Hess v. Hess, 02A03-9607-CV-255

• Citation: 679 N.E.2d 153
• Decision Date: 28 April 1997
• Docket Number: No. 02A03-9607-CV-255,02A03-9607-CV-255
• Parties: Brian A. HESS, Appellant-Respondent, v. Barbara A. HESS, Appellee-Petitioner.
• Court: Court of Appeals of Indiana

Page 153

679 N.E.2d 153

Brian A. HESS, Appellant-Respondent, v. Barbara A. HESS, Appellee-Petitioner.

No. 02A03-9607-CV-255.

Court of Appeals of Indiana.

April 28, 1997.

Timothy Logan, Benson, Pantello, Morris, James & Logan, Fort Wayne, for Appellant-Respondent.

Sherie L. Hampshire, C. David Peebles, Fort Wayne, for Appellee-Petitioner.

OPINION

GARRARD, Judge.

STATEMENT OF THE CASE

Brian A. Hess ("Husband") appeals the trial court's decree dissolving his marriage to Barbara A. Hess ("Wife"). The sole issue presented for our review is whether the trial court abused its discretion when it denied Husband's motion for a continuance.

We reverse and remand.

FACTS

Husband and Wife were married on November 3, 1979. Two children were born of the marriage. On June 24, 1994, Wife filed her petition for dissolution of marriage. In September of 1995, Wife's counsel filed a notice of discovery, certificate of readiness, request for pre-trial conference and request for a trial date. Following a pre-trial conference and subsequent pre-trial order of the court, trial was scheduled for March 13, 1996. On March 8, 1996, four days prior to trial, Husband's attorney filed a motion to withdraw his appearance on behalf of Husband, which motion was granted by the trial court. By letter dated that same day, Husband's attorney advised Husband that trial was set for March 13, 1996, and that Husband needed to promptly contact another attorney to represent him. Husband's attorney did not move for a continuance on Husband's behalf, but instead suggested that Husband himself contact the trial court and request a continuance of the March 13, trial date. On Monday, March 11, 1996, Husband filed his pro se motion for a continuance. On March 13, the day of trial, the trial court heard brief argument on Husband's motion for a continuance, denied the motion, and proceeded with the dissolution hearing. Thereafter, the trial court rendered its dissolution decree which included the division of marital property and a child custody determination.

DISCUSSION AND DECISION

The decision to grant or deny a continuance is within the sound discretion of the trial court, and we will not reverse that decision unless the trial court has abused its discretion. Homehealth, Inc. v. Heritage Mut. Ins. Co., 662 N.E.2d 195, 198 (Ind.Ct.App.1996), trans. denied. A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom. Id. If good cause is shown for granting the motion, denial of a continuance will be deemed to be an abuse of discretion. Koors v. Great Southwest Fire Ins. Co., 530 N.E.2d 780, 783 (Ind.Ct.App.1988); see Ind. Trial Rule 53.5.

The unexpected and untimely withdrawal of counsel does not necessarily entitle a party to a continuance. Koors, 530 N.E.2d at 783. However, the denial of a continuance based on the withdrawal of counsel may be error when the moving party is free from fault and his rights are likely to be prejudiced by the denial. Id.

Further, among the things to be considered on appeal from the denial of a motion for continuance, we must consider whether the denial of a continuance resulted in the deprivation of counsel at a crucial stage in the proceedings. See Homehealth, Inc., 662 N.E.2d at 198. We must also consider whether a delay would have prejudiced the opposing party to an extent sufficient to justify denial of the continuance. Id.

In the present case, we conclude that Husband demonstrated good cause for a continuance of the March 13, 1996, trial date. The record ¹ indicates that, because of statements of distrust made by Husband to his attorney during settlement negotiations between the parties held on Friday, March 8, Husband's attorney determined that it was impossible for him to continue representing Husband, as Husband would not have been satisfied with his representation. Husband's attorney walked out of the settlement negotiations and filed a motion to withdraw his appearance, which was granted by the trial court that same day. Thus, Husband was left without counsel, merely four days prior to trial. In his pro se motion for a continuance, filed on Monday, March 11, Husband stated that after being informed that his counsel had filed a motion to withdraw, he requested that counsel file for continuance on his behalf; however, his counsel's office staff informed him that counsel would not do so. Husband further asked the court to consider the difficulty of finding proper representation on such short notice. Husband's request for continuance was not denied by the trial court until March 13, the day of trial. On the day of trial, Husband appeared without counsel and argued to the court that he had tried to procure counsel both over the weekend and just prior to filing his motion for continuance but was unable to obtain representation.

Although we cannot say that Husband is wholly free from fault for his counsel's withdrawal, we similarly cannot say that, in dissolution proceedings where emotions run high, attorney-client disagreement and conflict are unique. There is nothing in the record to show that Husband intended or could foresee that counsel would withdraw at such a late hour. We also find it significant that the record does not demonstrate...