Feaster v. Feaster, 10256.
| Decision Date | 30 June 1976 |
| Docket Number | No. 10256.,10256. |
| Citation | 359 A.2d 272 |
| Parties | Willie Mae FEASTER, Appellant, v. Charles A. FEASTER, Appellee. |
| Court | D.C. Court of Appeals |
John J. Dwyer, Washington, D.C., for appellant.
No appearance was entered for appellee.
Before YEAGLEY and HARRIS, Associate Judges, and PAIR, Associate Judge. Retired.
Appellant was the defendant in a suit for absolute divorce based upon a voluntary separation. D.C.Code 1973, § 16-904(a). She appeals from a judgment granting the divorce but denying her any support or alimony. Appellant contends that the trial court abused its discretion in denying her request for a continuance. As a result of that ruling, appellant was not present at the trial since she was at that time physically unable to travel from Colorado to the District of Columbia. Further, appellant challenges the trail court's failure to award compensation to her appointed counsel. We agree that the trial court's refusal to grant the requested continuance represented an abuse of discretion. In addition, we find no indication that the court gave consideration to counsel's request for a fee. We therefore reverse and remand.
Appellee's complaint was filed in December 1974. Upon appellee's request the court ordered the appointment of counsel to defend appellant. See D.C.Code 1973, § 16-918; Super.Ct.Dom.Rel.R. 17(d). In May 1975, appellant filed a motion for a continuance, alleging her inability to leave Colorado due to major medical problems. Her motion was granted in June 1975. At that time, a new trial date of September 2, 1975, was set and the court ordered that no further continuances were to be granted. However, prior to the September trial date, appellant again requested a continuance. Her motion was accompanied by a letter from her doctor which stated that she had undergone hip surgery for the second time in July 1975, was currently hospitalized, and would be unable to travel for an indefinite period of time. Appellant suggested a continuance until November 1975. At the hearing on this motion, a second trial judge relied upon the first judge's order that no further continuances were to be granted. Stating that he could not "overrule" such an order, he denied the motion.
The decision whether to grant a continuance is entrusted to the sound discretion of the trial court, and unless that discretion is exercised arbitrarily the decision will not be disturbed on appeal. See, e. g., Evening Star Newspaper Co. v. Covington, D.C.App., 323 A.2d 718, 722 (1974); Klein v. Rappaport, D.C.Mun. App., 90 A.2d 834, 835 (1952). We have held, however, that in some instances refusal to grant a continuance is reversible error. Thus, this court twice specifically has found that when a party's presence is precluded by uncontested illness and that party thereby is deprived of an opportunity to be heard, a continuance should be granted to avoid "material hardship and injustice". Etty v. Middleton, D.C.Mun.App., 62 A.2d 371, 373 (1948); see Bernard's Fur Shop v. DeWitt, D.C.Mun.App., 102 A.2d 462 (1954). See also Cornwell v. Cornwell, 73 App.D.C. 233, 118 F.2d 396 (1941). We think it is beyond doubt that undue hardship was worked on appellant by the denial of her motion for continuance, and the record contains no suggestion that an opposite ruling would have resulted in prejudice to appellee.
Moreover, it was inappropriate for the second trial judge merely to have acquiesced in the prior ruling of the original judge. The subsequent judge was obligated to exercise his discretion with regard for the current posture of the case, considering the interests of all involved. While the second judge independently might have concluded that no further continuance was warranted (although it is unlikely that the facts of this case would support such a ruling), he was not bound by his predecessor's order.1 See Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 134-36 (2d Cir.1956); Bowles v. Wilke, 175 F.2d 35 (7th Cir.), cert. denied, 338 U.S. 861, 70 S.Ct. 104, 94 L.Ed. 528 (1949); Driver v. Parke-Davis and Co., 29 Md.App. 354, 348 A.2d 38 (1975); cf. ...
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District of Columbia v. Mitchell, 84-1299.
...to reversal unless that discretion is exercised arbitrarily. O'Conner v. United States, 399 A.2d 21, 28 (D.C. 1979); Feaster v. Feaster, 359 A.2d 272, 273 (D.C. 1976). In the instant case, Lt. Golden was not a material witness, his testimony was presented in the form of a stipulation, and h......
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...296 F.2d 797, 799 (5th Cir. 1961). See District of Columbia v. Morris, D.C.App., 367 A.2d 571, 573 (1976); Feaster v. Feaster, D.C. App., 359 A.2d 272, 274 (1976). Moreover, the record indicates that appellant failed to raise this objection during the hearing on the District's renewed motio......
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Thompson v. Thompson, 84-1127.
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