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

Most Florida divorce cases are resolved during a bench trial. This means a judge, rather than a jury, makes a decision about the issues in the case. Because the judge is one person, many parties fear they may not receive a fair trial if the judge shows bias in favor of one party over the other. This was the issue in the case Higgins v. Higgnis, 5D19-957 (Fla. 5th DCA June 20, 2019) in which the husband appealed an order denying his motion to disqualify the trial court judge.

The husband initially filed a petition for injunction against the wife which was granted. Subsequently, the wife filed a petition for divorce, but had trouble serving the husband with the petition. The injunction and the divorce were consolidated into one case before one judge. At a status conference, the appellate opinion reports, “The trial judge made unsolicited comments that Mr. Higgins was trying very hard to evade service. The trial judge called Mr. Higgins's actions both ridiculous and outrageous and then mused in open court that if Mr. Higgins was an uncooperative witness in a criminal case, the trial judge could have him arrested. The trial judge, again without any request from Mrs. Higgins, said he would research whether he did, in fact, have the power to have Mr. Higgins arrested. He then instructed Mr. Higgins's attorney, appearing for the limited purpose of arguing lack of personal jurisdiction, to advise Mr. Higgins that the judge found his conduct ludicrous. The trial judge's improper comments did not stop there. He stated that Mr. Higgins must be a wealthy husband—even though there was no financial evidence in the record—who had taken total control of the situation by virtue of the domestic violence injunction. He opined that Mr. Higgins was abusing the system and wondered whether dissolving the injunction would allow him to make all the findings therein simply go away. Finally, in the injunction case, the trial judge issued an "Order for Hearing of All Matters Related to Time Sharing and Support," despite the fact that there were no pending motions for the court to rule on and no request from Mrs. Higgins for such relief.”

The husband filed a motion to disqualify the judge, alleging he had a well-founded fear that he would not receive a fair trial based on the judge’s behavior. The judge denied the motion and the husband filed a writ of prohibition with the appellate court. The appellate court agreed with the husband, holding “[the former husband] rightly argues that his motion to disqualify should have been granted because the trial judge, by his comments and actions, strayed from a position of neutrality. Siding with [the wife] on issues not raised at the hearing and based solely on her testimony, without affording [the husband] an opportunity to respond, showed clear evidence of judicial bias. Further, the trial judge's comments that [the husband’s] conduct was ridiculous, outrageous, and ludicrous, his musings about dissolving the injunction and its related findings, his decision to research whether he could arrest [the husband], and his unorthodox decision to schedule a hearing in the injunction case when there was no motion or request to do so established a well-grounded fear in [the husband] that he would not receive a fair hearing from the judge. The motion was legally sufficient and should have been granted.”

In an interesting twist in the case, the appellate court ruled it was restricted to disqualifying the judge from the injunction portion of the case and not the divorce portion. The appellate court reasoned “While the judge's inappropriate comments, which seemingly advocated on [the wife’s] behalf, would arguably warrant disqualification in both cases, we decline to order disqualification in the divorce case. [The husband] did not file a motion in that case, nor did his motion in the injunction case request disqualification in the divorce case. While incongruous to disqualify a judge from one case based on comments made in a related case but not to disqualify him in the case in which the comments were made, that is the relief to which the law limits us.”

If you need assistance with a Florida divorce case, contact a Miami divorce attorney. A consultation may help you best understand your rights and remedies in moving forward.