Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When a party feels a judicial officer holds a bias against that party, there is the option of filing what is known as a motion to recuse. This motion raises specific allegations of bias against a judge or general magistrate. In the case Seiwert v. Seiwert, 5D19-2809 (Fla. 5th DCA June 19, 2020), the former husband appealed the denial of his motion to recuse a general magistrate.
Once a party files a motion to recuse, the judge who is the subject of the motion has a certain amount of time to review the motion and either grant or deny it. The denial cannot state anything other than that it is being denied as legally insufficient. In this case, the general magistrate the former husband sought to recuse entered a report and recommendations indicating the motion should be denied as legally insufficient. Even though the former husband filed exceptions to that report, the trial court judge entered an order adopting the report and ratifying it without holding a hearing on the former husband’s exceptions. The former husband appealed.
Acknowledging the former husband timely filed exceptions and a hearing should have been held before the report was ratified, the appellate court nonetheless upheld the lower court’s ruling. The appellate court held “Having reviewed [the former husband’s] motion, we agree with the magistrate that it was legally insufficient; [the former husband] merely challenged the rulings made by the magistrate and suggested that those rulings manifested a bias against him. That theory would allow a party to remove the magistrate or judge every time a ruling was entered against him. It is well established that ‘[a]dverse or unfavorable legal rulings, without more, are not legally sufficient grounds for disqualification.’ [internal citation omitted] Accordingly, although the trial court erred in failing to hold a hearing, we nevertheless affirm the trial court’s denial of [the former husband’s] motion because it was meritless as a matter of law.”
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