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Effect of Changing Judges During a Divorce | Voted “Best of the Valley”

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

Effect of Changing Judges During a Divorce in Arizona

Changing Judges in a Divorce.

Changing Judges in a Divorce.

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.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Application of Rule 88 When You Change Judges in an Arizona Divorce

Effect of Changing Judges During a Divorce.

Effect of Changing Judges During a 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 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.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
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I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
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After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
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22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
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Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
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I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
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I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
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21:20 02 Apr 18
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Larry Flint
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21:53 27 Feb 18
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

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 fire arms 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.

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