*1 Marriage Virginia HAW M. In re The
BLITZEL, Respondent-Appellant, HAWBLITZEL,
Stanley J.
Petitioner-Appellee.
No. 3-482A61. Appeals
Third District.
April21,
1157 *2 Charles W. Lahey, Bend, South for re- The trial on petition husband's for dissolu- spondent-appellant. tion was scheduled to begin at 2:00 p.m. on that day. The wife did Arthur not appear J. Perry, for the Bend, South for petition- deposition. Her er-appellee. counsel received a message to the effect that the wife ill, but no GARRARD, Judge. verification of such a fact was offered to the court or counsel. Counsel then request- The wife appeals from a judgment ren- ed of the court that he be dered allowed to on the with- husband's petition for dissolu- draw from the case. The tion of court granted that motion. Consequently, the wife was parties The were married in December of without counsel of record on the day 1978. The marriage was the second for was to be held. both. Each spouse entered the marriage owning a residence in South court made Bend. Hus- considerable effort band's house was located at locate W. wife Dice before proceeding to trial. Street and wife's was at 1823 Longfellow Directory assistance was consulted but did Drive. parties resided in the wife's have a number for her. The friend who residence during their marriage. The resi- relayed the message to her attorney dence on W. Dice Street was sold in 1977 was telephoned but did not answer. Area and a house was purchased at hospitals were also called but none had the 200 Michigan Street in Argos, Indiana. The wife as a patient. When these attempts to parties were remodelling the Argos resi- contact the proved wife futile, the court dence when petition for dissolution was proceeded with the trial. Also, filed. each spouse brought sundry The wife has not addressed in separate personal possessions into the marriage, in- arguments what we have denoted as issues cluding household and an goods automobile. 1 and Rather, argues she the combined Husband filed his petition for dissolution acts of the trial court in that it of marriage on July 1980. A trial was counsel's request to withdraw and denied held on March 18 and 19 of 1981 and final the subsequent motion reopen the case judgment was entered on petition on constituted a denial of a fair trial. We August 14, 1981. choose to consider the propriety of the trial We find the wife raises four court's actions separately in determining contentions error, which for the sake of clarity we whether error occurred. state as: The wife's attorney orally moved for 1. Did the trial court abuse its discretion leave to withdraw on the morning of March in allowing the wife's counsel to with- 18, 1981. He filed with the court a copy draw from the case on the morning of a letter which he had hand delivered to the the trial? wife's residence on March 17. Whether or Did the trial court err in denying the not she personally accepted the letter is not wife's motion to reopen the case for disclosed by the record. As therein, stated
the introduction of additional evi- the letter was intended as a memorializa- tion of a telephone conversation which the dence? Did the trial court abuse its had with the wife in the morning discretion in making the property on division? March 17. He had advised her that she was under subpoena thus obligated Did trial abuse its discretion appear at the deposition in its and trial on award of March attorney fees to the 18. He also had warned her that a body husband's counsel? attachment for her arrest could be issued if ISSUE 1: she failed appear.
The wife had been subpoenaed to attend We find this excerpt from the letter to a deposition at 9:00 a.m. on March 1981. particularly relevant as to whether coun- However, consti- with leave of court
sel's withdrawal before trial commenced. did the wife in the point tuted error: at no to me- or other- request a continuance letter further serve "May this appear and Counsel from the court. tele- seek relief the fact that our wise morialize March conversation, accused me of phone you of intent to withdraw gave notice *3 a your motor vehicle deed removing from 18 the court morning of March 17. On the then, and which I did property to certain In the leave to withdraw. counsel now, Consider- categorically deny. I do proceeded the court of March 18 afternoon I have taken ing accusation that your the dissolution trial on with the scheduled I you I advised your property you, from made on be- being appearance without an your as my appearance withdraw would argues error occurred the wife. half of She case, would you in this and that counsel to withdraw allowed counsel when the court of obtain the service immediately have to We do not these circumstances. under counsel, which counsel should substitute agree. deposition present you be with at the that but essence, asserting the wife is In 18, 1981 Wednesday, for March scheduled counsel, she of her the withdrawal for at 9:00 a.m. and at the trial scheduled True, the fair trial. have received a would Thurs- Wednesday, March and when representation was without wife 19, 1981, at 2:00 day, beginning March trial, but absence proceeded with the court p.m. day." on each necessarily precipitate not of counsel does veracity of dispute The does not wife Marriage of In re reversible error. See these statements. 509, 858 Robbins Thus, that the wife the evidence discloses 153,2 grounds on other overruled exercising unau- had accused her counsel (1983). Ind., 446 N.E.2d and property thorized control over her he to this has not demonstrated The wife to withdraw. had advised her'of his intent effort to a reasonable that she made to continue expected could not be Counsel date. Fur new counsel obtain had, she of the wife after representation appearance ther, not make an the wife did essence, The trust accused him of theft. a case or to seek trial, plead to her at either viability essential to the and confidence Notwithstanding appar longer no continuance. any attorney-client relationship a "men she contends diligence, her coun- lack of between the wife and ent was counsel, her fail seeking the have excused infirmity" sel. We believe should tal withdraw, appear a pursuing personally to counsel or court's leave ure to obtain under arguing that was reasonable In so course of action the action. trial to defend the circumstances. 151 Ind. Binford cites Duncan v. she Duncan we 591. In App. the fact that cognizant We are did note: day's notice gave only counsel the wife one will ex- infirmity Jhysical or mental short to On such "[P of his intent withdraw.1 to defend party's failure cuse under sub notice the wife could have been infirmity prevented where such new action employing time constraints in stantial not acceptable did to the court." Counsel rule be makes reference to a court 1. The wife required Indiana requiring days' as before withdrawal for a continuance notice move developed Procedure, granted. Trial was has not Trial Rule 53.4. Rules of any noncompli- any argument regard ab- with date in the scheduled on the commenced issue rule and we consider appellant's ance with this found no counsel. We sence of waived. appellant's had failed counsel error since showing comply Without with TR 53.4. did not we found the trial court In Robbins neglect the fact surprise, mistake or excusable refusing vacate a abuse its discretion appear not at trial did that counsel failed judgment appellant's had failed where judg- appellant to a vacation entitle appear notified therein had at trial. Counsel ment. secretary judge's a continuance about replied allegedly "would a continuance she had
the party's timely appearance in court yet asserts error because the record does
prevented
the party from engaging
not contain what she asserts to be critical
counsel to either appear in the absent
evidence. Each party is responsible for his
party's behalf or to request a continuance or her own representation, whether they
until the party is able
appear."
engage legal counsel or appear on their own
who fails to make an appearance on notice, such the wife was sufficiently on cross-examination evidence admitted would not
apprised of the fact that she 230 N.E.2d at defendant-appellee." at trial. Concomitant- representation have have been aware of the conse- the case ly, reopen she should moved to appellant ° or at quences defending of not the action in. The the evidence get he failed to after Clearly, the seeking least a continuance. We affirmed the motion. trial court denied obligation pro- trial court was under no discretion because such an exercise of voluntarily the wife had rights tect chosen deliberately counsel appellant's forego by appearing. chosen case-in- evidence in his introduce the not to we stated: deciding, In so chief. granting err in The trial court did not the ab- implies term 'discretion' "The counsel's motion to withdraw. fast rule or a manda- of a hard and sence ISSUE 2: varying cir- regardless tory procedure the trial court We next consider whether of a court is 'Discretion' cumstances. to re- denying the wife's motion erred con- judge within the allowed a privilege for the introduction of addi- open the case in ac- and act justice fines of to decide tional evidence. equitable. fair and with what is cordance appearance New entered involves dis- Thus, action which judicial April subsequent the wife on 1981. He be set aside is final and cannot cretion ly reopen filed a motion to the case is an abuse of except when there appeal evidence, along introduction of additional discretion." supporting with a affidavit.3 Other than at 792. "belief," of counsel's no evi assertion *5 alleged dence of the wife's emotional state herein are of a similar The facts presented was to the court. The trial court put forth in proffered evidence vein. The en judgment denied the motion when was to was not of record due the wife's motion 14, August tered on 1981. the action. her failure to defend her failure to persuaded us that has not reopened for Whether a case shall be than an inten appear anything was other the of additional evidence lies introduction part. decision on her voluntary tional and within that realm of discretion vested the in Pruess bore the evidentia- appellant Utopia Corp. trial court. v. Weath Coach acts, and of his deliberate ry consequences 321, erwax 177 upon the impose find no reason not to we v. McWilliams 141 Ind. Pruess for her responsibility the same wife herein App. 789. actions. appellant's In Pruess the counsel did oppor- should be afforded party Each particular introduce evidence in his case-in- on matters in evidence hoped get tunity present chief because he "had this Respondent's Testimony In these aver- c. relative the affidavit counsel made employment ability gainful or oth- to obtain ments: following provide dissolu- for herself erwise "4. That it is his belief that at the time of tion of the Respondent incapable appreciating concerning Testimony the fair market d. necessity appearance said at during antiques acquired of certain value precluded and was in an emotional state which relationship which are course of the marital Respondent appearing from the trial and possession the Petitioner. in the giving testimony on her own behalf. Testimony concerning the sum of Ten e. neces- 5. That certain additional evidence ($10,000.00) Re- Thousand Dollars sary just for a resolution of this matter should brought spondent into the mari- indicates she part a the trial Such addi- be made record. relationship by insurance virtue of a life tal being tional evidence as follows: policy husband. on her former of cer- a. An accurate fair market value opportunity given 6. That Michi- tain real estate located at 200 North into the rec- items of evidence aforementioned gan Argos, Indiana. Street Respondent furnish this will be able to ord Respondent's Testimony concerning b. evidence, provide this with such Court contribution as a homemaker complete on which record with a full and relationship. course of the marital dissolution decree." to base a final contention. Utopia See Coach Corporation 3: ISSUE Weatherwax, supra. However, a party We interpret the wife's challenge of the
cannot later show error if she fails to avail property division to be twofold. She as-
herself of the opportunity to introduce evi-
serts the evidence on the value of the resi-
dence.
dence in Argos was not sufficient to enable
A trial was held on
petition
for disso-
the trial court to make a reasonable and
lution. If the wife
appeared
she could just distribution of
marital as-
proffered
have
for admission that evidence
Also,
sets.
she contends the judgment as it
which she later moved to introduce. As it
stands was disproportionately in favor of
stands,
the record contains
sufficient evi-
the husband.
upon
dence
which a reasonable and just
Considerable discussion has been expend
property division could be made.
pur-
ed on the issue of
constitutes ade
what
ported evidence enumerated in the affidavit
quate valuation of record
purposes
is not of a nature which leads us to conclude
making a fair
equitable
property divi
the trial court abused its discretion in mak-
sion. Two
cases giving attention to
recent
ing the property division without that evi-
the issue are Dean v.
Dean
Ind.App.,
dence being of
Therefore,
record.
The trial court ordered the wife to pay $10,288.20to husband's counsel for Her services conduct during these proceedings pursuant rendered to the dissolution pro- has, however, dramatically increased the ceedings. The wife contends the trial court legal expenses in connection with this abused its discretion in so doing because the proceeding. Because she would not dis- fees against assessed her were more than close her financial holdings petitioner's to one half the amount her, awarded to and counsel, because her course of conduct because they were beyond the per $60 hour prior to the separation prevented peti- which the husband agreed had pay his tioner from knowing his own financial counsel. holdings, and because her conduct at the time separation effectively argues husband 'erased attorney fees tracks,' it has been awarded to necessary for petition- counsel were proper, primar- er's ily counsel to proceed because of along lines which extraordinary effort to are highly which counsel extraordinary had to resort a domestic ascertain and discover relations assets case: requesting which the and wife delivering had con- cealed. countless orders produce directed to multitudinous banking institutions within The trial gave a thorough explana- area; repeated discovery attempts tion as to why it $10,000 awarded over culminating in examination of a custodial attorney fees against the wife: deponent; a remarkable eleventh-hour "As a matter prefatory to the discus- excursion Wabash, to rum- sion of the award of attorney fees, it mage through a theretofore undisclosed should first be that, noted while the "His- safety box; deposit and trips several tory of the Case' portion of the Memoran- occasioned respon- courtroom dum makes extensive reference to the dent's conduct with respect to both the evasiveness of the respondent during the course of these proceedings and the cov- court and her own counsel. It is well that, settled ert although manner a par in which she handled par- ty's obstreperousness funds, ties' pretrial the 'Division of Assets' section proceedings may is not be largely considered in silent to ar this issue. To the riving at just extent her reasonable division conduct is discussed with ref- the marital property, erence to a party division be held assets, impact its answer for expenses incurred by is minimized. This is as be; it should the adversary as a IND.CODE result of that obstrep Section _ 31-1-11.5-11(b) - See, erousness. eg., Finley Finley, leaves no room consideration, in divid- ing assets, (Ind.App., Dist., 4th 1981); of the cooperation Finley a party in v. Finley the proceedings [174 lead 362] to the division. 1126 (Ind.App., Dist., 3rd 1977). Nor is the Court entirely trial, At sym- without petitioner's counsel testified pathy for the respondent in had, this case. he through the time of Her actions are consistent with a person expended 147.57 hours case, on this who frightened is by the prospective loss incurred ex- out-of-pocket of those things which give her security. penses. He estimated that seventy-five Such motivation would permit to eighty percent of that time had been *8 Court to condone actions, her spent in ascertaining the assets of the but would permit the Court to view her as some- parties. Following trial, petitioner's - thing less than malevolent. This consti- counsel submitted a twenty-page post-tri- tutes another reason why a party's con- brief, al most of it unhappily single- duct during litigation, short of dissi- spaced, and thereafter he filed a four- pation of assets, should not be considered page response to the respondent's Motion in division of assets, to Reopen and a four-page reply brief. and that no 1164 light and in of all of judicial that N.E.2d 400
The Court now takes
notice
of
eight
not less than
additional hours
considerations,
these
concludes
expended
counsel's time
have been
pay petitioner's
would
should
coun
respondent
post-trial pleadings.
time,
on these
In Re The
or
eighty percent of his
sel for
(Ind.
Marriage
Gray,
of
"Petitioner's counsel's
Marriage Gray
App.,
In re
keeping
high-
this cause was in
with the
est
practice
traditions of the
of law.
the course of the
Through
Counsel had to have been aware that of
the where-
the wife refused to disclose
every dollar he uncovered in his resolute
assets, thus necessi-
abouts of the
search, some portion of that dollar would
discovery,
expense
and the
tating complex
go
adversary,
to his
who
was bent
thereof,
part
on the
of the husband.
preventing
discovery.
ably
its
Counsel
"obstreperous"
uncooperative
wife's
be-
performed the function of an officer of
expenditure
havior caused considerable
Court,
that he might bring before the
it is reasonable that
time and resources and
panoply
Court the full
responsibility for such
she should bear the
assets for the
divide.
costs.
circumstances,
hourly
Under most
fees
complains
reasonable;
might
rate of
un
$60.00
greater
not be assessed at a rate
should
circumstances,
der
might
other
it
be ex
hour,
initially agreed
the rate
per
than $60
cessive. Under these circumstances it is
and his counsel.
to between the husband
inadequate. The
Court is constrained
are not
agree.
We do not
Reasonable fees
the award of fees
the respondent's
determined
the terms of
ability
pay, DeLong DeLong,
necessarily
employment.
contract of
Ind.App.
(1975); attorney-client
"The award of reasonable attorneys' motion would not be granted unless ten
fees under IC 81-1-11.5-16 is left to the
Here,
days
given.
notice had been
court,
broad discretion
eg.,
day
motion the
after it
Waitt v. Waitt
172 Ind.App.
had been filed and the
morning before
tionally, the size of the marital
the length necessary of time to obtain result, possibility desired and the
appeal are other aspects
weighed.
to be
Burkhart v. Burkhart
Ind.
[169
REDI-MIX,
MARSHALL COUNTY
INC.
App. 588],
Considerable required to fer
ret out the assets which the wife had at
tempted away. to hide Due to the complex matter,
ity most of which was caused wife, the recalcitrant behavior of the
trial court was within its discretion in
awarding the fee based on an hour
ly per rate of fully hour. We are $75
accord with the reasoning trial court's
judgment on this issue.
For the foregoing reasons we affirm.
HOFFMAN, P.J., concurs.
STATON, J., concurs in result and files
separate opinion.