A Sample Divorce Part Three: Temporary Orders Hearings

Part One Part Two

Our petitioner, Jane Doe, requested temporary spousal maintenance in the amount of $3,500 per month and interim attorney’s fees in the amount of $10,000. She sought to restrict her husband’s parenting time based on allegations that he committed acts of domestic violence during the marriage.

John Doe, the respondent and husband, responded to Jane’s motion and filed a counter-motion for temporary orders where he asked the family court to supervise Jane’s parenting time based on allegations of substance abuse. He sought an order that Jane submit to a substance abuse screening and real-time alcohol monitoring.

Pursuant to Rule 47 of the Arizona Rules of Family Law Procedure, the family court must schedule a resolution management conference (often abbreviated “RMC”) when it receives a motion for temporary orders unless the court finds that the specific circumstances of the case are unsuitable for this type of hearing. The purpose of the resolution management conference is to facilitate agreement between the parties. Parties do not present evidence at resolution management conferences and no substantive orders can be entered unless the parties agree. If issues are not resolved at this hearing, the family court must schedule an evidentiary hearing.

The parties here attended the resolution management conference and were unable to resolve any of the contested issues. At the hearing, John’s attorney requested a court-appointed advisor under Rule 10.1. A court-appointed advisor is an individual who may be appointed in cases involving child custody to investigate the facts of the case and interview parties and witnesses outside of court to ultimately make recommendations to the judge. Jane’s attorney did not oppose the appointment.

Feeling confident, John’s attorney also moved for a vocational evaluation under Rule 63. Pursuant to this rule, a party may be ordered to submit to a vocational evaluation when his or her ability to work is material to the issues in the case. Because Jane requested spousal maintenance, her earning capacity is material to this issue. Jane’s attorney vigorously opposed the evaluation and argued that she was ambushed improperly by this request. She argued that it was deliberately omitted from John’s motion for temporary orders in bad faith. John’s attorney countered by claiming that he and his client discussed a vocational evaluation for the first time immediately before the hearing. The judge was annoyed by both parties and ordered John’s attorney to file a formal written motion so that Jane’s attorney would have an opportunity to respond more completely.

The motions for temporary orders were set for an evidentiary hearing of 60 minutes. Both parties wanted more time but the court’s calendar could not accommodate a longer hearing without a significant delay. 60 minutes really is not very much time in family court. Most judges reserve a few minutes for procedural matters and/or their own questions, so 60 minutes usually allots each party with approximately 24 minutes to present evidence and testimony.

Finally, the parties agreed to an abbreviated disclosure period to exchange necessary information no later than ten days before the evidentiary hearing.

Evidentiary Hearing

The term “evidentiary hearing” is used interchangeably with the word “trial.” Some judges save “trial” to refer specifically to the final evidentiary hearing held in a case. But these words refer to the same type of hearing and the same type of procedure.

Family court trials are unique in several ways. First, the Arizona Rules of Evidence do not strictly apply unless invoked by either litigant under Rule 2. This means the standard for admissible evidence and testimony is considerably more relaxed than other types of civil litigation.

Another difference is that family court trials are held before a Superior Court judge, never a jury. Even more uniquely, temporary orders hearings sometimes proceed by “avowal.” Avowal is very similar to the concept of oral argument. The parties or their attorneys each get an opportunity to tell the judge everything they think the judge should know and argue for their respective positions. Parties can refer to exhibits during avowal. More often though, temporary orders hearings proceed like other conventional trials where the petitioner calls witnesses who respondent is given an opportunity to cross examine. Once petitioner calls all of his or her witnesses, the process sort of flips and respondent calls witnesses who petitioner then has an opportunity to cross examine. There usually are no opening statements though either party may ask to reserve some of his or her allotted time for a closing statement. Parties sometimes also ask the court for an opportunity to file written closing arguments after the case. This request is totally discretionary and many judges will deny it.

With that context, we arrive at our fictional case’s temporary orders hearing. Both parties properly submitted exhibits to the judge’s assistant in advance of the hearing. Copies of those exhibits are identified and placed on a table in the center of the courtroom. Both parties also filed written pretrial statements where they explained their respective positions and provided legal authority to support their arguments.

Because both parties filed motions for temporary orders, the court starts with the petitioner and Jane’s attorney calls Jane as the first witness.

Jane’s attorney rhythmically runs through questions to elicit testimony from Jane toward all of the contested issues. Jane testified that (1) she was a victim of John’s domestic violence throughout the marriage; (2) the children feared their father’s volatile temper; (3) she stayed at home unemployed to care for the parties children and lacked marketable labor skills to immediately obtain self-sufficient employment; (4) she is unable to pay her reasonable monthly expenses itemized on her affidavit of financial information; (5) she lacks financial resources to maintain adequate legal representation; and (7) her husband earns at least $200,000 per year.

Jane also testified on direct examination to preempt the testimony she anticipated from John regarding her substance abuse and the disclaimer deed.

John’s attorney enthusiastically cross examined Jane. But he focused mostly on Jane’s credibility, as so many family law attorneys do, rather than the substance of her testimony. He focused much of his time on trivial inconsistencies in her affidavit of financial information. He also attacked Jane with several “gotcha” questions where he tried to coerce Jane into self-incrimination. Questions like, “if you are unable to afford legal representation, how did you pay for your attorney’s retainer?” and “why didn’t you allege domestic violence in your original petition?”

John’s attorney committed to a strategy used by so many divorce attorneys who market themselves as “pit bulls” or “aggressive.” He basically argued with and shouted at Jane for the entire duration of his cross examination. His questions may seem sensible to someone inexperienced with litigation, but both were easily resolved on what we call “redirect,” which was Jane’s attorney’s opportunity to ask Jane questions about the cross examination.

Jane’s attorney asked if Jane opened a credit card to afford the initial retainer and Jane answered affirmatively. Jane’s attorney then asked if this is a sustainable way to pay for her expenses during litigation. Jane said no and explained that she already maxed out her credit line and because she is unemployed she has no way to obtain more credit. Jane’s attorney also asked Jane if her original petition could be explained by Jane’s legal novice, to which Jane said yes.

Running low on time, Jane’s attorney asked no further questions of Jane and it was John’s turn to present his case.

John testified that Jane had a college degree that she could use to obtain full time employment adequate to pay her own expenses. He denied earning $200,000 and claimed he earned closer to $75,000. He testified that when he vacated the marital residence, he rented an apartment and that maintaining two residences left him unable to pay his own expenses so he could not afford maintenance even if Jane qualified. Most of his testimony focused on Jane’s alleged substance abuse and mental illness. He claimed she had regular psychotic breaks where she hallucinated and threatened the family. He even welled up when he testified that she refused his efforts to obtain psychiatric treatment. He left the home because he could not stand to watch her condition deteriorate as she self-medicated with alcohol and prescription medication. John’s attorney exhausted his allotted time so he will be unable to redirect his client after cross examination.

Jane’s attorney used cross examination to emphasize that John presented no documentary evidence of any of his fitness concerns. She asked John why he left the children in their mother’s care when he vacated the marital residence if she was unfit. She asked John to explain his affidavit of financial information where his listed monthly expenses were several thousand dollars more than the net earnings he claimed. John explained that he was living on credit cards to bridge the gap. Jane’s attorney asked why he did not provide periodic statements to prove this.

This exchange illustrates one of the most challenging aspects of temporary orders hearings. Because these hearings can be set so immediately, there often is insufficient time before the hearing for either litigant to obtain all of the evidence needed. Without compelling evidence, it makes the outcomes more unpredictable and susceptible to what the litigants would consider judicial error or mistake. It is unfair to blame judges though when they only can consider the evidence and testimony presented at the time of the hearing. All temporary orders are subject to modification at a final trial, but it can take months to get to that point. This is why preparation is crucial.

The judge took the matter under advisement, meaning that he will publish a written ruling at a later date. Judges can take up to 60 days to publish their rulings. Usually it does not take this long, particularly when the issues of the case require more urgent attention.