ANDREW DAVID CARTER, APPELLANT,
v.
MELANIE MELISSA HOWEY, APPELLEE
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Father appeals trial court's custody award to the mother, challenging the denial of his motion to disqualify the judge. The appellate court affirms the custody award and the denial of the disqualification motion, finding the motion was untimely filed under Florida Rule of Judicial Administration 2.160(e).
The appellate court affirmed the trial court's denial of the disqualification motion because it was not timely filed within ten days of discovery of the grounds, as required by Florida Rule of Judicial Administration 2.160(e). The court also affirmed the custody award in its entirety.
[1] A motion to disqualify a judge must be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.
[2] An exception to the ten-day requirement for filing a motion to disqualify may be authorized in extraordinary circumstances.
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Join FLexlaw to unlock all legal intelligence“a motion to disqualify shall be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling”
Establishes the controlling procedural rule requiring timely filing of disqualification motions
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Join FLexlaw to unlock all legal intelligenceAndrew David Carter (father) and Melanie Melissa Howey (mother) were parties in a custody dispute over their minor children. The father filed a motion…
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ANTOON, Judge.
Andrew David Carter (the father) appeals the trial court’s final judgment awarding custody of the parties’ minor children to Melanie Melissa Howey. One of the father’s arguments on appeal was that the trial court improperly denied his motion for disqualifica tion. We affirm the trial court’s final judgment in its entirety, but write to explain our decision to affirm the denial of the motion to disqualify.
We must affirm the denial of the father’s motion to disqualify because it was not timely filed. Florida Rule of Judicial Administration 2.160(e) provides that “[a] motion to disqualify shall be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.” Our courts have authorized an exception to the ten day requirement in extraordinary circumstances. See Dura-Stress, Inc. v. Law, 684 So. 2d 769, 770 (Fla. 5th DCA 1994)(writ of prohibition denied because motion to disqualify was untimely for first of four cases but granted for the remaining three untried cases); see also Brake v. Murphy, 693 So. 2d 663, 665 (Fla. 3d DCA), rev. denied, 700 So. 2d 686 (Fla.1997)(trial judge entered highly questionable orders after ex parte communication).
In this case, the father’s motion to disqualify alleged that the trial judge made statements “at numerous pretrial hearings” which suggested that he was predisposed to rule against the father and unwilling to abide by the requirement that he consider the factors set forth in section 61.13 of the Florida Statutes (1995). We agree that the trial judge’s statements would reasonably place the father in fear of not receiving a fair trial. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335. (Fla.1990). However, this court is unable to determine that the motion was timely because the father did not include the dates of the relevant hearings in the motion and the record does not contain transcripts these hearings. The record does indicate that the last pretrial hearing was conducted thirty-one days prior to the filing of the motion to disqualify.
While we recognize that the father’s motion to disqualify was filed by an attorney whose appearance was made by the filing of the motion, neither the motion nor the briefs filed in this appeal offer this as an explanation for the late filing. Accordingly, we must affirm the trial court’s ruling because the motion to disqualify was not timely filed.
AFFIRMED.
PETERSON and THOMPSON, JJ., concur.
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HIP Health Plan OF Fla., Inc. v. Sandi Griffin, 757 So. 2d 1272 (Fla. 4th DCA 2000)…d this issue as to what is meant by the rule’s reference to “making” a motion, numerous decisions have referred to the “filing” of the motion, rather than “service” of the motion, in discussing the timeliness of a motion. See, e.g., Carter v. Howey, 707 So. 2d 906, 907 (Fla. 6th DCA 1998); Guzman & Co. v. British Realty & Mortg. Corp., 699 So. 2d 842, 842 (Fla. 3d DCA 1997); Foley v. Fleet, 644 So. 2d 551, 551-52 (Fla. 4th DCA 1994). The same language as is found in Rule 2.160 also appears in Rule of Civil P…
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Klapper-Barrett v. Nurell, 742 So. 2d 851 (Fla. 5th DCA 1999)…supporting recusal some time prior to September 15, 1998, and did not file her recusal motion until some nine months later. Nurell points out that the delay in filing was not due to a change of counsel, as may have been the case in Carter v. Howey, 707 So. 2d 906 (Fla. 5th DCA 1998), but to the failure of Klapper-Barrett to inform her previous counsel in 1998 of her allegations. The petitioner first argues, in respect to the delay in filing the recusal motion, that the time limitation did not begin to run u…
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Howard v. State, 950 So. 2d 1260 (Fla. 5th DCA 2007)…as the grounds for disqualification.” Fla. R. Jud. Admin. 2.160(c), (e). With respect to timing, the motion does not allege when the purported comment was made, and nothing in the record demonstrates that the motion was timely. See Carter v. Howey, 707 So. 2d 906, 906 (Fla. 5th DCA 1998) (holding “this court is unable to determine that the motion was timely because the father did not include the dates of the relevant hearings in the motion and the record does not contain transcripts of these hearings”). Wit…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Honorable Mary Ann MacKENZIE v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)
- Brake v. Eve E. Murphy, 693 So. 2d 663 (Fla. 3d DCA 1997)
- Dura-Stress, Inc. v. Honorable William G. LAW, Jr., 634 So. 2d 769 (Fla. 5th DCA 1994)