Sims v. Day, 03-198

• Decision Date: 28 October 2004
• Docket Number: No. 03-198,03-198
• Citation: 2004 WY 124,99 P.3d 964
• Parties: STEVEN P. SIMS, Appellant (Defendant), v. CYNTHIA S. DAY, f/k/a CYNTHIA S. SIMS, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2004 WY 124

99 P.3d 964

STEVEN P. SIMS, Appellant (Defendant), v. CYNTHIA S. DAY, f/k/a CYNTHIA S. SIMS, Appellee (Plaintiff).

No. 03-198

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

October 28, 2004

Representing Appellant: Mike Cornia, Evanston, Wyoming.

Representing Appellee: Farrah L. Fraughton of Harris Law Firm, P.C., Evanston, Wyoming

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶1] In this case, we must consider whether the district court abused its discretion when it granted an attorney's motion to withdraw without adhering to the mandatory requirements of Uniform Rules for District Courts 102(c). After his attorney withdrew, Appellant Steven P. Sims requested a continuance to obtain substitute counsel, but that request was denied. Sims challenges that denial as an abuse of discretion. Unrepresented at a show cause hearing, Sims' visitation with his daughter was modified, he was found in contempt for failing to pay child support, and attorney's fees were awarded. Sims contends that he was denied due process when the trial court decreased his visitation with his daughter by one third without notice at a hearing that was limited to consider whether he was in contempt for failure to timely satisfy a child support judgment against him.

[¶2] We hold that although the requirements set forth in Rule 102(c) are mandatory, district courts do have the discretion to vary from its requirements to control the course of litigation and avoid unwarranted delays when continuing without substitute counsel would not violate a substantial right of the client and no prejudice would result. Under the particular circumstances of this case, however, we hold that the district court abused its discretion by not adhering to Rule 102(c)'s requirements because it allowed Sims' attorney to withdraw on the eve of trial without either notifying the district court that substitute counsel would enter an appearance or providing the district court with Sims' statement that he would proceed pro se. No showing of extraordinary circumstance was made justifying the grant of the motion to withdraw. Denying Sims' request for a continuance to allow him to obtain substitute counsel, the district court proceeded to hearing and issued a child custody modification that is unsupported by the evidence. We therefore find that Sims has carried his burden of proving that a substantial right was violated and he was prejudiced. We reverse the judgment of the district court and remand for a new hearing.

ISSUES

[¶3] Sims presents this statement of the issues:

I. Did the trial court abuse its discretion when it ordered that appellant's counsel be allowed to withdraw one business day before his hearing?

II. Did the trial court's denial of appellant's request for continuance to obtain new counsel after allowing withdrawal [one business day] prior to the hearing require reversal?

III. [Was] the appellant denied due process when the trial court decreased his visitation by one third at a show cause hearing?

Appellee Cynthia S. Day (Day) rephrases the issues as follows:

I. Did the district court abuse its discretion in allowing appellant's counsel to withdraw prior to hearing and denying appellant's request for a continuance?

II. Did the district court abuse its discretion when it modified appellant's visitation rights?

FACTS

[¶4] During their marriage, Sims and Day had one child. When the parents separated, they negotiated an agreement for joint custody with Day having primary physical custody and Sims receiving substantial visitation of seventy-two hours per week in lieu of standard visitation. This stipulated agreement was incorporated in their divorce decree entered on May 13, 1999, and reads as follows:

At least Seventy-two (72) hours of visitation each and every week, said visitation to take place when Defendant is not working at his place of employment, such visitation is in lieu of "standard" weekend visitation as normally awarded by this Court, as Defendant normally works during the weekend; such visitation is also in lieu of the "standard" holiday and summer visitation as normally awarded by this Court, as Defendant, under this decree, shall have visitation each and every week.

On January 3, 2003, Day filed a petition to modify visitation to a standard schedule and to seek an order to show cause why Sims should not be held in contempt for child support arrearages. On January 9, 2003, the district court entered an order to show cause and setting hearing. Sims' attorney filed a counterpetition, and the show cause hearing was continued while negotiations were conducted.

[¶5] After representing Sims since February of 2003, and having secured a continuance for a show cause hearing to Monday, July 7, 2003, Sims' attorney filed a motion to withdraw on July 1, 2003. He mailed a copy of that motion to his client and the next day, July 2, the district court signed an order allowing the attorney to withdraw from the case. On July 3, 2003, Sims received his mailed copy of his attorney's motion to withdraw. Sims contends that he was not afforded notice of the motion in accordance with the rules of civil procedure before it was granted and was not notified that the order was entered. A national holiday and the weekend intervened and early on Monday, Sims found himself in front of the district court requesting a continuance to find substitute counsel. That request was denied.

[¶6] The proceeding had been noticed as a "show cause" hearing; however, the district court proceeded with a hearing on the combined issues of modification and contempt. In less than one page of transcript record, the issue of material change of circumstances was decided when the district court asked Sims whether he agreed that his child was now five years old and of school age. Sims agreed, and the district court summarily determined "that to be a material change in circumstances" and advised Sims that he would be losing hours of visitation.

[¶7] Sims objected to the drastic loss of visitation that would result from a standard visitation schedule, but that objection was overruled. Neither Sims nor the district court addressed any evidence supporting modification of a stipulated visitation agreement. Sims proposed that he be allowed to maintain reduced weekly visitation, but the district court summarily rejected Sims' alternative visitation proposal.

[¶8] The district court then considered contempt and, after advising Sims that he could be jailed if found in contempt, the district court found him in contempt and ordered an arrearage amount. Sims contends that the amount determined is not supported by the record. The record shows that Sims agreed that there was no "factual issue whether [he had] missed paying the $140 a month totaling $4480." Day contends that the record shows that the $4,480 represents an arrearage of daycare expenses of $140 per month from January 1, 2000, through August 31, 2002, and, because Sims did not dispute the amount, no evidence was necessary. After the hearing, orders were entered for payment of arrearage, modification of visitation, and an award of Day's attorney fees. This appeal followed.

DISCUSSION

Abuse of Discretion

[¶9] Sims first claims the district court abused its discretion when it allowed Sims' counsel to withdraw one business day before his hearing. Because the mandatory language of Uniform Rules for District Courts 102(c) is at issue, Sims contends that our review should be de novo; however, he concedes that under long standing precedent, our review of motions to withdraw and for a continuance is the abuse of discretion standard. Byrd v. Mahaffey, 2003 WY 137, ¶5, 78 P.3d 671, ¶5 (Wyo. 2003). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Ready v. Ready, 2003 WY 121, ¶11, 76 P.3d 836, ¶11 (Wyo. 2003); Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). "We must ask ourselves whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Ready, ¶11 (citing Johnson v. Johnson, 11 P.3d 948, 950 (Wyo. 2000)).

[¶10] Rule 102(c) provides:

Counsel will not be permitted to withdraw from a case except upon court order. Except in the case of extraordinary circumstances, the court shall condition withdrawal of counsel upon the substitution of other counsel by written appearance. In the alternative, the court shall allow withdrawal upon a statement submitted by the client acknowledging the withdrawal of counsel for the client, and stating a desire to proceed pro se. An attorney who has entered a limited entry of appearance shall be deemed to have withdrawn when the attorney has fulfilled the duties of the limited entry of appearance.

As Sims notes, the rule's requirement that withdrawal be conditioned upon either substitution of other counsel or a client's statement of a desire to proceed pro se was not followed in this case. Under our general rule, language in a rule that prohibits a certain act is mandatory language "to refrain altogether from doing the forbidden act." Wyoming State Treasurer v. City of Casper, 551 P.2d 687, 699 (Wyo. 1976). We have previously determined that the use of the term "shall" in a procedural rule is generally mandatory. Loghry v. Loghry, 920 P.2d 664, 668 (Wyo. 1996). Loghry stated that "[o]rderly judicial administration is dependent upon procedural rules, and in order to assure uniform and timely disposition of appeals they must be enforced and not relaxed or changed at the whim of any court." Id. (quoting Mayland v. State, 568 P.2d 897, 899 (Wyo. 1977)) (emphasis omitted). Loghry held that reasonable adherence to the rules of the court is necessary to the proper administration of justice. 568 P.2d at 668 (citing Mayla...