Hawblitzel v. Hawblitzel

• Decision Date: 21 April 1983
• Docket Number: No. 3-482A61,3-482A61
• Parties: In re The Marriage of Virginia M. HAWBLITZEL, Respondent-Appellant, v. Stanley J. HAWBLITZEL, Petitioner-Appellee.
• Court: Indiana Appellate Court

Page 1156

447 N.E.2d 1156

In re The Marriage of Virginia M. HAWBLITZEL, Respondent-Appellant, v. Stanley J. HAWBLITZEL, Petitioner-Appellee.

No. 3-482A61.

Court of Appeals of Indiana,

Third District.

April 21, 1983.

Charles W. Lahey, South Bend, for respondent-appellant.

Arthur J. Perry, South Bend, for petitioner-appellee.

GARRARD, Judge.

The wife appeals from a judgment rendered on the husband's petition for dissolution of marriage.

The parties were married in December of 1973. The marriage was the second for both. Each spouse entered the marriage owning a residence in South Bend. Husband's house was located at 20150 W. Dice Street and wife's was at 1323 Longfellow Drive. The parties resided in the wife's residence during their marriage. The residence on W. Dice Street was sold in 1977 for $19,200 and a house was purchased at 200 Michigan Street in Argos, Indiana. The parties were remodelling the Argos residence when the petition for dissolution was filed. Also, each spouse brought sundry personal possessions into the marriage, including household goods and an automobile.

Husband filed his petition for dissolution of marriage on July 25, 1980. A trial was held on March 18 and 19 of 1981 and final judgment was entered on the petition on August 14, 1981.

We find the wife raises four contentions of error, which for the sake of clarity we state as:

1. Did the trial court abuse its discretion in allowing the wife's counsel to withdraw from the case on the morning of the trial?

2. Did the trial court err in denying the wife's motion to reopen the case for the introduction of additional evidence?

3. Did the trial court abuse its discretion in making the property division?

4. Did the trial court abuse its discretion in its award of attorney fees to the husband's counsel?

ISSUE 1:

The wife had been subpoenaed to attend a deposition at 9:00 a.m. on March 18, 1981. The trial on husband's petition for dissolution was scheduled to begin at 2:00 p.m. on that day. The wife did not appear for the deposition. Her counsel received a message to the effect that the wife was ill, but no verification of such a fact was offered to the court or counsel. Counsel then requested of the court that he be allowed to withdraw from the case. The court granted that motion. Consequently, the wife was without counsel of record on the day trial was to be held.

The court made considerable effort to locate the wife before proceeding to trial. Directory assistance was consulted but did not have a number for her. The friend who had relayed the message to her attorney was telephoned but did not answer. Area hospitals were also called but none had the wife as a patient. When these attempts to contact the wife proved futile, the court proceeded with the trial.

The wife has not addressed in separate arguments what we have denoted as issues 1 and 2. Rather, she argues the combined acts of the trial court in that it granted counsel's request to withdraw and denied the subsequent motion to reopen the case constituted a denial of a fair trial. We choose to consider the propriety of the trial court's actions separately in determining whether error occurred.

The wife's attorney orally moved for leave to withdraw on the morning of March 18, 1981. He filed with the court a copy of a letter which he had hand delivered to the wife's residence on March 17. Whether or not she personally accepted the letter is not disclosed by the record. As stated therein, the letter was intended as a memorialization of a telephone conversation which the attorney had with the wife in the morning on March 17. He had advised her that she was under subpoena and thus obligated to appear at the deposition and trial on March 18. He also had warned her that a body attachment for her arrest could be issued if she failed to appear.

We find this excerpt from the letter to be particularly relevant as to whether counsel's withdrawal with leave of court constituted error:

"May this letter further serve to memorialize the fact that during our telephone conversation, you accused me of removing from your motor vehicle a deed to certain property which I did then, and I do now, categorically deny. Considering your accusation that I have taken your property from you, I advised you I would withdraw my appearance as your counsel in this case, and that you would have to immediately obtain the service of substitute counsel, which counsel should be present with you at the deposition scheduled for Wednesday, March 18, 1981 at 9:00 a.m. and at the trial scheduled for Wednesday, March 18, 1981, and Thursday, March 19, 1981, beginning at 2:00 p.m. on each day."

The wife does not dispute the veracity of these statements.

Thus, the evidence discloses that the wife had accused her counsel of exercising unauthorized control over her property and he had advised her of his intent to withdraw. Counsel could not be expected to continue his representation of the wife after she had, in essence, accused him of theft. The trust and confidence essential to the viability of any attorney-client relationship no longer was present between the wife and her counsel. We believe counsel, by seeking the court's leave to withdraw, was pursuing a course of action that was reasonable under the circumstances.

We are cognizant of the fact that counsel gave the wife only one day's notice of his intent to withdraw. ¹ On such short notice the wife could have been under substantial time constraints in employing new counsel before trial commenced. However, at no point in the proceedings did the wife appear and request a continuance or otherwise seek relief from the court. Counsel gave notice of intent to withdraw on March 17. On the morning of March 18 the court granted counsel leave to withdraw. In the afternoon of March 18 the court proceeded with the scheduled trial on the dissolution without an appearance being made on behalf of the wife. She argues error occurred when the court allowed counsel to withdraw under these circumstances. We do not agree.

In essence, the wife is asserting that but for the withdrawal of her counsel, she would have received a fair trial. True, the wife was without legal representation when the court proceeded with trial, but absence of counsel does not necessarily precipitate reversible error. See In re Marriage of Robbins (1976), 171 Ind.App. 509, 358 N.E.2d 153, ² overruled on other grounds (1983), Ind., 446 N.E.2d 332 (1983).

The wife has not demonstrated to this court that she made a reasonable effort to obtain new counsel for the trial date. Further, the wife did not make an appearance at trial, either to plead her case or to seek a continuance. Notwithstanding her apparent lack of diligence, she contends a "mental infirmity" should have excused her failure to obtain counsel or personally appear at trial to defend the action. In so arguing she cites Duncan v. Binford (1972), 151 Ind.App. 199, 278 N.E.2d 591. In Duncan we did note:

"[P]hysical or mental infirmity will excuse the party's failure to defend the action where such infirmity prevented the party's timely appearance in court and prevented the party from engaging counsel to either appear in the absent party's behalf or to request a continuance until the party is able to appear."

278 N.E.2d at 597.

The wife has not put forth any evidence which substantiates her allegations of infirmity. She sent a message through a friend that she was ill on the day of trial, but this second hand communication alone does not necessarily establish grounds for relief. Furthermore, the wife had demonstrated considerable lack of regard for the court in the proceedings leading up to the trial. During the period between the petition and trial the wife's behavior was uncooperative and, at times, intransigent. She refused to submit to the husband's request for a deposition. When ordered to do so by the court she failed to appear. Consequently, a body attachment for her arrest was issued and she was taken into custody by the sheriff. The court ordered the wife held for four days in order that her deposition could be taken. The sheriff also escorted the wife to a bank where she opened a safety deposit box. The box contained $55,044 in cash which the wife had drawn from various financial accounts after the parties separated. The sheriff took the contents of the box into his custody and the body attachment was vacated. However, the wife was still under subpoena to appear at a deposition scheduled for the morning of March 18. As detailed above, the wife failed to appear for that deposition or the trial.

We find in the above facts evidence that the wife held the entire proceedings in disdain. She refused to comply with court orders; orders made necessary by her obstinate behavior in general. She took obvious efforts to conceal the cash assets in her possession. Thus, complex and expensive discovery was required to ferret out the assets held by her. She unnecessarily, and certainly unjustifiably, burdened the already heavily taxed judicial system.

We need not countenance such behavior and are not sympathetic toward a party who fails to make an appearance at trial, yet asserts error because the record does not contain what she asserts to be critical evidence. Each party is responsible for his or her own representation, whether they engage legal counsel or appear on their own behalf. In the civil context the defendant is so informed at the initiation of a suit by the terms of the summons. The wife had five counsel of record between the filing of the dissolution petition and the trial. The record does not disclose why, but each was granted leave to withdraw. Nevertheless, by having such a multitude of counsel available during the course of the proceedings, the wife was surely apprised of the consequences of not being represented at an adversarial legal proceeding.

The trial court's granting of counsel's motion to withdraw is subject to review...