Pierce v. Tello
Pierce v. Tello
Opinion of the Court
This is an appeal from a non-final order of custody, requiring supervised visitation by Appellant Robert Pierce of the parties’ now nine-year-old daughter. Pierce also seeks review of the denial of his motion for recusal of the trial judge. Appellee has not filed a brief with this court. For the reasons that follow, we reverse the trial court’s order.
Appellee, Demaris Tello, filed a suit to determine paternity and to establish custody and visitation in October of 2002. Thereafter she filed a petition for injunction to protect her from violence by Pierce. At the injunction hearing on November 22, 2002, the trial judge granted the injunc
“Due process principles apply to modification proceedings including child custody and visitation matters.” Murphy v. Ridgard, 757 So.2d 607, 608 (Fla. 5th DCA 2000). Canon 3(B)(7) of the Code of Judicial Conduct states that “a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” The Supreme Court has said that “this canon implements a fundamental requirement for all judicial proceedings under our form of government.” In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395 (Fla. 1987). We conclude that it was error for the trial judge to base her order suspending Pierce’s contact with the child on an ex-parte communication and that this resulted in a violation of due process. See Teeft v. Luna Cheese Corp. of Fla., 577 So.2d 1004, 1005 (Fla. 5th DCA 1991); Safie v. Safie, 414 So.2d 623 (Fla. 3d DCA 1982). Consequently, we reverse the December 4, 2002 order and all subsequent orders appealed and remand for further proceedings before a substitute judge on a de novo basis.
Aside from the order on custody and supervised visitation, the trial court’s incomplete domestic violence injunction was still in place in September 2003 when Pierce crossed paths with Tello in a peaceful attempt to pick up the daughter. Pierce was arrested for violation of the injunction, and now seeks a writ of mandamus to quash the resulting information formally charging him with violating a domestic violence injunction. Pierce argues that the injunction should have long since expired. We conclude that we do not have jurisdiction over the state attorney prosecuting Pierce for violation of a domestic violence injunction and therefore deny his petition for a writ of mandamus.
REVERSED.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.