Robbins v. RobbinsRobbins v. Robbins
Noel Robbins has filed a petition for writ of prohibition challenging the trial court’s order denying his motion to disqualify the trial judge filed pursuant to Florida Rule of Judicial Administration 2.160. Because we find that the motion was legаlly sufficient and should have been granted, we grant Robbins’ petition for writ of prohibition.
Robbins is currently involved in postdis-solution litigation with his former wife, Karen Robbins, n/k/a Karen Hicks (hereinafter “Hicks”) regarding the modification of child support. On March 17, 1999, Robbins filed his motion to recuse the trial judge which alleged that on March 11, 1999, he learned certain information which led him to believe he could not receive a fair hearing in front of the trial judge. Specifically, he alleged that Hicks has repeatedly told him that she and the trial judge are friends and that she will аlways prevail in hearings held in front of this judge; that Hicks has been seen socializing with the trial judge on numerous occasions; and that Hicks’ former counsel had an ex parte communication with the judge abоut the case. With regard to the alleged ex parte communication, Robbins specifically stated that he learned about it from his daughter on March 11, 1999. In support of his motion, Robbins filed an affidavit exеcuted by his daughter describing what she knew of the alleged communicаtion.
The trial court denied Robbins’ motion, finding that it was untimely and, thereforе, legally insufficient. Rule 2.160 provides that a motion to disqualify must be filed within ten days after discovery of the facts constituting the grounds for the motion. As nоted above, Robbins alleged that he learned the information оn March 11, 1999. While there is some ambiguity regarding when Hicks told Robbins about her аlleged friendship with the judge and when she was seen socializing with the judge, Robbins’ motion clearly alleged that he learned about the ex parte communication on March 11, 1999. Thus, his motion was timely as to this allegation. See, e.g., Brake v. Murphy,
Hicks’ argument that the allegation of ex parte communication is legally insufficient because it is based on hearsay is without merit. See Barnett v. Barnett,
We also note that Robbins’ allegation of Hicks’ friendship with the judge, together with the аllegation that she has been seen socializing with the judge, is also legally sufficient to require recusal. See, e.g., Scholz v. Hauser,
Accordingly, we grant the petition for writ of prohibition. The trial judge shall be rеmoved from this case and a substitute judge appointed for any further proceedings. Pursuant to rule 2.160(h), Robbins may file a motion for reconsideration of the rulings of the disqualified judge if he so chooses.