Nateman v. Greenbaum, 90-2237

• Decision Date: 16 April 1991
• Docket Number: No. 90-2237,90-2237
• Citation: 582 So.2d 643
• Parties: 16 Fla. L. Weekly D1829 Maria Argudin NATEMAN, Petitioner, v. The Honorable Martin GREENBAUM, Circuit Judge, 11th Judicial Circuit, in and for Dade County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 643

582 So.2d 643

16 Fla. L. Weekly D1829

Maria Argudin NATEMAN, Petitioner, v. The Honorable Martin GREENBAUM, Circuit Judge, 11th Judicial Circuit, in and for Dade County, Florida, Respondent.

No. 90-2237.

District Court of Appeal of Florida,

Third District.

April 16, 1991.

Rehearing Denied July 16, 1991.

William A. Daniel, Jr., for petitioner.

Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for respondent.

Before BASKIN, FERGUSON and LEVY, JJ.

CORRECTED OPINION

FERGUSON, Judge.

This petition seeks to preclude a judge from further hearing a family law case. The trial judge's "tone and demeanor", and reliance on personal experiences to challenge the petitioner's testimony, are at issue. The wife filed the motion for disqualification after two days of trial--subsequent to her testimony on cross-examination but prior to a conclusion of the trial. There were no allegations in the motion for disqualification of a pre-hearing bias against the petitioner, her attorney, or her cause of action, or that any ruling or assessment of the witness was based on anything other than the evidence presented.

It is recognized that a "judicial officer is the sum of his past" who is expected to be influenced by real life experiences. In re Inquiry Concerning a Judge, 357 So.2d 172, 178 (Fla.1978). Application of that experience in weighing the facts and credibility of witnesses is not inappropriate conduct for a judge in a nonjury trial. To the contrary, it was held in In re Int'l Business Mach. Corp., 618 F.2d 923, 930 (2d Cir.1980), that when a trial judge is sitting as the sole finder of fact, his role is not that of a passive observer.

[B]ecause his fact-finding is based on his estimates of the witnesses, of their reliability as reporters of what they saw and heard, it is [the judge's] duty, while listening to and watching them, to form attitudes towards them. He must do his best to ascertain their motives, their biases, their dominating passions and interests, for only so can he judge of the accuracy of their narrations. ... He must cannily penetrate through the surface of their remarks to their real purposes and motives. He has an official obligation to become prejudiced in that sense. Impartiality is not gullibility. Disinterestedness does not make child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.

Id. (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 653-54 (2d Cir.1943)).

Disbelief in the witness's testimony, as evidenced by a trial judge's discomforting inquiry, may, at some point, reflect negatively on a judge's temperament, but is ordinarily no basis for disqualification. See Mobil v. Trask, 463 So.2d 389 (Fla. 1st DCA) (a judge is not required to abstain from forming mental impressions and opinions during the cause of a proceeding), rev. denied, 476 So.2d 674 (Fla.1985); Deauville Realty Co. v. Tobin, 120 So.2d 198 (Fla. 3d DCA 1960) (the formation of a prejudice by a judge during and as a result of a party's testimony in a trial does not operate to disqualify the judge in that case), cert. denied, 127 So.2d 678 (Fla.1961). Appellate review offers an adequate remedy for the correction of any order or judgment entered which is not supported by the evidence or the law.

Disqualifying a judge because his examination of a witness on relevant matters gives a clue as to how he may be inclined to rule at the end of the evidence would wreak administrative havoc in the circuit court by inviting mid-hearing motions for recusal. The unacceptable alternative is a blanket rule against a judge's examination of parties or witnesses.

Prohibition denied.

LEVY, J., concurs.

LEVY, Judge (specially concurring).

I completely agree with the majority opinion. I write separately only to express my belief that the record does not contain any indication that would support an allegation of bias or prejudice such as would be required in seeking to have a judge removed from a case.

Rather, if any error was committed by the trial court, it would relate to the possible application of an incorrect standard of living (i.e. the judge's standard of living being applied instead of the petitioner's established standard of living) which would be fully reviewable in any appeal that the petitioner might initiate at the conclusion of the case.

BASKIN, Judge (dissenting).

When a judge discards the mantle of impartiality, it becomes incumbent on the appellate court to uphold the rights of the litigant. Mrs. Nateman's crippling blow was administered not by her opponent, but by the assigned arbiter whose role it is to decide which facts are the true facts. Instead, the trial judge closed his mind to Mrs. Nateman's testimony as to how the parties lived and told her how the parties should have lived. In so doing, the court showed it would superimpose its own life-style on the parties' standard of living. The court apparently rejected the Supreme Court's pronouncement in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), that the wife is entitled to be maintained in the accustomed manner of the marriage, thereby demonstrating its bias against Mrs. Nateman.

The remedy for a litigant's fear of biased judicial trial conduct is disqualification. Mrs. Nateman invoked procedures for disqualification before the trial court to no avail. It is now the obligation of this court to implement those procedures and to order the judge to relinquish the case because the trial judge, however well-meaning, caused Mrs. Nateman to fear he would not remain impartial. Mrs. Nateman reasonably feared the judge would not give her a fair trial; that reasonable fear entitles her to be heard by a different judge.

The majority finds that Mrs. Nateman may not seek to disqualify the trial judge for two reasons: 1) because no prehearing bias existed and 2) because the majority believes she should seek appellate review rather than disqualification. The majority concludes that mid-hearing motions for recusal would wreak administrative havoc in the circuit court. The holding is so at odds with existing law that I am compelled to dissent. No authority requires a movant to allege "pre-hearing bias" to succeed on a motion for disqualification, and motions for disqualification must be made prior to receiving an adverse ruling.

Section 38.10, Florida Statutes (1989), provides for the disqualification of a judge "[w]henever a party to any action or proceeding makes and files an affidavit stating that he fears he will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party[.]" (Emphasis supplied.)

A motion to disqualify a judge filed pursuant to section 38.10 must fulfill the procedural requirements of Rule 1.432, Florida Rules of Civil Procedure. Brown v. St. George Island, Ltd., 561 So.2d 253, 255 (Fla.1990); Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981). Mrs. Nateman's motion complies with the rule's procedural requirements. The verified motion alleges "the facts relied on to show the grounds for disqualification." Fla.R.Civ.P. 1.432(b). A motion is sufficient if it alleges facts which are sufficient to "prompt a reasonably prudent person to fear that [s]he could not get a fair and impartial trial." Hayslip, 400 So.2d at 556. Mrs. Nateman's motion met the test.

The majority has misperceived the issue. The judge's tone and demeanor, and reliance on personal experiences, are not determinative of a motion for disqualification. "[T]he principal issue presented in a motion for disqualification is that of legal sufficiency." Breakstone v. MacKenzie, 561 So.2d 1164, 1167 (Fla. 3d DCA 1989), approved in part and quashed in part, 565 So.2d 1332 (Fla.1990). Legal sufficiency is governed by a reasonable person standard: the sole consideration is whether the litigant requesting disqualification can reasonably fear she will not receive an impartial or fair trial. Breakstone v. MacKenzie, 565 So.2d 1332 (Fla.1990); Fischer v. Knuck, 497 So.2d 240 (Fla.1986); Livingston v. State, 441 So.2d 1083 (Fla.1983); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Hayslip. The trial court's denial of a request for disqualification constituted error in light of the verified and factually substantiated claims of prejudice.

A correct statement of the issue would clarify the need for relief. The sole issue is whether the trial judge properly denied a verified motion for disqualification alleging as grounds for disqualification facts sufficient to "prompt a reasonably prudent person to fear that [s]he could not get a fair and impartial trial." Hayslip, 400 So.2d at 556. The record demonstrates that the trial judge should have granted the motion; I would grant prohibition.

Mrs. Nateman, the wife in pending dissolution proceedings, cites the trial court's repeated condescending and adversarial remarks as grounds for disqualifying the trial judge. Throughout her final hearing testimony, the trial court indicated disapproval of Mrs. Nateman's life-style and spending patterns, and mistrust of her assessment of her children's needs. ¹ The court challenged as excessive and inappropriate not only the amounts of money Mrs. Nateman spent for food, ² baby-sitters, and the children's recreation, but also her cooking habits and style of living, ³ finding her expenditures and habits exorbitant, without regard to the parties' habits.

Prior to the conclusion of the final hearing, Mrs. Nateman filed a verified motion to disqualify the judge, alleging that she was convinced she would not receive a fair trial. To support her allegations, Mrs. Nateman cited the judge's interjections of his "own personal life-style, standards, values and beliefs and prejudgments in condemnation of the life-style which [Mrs. Nateman] testified that her children, her husband and she have...