Petrullo v. Petrullo

• Decision Date: 12 August 1992
• Docket Number: No. 91-3197,91-3197
• Parties: Cherie Ann PETRULLO, Appellant, v. Michael Louis PETRULLO, Appellee. 604 So.2d 536, 17 Fla. L. Week. D1881
• Court: Florida District Court of Appeals

Page 536

604 So.2d 536

Cherie Ann PETRULLO, Appellant, v. Michael Louis PETRULLO, Appellee.

No. 91-3197.

604 So.2d 536, 17 Fla. L. Week. D1881

District Court of Appeal of Florida,

Fourth District.

Aug. 12, 1992.

Young T. Tindall, Fort Lauderdale, and Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.

Maurice Jay Kutner and Carolyn W. West of Maurice Jay Kutner, P.A., Miami, for appellee.

LETTS, Judge.

In a post dissolution proceeding involving custody, the trial judge held a hearing to consider a pending motion to disqualify him filed by the mother. At the conclusion of that hearing, he reserved ruling and requested memoranda of law on "the issues of this recusal." On the same day, he issued a sweeping written order removing the child from the custody of the mother and granting it to the father. We reverse.

Five days prior to the date of the above described hearing, the trial judge had denied the motion to disqualify him as being legally insufficient, but he did so "without prejudice to file additional proof for a basis of disqualification." No additional proof was filed after the date of that denial. The record does not explain why, after having denied the motion to disqualify him, the trial judge later held a hearing on that very same question, at which he reserved ruling. Likewise, there was no explanation set forth in yet another order three weeks after that in which the trial judge finally recused himself without equivocation.

There were two issues before the trial judge in this case: the father's motion to change primary residential custody from the mother to him and the mother's request that the child be allowed to move with her to Colorado. The motivation for these proceedings was the mother's move to Colorado with the child without court permission. The record is clear that the judge had ordered the child returned to Florida long before any attempt to recuse was made. However, the record does not reflect that the judge had announced or made up his mind to actually transfer residential custody of the child prior to the suggestion for disqualification.

Despite the fact that the trial judge had earlier denied the suggestion for disqualification, he apparently believed the disqualification issue was still before him inasmuch as he subsequently held a hearing on that subject matter. It, therefore, behooves us to consider whether the trial judge could enter a written order transferring custody while he believed the disqualification suggestion was still before him. We conclude he could not under Fischer v. Knuck, 497 So.2d 240 (Fla.1986), which clearly indicates that the trial judge could only do so if his written order was a mere ministerial act after public declaration of his intention. Such was not the case sub judice.

We have considered affirming this cause on the basis that the error was harmless because the grounds set forth in the two affidavits supporting disqualification were clearly legally insufficient. In fact, this court had already agreed with that and had denied a petition for a writ of prohibition filed against the same trial judge on the identical subject matter and on the same grounds on August 14th, 1991, 4th DCA case number 91-2294. Of course, no record of this earlier ruling is found in the Southern Reporter and we agree that the denial of a writ without opinion cannot be the law of the case. See Bing v. A.G. Edwards & Sons, Inc., 498 So.2d 1279 (Fla. 4th DCA 1987). Nevertheless, we can certainly make reference to our own records. The legal insufficiency to which we refer is apparent from the contents of the two affidavits ¹ filed in the trial court. The first one does nothing more than complain about delay in making rulings, which the mother avers, was being done on purpose "for some unknown reason." The second affidavit complains that the father had gone to dinner with a "relative of [the trial judge]." Neither of these bare assertions are legally sufficient. At best, they are no more than "subjective fears ... not reasonably sufficient to justify a well-founded fear of prejudice." Knuck at 242. See also Nasetta v. Kaplan, 557 So.2d 919 (Fla. 4th DCA 1990); Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981). Moreover, the record contains a retraction by the mother's counsel of the contents of the second affidavit. (It was some other judge's relative the father had dinner with.) We might well have applied this rationale to affirm but for the fact that the judge held a hearing on the recusal, reserved ruling and three weeks later did, in fact, recuse himself. That act of recusal demands reversal of the custody change order.

We address two other items alleged by the mother to be reversible error and contained in the transfer of custody order. The mother argued, in part, that the order changing custody should be reversed because it contained two factual errors. The first is the assertion that the trial judge gave the child's age as ten, when in fact, he was twelve. Under the facts of this case, we believe this allegation was frivolous. The second alleged error is not frivolous and we address it immediately hereafter.

The mother alleges that there was no restriction in the final judgment which prevented her from taking the child to Colorado without permission of the father, or the court, and that the trial judge erred in finding such a restriction. Technically, the wife is correct. There is an absence of any such specific language. However, it is inherent in the final judgment...