CHERYL A. FOGAN, PETITIONER,
v.
ROBERT J. FOGAN, RESPONDENT
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A wife sought to disqualify the trial judge in a divorce case based on his long-standing professional relationship with her husband, a sitting Circuit Court Judge. The trial judge acknowledged he could not in good conscience impose contempt sanctions (including jail) against either party but claimed he could handle financial matters fairly. The appellate court held that this admission of inability to impose all available remedies rendered the judge unable to be fair and impartial, and granted the writ of prohibition to disqualify him.
The judge's statement that he could not punish either party for contempt of court if grounds existed constitutes an admission that he cannot be fair and impartial, and therefore he should have granted the disqualification motion. A judge must be willing to impose all remedies available by law, and unwillingness to do so demonstrates bias that cannot be cured by claiming fairness on other issues.
[1] A judge's admission that they cannot be fair and impartial in certain matters requires disqualification.
[2] A judge's stated unwillingness to impose appropriate legal remedies, such as punishment for contempt, demonstrates a lack of impartiality.
Previewing 2 of 5 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“Insofar as deciding what's fair or not fair in equitable distribution or financial matters, it doesn't matter to me who the litigants are. They're just faceless people ... Nonetheless, I could not punish either Bob Fogan or Cheryl Fogan for contempt of court.”
The judge's own admission that despite claiming fairness on financial matters, he could not punish either party for contempt, which the court found demonstrated lack of impartiality.
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Join FLexlaw to unlock all legal intelligenceIn a divorce case, the wife moved to disqualify the trial judge, arguing that his twenty-year personal and professional relationship with the husband …
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KLEIN, Judge.
Petitioner wife moved to disqualify the trial judge based on her belief that she could not receive a fair trial before him because of his long-standing personal and professional relationship with, respondent, a Broward County Circuit Court Judge. At the hearing on disqualification, the judge acknowledged that he had known the husband for more than twenty years, had greatly respected the husband as a prosecutor before the husband went on the bench, but could nevertheless be fair in financial matters.1 He then went on to state:
COURT: Insofar as deciding what’s fair or not fair in equitable distribution or financial matters, it doesn’t matter to me who the litigants are. They’re just faceless people ... Nonetheless, I could not punish either Bob Fogan or Cheryl Fogan for contempt of court. I’ll tell both of y’all that right now. If the parties engage in a course of conduct which calls for punishment by the bench, I would have to step back from the case. But as to all other matters, I have no difficulties in making the decisions that relate to financial distribution.
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COURT: I can’t put either one of them in jail.
MS. GREENHAWT: Correct. And we need somebody who will go in here and get the job done just like it’s any other person. We need someone ...
COURT: Hold on a second. I said I couldn’t put them in jail.... I can hold them in contempt and impose financial sanctions or strike the pleadings or things of that nature.... But if anybody asked me to put Cheryl Fogan or Robert Fogan in jail, Fm going to have a severe problem with that.
(emphasis added)
The trial judge’s statements that he could not punish either of the parties, if there were grounds for him to do so, is an ádmission that he cannot be fair and impartial. He should, therefore, have granted the motion. See § 38.10, Fla. Stat. (1997).
The fact that the court said that it would have to “step back from the case,” if the parties engaged in conduct which called for such punishment does not, as the husband suggests, make the problem speculative. The wife is entitled to have a judge who is willing to impose all remedies which the law entitles her to have imposed, and the fact that the case hasn’t reached that point is immaterial. The fact that the court would be unwilling to follow through with the appropriate punishment for contempt could influence how the court handles the preliminary matters leading up to that point. In addition, the wife should not have to start over with a new judge, -unfamiliar with the case, if this judge were to later recuse. We therefore grant the writ of prohibition.
DELL and WARNER, JJ., concur. . The court was entitled to pass on the truth of facts alleged in support of the motion for disqualification because petitioner had previously successfully moved for disqualification of the prior judge assigned to the case. Fla.RJud.Admin. 2.160(g).
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J & J Indus., Inc. v. Carpet Showcase OF Tampa BAY, Inc., 723 So. 2d 281 (Fla. 2d DCA 1998)…o the subdivision might suggest. Here, the trial judge, not a successor judge for purposes of rule 2.160, was forbidden to pass on the truthfulness of the facts alleged. See Pinfield v. State, 710 So. 2d 201, 202 (Fla. 5th DCA 1998); Fogan v. Fogan, 706 So. 2d 382 n. 1 (Fla. 4th DCA 1998); Norris v. State, 695 So. 2d 922 (Fla. 3d DCA 1997). The excerpt in the trial judge’s order which violates the requirements of rule 2.160(f) reads: “The facts alleged in the motion are not factual. I hold no prejudice agains…
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Smith v. Santa Rosa Island Auth., 729 So. 2d 944 (Fla. 1st DCA 1998)…ude that the judge’s comments were sufficient to lead a reasonably prudent person to believe that other rulings might be affected by his admission, and hence, to fear that the proceedings would not be entirely fair and impartial. Cf. Fogan v. Fogan, 706 So. 2d 382 (Fla. 4th DCA 1998)(granting petition for writ of prohibition upon a finding that judge should have granted motion to disqualify in dissolution proceeding where his statement that he could not punish either of the parties if there were grounds to do…
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Pinfield v. State, 710 So. 2d 201 (Fla. 5th DCA 1998)…uccessor judge denying disqualification so long as the judge does not actually rule that he is unfair and partial. A successor judge is entitled by rule to pass on the truth of the facts alleged in support of a motion to disqualify. Fogan v. Fogan, 706 So. 2d 382 (Fla. 4th DCA 1998). On review of the successor judge’s denial of a motion to disqualify, the test is not whether said judge explicitly ruled that he is in fact not fair and impartial but whether the record clearly refutes the successor judge’s deci…