Jennifer M. Erlinger v. Justin Federico , 242 So. 3d 1177 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-248
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JENNIFER M. ERLINGER,
Appellant,
v.
JUSTIN FEDERICO,
Appellee.
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On appeal from the Circuit Court for Duval County.
W. Gregg McCaulie, Judge.
March 15, 2018
ROWE, J.
Jennifer Erlinger appeals the amended final judgment that
dissolved her marriage with Justin Federico. She asserts that the
trial court erred in seven different ways: (1) by denying her
motions to continue; (2) in calculating the support awards; (3) in
distributing the marital assets; (4) by awarding equal timesharing;
(5) by imposing sanctions; (6) by denying her request for attorney’s
fees; and (7) by denying her motion to disqualify the judge.
We affirm the first six issues without further comment, as
Erlinger failed to provide a transcript of the final hearing as well
as other proceedings pertinent to the disposition of those issues.
See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150,
1152 (Fla. 1979); Fay v. Craig, 99 So. 3d 981, 982 (Fla. 5th DCA
2012) (“[A]ppellants proceed at their peril when they furnish a
partial transcript.”); Estes v. Sassano, 47 So. 3d 383, 385 (Fla. 1st
DCA 2010) (“Without an adequate record of the proceedings below,
this court cannot reasonably conclude that the trial court so
misconceived the law as to require reversal.”).We write only to
address Erlinger’s assertion that the trial court erred when it
denied her motion to disqualify.
I.
The parties were married in November 2009, and have one
child, a daughter born in 2010. 1 After thirty-three months of
marriage, Erlinger petitioned for dissolution. The proceedings
were protracted, spanning over four years, and were very
contentious. Numerous conflicts over timesharing rights with the
child were brought to the trial court for adjudication, and multiple
contempt proceedings ensued when Erlinger failed to comply with
court orders.
In 2013, Federico moved out of the marital home. After that,
his efforts to spend time with his daughter were repeatedly
thwarted by Erlinger. For a period of ten months, Federico had no
visitation with his daughter. During the next two years, Federico
was required to file seven separate motions to enforce his rights to
spend time with his daughter. In October 2015, the trial court
entered a temporary parenting plan providing for shared parental
responsibility and an equal, rotating timesharing schedule. But
despite the trial court’s order, Erlinger failed to comply with the
timesharing plan and repeatedly acted to interfere with Federico’s
timesharing rights. In 2016 alone, Federico was denied 84 days of
visitation with his daughter. During the course of the proceedings,
Federico filed three motions for contempt for Erlinger’s failure to
follow court orders concerning timesharing. Erlinger responded by
moving to modify the temporary parenting plan.
1The facts set forth herein are drawn from the limited record
on appeal, including the factual findings set forth in the 38-page
amended final judgment of dissolution entered by the trial court.
2
On September 1, 2016, the trial court heard Federico’s second
motion for contempt and Erlinger’s motion to modify the
temporary parenting plan. 2 Erlinger represented herself 3 at the
hearing and conducted the cross-examination of Federico. After
hearing from both parties and a number of witnesses, the trial
court denied Erlinger’s motion to modify, concluding that she
failed to demonstrate grounds for modification. The trial court also
determined that Erlinger’s actions to interfere with Federico’s
timesharing “were malicious and intended to further harm the
child’s relationship with her father.” The court granted Federico’s
motion for contempt because Erlinger had “decided to interpret the
Court’s timesharing schedule to frustrate [Federico’s] relationship
with their daughter and to eliminate substantial timesharing for
[Federico] by such interpretation.”
After the hearing, Erlinger moved to disqualify the trial judge
for comments he made during the hearing. Erlinger argued
comments made by the trial judge showed that he had prejudged
the merits of Federico’s motions for contempt. She alleged that she
feared the court would not afford her a fair hearing. The trial court
denied the motion and Erlinger petitioned this Court for writ of
prohibition. We denied the petition without elaboration. Erlinger
v. Federico, 202 So. 3d 409 (Fla. 1st DCA 2016) (unpublished table
opinion).
The proceedings continued in the trial court and included
multiple conflicts over timesharing and alleged violations of the
temporary parenting plan. A three-day final hearing was held
beginning on November 14, 2016, and the amended final judgment
of dissolution was entered shortly thereafter. The trial court
awarded equal timesharing to the parties. The trial court also
imposed sanctions against Erlinger for repeatedly and vindictively
2 Erlinger failed to provide a transcript of the September 1,
2016 hearing.
3 After her attorney moved to withdraw, Erlinger, a member
of the Florida Bar, represented herself in the trial court
proceedings.
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withholding timesharing throughout the course of the proceedings
in violation of the court-ordered timesharing plan.
On appeal of the amended final judgment, Erlinger renews
her argument that the motion to disqualify should have been
granted.
II.
Though Erlinger previously raised her arguments for
disqualification of the trial judge in a petition for writ of
prohibition, we denied the petition without elaboration.
Accordingly, we review Erlinger’s renewed argument on the
merits. See Topps v. State, 865 So. 2d 1253 (Fla. 2004) (holding
that an unelaborated appellate decision denying a petition for
prohibition does not establish the law of the case). Our review is
de novo. Kline v. JRD Mgmt. Corp., 165 So. 3d 812, 814 (Fla. 1st
DCA 2015).
To determine the legal sufficiency of a motion to disqualify, we
look to whether the facts, as alleged, would cause “the movant to
have a well-founded fear that he or she will not receive a fair trial
at the hands of that judge.” Parker v. State, 3 So. 3d 974, 982 (Fla.
2009). A motion to disqualify must contain facts “germane to the
judge’s undue bias, prejudice, or sympathy.” Scott v. State, 909 So.
2d 364, 367 (Fla. 5th DCA 2005). General and speculative
assertions about a judge’s attitude will not warrant relief. Kraczuk
v. State, 92 So. 3d 195, 201 (Fla. 2012). Further, “the standards
for disqualification do not turn on a demonstration of actual bias
or partiality on the part of the judge or the judge's own perception
of his or her impartiality. Rather, disqualification is required
where the facts alleged and established, which must be taken as
true, would place a reasonably prudent person in fear of not
receiving a fair and impartial proceeding.” Kline, 165 So. 3d at
814.
Erlinger alleged in her motion to disqualify that during the
September 1, 2016 hearing on Federico’s motions to hold Erlinger
in contempt, the trial judge demonstrated bias and unlawfully
prejudged the case by the following comments and conduct: (1)
interrupting Erlinger’s cross-examination of Federico and making
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several comments, including “you just do what you want;” (2)
loudly sighing and shaking his head during Erlinger’s testimony;
and (3) becoming an active participant in the proceedings by
interrupting opposing counsel’s cross-examination of Erlinger “to
question and comment openly” on her testimony. On direct appeal,
Erlinger adds that the trial judge made several highly
questionable rulings after he denied the motion to disqualify,
which further support the appearance of bias. Taking the facts
alleged in her motion to disqualify as true, we hold that Erlinger
failed to allege facts that would demonstrate an objectively
reasonable fear she would not receive a fair and impartial
proceeding.
We first address Erlinger’s allegation that the trial judge’s
comment that she would “just do what she wants” was legally
sufficient to require disqualification. While a judge may not
prejudge a case, it is well-settled that a judge may form mental
impressions and opinions during the course of hearing evidence.
Lukacs v. Ice, 227 So. 3d 222, 224 (Fla. 1st DCA 2017) (citing
Minaya v. State, 118 So. 3d 926, 929 (Fla. 5th DCA 2013)).
Further, “mere characterizations and gratuitous comments, while
offensive to the litigants, do not in themselves satisfy the threshold
requirement of a well-founded fear of bias or prejudice.” Nassetta
v. Kaplan, 557 So. 2d 919, 921 (Fla. 4th DCA 1990). Taking
Erlinger’s allegations as true, the trial judge’s comment that she
would “just do what she wants” was a mere characterization of the
trial judge’s observation that Erlinger had repeatedly failed to
comply with the court’s orders on timesharing and was directly
relevant to the contempt motion pending before the court. See
Lukacs, 227 So. 3d at 224 (“[W]here a judge's comments are
directed to the issue the court is currently handling, a motion to
disqualify can be denied.”). In a contempt proceeding, a trial judge
necessarily considers evidence and testimony regarding whether a
party has complied with orders of the court. Stated differently, the
court must make a determination whether a party “does what he
or she wants” instead of what the court has ordered the party to
do.
Second, we find that the subjective fears expressed in
Erlinger’s allegations regarding the trial judge’s non-verbal
expressions do not provide grounds for disqualification. Though
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judges should avoid making reactive facial and audible expressions
during witness testimony, “[t]he question of disqualification
focuses on those matters from which a litigant may reasonably
question a judge's impartiality.” Pugliese v. Deluca, 207 So. 3d 974,
976 (Fla. 4th DCA 2016) (citing MacKenzie v. Super Kids Bargain
Store, Inc., 565 So. 2d 1332, 1334 (Fla. 1990)) (emphasis added).
Erlinger’s allegations regarding the judge’s non-verbal expressions
represent only a subjective fear and do not provide a well-founded
fear of prejudice. See Kraczuk, 92 So. 3d at 201.
Third, we find both speculative and conclusory Erlinger’s
allegation that the trial judge was biased on grounds that the judge
became an active participant in the proceedings by asking her
questions during cross-examination. She neither describes the
types of questions asked by the judge nor does she allege how those
questions demonstrated bias or prejudice. See Pugliese, 207 So. 3d
at 976.
Finally, Erlinger’s allegation that following the September 1,
2016 hearing, the trial judge made several “highly questionable”
rulings is not legally sufficient to require disqualification. It is
axiomatic that “[a]dverse or unfavorable legal rulings, without
more, are not legally sufficient grounds for disqualification.”
Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015)
(citing Correll v. State, 698 So. 2d 522, 524-25 (Fla. 1997)). This is
especially true when, as here, the party claiming bias has engaged
in misconduct or contempt. Clark v. Clark, 159 So. 3d 1015, 1017
(Fla. 1st DCA 2015).
For these reasons, we conclude that the motion for
disqualification was properly denied. The amended final judgment
of dissolution is AFFIRMED.
WETHERELL and OSTERHAUS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jennifer M. Erlinger, Jacksonville, pro se, Appellant.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Brian
G. Roberts of Roberts & Reiter, P.A., Jacksonville, for Appellee.
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