F.M., Mother, Appellant, v. N.B., Father, Appellee.
No. 71A05-1206-JP-291
Court of Appeals of Indiana
Nov. 8, 2012
Ordered Published Dec. 4, 2012. Opinion, 978 N.E.2d 759, withdrawn.
OPINION
BROWN, Judge.
F.M. (“Mother“) appeals the trial court‘s order modifying custody of C.B. to N.B. (“Father“). Mother raises one issue, which we revise and restate as whether the trial court abused its discretion in denying Mother‘s motion to continue and in granting her counsel‘s motion to withdraw appearance. We reverse and remand.
The relevant facts follow. C.B., born on April 8, 2009, is the child of Mother and Father, who are both of Kenyan heritage. In an April 2010 order, the court established the paternity of Father, granted Mother physical custody of C.B., required Father to pay child support, recognized1 that Mother and C.B. were residents of the State of Minnesota, and allowed Father parenting time. Father owned a home in South Bend, Indiana. In August 2010, the court entered an order related to transporting C.B. between the parties for parenting time in response to contempt allegations filed by Father.2 In May 2011, Father filed a Rule to Show Cause against Mother.2
On July 26, 2011, Father filed a Verified Petition to Modify Custody, Parenting Time and Child Support, in which Father requested primary physical custody of C.B., an appropriate parenting time order for Mother, a modification of child support, and an award of reasonable attorney‘s fees and further alleged that Mother had intentionally and willfully refused to follow the court‘s August 2010 order regarding parenting time.
On August 22, 2011, attorney Mario Zappia filed an appearance as Mother‘s counsel.3 The court‘s chronological case summary (“CCS“) shows that, on August 24, 2011, the court was scheduled to hold a hearing on Father‘s petition to modify custody at 9:30 a.m., that Zappia requested a continuance because he had just entered his appearance in the case, and that the hearing was continued by agreement.
On January 10, 2012, the court entered an Order Rule to Show Cause and required Mother to appear for a show cause hearing on February 8, 2012. The CCS shows that a hearing was held on February 8, 2012, and that the court found Mother in contempt of court and sentenced her to thirty days in the St. Joseph County Jail until Mother posted a $1,000 bond as security for the exercise of Father‘s par-
On April 30, 2012, Mother‘s attorney Zappia filed a motion to withdraw his appearance.4 Near the beginning of the scheduled hearing at 9:00 a.m. on April 30, 2012, the court asked Zappia to explain the circumstances of his motion to withdraw.5 Zappia stated that he had explained to Mother that he could not continue to represent her unless she paid his fees, that Mother indicated that she could not pay Zappia‘s fees and asked him if he could obtain a continuance of the court date, that Zappia placed a phone call to Father‘s counsel who said that he was not agreeable to a continuance, and that Zappia did not file a request for a continuance and “truly did not think the court would grant one at this point in time and then we‘ve attempted to e-mail her a motion or a consent to withdraw.” Transcript at 6. The court then granted Zappia‘s motion to withdraw and delayed the hearing for one hour in order to provide Mother time to arrive at the court.
At approximately 10:45 a.m., Mother was not yet present, and the court resumed the hearing. After some initial comments by the court and after Father‘s counsel began to give an opening statement, Mother arrived in the courtroom. The court recognized Mother‘s arrival, directed that she be given “a couple of legal pads and a pen,” swore Mother in, and explained that Father‘s counsel was in the process of giving an opening statement and that if Mother chose she could take notes. Id. at 10. Father‘s counsel then presented an opening statement. The court then stated that Mother could provide the court with an opening statement. Mother asked if she could have some time to hire an attorney or if an attorney could be appointed for her. The court stated: “No, the court will not appoint a lawyer. The civil code of this state requires appointment after a person has made diligent effort and the like. You have had a private attorney and the attorney has withdrawn this morning. You were a party to that conversation....” Id. at 14. The court proceeded with the hearing on Father‘s petition and then continued the hearing until 2:30 p.m. that day, when it heard evidence, and again heard evidence beginning at 1:30 p.m. on May 2, 2012.6
On May 4, 2012, the court entered an Order Determining Custody, Parenting Time and Related Matters, which in part ordered that Mother and Father would have physical custody of C.B. for alternating two-month intervals, established certain guidelines for the transfer of C.B. between Mother and Father, and ordered Mother to pay $1,500 to Father‘s attorney.
Before addressing Mother‘s arguments, we note that Father did not file an appellee‘s brief. When an appellee fails
Where a trial court enters findings of fact and conclusions of law, first we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. In re Guardianship of Phillips, 926 N.E.2d 1103, 1106-1107 (Ind. Ct. App. 2010) (citing Leever v. Leever, 919 N.E.2d 118, 122 (Ind. Ct. App. 2009)). We will set aside the trial court‘s specific findings only if they are clearly erroneous, that is, when there are no facts or inferences drawn therefrom to support them. Julie C. v. Andrew C., 924 N.E.2d 1249, 1255-1256 (Ind. Ct. App. 2010). A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. Norris v. Pethe, 833 N.E.2d 1024, 1032-1033 (Ind. Ct. App. 2005). We neither reweigh the evidence nor assess the credibility of witnesses, but consider only the evidence most favorable to the judgment. Id. The specific findings control only as to the issues they cover, and a general judgment standard applies to issues upon which the trial court made no findings. Phillips, 926 N.E.2d at 1107. We review questions of law de novo and owe no deference to the trial court‘s legal conclusions. Id.
The issue is whether the trial court abused its discretion in denying Mother‘s motion to continue and in granting her counsel‘s motion to withdraw appearance on the day set for hearing on Father‘s petition. The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court. Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind. Ct. App. 2003), trans. denied. We will reverse the trial court only for an abuse of that discretion. Id. “An abuse of discretion may be found on the denial of a motion for a continuance when the moving party has shown good cause for granting the motion.” Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied; see
The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrawise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate
due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request was denied.
Ungar v. Sarafite, 376 U.S. 575, 589-590 (1964) (citations omitted), reh‘g denied.
Mother contends that, given the late hour and inadequate notice to which Zappia testified, the court abused its discretion in allowing him to withdraw and in failing to continue to the matter to allow her to seek an attorney. Mother argues that permitting her counsel‘s withdrawal was contrary to
The unexpected and untimely withdrawal of counsel does not necessarily entitle a party to a continuance. Hess, 679 N.E.2d at 154 (citing Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind. Ct. App. 1988), reh‘g denied). “Under some circumstances, however, denial of a continuance based on the withdrawal of counsel may be error when the moving party is free from fault and [her] rights are likely to be prejudiced by the denial.” Koors, 530 N.E.2d at 783 (citations omitted). “Further, among the things to be considered on appeal from the denial of a motion for continuances, we must consider whether the denial of a continuance resulted in the deprivation of counsel at a crucial stage in the proceedings.” Hess, 679 N.E.2d at 154 (citing Homehealth, Inc. v. Heritage Mut. Ins. Co., 662 N.E.2d 195, 198 (Ind. Ct. App. 1996),
The record reveals that Father filed his petition on July 26, 2011; that attorney Mario Zappia filed an appearance as Mother‘s counsel on August 22, 2011; that on February 8, 2012, the court scheduled a contested custody hearing for 9:00 a.m. on April 30, 2012; that Zappia filed a motion to withdraw his appearance on the morning of April 30, 2012, and stated to the court that he had advised Mother that he could not represent her unless she was paid his attorney fees and of his intention to withdraw and that he did not request a continuance because he did not think the court would grant the request; that the court granted Zappia‘s motion to withdraw appearance; that when Mother arrived to court she requested a continuance; and that the court denied the request and the hearing was held on April 30, 2012, and on May 2, 2012.
We conclude that Mother demonstrated good cause for a continuance of the hearing and that the court‘s granting of Zappia‘s motion to withdraw filed the morning of the hearing was contrary to its Local Rules and
The court‘s thirteen page May 4, 2012 order includes numerous findings regarding the evidence presented with respect to the criteria in each subsection of
In addition, the record shows that the trial court failed to ensure that Zappia complied with the time and notice requirements set forth in
Under the circumstances of this case, we conclude that Mother has established prima facie error in that the withdrawal of her attorney deprived her of counsel at a “critical stage in the proceedings” in a case involving at least some complexity and that Mother was prejudiced by the denial of her motion to continue. See Hess, 679 N.E.2d at 155. We cannot say that the record shows that prejudice to Father as the nonmoving party would have resulted from a reasonable postponement or delay of the hearing or trial on Father‘s petition, and conclude that the trial court abused its discretion in denying Mother‘s motion to continue. See Hess, 679 N.E.2d at 154-155 (holding that the trial court erred in denying an appellant‘s pro se motion for a continuance in a dissolution case where the appellant‘s attorney had withdrawn from the case only four days prior to trial and the appellant had been unable to obtain another attorney); Koors, 530 N.E.2d at 783 (noting that a summary judgment hearing had already been continued six times, but nevertheless finding that “[w]hile the trial court understandably may have been vexed by the numerous continuances of the hearing, the result of the denial of [the] motion for a continuance [three days prior to the hearing] was to deprive [appellant] of representation at a crucial stage of the proceedings“); Homehealth, Inc., 662 N.E.2d at 199 (holding that the trial court abused its discretion in denying appellant‘s motion for continuance and noting that the record contained no evidence that significant prejudice to the appellees would have resulted had the appellants’ continuance been granted and that the appellants did not conclusively have knowledge that substitute counsel was necessary “until only a few weeks before trial“); Cf. Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292, 311 (Ind. Ct. App. 2000) (affirming the denial of a motion for continuance where over five months elapsed from the time the movant‘s attorney withdrew to time of the trial).
For the foregoing reasons, we reverse the trial court‘s denial of Mother‘s motion to continue and remand for a new hearing.
Reversed and remanded.
KIRSCH, J., and NAJAM, J., concur.