Summary
In Huitt v. Hsia, 848 So.2d 459 (Fla. 4th DCA 2003), our previous decision involving these very same litigants, we held that disqualification of the commissioner was warranted because her report stated the mother's religious beliefs and the father's lack thereof were a factor in her recommendation favoring the mother.
Summary of this case from Huitt v. HsiaOpinion
Case No. 4D03-714
Opinion filed July 2, 2003
Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. C.D. 98-635 FZ.
Lynn G. Waxman of Lynn G. Waxman, P.A., and Warren B. Brams of Warren B. Brams, P.A., West Palm Beach, for petitioner.
Steven L. Winig of Brody, Cohen Winig, P.A., West Palm Beach, for respondent.
ON MOTION FOR REHEARING
We deny respondent's motion for rehearing, but substitute the following for our May 20, 2003, slip opinion, correcting a factual misstatement:
The former husband filed this petition for writ of certiorari to review an order denying the disqualification of a domestic relations commissioner hearing the former wife's motion to modify custody and to relocate the parties' child to Virginia where she lives. He sought the commissioner's disqualification from future proceedings on the ground that he feared the commissioner was biased against him. The commissioner stated in her report that a factor in her recommendation in favor of the mother was the mother's religious beliefs and the father's lack thereof.
The Florida Code of Judicial Conduct Canon 3B(5), provides:
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including . . . bias or prejudice based upon . . . religion . . . . This section does not preclude the consideration of . . . religion . . when [it is an] issue in the proceeding.
Because the parties' religious differences were not an issue in the proceeding, the commissioner's questioning and statements would reasonably cause the father to fear the commissioner was personally biased against him on the basis of religion. We grant the petition, and on remand, the case shall be assigned to a different commissioner.
WARNER, POLEN and TAYLOR, JJ., concur.