Sharp v. Sharp, 83-79

• Court: United States State Supreme Court of Wyoming
• Citation: 671 P.2d 317
• Docket Number: No. 83-79,83-79
• Parties: Clyde W. SHARP, Jr., Appellant (Defendant), v. Venita E. SHARP, Appellee (Plaintiff).
• Decision Date: 01 November 1983

Page 317

671 P.2d 317

Clyde W. SHARP, Jr., Appellant (Defendant), v. Venita E. SHARP, Appellee (Plaintiff).

No. 83-79.

Supreme Court of Wyoming.

Nov. 1, 1983.

Robert J. O'Neil of Thomas, O'Neil & Padget, Gillette, for appellant.

Paul J. Drew of Lubnau & Drew, Gillette, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROSE, Justice.

This is an action brought by Venita E. Sharp against her former husband, Clyde W. Sharp, Jr., to collect attorney's fees and unpaid child support which had accrued after the parties' divorce.

On February 25, 1983, the plaintiff-appellee filed a petition for order to show cause, the burden of which asked that the defendant-appellant appear and show cause why he should not be held in contempt for failing to comply with the child-support provisions of the divorce decree. On that same date a show-cause order was issued directing the appellant to appear on March 17, 1983 and show cause why he should not be held in contempt of court.

On March 17, 1983 a hearing on the appellee's petition was held, and the court found that the appellant had failed to pay child support as required by the divorce decree and entered judgment against him and in favor of the appellee in the sum of $2,325. The court did not award the appellee attorney's fees or costs.

The issues raised are these:

1. May the appellant raise the issue of whether the trial court abused its discretion in denying appellant's motion to continue without providing a record of the motion on appeal?

2. Whether the trial court properly exercised its discretion in denying the appellant's motion to continue.

3. Whether the appellee sustained her burden of proof in the trial court.

DECISION

We will affirm.

Issue No. 1:

May the appellant raise the issue of whether the trial court abused its discretion in denying appellant's motion to continue without providing a record of the motion on appeal?

The appellee urges that we should not consider the abuse-of-discretion issue since the appellant has not properly designated the record for appeal purposes and that it is appellant's burden to provide the record relevant to such issues as are to be reviewed in the appellate process. Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979). As authority for these propositions, appellee urges Rule 4.03, W.R.A.P. ¹

We agree that if the appellant makes no attempt to have the record settled, appeals based upon issues which would have been revealed by that record will not be considered. Petersen v. State, Wyo., 594 P.2d 978, 980 (1979); Nix v. Chambers, Wyo., 524 P.2d 589, 590 (1974); Wydisco, Inc. v. McMahon, Wyo., 520 P.2d 218 (1974).

This court will not consider whether there has been an abuse of discretion in denying a continuance where the issue is not raised in the court of first instance. Holly Sugar Corporation v. Perez, Wyo., 508 P.2d 595, 599 (1973).

In the case at bar, we find the record is sufficient to raise the question of abuse of discretion for this court's consideration. The transcript of the show-cause proceedings shows that the defendant Clyde Sharp, appearing pro se, complained to the judge that his motion for continuance should have been favorably considered, and the judge explained why the motion was overruled. The dialogue went like this:

"THE COURT: Well, Mr. Sharp, the reason that I did not give you a continuance of the hearing is because you've had 17 days to get an attorney and because--let me finish--because Mr. Drew made the representation that, as shortly as a week ago, you advised him that you weren't going to get an attorney. And then you show up the morning of the hearing wanting an attorney and wanting a continuance, and you could--let me finish, sir--and you could have come in at any time and not put everybody to the bother of showing up for the hearing if you had come in a lot earlier and said that you wanted an attorney, wanted a continuance. I can only conclude from that that your only purpose is delay.

"Now, you can say whatever you want.

"THE DEFENDANT: Doesn't a person have a right to change his mind whether he wants an attorney or not? At any time or--

"THE COURT: As long as you don't inconvenience anybody else. But the problem, sir, is that you have inconvenienced a lot of other people when you come waltzing in at the last minute 15 minutes late for the hearing, and then decide that you want an attorney. And I'm not going to permit you to do that."

This explanation, which is contained in the transcript which, in turn, has been made a part of the record on appeal, is sufficient to raise the abuse-of-discretion issue.

Issue No. 2:

Whether the trial court properly exercised its discretion in denying the appellant's motion to continue.

Accepting as true the facts contained in the contents of the dialogue between the court and Mr. Sharp, we hold that the court did not abuse its discretion in denying the appellant a continuance.

Since this appeal was filed, this court, on September 14, 1983, decided Bacon v. Carey Company, Wyo., 669 P.2d 533 (1983). There we reiterated the rule that the granting of a continuance is within the trial court's discretion. Armed Forces Cooperative Insuring Association v. Department of Insurance, Wyo., 622 P.2d 1318, 1326 (1981); Craver v. Craver, Wyo., 601 P.2d 999, 1000 (1979); Holly Sugar Corporation v. Perez, supra; Glover v. Berger, 72 Wyo. 221, 263 P.2d 498, 507 (1953). See also: Eldridge v. Rogers, 40 Wyo. 89, 275 P. 101, 102 (1929).

A continuance will be granted only upon good cause ² and a court will deny a continuance where the problem which gives rise to the request is the fault of the movant. We said as much in Craver v. Craver, supra, 601 P.2d at 1000, where it was held:

" * * * that the trial court may deny a continuance if the problem which gives rise to the request for a continuance is the fault of the party moving for the continuance."

In the case at bar the appellant had ample time to hire an attorney, which he did not do. Then, when he found himself faced with the show-cause hearing, he asked for a continuance, the purpose of which was delay. That was the court's finding, and we do not question it. Therefore, this case, like Bacon v. Carey Company, supra, is one where the request for continuance is made by the movant whose fault it was that the request was necessitated in the first instance. In these circumstances, it is not an abuse of discretion for the court to deny the motion for a continuance. Issue No. 3:

Whether the appellee sustained her burden of proof in ...