September 21, 2012 ·
Q. I think that the judge in my case is about to give me the shaft. My case was set for trial a couple of days ago. Everything was ready to go, and I was looking forward to getting my divorce case behind me. It had been dragging. While I was getting temporary alimony and child support, my husband and I were constantly bickering over property distribution, child raising and other things.
My lawyer, who also does some criminal cases, was called to an emergency hearing before a Federal Magistrate in Fort Lauderdale on a drug case the day before my trial was supposed to begin. Through his secretary he left a message with the judicial assistant for my divorce judge, saying that because of the emergency he was asking for a continuance.
During the drug case, the magistrate came into court and said the divorce judge had left a message on his answering machine that said, “My lawyer better call him immediately if he ever wanted to practice before him again.” My lawyer said he tried to call the judge twice, got a machine and left messages.
The next day the divorce judge entered an order continuing the case, but suspended my alimony and income deduction order. My lawyer does not know what to do. Can I get my judge removed from the case? How does that work? Will there be a hearing?
A. Your lawyer should file a motion to disqualify the judge as soon as possible, as the rules require filing immediately after the offending judicial conduct. The motion goes before the same divorce judge you are complaining about, but his or her decision may be appealed.
The question is whether the motion demonstrates a well-founded fear in you that you will not receive a fair trial at the hands of the trial judge. The court must consider whether his or her actions would place a reasonable, prudent person in fear of not receiving an impartial trial.
The trial judge must decide the motion on the face of the allegations in the motion, taken as true. There will be no hearing.
The Florida Supreme Court has ruled that a trial judge may be disqualified because of prejudice toward an attorney if the prejudice is of such a degree that it adversely affects the client. When a judge signals a predisposition about a case, a party’s fears about fairness at an upcoming hearing are well founded. As the divorce judge entered an order against you, after threatening your attorney, based on your lawyer’s legitimate request, and took away your alimony without a motion being filed or a hearing, the judge should disqualify himself.
Michael H. Gora has been certified by the Board of Specialization of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton. Mr. Gora may be reached by e-mail at firstname.lastname@example.org.