What is a Continuance?
Posted By Posted by Damien McKinney on Feb 3, 2014 10:25am PST || Feb 3, 2014
When a party requests a continuance, they’re basically requesting that the Court reschedule a hearing. Sometimes life events happen and a party is unable to attend a scheduled final hearing or other hearing. In order to have the hearing rescheduled, the party must file a motion for continuance unless the other party agrees. A recent Fourth District Court of Appeals case dealt with continuances.
In Yaris v. Yaris, a divorce post-judgment final hearing was set for August 7, 2012. Four days before the scheduled hearing, the Former Husband filed a motion for continuance. He stated that sister-in-law was suffering from lung cancer, that he was travelling to Massachusetts to be with her, and that he needed a continuance because his testimony was crucial to his petition and denying the petition would result in “extreme prejudice.” He later amended his motion for continuance stating that his sister-in-law was going to pass away soon. The trial court denied his motion for continuance. The Former Husband ultimately did not appear at the final hearing because of the extenuating circumstances, and his petition was denied. The appeal followed.
The Fourth District Court of Appeal found that the trial court abused its discretion and should have granted the continuance. The appellate court held that it normally grants great deference to a trial court in their decision to grant or deny a motion for continuance. The Court stated “factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance include whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance.” The appellate court found that the Former Husband was not engaged in dilatory practices and that the request for continuance should be granted.