Sandra Katherine Smith-Fullerton v. David Miles Fullerton

── Sandra Katherine Smith-Fullerton v. David Miles Fullerton ── Court: District Court of Appeal of Florida Date: May 29, 2026 Category: General FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D2025-2114 LT Case No. 2023-11833-FMDL _____________________________ SANDRA KATHERINE SMITH- FULLERTON, Appellant, v. DAVID MILES FULLERTON, Appellee. _____________________________ Nonfinal appeal from the Circuit Court for Volusia County. Robert W. Pickens, III, Judge. John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant. Carol A. Yoon, of Doran, Foxman, Sims, Wolfe & Yoon, Daytona Beach, for Appellee. May 29, 2026 JAY, C.J. Sandra Katherine Smith-Fullerton, (“Wife”), appeals from a nonfinal order denying her motion to disqualify the law firm of Doran, Foxman, Sims, Wolfe and Yoon, (“Doran Firm”). The Doran Firm represents David Miles Fullerton, (“Husband”). We reverse.1 I. On July 23, 2023, Wife filed a petition seeking to dissolve her marriage. Husband responded with an answer and a counter- petition. The case was initially assigned to Judge Matthew Foxman, (“Foxman”). Foxman presided over the case for sixteen months. After retiring from the bench in November of 2024, Foxman became a partner with the Doran Firm. His affiliation started in early February of 2025. When Wife learned that Foxman had become a partner at the Doran Firm, Wife moved to disqualify the firm from further representation of Husband. A successor judge, Judge Robert Pickens, was assigned to the case. At the first hearing on the motion to disqualify, Theodore Doran, founding partner of the Doran Firm, told the court that Foxman was hired as a partner at his firm. He said that Foxman was employed to represent clients in the areas of criminal and family law. He later refined that by saying “anything [Foxman] can do, he wants to do, he’s welcome.” As to the Smith-Fullerton file, Doran said that the file was in the care of a firm paralegal, Barbara Shoner. He did not know the file’s location other than it was in the firm’s building. He admitted that if Foxman wanted to access the file, he could access it, but believed potential access was not an issue because Foxman “is a man of great integrity.” Important to Doran’s participation at the hearing, Doran was never sworn as a witness. Meaning, Doran never took an oath or affirmation as required by Section 90.605(1), Florida Statutes. As the hearing was finishing, Foxman entered the courtroom 1 We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(E). 2 and requested permission to put something on the record. The following is from the hearing transcript: FOXMAN: I just prefer it on so there’s a record for anybody. Here’s the thing. Throw me out of this, but keep Mr. Doran. We’ve already done that. No one has done anything wrong. THE COURT: What do you mean? FOXMAN: That’s your ruling, I’m just telling you, and I’m going to get cross-examined on it, I get it. But nothing bad happened, but he’s entitled to an attorney of his choosing. She’s entitled to object about it, but they’re entitled to me to have nothing to do with it, which is what’s occurred; nothing. . . . I stand ready for the Court. I’m not under subpoena. My point is either side can ask something. I’m just telling you, this is as clear as it can get for you, and I’ll answer any question either side wants, including the Court’s. The initial hearing was continued until June of 2025. At the second hearing, the following testimony was provided by Foxman: COUNSEL: Have you been screened from participating in this matter since your employment with the Doran Law Firm? FOXMAN: I don’t know if it’s screening. I just haven’t participated, and you and Mr. Doran haven’t informed me of