Opinion
Case No. 5D19-1182
07-23-2019
Christine RIPLEY, Petitioner, v. John RIPLEY, Respondent.
Amal Masri, of Masri Legal LLC, North Miami Beach, for Petitioner. Mercedes R. Wechsler, of Mercedes R. Wechsler, P.A., Orlando, for Respondent.
Amal Masri, of Masri Legal LLC, North Miami Beach, for Petitioner.
Mercedes R. Wechsler, of Mercedes R. Wechsler, P.A., Orlando, for Respondent.
PER CURIAM.
Christine Ripley ("Former Wife") petitions for a writ of prohibition to preclude the assigned judge from presiding over the parties' post-dissolution action. We deny the petition. The parties divorced in 2016 and have continued to litigate thereafter. Former Wife has filed numerous motions for contempt against John Ripley ("Former Husband") to compel his compliance with the parties' marital settlement agreement, with some success. Former Husband subsequently filed a verified supplemental petition for modification of alimony. He served the petition upon the parties' adult daughter, who resided with Former Wife at the time. Former Wife did not respond, and the clerk entered a default.
Prior to the entry of a final judgment on Former Husband's petition, Former Wife filed a motion to quash service of process and to set aside the clerk's default. In response, Former Husband filed a motion for entry of a final default judgment of modification.
Contemporaneously, Former Wife continued to seek enforcement of the marital settlement agreement through contempt proceedings. After complying with the judge's lengthy list of procedures to obtain a hearing, the court set a hearing on Former Wife's motion for contempt. Former Husband cross-noticed his motion for default judgment for the same hearing. However, because it appeared that Former Husband did not comply with the judge's procedures for scheduling a hearing, the judge's judicial assistant emailed both parties, inquiring whether Former Husband's cross-notice had been coordinated. Former Wife objected to the cross-notice because Former Husband had not complied with the judge's procedures.
On March 27, 2019, without a hearing, the judicial assistant sent both parties two orders; the first granted Former Husband's motion for default judgment, and the second canceled Former Wife's hearing on her motion for contempt. That same day, Former Wife emailed the judicial assistant, inquiring whether the judge was aware that she filed a motion to quash service of process and to set aside the clerk's default prior to Former Husband filing his motion for default judgment. Former Wife asserted that the court could not grant a judicial default before hearing her pending motion to quash. The judicial assistant indicated that the judge reviewed the entire court file before entering the order and instructed Former Wife to submit a proper motion if she had any concerns, suggestions, or questions. Former Wife filed two emergency motions to set aside the defaults. The judicial assistant sent two emails to the parties, asking whether Former Husband's counsel intended to respond to Former Wife's emergency motions. The judge set a hearing on Former Wife's emergency motions. After hearing the evidence, the court denied Former Wife's motions, finding that Former Husband properly effectuated substitute service of process on Former Wife.
The correctness of that decision is not before us in this petition.
On April 11, 2019, Former Wife sought disqualification of the judge, citing several instances in which she contended the judge and judicial assistant demonstrated bias against her. Her motion included the emails between her counsel and the judicial assistant. The court denied Former Wife's motion. This petition followed.
In her petition to this Court, Former Wife notes instances of alleged bias by the presiding judge. First, she contends that during a hearing on November 14, 2018, the judge reprimanded her attorney in the presence of opposing counsel, the parties, and witnesses. Specifically, Former Wife asserts that the judge referred to her counsel and counsel's arguments as "bombastic." This claim, raised nearly five months after its occurrence, is time-barred. See Fla. R. Jud. Admin. 2.330(e) ("A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion ....").
Next, Former Wife contends that the judge and/or judicial assistant allowed Former Husband to cross-notice his motion without coordination, despite the judge's administrative procedures forbidding the unilateral scheduling and cross-noticing of hearings. Because the judge granted Former Husband's motion for default judgment on March 27, 2019, fifteen days before Former Wife filed her motion to disqualify, this issue is time-barred as well. See Fla. R. Jud. Admin. 2.330(e).
Finally, Former Wife contends that at the emergency hearing on April 8, 2019, the judge denied her motion to set aside the default without considering the evidence proffered and denied her any leave to respond to Former Husband's petition for modification. Consequently, Former Wife argues Former Husband's alimony obligation was terminated without a hearing and without any evidence of a substantial change in circumstance. She notes that the judge's reason for the ruling was that Former Wife never filed a responsive pleading to the petition for modification. Former Wife presents that although she filed a motion to quash service and set aside the clerk's default, the judge noted that said motion was not an "answer" and therefore, not a "responsive pleading." Former Wife contends that the judge must have known that had she filed an answer, she would have waived her motion to quash service. She asserts that based on the judge's misunderstanding of the rules of civil procedure, she will not receive a fair hearing or trial.
Former Wife is correct that the judge should not have entered the March 27, 2019 order granting Former Husband's motion for default judgment prior to resolving her motion to quash service and set aside the clerk's default. E.g., Lakeview Auto Sales v. Lott, 753 So. 2d 723, 724 (Fla. 2d DCA 2000) (reversing final judgment default because trial court failed to rule on pending motions to set aside default); Vacation Escape, Inc. v. Mich. Nat'l Bank, 735 So. 2d 528, 529–30 (Fla. 4th DCA 1999) (same). However, this error did not demonstrate bias because the judge subsequently granted Former Wife a hearing on her emergency motions and considered the merits of her allegation of insufficient service. At the hearing, the judge ultimately found that valid substitute service had been made on Former Wife. The judge determined that because Former Wife failed to file a responsive pleading to Former Husband's petition for modification, Former Husband's motion for default judgment would be granted. The court's adverse ruling against Former Wife is not a sufficient basis to warrant disqualification. See Pilkington v. Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015) ("Petitioner's allegation that the judge has made several highly questionable rulings is not a basis for disqualification. Adverse or unfavorable legal rulings, without more, are not legally sufficient grounds for disqualification.") (citations omitted); see also Eisenberg v. City of Miami Beach, 714 So. 2d 613, 614 (Fla. 3d DCA 1998) ("A claim that a trial judge has made an error of law is not a basis for disqualification." (citing Barwick v. State, 660 So. 2d 685, 692 (Fla. 1995) )).
While we understand the harshness of eliminating a spouse's alimony by default, Former Wife's remedy would have been through appeal.
PETITION DENIED.
COHEN, BERGER and SASSO, JJ., concur.