LISA REAVES NICHOLSON, APPELLANT,
v.
MICHAEL J. NICHOLSON, APPELLEE
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In this appeal of a temporary child custody order, the Florida District Court of Appeal affirmed the trial court's determination, finding it supported by substantial evidence. However, the court cautioned against the trial judge's extensive questioning of the appellant, which created an appearance of bias and exceeded appropriate judicial conduct.
The temporary custody order is affirmed as it is supported by competent substantial evidence. Although the trial court's extensive questioning of the appellant was not approved, it was not so egregious as to invalidate the order given the evidentiary support in the record. However, the court cautioned that such questioning may create an appearance of bias based on issues other than those properly before the court.
[1] An order determining temporary child custody is an appealable non-final order.
[2] A trial court's extensive questioning of a party, even if not ideal, does not vitiate a temporary custody order if the order is supported by competent substantial evidenc…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While we do not approve of the trial court taking charge of the hearing by questioning a party to the extent that occurred here, we do not believe the questioning was so egregious as to vitiate the temporary order, given the record evidence to support it.”
Establishes the court's disapproval of extensive questioning by the trial judge while upholding the substantive custody order
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFollowing a custody dispute between Lisa Reaves Nicholson and Michael J. Nicholson, the trial court held several hearings to determine temporary child…
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PER CURIAM.
This is an appeal of a non-final order determining temporary child custody. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). Because the order appealed contains adequate findings which are supported by competent substantial evidence in the record, we affirm.1 However, we feel compelled to comment on an aspect of the trial court’s treaty ment of appellant during one of the several hearings which led to the temporary order. Following her testimony, during which she was thoroughly cross-examined by opposing counsel, the trial court questioned appellant rather extensively. In the process, the court asked appellant to rate herself and appellee as parents in several categories. Appellee, who testified later, was not similarly asked to rate himself or appellant. While we do not approve of the trial court taking charge of the hearing by questioning a party to the extent that occurred here2, we do not believe the questioning was so egregious as to vitiate the temporary order, given the record evidence to support it.
Although not specifically raised as an issue on appeal, another matter is of concern to us. During the court’s extensive questioning of appellant, the trial court rather doggedly questioned appellant on a matter of personal behavior which had already been thoroughly covered on cross-examination. The court continued to question her about it even after she had given an explanation that should have been satisfactory. We caution that proceeding in such a manner may give the appearance of the existence of a bias based on issues other than those appropriately before the court.
AFFIRMED.
JOANOS, BENTON and VAN NORTWICK, JJ., concur. . We note that "[t]he parent who was awarded temporary custody is entitled to no presumption on account of the temporary award.” Murphy v. Murphy, 621 So. 2d 455 (Fla. 4th DCA 1993) rev. denied 640 So. 2d 1107 (Fla.1994).
. We note that the cases appellant relies on as authority for the argument that the court, by extensive questioning, may usurp functions of counsel or become an advocate for one side, involved jury trials. See, e.g., Motan v. State, 659 So. 2d 1269 (Fla. 4th DCA 1995); Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 169 So. 2d 499 (Fla. 3d DCA 1964).
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Mahmoud Ismail Ayyash v. Ayyash, 700 So. 2d 752 (Fla. 5th DCA 1997)…ges v. Wages, 660 So. 2d 797 (Fla. 5th DCA 1995); Sanchez v. Sanchez, 575 So. 2d 744 (Fla. 5th DCA 1991). . Schweinberg v. Click, 627 So. 2d 548 (Fla. 5th DCA 1993). . See Jones v. Jones, 674 So. 2d 770 (Fla. 5th DCA 1996); Nicholson v. Nicholson, 671 So. 2d 821 (Fla. 1st DCA 1996); Griffith v. Griffith, 627 So. 2d 527 (Fla. 2d DCA 1993); Murphy v. Murphy, 621 So. 2d 455 (Fla. 4th DCA 1993). . See Duchesneau v. Duchesneau, 692 So. 2d 205 (Fla. 5th DCA 1997); Williams v. Williams, 676 So. 2d 493 (Fla. 5th D…
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Tanck v. Tanck, 675 So. 2d 1039 (Fla. 1st DCA 1996)…wife’s attorney’s fees and costs. We also would again remind the trial court that it is inappropriate for the trial court to chastise and doggedly question a party as to issues adequately addressed on cross-examination. See Nicholson v. Nicholson, 671 So. 2d 821 (Fla. 1st DCA 1996). JOANOS, WOLF and VAN NORTWICK, JJ., concur.…
Authorities Cited
- Murphy v. Murphy, 621 So. 2d 455 (Fla. 4th DCA 1993)
- Bumby & Stimpson, Inc. v. Peninsula Utils. Corp., 169 So. 2d 499 (Fla. 3d DCA 1964)
- Moton v. State, 659 So. 2d 1269 (Fla. 4th DCA 1995)