Siggelkow v. Siggelkow
| Decision Date | 30 April 1982 |
| Docket Number | No. 5630,5630 |
| Citation | 643 P.2d 985 |
| Parties | Walter H. SIGGELKOW, Appellant, v. Marilyn Sharon SIGGELKOW, Appellee. |
| Court | Alaska Supreme Court |
C. R. Kennelly, Kennelly, Azar & Donohue, P. C., Fairbanks, and George M. Yeager, Fairbanks, for appellant.
Richard D. Savell, Law Offices of Richard D. Savell, Fairbanks, for appellee.
Before BURKE, C. J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.
This appeal concerns an action for divorce. We address below the propriety of the superior court's denial of a motion for a continuance. We also address the award of attorney's fees and the assessment of the cost of providing a guardian ad litem.
Walter Siggelkow and Marilyn Siggelkow (hereafter the parties will be referred to by their first names) were married on October 16, 1968. There are two children of the marriage.
On December 7, 1979, Marilyn filed an action for divorce. Following the commencement of the divorce proceedings, Walter changed counsel on several occasions. Walter consented to the withdrawal of his second attorney prior to oral arguments that were to be held on April 8, 1980 for the disposition of various motions relating to the divorce. This prompted the parties to request postponement of the arguments until April 29, 1980. At the April 29 hearing Walter still did not have counsel. The court addressed Walter regarding his lack of representation at the hearing. Walter replied that he intended to be represented "in the final ... one." The court ordered that the case be set for trial within sixty days.
However, it became impossible to schedule the trial within sixty days. In June 1980, the court notified the parties by mail that it had set the divorce hearing for the week of August 11. On June 13, 1980, Walter signed the certified receipt indicating that he had received this notice. Walter wrote to the superior court on June 16, 1980, requesting that his case be continued until October. He claimed that some of his witnesses could not attend in August and that he had not been able to obtain certain documents. The hearing date was not changed.
On August 8, 1980, a pre-trial conference was held. Walter attended without counsel. However, Walter did have counsel on the day of the final divorce hearing, three days later. His counsel filed a notice of change of judge pursuant to Civil Rule 42(c). This recusal resulted in the reassignment of the case to another judge, and the final divorce hearing was rescheduled for September 3, 1980.
Walter moved for a continuance on August 18, 1980, alleging that he had been hospitalized in Fairbanks on August 15, 1980, and that he would not be able to "participate in his own trial for quite some time." A letter from a physician was attached in support of the motion. The superior court denied the motion on September 3, 1980, and the divorce hearing proceeded that same day.
The court entered judgment on October 13, 1980. The court awarded Marilyn custody of the children and a portion of the Siggelkows' property. The court also awarded Marilyn attorney's fees and costs. In addition, the court assessed against Walter all costs incurred by the State of Alaska in providing a guardian ad litem.
Walter appeals. He submits that the superior court erred in denying his motion to continue the divorce hearing, in awarding Marilyn attorney's fees, and in assessing him with the full cost of the guardian ad litem. 1
We have consistently held that "a trial court's refusal to grant a continuance will not be disturbed on appeal unless an abuse of discretion is demonstrated." Gregoire v. National Bank of Alaska, 413 P.2d 27, 33 (Alaska), cert. denied, 385 U.S. 923, 87 S.Ct. 238, 17 L.Ed.2d 147 (1966). 2 Denial of a motion for continuance constitutes an abuse of discretion "when a party has been deprived of a substantial right or seriously prejudiced." Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973). The particular facts and circumstances of each case determine whether the denial of a continuance is so unreasonable or so prejudicial as to amount to an abuse of discretion. Wright v. State, 501 P.2d 1360, 1366 (Alaska 1972); Kalmus v. Kalmus, 103 Cal.App.2d 405, 230 P.2d 57, 64 (1951), cert. denied, 342 U.S. 903, 72 S.Ct. 292, 96 L.Ed. 676 (1952). Several policy considerations intermingle in this determination. On the one hand,
(b)ecause of the necessity for orderly, prompt and effective disposition of litigation and the loss and hardship to the parties to an action, as well as to witnesses therein, it becomes and is part of the bounden duty of the trial judge, in the absence of some weighty reason to the contrary, to insist upon cases being heard and determined with as great promptness as the exigencies of the case will permit.
Kalmus v. Kalmus, 230 P.2d at 63.
On the other hand, the trial court's legitimate concern for preventing delay should not prejudice the substantial rights of parties by forcing them to go to trial without being able to fairly present their case. Yates v. Superior Court, 120 Ariz. 436, 586 P.2d 997, 998 (1978); Gonzales v. Harris, 189 Colo. 518, 542 P.2d 842, 844 (1975).
Walter asserts that the denial of his motion for a continuance prejudiced his case because ill health limited his opportunity to discuss his case with counsel and hampered their preparation for the divorce hearing. Allegedly, Walter was hospitalized only four or five days after he retained counsel.
Initially, we note that the "(i)llness of a party does not ipso facto require the granting of (a continuance)." Kalmus v. Kalmus, 230 P.2d at 63. Generally, the denial of a continuance requested on the ground of ill health will be held reversible error only when the applicant suffered prejudice as a result of the denial. 3
The prejudice that Walter claims to have suffered stems not from his illness, but from his late retention of counsel. Early in 1980, Walter's second attorney withdrew with Walter's consent. Walter had stated to the superior court at the April 29, 1980 hearing that he intended to have counsel "in the final ... one." Yet, Walter appeared at the pre-trial conference on August 8, 1980-three days before the final divorce hearing-without counsel. He has not explained why he waited until the court proceedings had almost started before hiring an attorney.
Late retention of counsel does not necessarily warrant a continuance:
(W)hen new counsel is engaged just prior to the trial date, the alleged lack of preparation on the part of such counsel is not necessarily a ground for continuance; particularly where the party has been guilty of negligence, such as inexcusable delay in employing the new counsel, or where such recently retained counsel could have prepared himself for trial by the exercise of reasonable diligence; but where he could not have thus prepared himself, the cause may, in a proper case, be continued.
Benson v. Benson, 66 Nev. 94, 204 P.2d 316, 318 (1949). Cf. Barrett v. Gagnon, 516 P.2d at 1203 (). If the rule were otherwise, "one or the other of the litigants could indefinitely avoid trial of the issues by making late substitutions." Benson v. Benson, 204 P.2d at 319, quoting Berger v. Mantle, 18 Cal.App.2d 245, 63 P.2d 335, 337 (1936).
In the present case, Walter received notice on June 13 that the final divorce hearing was scheduled to begin on August 11. 4 Notwithstanding such notice, Walter waited until the last minute to hire an attorney. No evidence is presented to excuse this delay in obtaining a new attorney. Prejudice resulting from a party's lack of diligence in securing an attorney does not afford a basis to obtain a continuance. See Maynard v. Bullis, 99 Cal.App.2d 805, 222 P.2d 685, 686 (1950); Benson v. Benson, 204 P.2d at 319. Moreover, since the challenge to the judge resulted in a postponement from August 11 to September 3, Walter's new attorney had adequate opportunity to prepare the case. In our view, the court's decision to proceed as scheduled did not deprive Walter of the right to present his case. We conclude, therefore, that the denial of the motion for continuance was not an abuse of discretion.
At the close of the trial the superior court declared its oral decision. With respect to attorney's fees the court stated, "The plaintiff is the prevailing party in this litigation and is entitled to costs and attorney's fees." In its findings of fact the superior court again stated that "(p)laintiff is the prevailing party herein, and is entitled to an award of costs and attorney fees." The final judgment of the superior court awarded plaintiff costs in the amount of $1,224.91 and attorney's fees in the amount of $6,558.27.
The superior court evidently based its award of attorney's fees and costs upon the "prevailing party" rule of Civil Rule 82 that normally governs the award of attorney's fees. However, divorce actions constitute an exception to this rule. AS 09.55.200(a)(1) regulates the award of attorney's fees and costs in divorce cases. Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981); Johnson v. Johnson, 564 P.2d 71, 76-77 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978); Burrell v. Burrell, 537 P.2d 1, 6-7 (Alaska 1975). AS 09.55.200(a) provides in part:
During the pendency of the action the court may provide by order
(1) that one spouse pay an amount of money as may be necessary to enable the other to prosecute or defend the action; ...
As noted in Sherry v. Sherry, 622 P.2d 960, 965 (Alaska 1981), the statute "permits, but does not compel," the award of attorney's fees and costs.
Nevertheless, according to the rule that a proper result will not be disturbed on appeal regardless of the reasoning employed below, 5 the superior court's erroneous reliance upon the...
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