ELIZABETH J. KATES, PETITIONER,
v.
NATHAN LOUIS SEIDENMAN, A/K/A NICK SEIDENMAN, RESPONDENT
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A trial judge's prejudicial comments regarding alimony and attorney's fees—made during a temporary support hearing—created a well-founded appearance of bias, entitling the petitioner to relief via prohibition. The court found the judge had impermissibly pre-judged issues not even before the court at that hearing.
The petitioner is entitled to a writ of prohibition. The judge's comments created an appearance of having pre-judged petitioner's claims for rehabilitative and permanent alimony—issues that were not even before the court at the temporary support hearing—thereby violating the requirement that judges remain impartial and not pre-judge cases.
[1] A motion to disqualify a judge is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and…
[2] A trial judge may form mental impressions and opinions during the course of hearing evidence, but is not permitted to pre-judge the case.
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“A motion to disqualify is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”
Establishes the legal standard for disqualification under Florida law.
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Join FLexlaw to unlock all legal intelligenceDuring a hearing on temporary alimony and attorney's fees, the trial judge made several unsupported comments without a court reporter, including remar…
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PER CURIAM.
Petitioner, Elizabeth Kates, seeks a writ of prohibition following an order denying her motion' to disqualify the trial judge. Upon review of the verified motion, we conclude that Petitioner is entitled to the writ.
According to Petitioner, the judge made the following comments in court, without a court reporter, at the start of, during, and at the conclusion of the hearing for temporary alimony and attorney’s fees:
Why are you here. Why hasn’t this settled. It’s been 19 months.... This is a short-term marriage, and they’re not his kids.
This isn’t an alimony case. There’s no child support. This is only an equitable distribution case. There are no marital assets, only debts. Why haven’t you gone to mediation and settled this?
What are you doing here? You should feel lucky because if I were to give you any alimony, that would mean he was paying your mortgage and I would have to give him a special equity in your house.
* * *
She has a J.D. and an L.L.M. There’s nothing to rehabilitate. What kind of education does she think she needs? She’s not entitled to rehabilitative alimony. She’s not going to get any rehabilitative alimony.
She’s a lawyer and he’s a computer security analyst. Why isn’t she working.
Petitioner further alleged that the trial judge, when informed that a lengthy mediation had taken place, responded:
Well, I’m not going to be giving her anything, not fees or alimony. I’m ordering nothing. So now you know where this case is going to go and handle it accordingly.
A motion to disqualify is legally sufficient if it alleges facts that 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, 1334 (Fla.1990).
While a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to pre-judge the case. Leslie v. Leslie, 840 So. 2d 1097, 1098 (Fla. 4th DCA 2003)(citing Barnett v. Barnett, 727 So. 2d 311, 312 (Fla. 2d DCA 1999)). In Irwin v. Marko, 417 So. 2d 1108, 1109 (Fla. 4th DCA 1982), this court said:
It is clear that the respondent Marko has made certain comments on the record in this cause indicating that he intends to grant the subject motion for attorney’s fees and to award an amount in the six figures; these comments were made prior to any hearing below on the said motion. As such, we think the respondent judge has created the appearance of having prejudged the attorney’s fee issue in advance of hearing it and, accordingly, is required by our law to recuse himself. See, e.g., State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977), and authorities collected.
See also Martin v. State, 804 So. 2d 360 (Fla. 4th DCA 2001); Gonzalez v. Goldstein, 633 So. 2d 1183, 1184 (Fla. 4th DCA 1994).
Respondent points out that the judge did not make the alleged comments prior to the presentation of evidence; rather, made her findings “after the parties’ presentation.” Taking the motion’s sworn allegations of fact as true, the comments were made during a hearing for temporary support. If true, the comments create an appearance that the judge has pre-judged Petitioner’s claim for rehabilitative and permanent alimony, issues that were not before the court at the hearing for temporary relief.
Petitioner has demonstrated entitlement to prohibition relief. Therefore, we grant the petition but withhold issuance of the actual writ on the presumption that the trial judge will voluntarily comply with this court’s opinion and a successor judge will be appointed.
STONE, KLEIN and TAYLOR, JJ„ concur.
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Great Am. Ins. Co. OF NEW York v. 2000 Island Boulevard Condo. Ass'n, Inc., 153 So. 3d 384 (Fla. 3d DCA 2014)…s required to “fork over the money” is the entirety of what is at issue in this case. “While a trial judge may form mental impressions and opinions during the course of the case, the judge is not permitted to pre-judge the case.” Kates v. Seidenman, 881 So. 2d 56, 58 (Fla. 4th DCA 2004); see also Minaya v. State, 118 So. 3d 926, 929 (Fla. 5th DCA 2013); State v. Ballard, 956 So. 2d 470 ,(Fla. 2d DCA 2007). We agree with Great American that this remark alone, made without the benefit of any affidavits, sworn…
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Zanghi v. State, 61 So. 3d 1263 (Fla. 4th DCA 2011)…was transferred to the circuit judge. As for legal sufficiency, “[wjhile a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to pre-judge the case.” Kates v. Seidenman, 881 So. 2d 56, 58 (Fla. 4th DCA 2004) (citations omitted). Here, the circuit judge’s comments in the marital dissolution case, effectively stating that the husband should be convicted in the indirect criminal contempt case, were made before the indirect criminal…
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Real State Golden Invs. Inc. v. Larrain (Fla. 3d DCA 2019)…v. 2000 Island Blvd. Condo. Ass’n, 153 So. 3d 384, 386 (Fla. 3d DCA 2014) (“While a trial judge may form mental impressions and opinions during the course of the case, the judge is not permitted to pre-judge the case.” (quoting Kates v. Seidenman, 881 So. 2d 56, 58 (Fla. 4th DCA 2004))). We agree with Petitioners that these remarks, made in the absence of any motion or evidence, are sufficient to leave Petitioners with an objectively reasonable fear they will not receive a fair trial. Williams v. Balch, 8…
Previewing 3 of 5 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)
- Ferguson v. State, 633 So. 2d 1183 (Fla. 4th DCA 1994)
- Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999)
- Martin v. State, 804 So. 2d 360 (Fla. 4th DCA 2001)
- Irwin v. The Honorable Paul M. Marko, III, 417 So. 2d 1108 (Fla. 4th DCA 1982)
- Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th DCA 2003)
- Farto v. State, 348 So. 2d 398 (Fla. 3d DCA 1977)
- State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977)