Pierce v. Tello
Docket: No. 4D03-266
Court: District Court of Appeal of Florida; March 23, 2004; Florida; State Appellate Court
An appeal was made by Robert Pierce concerning a non-final custody order mandating supervised visitation with his nine-year-old daughter. Pierce also sought review of a denied motion to recuse the trial judge. The court reversed the trial court's order, addressing a history of custody and visitation disputes initiated by Demaris Tello in 2002. Following an injunction hearing, the trial judge prohibited harmful contact between Pierce and Tello, ordered drug testing, and established shared custody. After a hair sample tested positive for cocaine, the judge issued an ex-parte order suspending all contact between Pierce and his daughter without notifying either party of the lab report. During a subsequent status hearing, Pierce requested the judge's recusal but was informed that such a motion needed to be in writing. The judge's subsequent written order mandated supervised visitation and denied the recusal motion. Pierce later filed a written recusal motion but failed to include the necessary affidavit, leading to its denial. The court emphasized that due process principles apply to custody modification proceedings and highlighted a violation of Canon 3(B)(7) of the Code of Judicial Conduct, which prohibits ex-parte communications. The court concluded that basing the suspension of contact on such communication constituted a due process violation. Consequently, the December 4, 2002 order and all related orders were reversed, and the case was remanded for further proceedings before a substitute judge. Additionally, Pierce faced charges for violating the domestic violence injunction, which he argued should have expired, but the court denied his petition for a writ of mandamus, stating it lacked jurisdiction over the state attorney's prosecution in this matter. The ruling concluded with the court's decision to reverse the previous orders.