Family Law

Guffey v. Guffey, 2009-CA-000932

Published:   Affirming in Part, Reversing in Part, and Remanding

County: Boone

Wife appealed FC?s Decree of Dissolution, contending that TC erred in denying her motion for continuance and in equally dividing debt.

FACTS:

Parties were married for 5 years.  Husband owned home at time of marriage.  After divorce was filed, FC ordered Husband to maintain mortgage payments on home.  Husband ceased making mortgage payments and filed for bankruptcy.  Divorce was stayed while bankruptcy petition was pending.  Meanwhile, home went into foreclosure.  Husband?s bankruptcy petition was dismissed, but Husband expected to receive deficiency judgments from the foreclosure.  Husband filed a motion to schedule a trial date for the divorce.  Four weeks prior to the hearing, FC granted motion of Wife?s counsel to withdraw.  Wife testified that she contacted Judge?s secretary the weekend before trial to obtain a continuance, but secretary told her she would have to obtain consent of Husband?s counsel.  Husband?s counsel refused.  Wife again requested a continuance at the trial.  FC refused.  In its determination, FC determined that the credit card debt and the deficiency judgments were marital debt to be divided equally between the parties.  Wife appealed.

ANALYSIS:

CA found that denial of a continuance is reviewed per the factors in Snodgrass, including the parties? responsibilities for creating the situation, whether bad faith conduct was a factor, past behavior, the possibility of prejudice, the availability of alternative solutions, as well as the totality of the circumstances.  CA determined that FC did not abuse its discretion, as FC?s decision was fair and equitable under the circumstances, and ?While litigants may perceive the need to act pro se as a handicap, in reality a court makes an extra effort to compensate for the lack of representation by affording special courtesy and attention to the pro se litigant.? 

Regarding division of debt, CA noted that there is no presumption that debt acquired during the marriage is marital, but that when assigning the marital debt, courts should consider:

1. whether the debt was incurred purchasing marital assets;
2. whether it was necessary for maintenance and support of the family;
3. economic circumstances of the parties; and
4. extent of participation and receipt of benefits.

Because Husband was responsible for the deficiency judgments on the home and had 81% of the parties? income, FC?s equal division of debt was an abuse of discretion. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates