By: Stephen J. Plog
After over twenty years of practicing family law in the Denver area, I’ve seen all sorts of odd situations. The stories I could tell range from run of the mill tales of spouses behaving badly to the truly bizarre. Of course I cannot tell those stories due to the oath of confidentiality taken at the outset of my career. Perhaps one of the most bizarre things I have seen as an attorney is when one party fails to show for their final divorce hearing. Fortunately, I cannot recall one instance in which this has happened to one of my clients. I have have taken plenty of calls from potential clients calling after they’ve missed their hearing. The vast majority of the time they are calling when it’s frankly too late to fix things. The idea for this article flows from my reading a recent article online in which a used-to-be famous Hollywood start failed to show for his divorce hearing.
In some of these calls, there seems to be this misperception held by some people that if they fail to show up the court is somehow going to be looking out for them, going to be “fair,” or that the other side is going to go into the final hearing and ask for whatever their most recent settlement offer was. Sadly, it just doesn’t work that way. Firstly, pursuant to Colorado Rules of Civil Procedure Rule 55, a court can enter orders in default if a party fails to show up to court, or to take part in the process. However, missing one’s final divorce or child custody hearing takes not reading multiple documents warning a party that failure to show up may lead to adverse, default orders being entered against them. These warnings start at the outset of each case when the parties receive the court’s Case Management Order. In most Denver area court, the Case Management Order has language somewhere indicating that failure to show or take part may result in default orders being entered. Yet people fail to heed the warning.
Along the way, there are generally also going to be various status conferences and, at some, the court or court facilitator may remind people, particularly when discussing the setting of hearings, that failure to show can lead to dire consequences. Yet people fail to heed the warning. Prior to most contested hearings, a written notice is sent out by one of the attorneys, or the court, informing people of the day, time, courtroom, etc. for their final hearing. When notice is sent out by the court, it might even contain a further warning. Yet people might also fail to heed that warning.
So you’ve failed to show up for your hearing, what can you do? Firstly, the moment you realize you’ve missed the hearing, you should contact a family law attorney to assess the situation. There can be plausible reasons for your failure to show, but they must be acted on in a timely manner.
The reality is, life happens. If you have an accident on the way to court, or a serious medical issue that arises such that you cannot notify the court prior to hearing, you need to take action, whether under C.R.C.P. Rule 59 or Rule 60, to have the orders vacated and the matter reset for another hearing. You will need to plead a plausible reason for the failure to show and the lack of communication. You will also certainly need to provide proof. A call to the court division clerk as soon as possible also doesn’t hurt. In instances where a true emergency prevented your presence, most judges are going to try to be fair.
There may also be other reasons for your failure to appear also warranting relief under either of those rules. For example, I have seen instance in which people were not given proper notice. Under the U.S. Constitution, due process requires adequate notice. As such, it is required that written notice be sent out prior to a hearing. If you can prove not notice was sent, the court will likely vacate and reset. Again, you need to act quickly upon learning of the hearing transpiring without you. It should also be noted that you have a duty to keep the court and the other party informed of your address. Given the games people might play, you should always make sure to give the other party your mailing address, whether via email or text message, just in case they decide to list a prior address on the notice they send. Likewise, if the court has an old address and sends the notice of hearing, it may never get to you. If the wrong address is your fault, you may be out of luck.
Sometimes, people cannot make it to court for work, flight, or other reasons, they falsely assume that they can just call the clerk the day before to tell them they can’t be there or to ask to appear by phone. These things require written motions to be filed and just presuming all is going to be okay with a phone call or message can lead to catastrophe.
Your final child custody or divorce hearing is your chance to state your desired outcome and to present evidence to support it. While some judges may order maintenance or child support by the guidelines, in your absence, other’s may just rubber stamp the figures the other side gives. Likewise, while some courts may make sure that the property division requested in default is fair, others may just rubber stamp it. As relates to children, failing to appear could result in the other party ending up with sole parental responsibilities regarding the making of major decisions for your kids, or primary residential custody in a case where you had a good shot at getting equal time. All of these things can lead to lasting consequences.
Without a plausible reason for your failure to appear you will likely not be able to undo that final order dividing marital property. To change spousal support or child support, you don’t just get to go in and say the figures were wrong. You will have to show a change in circumstances from those at the time of the final hearing. To undo decision-making orders, or to change primary custody, you may have to show emotional or physical endangerment. The burdens of proof and legal standard would have been much lower had you just shown up.
Again, in some cases, you may be able to undo the damage caused by your not being there. In those with no good excuse, or just excuses, you may be stuck living with the consequences for years to come, perhaps never being able to rectify things. Do yourself a favor and make sure to make it to court. If something legitimate happens which warrants your failure to appear, act quickly. Don’t wait weeks, months, or years (all of which I have seen). Time to act is not on your side.
