Bachman v. Bachman
| Decision Date | 22 March 1989 |
| Docket Number | No. 88-0620,88-0620 |
| Citation | 14 Fla. L. Weekly 725,539 So.2d 1182 |
| Parties | 14 Fla. L. Weekly 725 Kenneth C. BACHMAN, Appellant, v. Cynthia A. BACHMAN, Appellee. |
| Court | Florida District Court of Appeals |
Martin L. Haines, III, North Palm Beach, for appellant.
Paul F. King of Edna L. Caruso, P.A., West Palm Beach, for appellee.
The husband's appeal of the final judgment claims that the trial court erred in the economic aspects, in failing to grant husband's motion to recuse, and in permitting the wife to move with the children to New Jersey. We affirm.
The distribution of marital assets was in accord with the husband's wishes, and the alimony and support award does not reflect an abuse of the court's discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).
The motion to recuse came about as a result of a hearing concerning the husband's desire to take the parties' minor children (then 8 and 5 years old) on a camping trip along with the husband's girlfriend. That hearing occurred several months prior to the final hearing, and the trial judge then believed that he did not have the authority to interfere with the husband's plans. The judge nevertheless expressed his negative opinion of the idea, and added:
Remember, he's going to appear before me eventually when we talk about custody and a whole bunch of other things. I don't think it's real wise for him to do things that are not in the best interest of the children....
The judge revised his opinion as to his authority, and prohibited the camping trip. After denial of a motion for rehearing, the husband moved for recusal, suggesting the court's bias and a predisposition to rule adversely to the husband.
Ordinarily, if there is a doubt as to the impartiality of the judge, a motion to recuse should be granted. Fischer v. Knuck, 497 So.2d 240 (Fla.1986). The motion should be timely, however, and to wait for the outcome of a motion for rehearing on the matter precipitating the recusal motion suggests an attempt at two bites of the apple.
Although including this point in plenary appeal is permitted, one cannot help but wonder whether a third bite was contemplated when the husband did not seek a writ of prohibition immediately when the motion to recuse was denied. Our holding here should not be construed as foreclosing a future timely motion to recuse if an appropriate basis appears hereafter.
The final judgment provided for shared parental responsibility with the primary physical residence of the children to be with the wife, and the husband to "have frequent and continuing contact with the children." The judgment specifically permitted the wife to remove the children from Florida, and if the wife were to move to New Jersey, the husband would receive "at least six weeks of continuous visitation each summer and one week during the Christmas holidays." The cost of the children's transportation is to be divided between the parties.
We find no abuse of discretion by the trial court. Although the...
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