Effect of Changing Judges During a Divorce in Arizona
DUE TO COVID-19 AND OUR NEED TO ENSURE THE HEALTH OF OUR CLIENTS, ALL INITIAL CLIENT CONSULTATIONS WILL BE CONDUCTED BY PHONE. YOU MAY CALL US AT (480)305-8300 TO SCHEDULE A TELEPHONE CALL WITH ONE OF OUR EXPERIENCED FAMILY LAW ATTORNEYS.
We wanted to take a moment to discuss the 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.
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 When You Change Judges in an Arizona Divorce
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.”
The divorce 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.
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 personal 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 firearms purchased with it — as community property.
Child Support for an 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. 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.
If things are not going well in your divorce, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your divorce or family law case around today.
Arizona Family Law Attorneys in Scottsdale and Tucson Arizona
More Articles About Divorce in Arizona
- The advantage of Filing Divorce First in Arizona
- Are Prenuptial Agreements Enforceable in Arizona
- Arizona Divorce
- Arizona Divorce Attorney Reviews
- Arizona Divorce Child Custody
- Arizona Divorce Debt
- Arizona Divorce Forms
- Arizona Divorce Laws
- Arizona Divorce Laws Alimony
- Arizona Divorce Laws and Statutes
- Arizona Divorce Laws on Adultery
- Arizona Divorce Papers
- Arizona Divorce Practice
- Arizona Divorce Process
- Arizona Divorce Records Search
- Arizona Marriage Laws
- Asset and Property Search in an Arizona Divorce
- Arizona Divorce When You Can’t Find Your Spouse
- Change to Maiden Name After Divorce in Arizona
- Changing Orders in an Arizona Divorce Decree
- Children and Divorce in Arizona
- College Expenses After Divorce in Arizona
- Complex Divorce Cases in Arizona
- Conciliation Court Services in Arizona
- Consent Required for Marriage of Minors in Arizona
- Considering the Children during a Divorce in Arizona
- Convert to a Covenant Marriage in Arizona
- Coping With Divorce in Arizona
- Court Services to Save a Marriage in Arizona
- Custody of the Family Pet in a Divorce in Arizona
- Dissolution of Marriage in Arizona
- Divorce After Legal Separation in Arizona
- Divorce and Children in Arizona
- Divorce Arizona
- Divorce Case is on the Inactive Calendar in Arizona
- Divorce Court Jurisdiction in Arizona
- Divorce in Arizona Without Children
- Divorce Procedures in Arizona
- Divorce Records in Arizona
- Divorce Statistics in Arizona
- Divorce Support Groups in Arizona
- Domestic Violence and Divorce in Arizona
- Effect of Adultery on an Arizona Divorce
- Effects of Divorce on Children in Arizona
- Enforceable Arizona Prenuptial Agreements
- Failure to Include an Issue in an Arizona Divorce
- Filing for Divorce in Arizona
- Filing for Divorce to Receive Alimony in Arizona
- Guide to Divorce for Men in Arizona
- High Asset Divorce in Arizona
- High Conflict Divorce in Arizona
- High Net Worth Divorce Arizona
- How is a Divorce Finalized in Arizona
- How Long Does a Contested Divorce Take in Arizona
- How Long Does it Take to Get a Divorce in Arizona
- How Long Does it Take to Get Divorced in Arizona
- How Long Does Uncontested Divorce Take in Arizona
- How Long To Be Separated Before Divorce in Arizona
- How long to get Temporary Orders in Arizona
- How Much Does it Cost to Get a Divorce in Arizona
- How to Appeal a Divorce Decree in Arizona
- How To Find Good Divorce Attorney in Arizona
- How to Start a Divorce in Arizona
- Learn About Uncontested Divorce in Arizona
- Legally Separated File Divorce in Arizona
- Marital Settlement Agreement in Arizona
- The merger of the Settlement Agreement in Arizona
- Military Divorce Laws in Arizona
- Misled Into Signing Divorce Settlement in Arizona
- Modifying a Divorce Decree in Arizona
- No Contest Divorce in Arizona
- No-Fault Divorce in Arizona
- Order to Pay Spouses Attorney Fees in Arizona
- Parenting Class During a Divorce in Arizona
- Petition for Dissolution of Marriage in Arizona
- Protect Children in a Divorce in Arizona
- Quick Divorce in Arizona
- Reasons for Divorce in Arizona
- Reasons to File for Divorce in Arizona
- Represent Yourself in Arizona Divorce Case
- Same-Sex Divorce in Arizona
- Sealing Court Records in an Arizona Divorce
- Sell Home During Divorce in Arizona
- Selling Property During a Divorce in Arizona
- Served With Divorce Papers in Arizona
- Serving Divorce Papers by Publication in Arizona
- Should I Keep the House in a Divorce in Arizona
- Social Media Evidence in Divorce in Arizona
- Stop an Arizona Divorce
- Stop an Arizona Divorce if You Change Your Mind
- What Happens at a Resolution Management Conference in Arizona
- What Happens If the Divorce Case Goes to Trial in Arizona
- What Happens Temporary Orders Hearing in Arizona
- What is a Covenant Marriage in Arizona
- What is a Default Divorce in Arizona
- What is a Family Law Master in an Arizona Divorce Case
- What is a Preliminary Injunction in an Arizona Divorce
- What is a Temporary Orders Hearing in Arizona
- What is the Divorce Process in Arizona
- What Reasons Do I Need to Obtain a Divorce in a Covenant Marriage in Arizona
- What to do When Served with Divorce Papers in Arizona
- When Can I File For Divorce in Arizona
Chris Hildebrand wrote the information on this page about the effect of changing judges during a divorce in Arizona to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.
What’s Hot – Blog