James v. James, D.C. Civil No. 1987/342

• Decision Date: 16 December 1988
• Docket Number: T.C. Civil No. D-84/87,D.C. Civil No. 1987/342
• Citation: 24 V.I. 122
• Parties: ALICE D. JAMES, Plaintiff v. PAUL A. JAMES, Defendant/Appellant
• Court: U.S. District Court — Virgin Islands

24 V.I. 122

ALICE D. JAMES, Plaintiff v. PAUL A. JAMES, Defendant/Appellant

D.C. Civil No. 1987/342

T.C. Civil No. D-84/87

District Court of the Virgin Islands Div. of St. Croix

December 16, 1988

Appeal from Territorial Court divorce action, arguing that divorce judgment should be vacated because the trial court erroneously denied motions for continuance and recusal. The Appellate Division, per curiam, vacated the judgment and remanded, holding that the failure to grant a continuance based on the withdrawal of defendant's attorney severely prejudiced the defendant, by forcing him to proceed at trial pro se.DIANE TRACE WARLICK, ESQ., St. Croix, V.I., for defendant/appellant

O'BRIEN, Presiding Judge; BROTMAN,^* District Judge and MEYERS, Territorial Court Judge

OPINION

PER CURIAM

We decide in this appeal that the trial court's failure to grant a continuance constitutes an abuse of discretion. We will vacate the judgment entered below and remand for a new trial.¹

I. FACTS and PROCEDURAL BACKGROUND

Paul and Alice James were married on July 7, 1984. Mrs. James filed for divorce on April 10, 1987. Alimony pendente lite of $500.00 per month was ordered on May 12, 1987. After an aborted attempt to settle the divorce action without a trial, Mr. James' attorney withdrew from the case. On July 2, 1987, Mr. James was ordered to retain substitute counsel who was to file a notice of appearance. On July 29, 1988, the case was reassigned to another territorial court judge, to whom Mr. James directed a motion of recusal, which was denied. Trial was set for September 9, 1987, at which time Mr. James' renewed motion to recuse and a motion to dismiss were denied. He represented to the court that Renee Dowling, Esq., had been retained to represent him, but due to a family emergency she could not be present that day. A continuance was granted to October 14, 1987.

On October 14, 1987, Mr. James requested another continuance alleging that Dowling had called him the previous evening to withdraw from the case. The court refused to grant a continuance and proceeded with the trial with Mr. James appearing pro se.

Judgment was entered November 13, 1987, granting Mrs. James a divorce absolute and $250.00 per month alimony, to be reviewed in six months. Mr. James appealed to this Court arguing that thejudgment should be vacated because the trial court erroneously denied the motions for continuance and recusal. He further argues the court erroneously placed upon him the burden of proving his wife's non-disability, or alternatively, that the finding that his wife is disabled is clearly erroneous.

II. DISCUSSION

A. Motion for Continuance

[1] We review the denial of a motion for a continuance for abuse of discretion. Business Ass'n of Univ. City v. Landrieu, 660 F.2d 867, 878 (3d Cir. 1981). The following colloquy took place in court upon Mr. James' request for a continuance.

MR. JAMES: Your Honor, yesterday afternoon around 5:15, my granddaughter called me on the telephone and said she will not represent me in this case. She said she told you all about it weeks ago and the court did not notify me.

THE COURT: For the record, this matter was continued over the strong objection of the Plaintiff on September 9, 1987. And Mr. James, at that time, requested the opportunity to appear with counsel. And because of a family illness, Attorney Renee Dowling, was unable to be present at that time. That was what was represented by Mr. James and I had no reason to doubt that representation to the court.

This matter was set down today as a peremptory date. In the interim, there has been no appearance by Renee Dowling or any other attorney on behalf of Paul A. James, for the record.

I am advised by Mrs. Miranda that she was contacted by telephone by Attorney Dowling who advised that she would not be representing Mr. James. And, accordingly, this matter is set for hearing today and we will go ahead with the hearing.

App. at 55-56.

[2, 3] Due process requires that a party be allowed legal representation to protect his interests in court proceedings. Cf. Martin v. Lauer, 686 F.2d 24, 31 (D.C. Cir. 1982) (citations omitted); Carr v. Pena, 432 F. Supp. 828, 833 (D.V.I. 1977). The case law indicates that in deciding a motion for continuance, any relevant circumstances should be evaluated, including prejudice to the parties should it be granted or denied. See Clark v. Lutcher, 77 F.R.D. 415, 418 (M.D. Pa. 1977); see generally Molthan v. TempleUniversity, 778 F.2d 955, 958-59 (3d Cir. 1985); Landrieu, 660 F.2d at 878.

It is unclear from the record whether Dowling, in fact, had been retained by Mr. James. He allegedly retained Dowling sometime before the September 9, 1987 hearing; however, she failed to file a notice of appearance, as is appropriate, and as ordered by the court below, V.I. Code Ann. tit. 5, App. IV, Rule 84; Order dated July 2, 1987.

[4] The court based its decision on the fact that the matter had previously been continued and the matter reset for a date absolute. Of course, a trial court has broad authority to control the efficient disposition of its docket, but this discretion should not be used against a party whose attorney withdraws from the case at the last minute. Additionally, a short delay could not have disadvantaged Mrs. James as she was entitled to alimony pendente lite of $500.00 per month. By contrast, Mr. James was severely prejudiced by being forced to proceed pro se as is evidenced by the record.

[5] We find that the trial judge's failure to conduct a more specific inquiry into Dowling's withdrawal, followed by its refusal to continue the trial to another day was an abuse of discretion. The case must be remanded for a new trial on the merits.

B. Motion to Recuse

Mr. James alleges that the trial judge should have recused himself pursuant to V.I. Code Ann. tit. 4, § 284(4). Two motions for recusal pursuant to § 284(4) were filed by Mr. James. In the first motion, Mr. James stated by affidavit that he had sought legal representation in this divorce action with the law firm to which the judge belonged before he left private practice. He was told the firm did not handle divorce cases. The judge denied the motion by written order, holding the motion was too vague, but noted that he had not spoken with Mr. James about the case prior to taking the bench.

Mr. James then filed a second motion and affidavit, stating that he had spoken directly with this judge, then attorney, at his prior law firm. He was told that he did not handle divorce cases, and was referred to another attorney. Moreover, he does not assert that any details of the case were discussed. Mr. James also contended in his affidavit that the judge was biased or prejudiced, becausea couple of months previously, he had dismissed a verbal assault² complaint against Mrs. James which was supported by a police report. This motion was denied at the hearing on September 9, 1987. No written decision was entered in the record.

V.I. Code Ann. tit. 4, § 284(4)...