Trial in Absentia

February 4, 2019 § Leave a comment

How far is a chancellor required to go in accommodating requests for continuances? It’s a ticklish proposition that requires weighing competing interests, as one may conclude from a recent case.

Malinee Johnson filed for divorce from her husband Daniel in December, 2012, after 14 1/2 years of marriage. She charged Daniel with habitual cruel and inhuman treatment (HCIT). The chancellor entered an agreed order setting the matter for trial on August 5, 2014. Four days in advance of the trial date, Daniel filed a motion for continuance alleging illness. The judge granted the motion, but did assess Malinee’s witness expenses to Daniel.

On November 5, 2014, Daniel’s attorney filed a motion to withdraw, which the court granted on January 12, 2015, nunc pro tunc to August 5, 2014.

Daniel’s replacement attorney entered an appearance on January 22, 2015, and a trial date was set for September, 2015. For some reason the trial was continued again to May 24, 2016.

On May 24, 2016, Daniel’s attorney appeared and announced that his client was in the hospital. The court agreed to the continuance, but pointed out that the case had been continued several times, and that if Daniel failed to appear yet again the trial would proceed in his absence. The judge encouraged the parties to take Daniel’s deposition, presumably to preserve his testimony.

The court set a new trial date by agreed order for November 16, 2016, which was two weeks after the second anniversary of the case’s filing. Yet, on the appointed date, Daniel did not appear. His attorney pled surprise and said that Daniel had not contacted him, but he told the judge that he knew from independent sources that Daniel was in the hospital. The attorney moved to withdraw. The chancellor denied the motion and proceeded with trial in Daniel’s absence. The only witnesses were Malinee’s.

Following hearing the judge granted Malinee a divorce on the ground of HCIT. Daniel appealed claiming error for the chancellor proceeding without him, and further for granting a divorce on HCIT with insufficient proof.

In Johnson v. Johnson, decided January 8, 2019, the COA affirmed. Judge Greenlee wrote the unanimous opinion (McDonald, Lawrence, and McCarty not participating):

¶14. “It is well settled that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” In re E.G., 191 So. 3d 763, 772 (¶37) (Miss. Ct. App. 2016) (internal quotation mark omitted). “[T]here is no mechanical test for determining whether a continuance should be granted, and the circumstances of each case must be carefully examined, especially the reasons presented to the trial judge at the time the request is denied.” Harveston v. State, 742 So. 2d 1163, 1169 (¶21) (Miss. Ct. App. 1999).

¶15. Here, Daniel argues that chancery court’s denial of his continuance requires reversal because he was not afforded the opportunity to present a defense. Although the chancery court noted in its final judgment that it declined to continue trial to another date, the record does not show that Daniel’s attorney requested to continue the November 16, 2016 trial. Even assuming Daniel’s attorney did make such a request, we find the chancery court did not err by declining to continue the matter.

¶16. Daniel did not provide the chancery court with any verification of his claim that he was hospitalized, and therefore, the chancery court had only the representation of Daniel’s uninformed and surprised trial counsel. Under these facts, the chancery court did not err by denying to grant a continuance. See Pace [v. Pace], 16 So. 3d [734] at 740 (¶24) (holding the chancery court did not err by failing to grant a continuance to a party that failed to provide verification that he was at the hospital on the day of trial). Daniel forfeited his right to testify when he failed to appear at the trial. Lee v. Lee, 78 So. 3d 326, 329 (¶13) (Miss. 2012). Moreover, Daniel ignored the chancellor’s prior suggestion that he have a deposition available to present in the event of his absence.

¶17. Absent Daniel’s defense, Nikki was still required to prove the alleged ground for divorce. Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011). “If that is done, the chancellor has authority to grant the divorce despite the absence of the defendant.” Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶12) (Miss. Ct. App. 2009). Finding the chancellor did not err by failing to grant a continuance, we proceed to review whether sufficient proof supported the judgment of divorce.

As mentioned in the final paragraph, the court went on to affirm on the issue of granting the divorce.

If you don’t provide “verification” (to use the COA’s term) that your client is legitimately unavailable, you won’t have much to argue on appeal. Documentation in the form of a doctor’s affidavit or medical record affidavit would meet the requirement of verification, in my opinion. You may support your position with an affidavit per MRCP 43(e), unless the court directs oral testimony or depositions. Although you are an officer of the court, the chancellor may not consider your “uninformed and surprised” announcement to be verification enough.

 

 

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