DOUGLAS PETERSON, PETITIONER,
v.
ALEXANDRA ASKLIPIOUS, RESPONDENT
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Douglas Peterson sought a writ of prohibition to disqualify a trial judge in post-judgment domestic proceedings after the judge made prejudicial comments suggesting he had already made credibility determinations against Peterson. The Florida District Court of Appeal granted the petition, finding the motion to disqualify was legally sufficient and the judge's comments created a well-founded fear of bias.
The motion to disqualify was legally sufficient. The trial judge's comments gave Peterson a well-founded fear that the judge would not afford him a fair and impartial trial on the contempt motion and demonstrated the judge's unwillingness to afford Peterson an opportunity to be heard on his ability to pay, violating his due process rights.
[1] A motion to disqualify a judge is legally sufficient if the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impa…
[2] A judge's comments indicating disbelief in a party's financial representations can create a well-founded fear of bias in subsequent proceedings.
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Join FLexlaw to unlock all legal intelligence“So he's going to tell me one more time he has no money when I haven't believed him anytime before that?”
Demonstrates the judge's prejudgment of Peterson's credibility and predetermined disbelief of his testimony regarding ability to pay
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Join FLexlaw to unlock all legal intelligencePeterson was ordered to pay attorney's fees in an amended final judgment establishing paternity, residence, and support. When Peterson failed to pay, …
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PER CURIAM.
Petitioner Douglas Peterson seeks prohibition following a trial court order denying his motion to disqualify the judge presiding in post-judgment domestic proceedings. We grant the petition.
Petitioner was ordered to pay attorney’s fees in connection with an amended final judgment establishing paternity, residence and support. The trial court made a finding of petitioner’s ability to pay the fees at that time. When payment was not made, respondent’s counsel moved for contempt against petitioner. At the hearing, the presiding judge said:
THE COURT: So he’s going to tell me one more time he has no money when I haven’t believed him anytime before that?
PETITIONER’S COUNSEL: Well, he’s entitled. It’s not a matter of what you believe, it’s a matter of ...
THE COURT: Unfortunately, I already made those findings, and I don’t need his testimony.
PETITIONER’S COUNSEL: It’s a matter of the evidence, Your Honor. THE COURT: Motion for contempt is granted....
The trial court thereupon entered orders granting contempt in favor of respondent’s trial firm and appellate counsel. The court found that petitioner had the ability to pay the purge provision set by the court based on previous hearings on petitioner’s finances, including a hearing held just 90 days earlier. Petitioner is separately appealing the contempt orders.
Petitioner filed a timely motion to disqualify based on these comments attributed to the trial judge. The trial judge denied the motion.
Allegations in a motion to disqualify are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law. See § 38.10, Fla. Stat.; Armstrong v. Harris, 773 So. 2d 7 (Fla.2000), cert. denied, 532 U.S. 958, 121 S.Ct. 1487, 149 L.Ed.2d 374 (2001). A motion to disqualify is governed in substance by section 38.10, Florida Statutes, and procedurally by rule 2.160, Florida Rules of Judicial Administration. The rule states that “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.160(d)(1).
Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla.1990).
The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impar tial trial. Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA 1981).
We find that petitioner met his burden in this case. The motion was legally sufficient. The trial judge’s comments gave petitioner a well founded fear that the judge would not afford petitioner a fair and impartial trial on the contempt motion pending before him. As well, the trial judge is alleged to have been unwilling to afford petitioner the opportunity to be heard on his ability to pay the attorney’s fees previously ordered, a due process right in the contempt proceedings. See Zuchel v. State, 824 So. 2d 1044 (Fla. 4th DCA 2002); Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996).
Accordingly, the petition for writ of prohibition is granted. Any orders entered after the filing of the motion for disqualification shall be vacated.
POLEN, C.J., FARMER and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Valdes-Fauli v. Gonzalo F. Valdes-Fauli, 903 So. 2d 214 (Fla. 3d DCA 2005)…otion to recuse or disqualify a trial judge are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law. See § 38.10, Fla.Stat. (2004); Armstrong v. Harris, 773 So. 2d 7 (Fla.2000); Peterson v. Asklipious, 833 So. 2d 262 (Fla. 4th DCA 2002). A motion to recuse or disqualify a trial judge is legally sufficient when the alleged 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. 2…
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R.M.C. v. D.C., 77 So. 3d 234 (Fla. 1st DCA 2012)…e to the client. Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). In determining whether a motion to disqualify is legally sufficient, the appellate court reviews the motion’s allegations under a de novo standard. See Peterson v. Asklipious, 833 So. 2d 262, 263 (Fla. 4th DCA 2002). Rule 2.330 requires a judge to enter an order granting disqualification if the motion to disqualify is “legally sufficient.” A motion is legally sufficient if it alleges facts that would create in a reasonably prudent perso…
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City OF Hollywood v. Witt, 868 So. 2d 1214 (Fla. 4th DCA 2004)…hereupon, the City filed this second set of four petitions for writ of prohibition. In determining whether a motion to disqualify is legally sufficient we review [*1217] the motion’s allegations under a de novo standard. See Peterson v. Asklipious, 833 So. 2d 262, 263 (Fla. 4th DCA 2002). Rule 2.160(f), Florida Rules of Judicial Administration, requires a judge to enter an order granting disqualification if the motion to disqualify is “legally sufficient.” The motion is legally sufficient if it alleges facts…
Previewing 3 of 14 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)
- Rev. Dr. James Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000)
- Hayslip v. The Honorable Paul T. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981)
- Wargo v. Bettina Li Belles Wargo and Julie Koenig, 669 So. 2d 1123 (Fla. 4th DCA 1996)
- Zuchel v. State, 824 So. 2d 1044 (Fla. 4th DCA 2002)
- Hardin v. Agua Caliente Band of Cahuilla Indians, 532 U.S. 958 (U.S. 2001)
- Bannister v. United States, 532 U.S. 958 (U.S. 2001)