MARK STEPHEN ROY, APPELLANT,
v.
GLYNDA A. ROY, APPELLEE
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The court held that the trial judge's remark created a well-founded fear of bias, making the motion for disqualification legally sufficient.
During a contempt hearing for child support, the judge referred to the appellant as 'Mr. Dead Beat Man of the Year' before any evidence was presented.…
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ORFINGER, M., Senior Judge.
The former husband appeals an order adjudging him in contempt for failure to pay child support. We reverse because the trial court erred in denying appellant’s motion for disqualification.
At the hearing on the Motion For Contempt, during a colloquy with appellant’s counsel, while appellant was present and before the parties were sworn or any evidence taken, the trial judge referred to appellant as “Mr. Dead Beat Man of the Year.” Appellant’s counsel immediately moved for recusal of the judge, which motion was summarily denied. Counsel subsequently served and filed a written motion for disqualification, with appellant’s supporting affidavit to the effect that, because of said remark, appellant was in fear that he could not and did not receive a fair hearing. That motion was also denied.
Because the perception of bias arose during the hearing, counsel correctly moved for disqualification at that time, and later reduced the motion to writing. See Fla. R. Jud. Admin. 2.160(e).
The legal sufficiency of a motion for disqualification based on prejudice is whether the motion demonstrates a well founded fear on the part of a party that he or she will not receive a fair trial or hearing at the hands of the trial judge. Livingston v. State, 441 So. 2d 1083 (Fla.1983); Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 1995).
Here, the motion for disqualification based on the reference to “Mr. Dead Beat of the Year,” before any evidence was taken, was legally sufficient to place appellant in fear that the trial judge had already determined to hold him in contempt despite any mitigating evidence he might present, and the motion should have been granted.
We reverse the order of contempt appealed from, and remand the cause with directions that another judge be appointed to hear the issues raised by the motion for contempt and any defenses the appellant may submit.
REVERSED and REMANDED.
COBB and ANTOON, JJ. concur.
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Eugene J. Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 783 So. 2d 1087 (Fla. 4th DCA 2001)…la. 1st DCA 1994), the trial court, during a pre-trial motion to strike, made several derogatory comments concerning Owens Corning, including an opinion that its credibility was “about as thin as a balloon.” Similarly, the trial judge in Roy v. Roy, 687 So. 2d 956 (Fla. 5th DCA 1997), labeled the husband “Mr. Dead Beat Man of the Year” without the benefit of having taken any testimony during a contempt proceeding. In the context of another contempt hearing, this court granted prohibition when the trial judge…
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Valdes-Fauli v. Gonzalo F. Valdes-Fauli, 903 So. 2d 214 (Fla. 3d DCA 2005)…eged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. Johnson v. State, 769 So. 2d 990 (Fla.2000); MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla.1990); Roy v. Roy, 687 So. 2d 956 (Fla. 5th DCA 1997). While appellate judges reviewing a transcript may understand that trial judges have a crowded docket and frequently make statements to encourage the parties to settle, it is not our perspective that controls, but rather whether…1 / 3
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Kopel v. Bernardo Kopel, 832 So. 2d 108 (Fla. 3d DCA 2002)…e Copiers Int’l, 825 So. 2d at 438; Vivas v. Hartford Fire Ins. Co., 789 So. 2d 1252 (Fla. 4th DCA 2001); Don King Productions, Inc. v. Chavez, 768 So. 2d 538 (Fla. 4th DCA 2000); Begens v. Olschewski, 743 So. 2d 133 (Fla. 4th DCA 1999); Roy v. Roy, 687 So. 2d 956 (Fla. 5th DCA 1997). Even more, I am concerned with the growing acceptance of the view that trial judges are there only to referee and, rather than to do justice, to avoid error. See Perriman v. State, 731 So. 2d 1243 (Fla.1999) (trial judges shou…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Livingston v. State, 441 So. 2d 1083 (Fla. 1983)
- Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 1995)