87 (Fla.1983): I…
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Barnett Bank OF ST. Lucie Cnty. v. Garrett, 468 So. 2d 467 (Fla. 4th DCA 1985)…PER CURIAM. Appellant correctly asserts that the trial judge erred when he entered an order granting appellee’s motion for leave to file a counterclaim, simultaneously with his order of recusal. See Weiner v. Weiner, 416 So. 2d 1260 (Fla. 4th DCA 1982). Accordingly, we reverse that portion of the order dated June 28, 1984 which granted appel-lee’s motion for leave to file a counterclaim. REVERSED AND REMANDED. LETTS, DELL and WALDEN, JJ., concur.…
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Barnett Bank OF S. Fla., N.A. v. Tarr, 557 So. 2d 595 (Fla. 4th DCA 1990)…red when he entered an order granting appel-lee’s motion for leave to file a counterclaim, simultaneously with his order of re-cusal.” The attorney/appellee in the case sub judice, argues that Garrett relied on an earlier decision, Weiner v. Weiner, 416 So. 2d 1260 (Fla. 4th DCA 1982), which our supreme court overturned in Fischer v. Knuck, 497 So. 2d 240 (Fla.1986). However, there is a distinction. In Fischer v. Knuck, it is clear that the trial judge’s ruling was not rendered simultaneously [*596] with the r…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State ex rel. Thomas E. Davis v. Parks, 141 Fla. 516 (Fla. 1939)
- Atl. Coast Line R.R. Co. v. Holmes, 141 Fla. 595 (Fla. 1940)
- Farto v. State, 348 So. 2d 398 (Fla. 3d DCA 1977)
- State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977)