Sometimes when a trial has been scheduled, continuing a trial is necessary. This is typically done by a motion for continuance, which is usually done prior to the trial, although, in some instances, it may be made orally to the court. Know that a court generally does not appreciate somebody just showing up asking for a continuance. It is much better if you can contact the opposing party and have some type of agreement before you go in front of the court asking for said continuance.
When appealing a trial court’s decision on a motion for continuance, it is reviewed for an abuse of discretion. A trial court’s discretion to grant or deny a motion for continuance is not absolute. An appellate court has actually found that a trial court has abused its discretion when an attorney withdrew one month prior to a hearing and was still trying to find counsel. This is not automatic and facts differ with each case. In order to determine whether a continuance should be granted, a trial court must evaluate:
- Whether the movement suffers injustice from the denial of the motion.
- Whether the underlying cause for the motion was unforeseen by the movement and whether the motion is based on dilatory tactics.
- Whether the opposing party would suffer prejudice if the motion were granted.
The Florida rules of civil procedure expressly permit a party to request a continuance at trial. The law does permit a party to move for a continuance either on the day of trial or on the eve of trial. Special circumstances sometimes exist in which the denial of a motion for continuance creates an injustice for the movement. The court’s obligation to rectify the injustice outweighs its policy of not disturbing a trial court’s ruling on a continuance.
Due process is a constitutional guarantee afforded to every litigant. Due process envisions a law that hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties. When a court fails to give one party the opportunity to present witnesses or testify on his or her own behalf, the court has violated that party’s fundamental right to procedural due process. Denial of those rights is a fundamental error. In short, if you want to continue a trial or a hearing at the very least you must have a good faith reason to do so. Kenny Leigh and Associates is a Florida law firm that exclusively represents men in the area of family law. Please go to our website at divorcemenonly.com for more information.
