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Missed Court Date in an Arizona Divorce

Posted on : July 7, 2016, By:  Christopher Hildebrand
Failure to Appear for a Divorce Trial in Arizona.

Muzyka v. Herko: Missed Court Date in Arizona

The parties were married for fifteen years when wife petitioned for divorce in 2007. During the case, the husband notified the court of injuries he sustained in a 2010 car accident. He informed the court his injuries prevented him from traveling to Arizona for his divorce trial. He submitted two letters from two neurologists supporting his statements to the court.

Ever wondered what happens if you missed your court date in an Arizona divorce or family law case? That issue was addressed by the Arizona Court of Appeals in the unpublished case of Muzyka v. Herko.

The final trial was set for August 2012.  The court denied the husband’s request to continue the trial. The court, however, permitted the husband to appear by telephone for the trial. The husband called into court in the morning for the first half of the trial.  The husband, however, did not call back when trial resumed in the afternoon.

Husband Does Not Appear For The Remainder of the Divorce Trial

The family court received a call from a person who indicated he was a physician’s assistant. The individual told the court the husband would not be calling the court for the afternoon part of the trial. The person then hung up before the court could obtain more information. The judge considered the circumstances and decided to proceeded with the afternoon part of the divorce trial without the husband’s participation.  The judge then issued a final ruling.


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Husband filed a motion for seeking a new trial and a stay of the effect of the judge’s orders.  The trial judge denied husband’s motion to schedule another trial. The trial judge also denied husband’s request for court to temporarily suspend (“stay”) the effect of the orders issued at the trial. The husband appealed those decisions to the Arizona Court of Appeals.

Effect of Missing a Divorce Trial in Arizona

The Arizona Court of Appeals court concluded the trial court did not abuse its discretion in proceeding with the trial in the husband’s absence.  The divorce case had already been pending for five years when the case went to trial. The message from the alleged physician’s assistant was cryptic and not long enough to allow questions to be asked by the trial court. Arizona Community Property Law

The court of appeals noted the trial judge received the letters from the physicians attached to the husband’s motion to continue the trial.  However, the letters did not provide all of the necessary information the court needed to justify continuing the trial.

The trial judge ruled the husband’s reasons for seeking a continuance of the trial were not substantiated by the letters. The court found his failure to appear during the second portion of the trial was a “last ditch effort to thwart proceedings”.

The Court of Appeals concluded the trial judge’s ruling to proceed with the trial. This was based upon the trial judge’s assessment of the husband’s credibility.

The Court of Appeals will defer to the trial court’s determination of the credibility of a witness. A trial judge has the discretion to control and manage the trial. The court of appeals did not find any evidence the trial court abused its discretion in proceeding with the trial in his absence.

Prejudice as Basis for Reversal

Husband disputes a number of the trial judge’s factual findings on a number of issues. He disputed the calculation of the length of the parties’ marriage. Also, the length of time the wife operated her business. Unfortunately, the husband did not provide any detail regarding exactly how the alleged errors were prejudicial to him.

Additional Arguments

Husband also argued the trial judge made a number of errors regarding division of the parties’ property, regarding the division of a tax debt, and other issues. The husband, however, was not able to direct the Court of Appeals to any portion of the record that would support his positions.

The Court of Appeals concluded some of the husband’s arguments failed to recognize the differences between New Jersey and Arizona divorce laws. Other arguments presented by the husband were found by the court of appeals to be based upon hearsay because he failed to provide the court of appeals with a transcript of the trial.

The Arizona Court of Appeals, therefore, affirmed the rulings of the family court judge in this case.


Hildeband Law, PC.


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