Gregory v. Ford
| Decision Date | 11 August 2021 |
| Docket Number | 2021-UP-297,Appellate Case 2018-001217 |
| Parties | Danmon Gregory, Respondent, v. Rozlyn Ford, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Heard June 8, 2021
Appeal From Florence County Timothy H. Pogue, Family Court Judge
Stephen C. Hucks, Sr., of Hucks & Felker, LLC, and Matthew Martin McGuire, both of Columbia, for Appellant.
Cheryl Turner Hopkins, of Law Office of Cheryl Turner Hopkins, and Brooke Ashleigh Grooms, both of Florence, for Respondent.
Danmon Gregory (Father) initiated this family court action in 2016 seeking custody of the minor child or increased visitation an order requiring Rozlyn Ford (Mother) to obtain a psychological evaluation, and other related relief. Mother timely answered and counterclaimed, seeking to maintain the status quo.[1]After a final trial date was scheduled, the family court granted Mother's attorney's motion to be relieved and gave Mother thirty days to either obtain new counsel or notify the court of her intention to proceed pro se; she did neither. Over two months after Mother consented to her attorney's motion to be relieved, Mother moved for a continuance, which the chief administrative judge failed to address. Although the trial judge initially declined to rule on Mother's continuance request, stating he lacked jurisdiction, on the morning of the final hearing he heard argument on the motion. The trial judge then denied the requested continuance, and Mother proceeded pro se.
Following the three-day trial, the family court found Mother had alienated the minor child, transferred custody to Father ordered attorneys' fees and costs, and permitted Mother supervised visitation after a no-contact period. Mother does not separately challenge these findings-her appeal addresses only the handling of her motion for a continuance.[2]
Mother first argues the chief administrative judge erred in failing to hear her timely filed motion and allow her more time to obtain new representation because "the case was complex, involving expert witnesses and medical testimony." Mother further asserts she diligently sought new counsel. We agree the chief administrative judge erred in failing to address the motion; however, we disagree that Mother diligently sought new counsel or that Mother was prejudiced by the chief administrative judge's error.
"When 'reviewing a family court's evidentiary or procedural rulings,' appellate courts apply 'an abuse of discretion standard.'" Sellers v. Nicholls, 432 S.C. 101, 113, 851 S.E.2d 54, 60 (Ct. App. 2020) (quoting Stoney v. Stoney, 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018)). "Appellate courts review family court matters de novo, with the exceptions of evidentiary and procedural rulings." Id. (quoting Stone v. Thompson, 428 S.C. 79, 91, 833 S.E.2d 266, 272 (2019)). "A motion for a continuance is a procedural matter involving the progress of a case." Id. "An abuse of discretion occurs either when a court is controlled by some error of law, or where the order is based upon findings of fact lacking evidentiary support." Id. (quoting Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004)). "A failure to exercise discretion amounts to an abuse of that discretion." Samples v. Mitchell, 329 S.C. 105, 112, 495 S.E.2d 213, 216 (Ct. App. 1997).
In Sellers, at the beginning of the hearing, the mother requested a continuance, which the family court denied, relying on the language of an order disqualifying her counsel. The order provided her counsel's disqualification "'shall not' under any circumstances be a basis for continuing the trial." 432 S.C. at 115, 851 S.E.2d at 61. The family court found only the chief administrative judge could continue the case. Id. The mother appealed, and this court held that the family court judge who decided the disqualification could not usurp the discretion of the family court judge hearing the case at trial; thus, the family court abused its discretion by failing to exercise any discretion in addressing the motion for a continuance. Id.
Nevertheless, the Sellers court found the mother was not prejudiced by the abuse of discretion because the family court reached the correct result when it denied her a continuance. Id. at 116, 851 S.E.2d at 61. The court explained:
In Mother's case, on October 26, 2017, the family court notified the parties that the date certain final hearing had been set for January 22 through 24, 2018. On November 6, 2017, Mother's counsel-who was at least the second attorney to represent Mother in the current litigation-filed a motion to be relieved (with Mother's signed consent), and a consent order relieving counsel was filed with the court on November 28, 2017.[3] When Mother signed the consent motion to relieve her attorney, who had been representing her for over a year, she additionally agreed to the following provision: "The Defendant, Ms. Ford shall have thirty (30) days from the date of this Order to find new representation or inform the Court of her intention to precede [sic] pro se." Thereafter, Mother neither retained new counsel nor notified the family court within the thirty-day period of her intention to proceed pro se. She filed the motion for a continuance on January 12, 2018, claiming she had consulted with an attorney who advised her he would take her case if she could obtain a continuance of the January 22 trial.
On the first day of trial, Mother reported to the trial court, "[I]t has taken me until this time to be able to find, last Tuesday, to find an attorney, um, [an attorney] in Columbia," but the attorney advised her that he would only "take the case contingent on receiving the continuance from the court." The guardian ad litem acknowledged Mother made some reasonable attempts to retain new counsel by contacting a different attorney in early January, but these efforts were ultimately unsuccessful. At oral argument, Mother's counsel indicated that this attorney declined to take the case after discussing the case history with the guardian.
Although it appears the trial judge was aware as early as January 19, 2018, that the chief administrative judge had not ruled on Mother's motion, nothing in the record supports Mother's allegation that the trial judge somehow prevented the chief administrative judge from addressing the continuance request. In any event, upon reviewing Mother's motion for a continuance and the chronology of this litigation, as in Sellers, we find Mother failed to provide a "good and sufficient legal cause" for continuing the final hearing in this matter. Mother consented to an order relieving her attorney of record, who had represented her for over sixteen months during the pendency of the litigation, knowing a contested trial was scheduled to begin approximately seventy-seven days after she signed the consent order. Mother further consented to a provision that she would notify the court of her new attorney or her intention to represent herself within thirty days of the date of the order, which she failed to do.
Mother next argues the trial judge abused his discretion by ruling on the motion for a continuance despite knowing he lacked jurisdiction to consider it "and not ensuring the Chief Administrative Judge or an alternate Chief Administrative Judge from another circuit hear the motion." Mother asserts that because the case was more than 365 days old, her motion fell within the sole discretion of the chief administrative judge.[4] We find the lack of prejudice discussed above dispositive of this argument as well.
Finally, Mother contends the trial judge abused his discretion by basing his denial of a continuance on the opposition of opposing counsel and the guardian ad litem as the court's factual conclusions lacked evidentiary support. While we agree the record reflects the guardian remained neutral on the question of a continuance, we find Father's opposition was certainly stated, and the trial judge properly relied on it in denying Mother's request.
Counsel for Father pointed out that although the consent order relieving counsel was not filed until November 28, 2017, it was signed on November 6, 2017; thus, Mother had over sixty days to obtain new counsel. Father further argued Mother's arguments were:
a little hollow in that we've already gone through four lawyers. Now we're gonna be on Number Five. I've spent the whole week and weekend getting ready. I got my experts coming, everybody has been paid, my client's here...
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