Bellomo v. Gagliano

792 So. 2d 1285, 2001 Fla. App. LEXIS 12573, 2001 WL 1020297

• Court: District Court of Appeal of Florida
• Decided: September 7, 2001
• Docket: No. 5D01-1667
• Status: Published

Opinion

MOTION FOR DISQUALIFICATION

GRIFFIN, J.

Petitioners, Maida and John Bellomo, filed a notice of appeal seeking review of an order denying their amended motion to dismiss a petition for paternity filed by Kenneth Gagliano. This court issued an order directing that the notice of appeal should be treated as a timely petition for writ of certiorari and that a proper petition and appendix should be served within ten days.

A week later, petitioners filed in this court a motion to disqualify appellate counsel for the respondent, Barbara Nolte, because petitioner, Maida Bellomo, had previously consulted with her regarding her rights and responsibilities in a proceeding for dissolution of marriage to John Bello-mo and had disclosed information to Barbara Nolte which petitioner claims could be prejudicial to her in the matter before the court.

Respondent does not dispute that the consultation occurred but objects to the disqualification on the basis that the paternity suit and the dissolution are not substantially related matters. According to the response, Maida Bellomo was not pregnant with the child in issue at the time of the consultation regarding the dissolution and the dissolution consultation did not include any discussion of a prospective pregnancy from a relationship outside the marriage. The merits of this motion appear to depend on disputed facts. Accordingly, we will stay these proceedings and relinquish jurisdiction to the trial court for a period of forty-five days and ask the trial court to hear and determine the merits of the motion to disqualify. Upon application, we will review the trial court’s decision.

SAWAYA and PALMER, JJ., concur.