PAUL J. MIGLIORE, APPELLANT,
v.
MICHELLE MIGLIORE, APPELLEE
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In this interlocutory appeal from a temporary relief order in a family law case, the Fourth District Court of Appeal affirmed the trial court's temporary custody and attorney's fees awards but reversed the child support award because the trial court failed to apply the mandatory child support guidelines under Florida law.
The temporary custody and attorney's fees awards are affirmed as supported by competent, substantial evidence with no showing of abuse of discretion. The temporary child support award is reversed and remanded because the trial court erred in failing to apply the mandatory child support guidelines under Florida law.
[1] A motion for disqualification of a judge must be in writing to be legally sufficient.
[2] A motion for disqualification, not recusal, is the proper term for seeking a judge's removal from a case.
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Join FLexlaw to unlock all legal intelligence“The writing requirement contained within Florida Rules of Judicial Administration 2.160(e) is mandatory.”
Establishes that a written motion for disqualification is required; the husband's oral motion was legally insufficient.
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Join FLexlaw to unlock all legal intelligenceDuring a temporary relief hearing in a divorce case, the husband's counsel expressed concern that the trial judge may have prejudged the custody issue…
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STREITFELD, JEFFREY E., Associate Judge.
Paul Migliore (“husband”) has brought this interlocutory appeal from the trial court’s temporary relief order. Michelle Migliore (“wife”) has cross-appealed the temporary child support award. We have jurisdiction. Fla. R.App. P. 9.130(a)(3).
During the temporary relief hearing, husband’s counsel expressed a concern that the trial judge may have prejudged the custody issue. Counsel requested and was granted an opportunity to consult with his client, after which he orally moved that the trial judge “recuse himself.” After further discussion, the motion was denied. No written motion was filed.
Trial counsel failed to request a recess to file a written motion for disqualification. The writing requirement contained within Florida Rules of Judicial Administration 2.160(e) is mandatory. The motion was therefore legally insufficient. Rogers v. State, 630 So. 2d 513 (Fla.1993). Husband has suggested that his motion was one of “recusal,” not “disqualification.” Disqualification is the proper term for the motion filed here. Sume v. State, 773 So. 2d 600 (Fla. 1st DCA 2000).
Husband challenges the temporary custody and attorneys fees awards. They are supported by competent, substantial evidence, and no abuse of discretion has been shown. Bowles v. Bowles, 384 So. 2d 299 (Fla. 4th DCA 1980); Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991); Wiederhold v. Wiederhold, 655 So. 2d 218 (Fla. 4th DCA 1995).
Both parties have appealed the child support award. The trial court chose not to apply the child support guidelines contained within section 61.30, Florida Statutes. This constitutes error. On remand, the trial court is directed to conduct a hearing to determine temporary child support. The calculation must begin with the guidelines, with variations, if any, based upon the statutory factors. Finley v. Scott, 707 So. 2d 1112 (Fla.1998).
For the reasons stated, the temporary custody and attorney’s fees awards are affirmed. The temporary child support award is reversed and remanded for further proceedings consistent with this opinion.
GUNTHER and WARNER, JJ., concur.
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Theiry Guerin v. DiROMA, 819 So. 2d 968 (Fla. 4th DCA 2002)…ssary, is to that extent part of the child support obligation, and the child support provisions in Chapter 61 do not require a parent to support a child beyond the obligor’s ability to do so. See § 61.30, Fla. Stat. (2001), and Migliore v. Migliore, 792 So. 2d 1276 (Fla. 4th DCA 2001) (calculation of child support must begin with guidelines, with variations, if any, based upon the statutory factors). Hence the parent cannot be required to provide insurance protection beyond the parent’s ability to do so. For e…
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Elias v. Elias, 168 So. 3d 301 (Fla. 4th DCA 2015)…support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support. This requirement applies to any living arrangement, whether temporary or permanent.”); Migliore v. Migliore, 792 So. 2d 1276, 1277 (Fla. 4th DCA 2001); Hauser v. Hauser, 778 So. 2d 309, 310 (Fla. 1st DCA 2000); Burkhart v. [*302] Burkhart, 620 So. 2d 225, 226 (Fla. 1st DCA 1993). After calculating a guideline amount based on each parent’s net monthly income and the child…
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Tyler v. State, 816 So. 2d 755 (Fla. 4th DCA 2002)…holding it was error for trial court not to grant a continuance when appellant moved in open court to disqualify judge, or in the alternative, for a continuance to file a proper motion). Clearly, an oral motion is insufficient. Migliore v. Migliore, 792 So. 2d 1276, 1277 (Fla. 4th DCA 2001). However, where, as here, counsel states a legally sufficient ground to support a motion to disqualify, then the court should grant a reasonable continuance so that counsel may file a motion in compliance with the rules. Se…
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
- Geri E. Finley v. Scott, 707 So. 2d 1112 (Fla. 1998)
- Dwyn Daniels Robbie v. Robbie, 591 So. 2d 1006 (Fla. 4th DCA 1991)
- Rogers v. State, 630 So. 2d 513 (Fla. 1993)
- Olegard Sume and Frisner Boyer v. State, 773 So. 2d 600 (Fla. 1st DCA 2000)
- Bowles v. Bowles, 384 So. 2d 299 (Fla. 4th DCA 1980)
- Haydee Concepcion v. Concepcion, 655 So. 2d 218 (Fla. 3d DCA 1995)