365 So.3d 427
Fla. Dist. Ct. App.2023Background
- Fred Viera, Jr. (Former Husband) filed for dissolution of marriage from Vivienne Viera (Former Wife) in 2019; dispute involved custody of three minor children and division of the marital home.
- Multiple pretrial and trial motions to disqualify the trial judge were filed by Former Husband alleging bias; the trial court denied four disqualification motions and this court previously denied a writ petition on the issue.
- Trial concluded and the court entered a final judgment of dissolution on July 13, 2021, resolving timesharing, parental decision-making, income imputation, alimony, equitable distribution, and designating the marital home as marital property.
- Former Wife moved to enforce the judgment and for contempt, alleging Former Husband willfully failed to comply with financial and other obligations; after a successor judge was assigned, the court found him guilty of indirect criminal contempt, imposed probation with a 30-day county jail condition, and included purge provisions.
- On appeal, the Third District affirmed the denials of disqualification and affirmed most aspects of the final judgment, but reversed and remanded two discrete parts of the final judgment (mortgage refinance timeline and retroactive child support credits) and affirmed the contempt judgment while directing the trial court to consider recalculation/credits consistent with the retroactive support remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial judge should be disqualified for bias | Viera: judge showed bias via adverse rulings, questioning credibility, adopting Wife’s proposed judgment verbatim | Trial court/Wife: credibility findings and adverse rulings do not establish legally sufficient basis for recusal | Denial affirmed; adverse rulings/credibility assessments are not sufficient grounds for disqualification |
| Mortgage refinance timeline for former marital home | Viera: final judgment’s three-year refinancing allowance is erroneous | Wife: conceded error on three-year allowance | Reversed in part; remand to require Wife to refinance and remove Husband from mortgage within a reasonable time not exceeding two years or sell property if not refinanced |
| Retroactive child support calculation and credit for payments | Viera: judgment failed to credit $88,267.29 in actual payments made for children's benefit during retroactive period | Wife: no responsive argument on appeal | Reversed in part; remand for trial court to consider and credit actual payments under §61.30(17) if proven |
| Contempt for willful noncompliance with final judgment | Viera: appealed contempt; challenged characterization/penalty | Trial court/Wife: court found willful noncompliance with eight requirements, used appropriate procedures and purge provision | Contempt judgment affirmed; trial court followed required due process and included purge provision; remand to consider recalculation/credits consistent with retroactive support ruling |
Key Cases Cited
- Menada, Inc. v. Arevalo, 341 So. 3d 1189 (Fla. 3d DCA 2022) (standard of review for disqualification reviewed de novo)
- Nateman v. Greenbaum, 582 So. 2d 643 (Fla. 3d DCA 1991) (disbelief of witness testimony ordinarily is no basis for disqualification)
- Deauville Realty Co. v. Tobin, 120 So. 2d 198 (Fla. 3d DCA 1960) (prejudice formed during trial by a judge from testimony does not disqualify the judge)
- Jackson v. State, 599 So. 2d 103 (Fla. 1992) (prior adverse rulings are not adequate grounds for recusal)
- Quintas Vazquez v. Smith, 318 So. 3d 579 (Fla. 3d DCA 2021) (reaffirming that disqualification law prevents ousting judges for adverse rulings)
- Berger v. United States, 255 U.S. 22 (U.S. 1921) (historical articulation that disqualification rules are not for ousting judges due to adverse rulings)
- Contella v. Contella, 557 So. 2d 880 (Fla. 5th DCA 1990) (purge provision is essential in civil contempt orders)
- Parisi v. Broward Cty., 769 So. 2d 359 (Fla. 2000) (without a purge provision a contempt sanction risks becoming criminal)
- Lanza v. Lanza, 804 So. 2d 408 (Fla. 4th DCA 2001) (civil contempt orders must specify an adequate purge provision)
- Rojo v. Rojo, 84 So. 3d 1259 (Fla. 3d DCA 2007) (appellate review of contempt judgments applies abuse-of-discretion standard and presumes trial court correctness)