Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Parties to a Florida divorce case are understandably concerned about receiving a fair trial in front of a judge. If a party has a reasonable fear that he or she will not receive a fair hearing in front of a judge, he or she may file a motion for disqualification. However, as we see in the case Erlinger v. Federico, 242 So.3d 1177, certain behavior by a judge, although unpleasant to a litigant, does not automatically disqualify the judge from presiding over a case.

The parties were involved in what appeared to be a contentious divorce case in which child custody issues were involved. The husband accused the wife of interfering with his timesharing rights. The wife filed a motion to modify the parties’ temporary parenting plan. At a hearing, the judge denied the wife’s motion for modification and granted the husband’s motion for contempt, finding the wife willfully and maliciously frustrated the husband’s parental rights. The wife on appeal argued that the judge should be disqualified from hearing her case.

According to the published opinion, “[The wife] alleged in her motion to disqualify that during the September 1, 2016 hearing on Federico's motions to hold [the wife] in contempt, the trial judge demonstrated bias and unlawfully prejudged the case by the following comments and conduct: (1) interrupting [the wife’s] cross-examination of Federico and making several comments, including "you just do what you want;" (2) loudly sighing and shaking his head during [the wife’s] testimony; and (3) becoming an active participant in the proceedings by interrupting opposing counsel's cross-examination of [the wife] "to question and comment openly" on her testimony.”

The appellate court disagreed with the wife, holding, “We first address [the wife’s] allegation that the trial judge's comment that she would "just do what she wants" was legally sufficient to require disqualification. While a judge may not prejudge a case, it is well-settled that a judge may form mental impressions and opinions during the course of hearing evidence. Further, "mere characterizations and gratuitous comments, while offensive to the litigants, do not in themselves satisfy the threshold requirement of a well-founded fear of bias or prejudice. [. . .] Second, we find that the subjective fears expressed in [the wife’s]allegations regarding the trial judge's non-verbal expressions do not provide grounds for disqualification. Though judges should avoid making reactive facial and audible expressions during witness testimony, "[t]he question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality [. . .] Third, we find both speculative and conclusory [the wife’s] allegation that the trial judge was biased on grounds that the judge became an active participant in the proceedings by asking her questions during cross-examination. She neither describes the types of questions asked by the judge nor does she allege how those questions demonstrated bias or prejudice.”

If you feel you have grounds to disqualify a judge in your Florida divorce case, set a consultation with a Miami family law attorney to go over the merits of your position.