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Campos v. Campos

Florida Court of Appeals, First District

October 24, 2017



         An appeal from an order of the Circuit Court for Leon County. Charles A. Francis, Judge.

          Emilian "Ian" Bucataru, Bucataru Law Firm, PLLC, Tallahassee, for Appellant.

          James C. Banks, Banks and Sweeting, P.A., Tallahassee, for Appellee.

          KELSEY, J.

         Although the parties' dissolution of marriage became final in 2005, they have continued to litigate timesharing and related issues since then in a manner that one of many circuit judges serially assigned to the case aptly described as "disastrous." At the center of the fray are former husband's ongoing attempts to earn reunification with the parties' two children, who were preschoolers when this started. The order on appeal denies the former husband's motion under Florida Rule of Civil Procedure 1.540(b)(4)[1] to vacate all orders and "proceedings" in this case from 2015 forward. For the reasons that follow, we reject the former husband's arguments, and dismiss this appeal for lack of jurisdiction, without prejudice to new proceedings on remand.

         Parenting Motions and Orders

         The litigiousness and duration of this case become a feature because so many judges have presided over it through the years. The record reflects several cycles of orders limiting or eliminating the former husband's parenting time, followed by motions for modification or reunification, all of which were denied. Relevant to this appeal, the former husband moved for reunification again in 2014. During the 2015 evidentiary hearing, when a certain pediatrician's name came up, the trial judge reminded the parties on the record that he had disclosed earlier-in a 2009 hearing when that judge was briefly assigned to the case-that the pediatrician also saw one of the judge's children. The former wife's counsel acknowledged the previous disclosure and stated there was no objection. Former husband did not object, either. The trial court denied that motion without prejudice, and the former husband did not appeal (although it was an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii)b (allowing appeals in family law matters from non-final orders that determine "the rights or obligations of a party regarding child custody or time-sharing under a parenting plan")).

         The predecessor judge entered a separate order on child support and attorney's fees, which recited that it was memorializing the parties' stipulation. The former husband initially challenged that order, but upon being reminded through a motion for sanctions that he had stipulated to it, withdrew his challenge.

         In 2016, before a successor judge, the former husband again moved for reunification, or for reconsideration of previously imposed parenting restrictions. The parties engaged in motion practice and discovery on that new motion. The former husband did not object when the former wife filed transcripts of evidentiary hearings held before the predecessor judge in 2015. The successor judge held a new evidentiary hearing on the 2016 motion, and entered an order on July 20, 2016, denying the former husband's motion for reunification-again without prejudice. Again, the former husband did not appeal the order denying reunification, although he had appellate counsel and it was an appealable order under Rule 9.130(a)(3)(C)(iii)b.

         Three weeks after the appeal deadline expired on that order, the former husband filed a motion to vacate under Rule 1.540(b)(4) (despite seeking to retain some favorable aspects of the predecessor judge's rulings). This motion noted that the predecessor judge sitting on the case in 2015 had done more in 2009 than merely disclose the involvement of his own child's pediatrician: he had entered an order recusing himself from the case.[2] Thus, the former husband argued, the predecessor judge's 2015 orders were void, as was all record activity from that point forward including the 2016 orders.

         We reject the former husband's argument that these circumstances created jurisdiction for this appeal. We also write to reject the former husband's argument that because the predecessor judge had recused himself in 2009, we should rewrite history by striking from the record everything that occurred after the predecessor judge was reassigned to the case in 2015, including evidentiary hearings and their sworn testimony, the successor judge's July 20, 2016 order denying reunification without prejudice, and the December 22, 2016 order denying the motion to vacate.

         Appellate Jurisdiction

         It is true that orders entered by a recused judge are void. Davis v. State, 849 So.2d 1137, 1138 (Fla. 1st DCA 2003). But that is not the issue. The issue is whether the order denying the former husband's motion ...

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