In re Guardianship of O.A.M.

• Decision Date: 06 November 2013
• Docket Number: No. 3D13–2250.,3D13–2250.
• Citation: 124 So.3d 1031
• Parties: In re GUARDIANSHIP OF O.A.M.
• Court: Florida District Court of Appeals

124 So.3d 1031

In re GUARDIANSHIP OF O.A.M.

No. 3D13–2250.

District Court of Appeal of Florida, Third District.

Nov. 6, 2013.

Gold & Gold, P.A., and David H. Gold, Coral Gables, for petitioners.

Before, SHEPHERD, C.J., and WELLS and LOGUE, JJ.

LOGUE, J.

Richard and Lillie McFadden petition this Court for a writ of prohibition directing the trial judge to disqualify himself from these guardianship proceedings. The McFaddens assert that the trial judge improperly conducted an independent, ex-parte investigation of the April 29, 2010 disbursement of funds for the ward's educational needs. We agree.

“The test for determining the legal sufficiency of a motion for disqualification is whether the factual allegations would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Baez v. Koelemij, 960 So.2d 918, 919 (Fla. 4th DCA 2007) (citations and internal quotation omitted). In reviewing the allegations in a motion for disqualification, “facts must be taken as true and must be viewed from the movant's perspective.” Id.

The McFaddens' motion contains specific statements indicating that the trial judge interviewed, outside the presence of the parties, the principal of the school where the ward was registered to attend. The motion also alleges the trial judge directly obtained financial records from Chase Bank to investigate the guardianship account, without involving the parties. The McFaddens' motion thus contains specific statements which, if true, indicate the trial judge engaged in an independent investigation of the facts in the case.

“A judge must not independently investigate facts in a case and must consider only the evidence presented.” Fla. Code Jud. Conduct, Canon 3B(7) cmt. A judge's “neutrality is destroyed when the judge himself becomes part of the fact-gathering process.” Albert v. Rogers, 57 So.3d 233, 236 (Fla. 4th DCA 2011); see also Vining v. State, 827 So.2d 201, 210 (Fla.2002) (“The judge overstepped his boundaries by conducting an independent investigation....”); Wilson v. Armstrong, 686 So.2d 647, 648–49 (Fla. 1st DCA 1996) (holding that trial judge's ex parte meeting with estate's accountant constituted a departure from the essential requirements of law).

The trial judge responded to the petition noting that “[i]n guardianship matters, there is no one protecting the ward against possible abuses [by the guardian], except the court.” A trial judge, however, has methods to address such concerns without engaging in a prohibited personal investigation of facts outside the record. The Florida Probate Rules, for example, authorize appointment of a guardian ad litem when the interests of the guardian are or may be adverse to those of the ward.¹While the trial court's actions were undoubtedly motivated by a desire to protect the ward and might well be commendable in another context, those actions are inconsistent with the cold...