Gieseke v. Moriarty , 10 Fla. L. Weekly 1231 ( 1985 )

471 So. 2d 80 (1985)

F. Gary GIESEKE, Petitioner,
v.
The Honorable Estella May MORIARTY, Judge of the 17TH Judicial Circuit in and for Broward County, Florida, Respondent.

No. 85-739.

District Court of Appeal of Florida, Fourth District.

May 15, 1985. Rehearing or Clarification and Certification Denied July 10, 1985.

Lerner & Harris and Robert Wayne Pearce, Fort Lauderdale, for petitioner.

Estella May Moriarty, Fort Lauderdale, in pro. per.

PER CURIAM.

Petitioner seeks a writ of prohibition precluding respondent from presiding in further pending proceedings in: In Re: The Marriage of F. Gary Gieseke, Petitioner v. Haydee Gieseke, Respondent. Seventeenth Judicial Circuit Case No. 78-15622 CU. He alleges that respondent is unwilling to accord him the impartial determination to which he is entitled. Among the asserted grounds for recusal are alleged demonstrations by respondent of hostility toward petitioner's counsel and toward petitioner as well as allegedly unfair adverse legal rulings.

We do not reach the merits of the petition itself in disposing of this matter because in filing her own response to the rule to show cause why relief should not be granted, the trial court undertook to controvert each of the asserted grounds for recusal. In Management Corporation of America v. Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981), the court cited Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) for the proposition that "[w]hen a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification." Bundy and Management Corp. compel us to hold that respondent has assumed the posture of an adversary and has disqualified herself from conducting further proceedings.

We therefore grant the petition for writ of prohibition, confident that it is unnecessary for us to issue the writ, and remand the cause for further proceedings consistent with this opinion.

Prohibition granted.

BASKIN, NATALIE; PEARSON, DANIEL S.; and FERGUSON, WILKIE D., Associate Judges, concur.