Hindi Legal Interpreter’s Unavailability Is No Reason to Be Willfully Absent from Trial
We’ve blogged about the important of legal translation services in child custody cases and legal interpreting services in family law cases at large. Divorce proceedings can be especially difficult when one or both spouses speak a foreign language. In such cases, obtaining the assistance of a professional legal interpreter can be invaluable.
In Chollera v. Ray, Case No. B263180, decided on February 7, 2017, the plaintiff filed a petition for dissolution of marriage and requested custody of the two children she shared with her then-husband. The trial court ordered a temporary support order requiring the defendant (the plaintiff’s husband), to pay $1,646 per month in child support and $948 per month in spousal support.
Two years after the temporary support order was entered, the defendant filed papers seeking to modify the support payments. During a court hearing on the matter, the defendant testified through a Hindi legal interpreter and claimed that English was his fourth language and that he did not understand what had happened at hearing two years earlier when the child and spousal support order was entered. Several months later, another hearing was held on the issue of missing bank funds. No interpreter appeared for the defendant despite the fact that the court had informed the defendant that it was his responsibility to secure a Hindi interpreter since he was representing himself. The court issued an order reaffirming its order requiring that a Hindi interpreter be present at all future hearings and transferred the matter to a Commissioner for trial. The divorce proceeding was subsequently set for trial.
On the day of trial, the defendant appeared before the court and claimed, through an interpreter, that he was not prepared for trial. The defendant stated that he could not afford an attorney and requested $30,000 to $40,000 from the plaintiff in order to hire an attorney. The defendant also claimed the plaintiff owed him $90,000. The court continued the trial to the following day, but the defendant filed a motion to vacate the trial date on the grounds that his Hindi interpreter “suddenly backed out” and would not be able to appear for trial. The defendant claimed he tried to secure another interpreter, but that he was unable to do so and therefore could not proceed with the trial due to “unforeseen circumstances.” Due to a conflict unrelated to this case, the court continued the trial to the following week.
On the eve of trial, the defendant field papers seeking another continuance due to the alleged unavailability of his legal interpreter. The defendant did not appear in court on the scheduled trial date the following day. The court proceeded with the trial and treated the case as an uncontested matter not in default. Following plaintiff’s testimony, the court entered judgment dissolving the marriage and holding that the existing support orders were appropriate and should remain in full force and effect. The court gave the plaintiff sole legal and physical custody of the children and allowed defendant visitation. The court disposed of the parties’ marital property and also ordered the defendant to pay $30,000 as sanctions for filing meritless motions that “increased the cost of litigation.”
The defendant then filed a motion seeking a new trial and to have the judgment set aside, claiming that he had been denied notice of the new trial date, along with a motion for the trial judge to recuse himself. The court denied both motions, noting that the defendant apparently had difficulty securing the presence of one of the interpreters because he had failed to pay the Hindi interpreter. The defendant then filed an appeal with the California Court of Appeal.
On appeal, the defendant argued that the trial court conducted what was essentially a default trial without allowing him an opportunity to participate in the trial. The court of appeal held that the defendant’s arguments were unavailing. The court held that the trial court’s decision to award child and spousal support to the plaintiff and to divide the marital assets was not an abuse of discretion such that the trial court’s order should be overturned. The court of appeal also upheld the trial court’s finding that the defendant was “willfully absent” from trial. The court further rejected and found irrelevant the defendant’s argument that even if he had appeared in court on the day of trial, the matter could not have proceeded anyway because his Hindi legal interpreter was unavailable. The court of appeal affirmed the trial court’s judgment accordingly.