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Effect of Changing Judges During a Divorce

Posted on : December 24, 2015, By:  Christopher Hildebrand
Changing Judges During a Divorce in Arizona

Effect of Changing Judges During a Divorce in Arizona

In Arizona, one judge usually hears a divorce case from start to finish. Special rules of procedure apply to ensure fairness when a judge dies, resigns or retires after a case is started but before it is finished.

Arizona Rule of Family Law Procedure 88 provides:

If a trial or hearing has been commenced and the judicial officer is unable to proceed, any other judicial officer may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. At the request of a party and if an adequate electronic record is not available, the successor judicial officer shall recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judicial officer may also recall any other witness.
effect of changing judges during a divorce
In the case of Gersten v. Gersten, 219 P.3d 309 (Ariz. Ct. App. 2009) the Arizona Court of Appeals discussed the effect of changing judges during a divorce in Arizona and how Rule 88 should be applied.

Ethel and Charles Gersten married in 1975 and divorced in 2005. Judge Gregory H. Martin presided over a five-day trial using a digital video recording system known as “For the Record” (“FTR”) rather than a court reporter. Ethel and Charles submitted closing arguments, but, before Judge Martin ruled, he resigned from the court and Judge Susan M. Brnovich replaced him.

She issued a ruling in 2008, which was appealed.

Application of Rule 88

Many of the issues in the appeal involve Rule 88 and whether it was applied correctly by Judge Brnovich.

Charles argued that the new judge did not give the parties the opportunity to recall witnesses as the Rule required. However, the Court rejected this argument since Charles had not asked the judge to hear testimony again from any witnesses.

Likewise, Charles attacked the quality of the recording, arguing that the FTR recordings were jumpy and the picture small. However, Judge Brnovich had stated that she had no problem with the recordings, and the Court said no evidence suggested otherwise.

Last, Charles argued that Judge Brnovich did not follow Rule 88 because she did not “certify familiarity” with the court record. The Rule states that a replacement judge may rule “upon certifying familiarity with the record.”
Effects of Changing Judges During a Divorce
The Court rejected the argument that the judge was obliged to review the entire record. It said Rule 88 only requires a replacement judge to review the parts of the record relevant to the issues before her. Judge Brnovich reviewed the trial exhibits, the FTR recordings and post-trial filings before making decisions on the contested support and property division issues. The Court of Appeals noted that Charles did not point out other material the court should have reviewed and determined that the materials reviewed were sufficient for these issues.

However, the Court of Appeals found that the judge should have reviewed the entire record before denying the request Charles made for attorney fees. Arizona law allows a divorce court to award or deny attorney fees only after the judge considers both spouses’ financial resources and “the reasonableness of the positions each party has taken throughout the proceedings.” In order to determine the latter, Judge Brnovich needed to review more of the record.

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Division of Property Purchased with FECA Payments

Charles argued that the divorce court should not have awarded a portion of his firearms collection to Ethel because it was his separate property, purchased with FECA (federal disability) payments that, he claimed, compensated him for injury to his personal well-being.

However, the Court ruled against him. It said that FECA payments can include compensation for lost wages and lost earning capacity, in addition to injuries to a person’s health. While the latter is the property of the injured spouse and his separate property in a divorce, both lost wages and lost earning capacity are community property under Arizona law, belonging equally to both spouses.

Since Charles did not offer evidence about what portion of his FECA benefits, if any, was intended to compensate him for injury to his personal well-being, the divorce court was right in treating it – and the fire arms purchased with it — as community property.

Child Support for Adult Son

One of the sons of Charles and Ethel, although no longer a minor, lives with Charles as a dependent. Under Arizona law, both parents have a legal duty to contribute financially to the care of an adult child who is disabled and unable to support himself.
Changing Judges During a Divorce
According to Charles, this son is disabled. The Judge denied his request for child support from Ethel solely because Charles is not the son’s guardian as – she said – the statute requires.

However, Charles argued that this requirement was removed from the statute, and the Court of Appeals agreed with him. It sent the case back to the divorce court to reconsider the attorney fees and support issues.


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