SILA NICHOLSON, APPELLANT,
v.
MICHAEL NICHOLSON, APPELLEE
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Sila Nicholson appealed a final judgment of dissolution of marriage, challenging the trial court's denial of her continuance request. The appellate court found the trial court abused its discretion by proceeding to trial without postponement when the wife's attorney had just withdrawn, the wife was unable to attend due to a recent car accident, and the Guardian Ad Litem was unprepared to testify.
The trial court abused its discretion in denying the continuance. Vacation and remand for a new trial are appropriate when the Guardian Ad Litem was unprepared to testify, no emergency required proceeding, and the requested postponement would not have prejudiced the husband.
[1] A trial court abuses its discretion by denying a continuance when the guardian ad litem is unprepared for trial and no emergency necessitates immediate proceedings.
[2] A trial court abuses its discretion by denying a continuance when the requested postponement would not prejudice the opposing party.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Generally, trial courts have discretion with respect to granting a continuance and, ordinarily their discretion in this regard will not be overturned by an appellate court.”
Establishes the standard of review—trial courts have discretion, but that discretion can be abused
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Join FLexlaw to unlock all legal intelligenceThe parties married in 1990 and separated in 1996, with one minor child. The final hearing was scheduled for May 5, 1997. On May 3, the wife's attorne…
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POLEN, Judge.
Wife, Sila Nicholson, timely appeals from a Final Judgment of Dissolution of Marriage. Of the five points she raises on appeal, we find her first argument, that the trial court abused its discretion in denying her a continuance of trial, dispositive. We, therefore, limit our discussion to that issue.
The parties were married in 1990 and separated in 1996. They have one minor child. Both parties sought dissolution of the marriage and primary residential custody of the child. The wife also sought alimony, equitable distribution of assets and debts, attorney’s fees and costs.
The final hearing was set for May 5, 1997. On May 3, 1997, wife’s attorney moved to withdraw from wife’s representation. At the final hearing, wife’s counsel moved ore terms for a continuance, informing the court that the wife had fired her as her attorney, and that the wife was unable to be physically present at the hearing because she was recently involved in a car accident. The Guardian Ad Litem, who was appointed less than 30 days before on an “emergency” order of the court, also told the court she was not ready to go to trial and needed more time to examine the parties and the child. She explained she had not even visited the hus band’s home yet. The court denied the motion for continuance, and trial proceeded.
After hearing testimony from the Guardian and the husband, the trial court entered the Final Judgment of Dissolution of Marriage in which it awarded the husband temporary primary residential custody of the child and child support in the amount of $1.00 per week. It further placed restrictions on the wife’s visitation, denied her attorney’s fees and costs, and ordered that both parties keep the assets currently in their possession and be responsible for the debts in their own names. It then granted wife’s attorney’s motion to withdraw.
Generally, trial courts have discretion with respect to granting a continuance and, ordinarily their discretion in this regard will not be overturned by an appellate court. Diaz v. Diaz, 258 So. 2d 37, 38 (Fla. 3d DCA 1972). In this ease, we believe the court abused its discretion in not continuing trial, especially since the Guardian informed the court she was unprepared to testify, there was no emergency which required proceeding with the hearing, and the requested postponement would not have prejudiced husband. Accordingly, we vacate the final judgment and remand this case for a new trial.
REVERSED and REMANDED.
TAYLOR, J., and FRUSCIANTE, JOHN A., Associate Judge, concur.
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Fasig v. Fasig, 830 So. 2d 839 (Fla. 2d DCA 2002)…heard. To have granted the continuance would not have prejudiced the husband, and there was no emergency requiring the immediate resolution of the matter.6 Accordingly, the motion for continuance should have been granted. See Nicholson v. Nicholson, 717 So. 2d 123 (Fla. 4th DCA 1998). The final judgment is reversed and the matter remanded for new trial. Reversed and remanded. SALCINES and COVINGTON, JJ., Concur. . In the counterpetition, count one was styled as a petition for dissolution of marriage, count…
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Kepner v. State, 911 So. 2d 1256 (Fla. 4th DCA 2005)…] tion. See Scott v. State, 717 So. 2d 908, 911 (Fla.1998). The ruling will be sustained unless no reasonable person would take the view adopted by the trial court. Id.; see also Randolph v. State, 853 So. 2d 1051 (Fla.2003); Nicholson v. Nicholson, 717 So. 2d 123, 124 (Fla. 4th DCA 1998) (ordinarily an appellate court will not overturn a trial court’s ruling on a motion for continuance). On this record, there is no evidence that the trial court abused its discretion in refusing to discharge appellant’s cour…
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Higgins v. Higgins, 351 So. 3d 1249 (Fla. 2d DCA 2022)…undue prejudice to the Former Husband where most of the issues in the dissolution had been previously resolved and there "was no emergency requiring the immediate resolution of the matter." Fasig, 830 So. 2d at 842; see also Nicholson v. Nicholson, 717 So. 2d 123, 124 (Fla. 4th DCA 1998) ("[W]e believe the court abused its discretion in not continuing trial, especially since the Guardian informed the court she was unprepared to testify, there was no emergency which required proceeding with the hearing, and t…
Authorities Cited
- Asuncion Diaz v. Justo Luis Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972)