Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

Is a judge required to grant a continuance in a Florida family law case? While a judge may not be required to grant a continuance, consideration has to be given to “(1) whether the request for continuance was dilatory or unforeseeable; (2) whether the denial created an injustice for the movant; and (3) whether the opposing party would have suffered prejudice or inconvenience.” Dussan v. Zoghbi, 3D21-2160 (Fla. 3d DCA April 5, 2023).

In this paternity case, the mother filed a motion for appointment of a forensic accountant. The general magistrate granted this motion, but the father filed a motion for exceptions to the ruling. A trial date was set, and the mother filed a request for continuance of trial, citing uncertainty on how to proceed in light of the father’s unresolved motion for exceptions. The trial court subsequently denied the father’s motion for exceptions, but also entered an order denying the request for a forensic accountant. With trial set for 8 days away, the court also set deadlines for exchange of exhibits. Less than a week before trial the father filed his exhibit list, while the mother filed hers the day before trial. When the mother attempted to use her exhibits at trial, the court denied this on the basis that she filed her exhibit list too late. Her repeated requests for continuance were denied. The mother appealed.

The appellate court reviewed the case under an abuse of discretion standard. It first held that the mother had a reasonable basis to believe a forensic accountant would be appointed in light of previous court rulings, and when this was denied shortly before trial, combined with the denial of her request for continuance and a blanket exclusion of her proposed exhibits, it left her in a “Catch-22”. The court then analyzed the decision to exclude the mother’s exhibits, citing the Florida Supreme Court’s holding “that the trial court should not exercise its discretion ‘blindly’ but rather focus on the prejudice the use of undisclosed evidence would inflict upon the objecting party.” Binger v. King Pest Control, 401 So. 2d 1310, 1311 (Fla. 1981).

The court concluded “Here, the trial court did not find, nor did the father argue, any specific factual grounds evincing prejudice or bad faith so as to justify either the denial of continuance or exclusion of exhibits. Instead, a careful examination of the record compels the opposite conclusion. The father, too, filed his exhibit and witness disclosures beyond the court-imposed deadlines. Most, if not all, of the documents the mother sought to introduce had been previously produced in discovery, filed of record, and adopted as exhibits by the father. There was no evidence of bad faith, and the failure to file the pretrial catalogue was attributable to the attorney, not the mother. Under these circumstances, we conclude the denial of continuance, considered in tandem with the exclusion of evidence, amounted to reversible error.”

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