Smith v. Smith, Court of Appeals Case No. 19A-DN-926

Docket NºCourt of Appeals Case No. 19A-DN-926
Citation136 N.E.3d 656
Case DateDecember 18, 2019
CourtCourt of Appeals of Indiana

136 N.E.3d 656

Rickey SMITH, Appellant-Respondent,
v.
Leslie SMITH, Appellee-Petitioner.

Court of Appeals Case No. 19A-DN-926

Court of Appeals of Indiana.

Filed December 18, 2019


Attorney for Appellant: Jonathan D. Harwell, Indianapolis, Indiana

Appellee Pro Se: Leslie M. Smith, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

1] Rickey Smith ("Husband") appeals the trial court's denial of his motion to continue the dissolution hearing. We reverse and remand.

Issue

[2] Husband presents one issue on appeal, which we restate as whether the trial court abused its discretion when it denied Husband's motion for continuance.

Facts

[3] Husband and Leslie Smith ("Wife") married in 1986 and separated on November 2, 2018, when Wife filed a petition for dissolution of marriage. The couple has one emancipated adult child. On December 19, 2018, the trial court set the final hearing for March 5, 2019, at 9:00 a.m.

[4] On March 4, 2019, Husband's attorney filed a motion to withdraw, indicating that: (1) "a breakdown in the attorney client relationship has occurred. Counsel is no longer able to adequately represent the Respondent..."; and (2) "[a]s of the date of filing, Respondent no longer wishes Counsel to continue representation and has obtained a copy of his entire file." Appellant's App. Vol. II p. 15. Husband's attorney did not include a motion to continue the dissolution hearing, which was set for the following day. That same day, the trial court granted Husband's attorney's motion to withdraw.

[5] On March 5, 2019, Husband appeared pro se at the dissolution hearing and Wife appeared with her counsel. When Wife's attorney called Wife to testify, Husband and the trial court engaged in the following discussion:

[HUSBAND]: I had surgery the 19th of February. I still have 14 stitches in me. [Husband's former attorney] did not send me nothing. I have not – I – I have not seen our – uh W2 forms. I go to VA to try and get my VA started again. And after the paperwork they said I haven't had my taxes done in 5 years. But Josh said she has tax forms. So, Josh got mad at me – I've been sleeping on the street since September, sir. I'm 65 years old. She ran me out of the house by turning off the thermos – the – uh.... (Unintelligible) – uh – on both sides of the house. And then she started using the nest – uh – (Unintelligible) setting that off in the middle of the night. Then she started...

[WIFE'S ATTORNEY]: ... Objection, Judge....

* * * * *

[HUSBAND]: ... I haven't seen anything. Josh haven't [sic] given me anything. I had surgery the 19th. I was down (Unintelligible) – you can see all my notes on my phone...

THE COURT: ... Sir, what – what are you getting to.

[HUSBAND]: ... Well, (Unintelligible) a continuance to get an attorney.

[136 N.E.3d 658

THE COURT: No, that'll be denied.

[WIFE]: .... No.

* * * * *

THE COURT: ... Your attorney moved to withdraw yesterday....

* * * * *

THE COURT: ... And there – and there was no contemplation that you needed a continuance at all.

[HUSBAND]: ... Well, sir...

THE COURT: ... He indicated that you fired him at the last minute.

[HUSBAND]: Yes, sir – yes, sir.

THE COURT: So we're going to finish this today...

* * * * *

THE COURT: Now, if you would like a minute to review all of that and to talk to [Wife's attorney], perhaps we can come to an agreement. This is a case without children.

* * * * *

THE COURT: ... This is about stuff.

[HUSBAND]: Yes, sir.

THE COURT: This should be a very simple proposition.

Tr. Vol. II pp. 5-6.

6] Husband told the trial court: "... I'm a 65-year veteran. I have not educated [sic] – I educated my wife and all my kids. No, I'm not educated. I'd like to – whatever you want that – (Unintelligible) best with you, sir. I don't know – not a thing..." Id. at 7. Husband also made numerous references to the fact that Husband's former attorney had all of Husband's documents. The trial court...

To continue reading

Request your trial
9 practice notes
  • In re Marriage of Popejoy, 19A-DR-2887
    • United States
    • Indiana Court of Appeals of Indiana
    • July 14, 2020
    ...within the sound discretion of the trial court, and we will reverse the trial court only for an abuse of that discretion. Smith v. Smith, 136 N.E.3d 656, 658 (Ind.Ct.App. 2019). "An abuse of discretion may be found on the denial of a motion for a continuance when the moving party has shown ......
  • Lyons v. Parker, 21A-JP-386
    • United States
    • Indiana Court of Appeals of Indiana
    • August 12, 2021
    ...No abuse of discretion will be found when the moving party has not shown that he was prejudiced by the denial. Smith v. Smith, 136 N.E.3d 656, 658-59 (Ind.Ct.App. 2019) (quoting F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.Ct.App. 2012) (citations and quotations omitted) (emphasis added)). "'[A......
  • K.W. v. Ind. Dep't of Child Servs., Court of Appeals Case No. 21A-JC-598
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 2021
    ...cause for requesting a continuance." Id. at 285. "We will reverse the trial court only for an abuse of that discretion." Smith v. Smith , 136 N.E.3d 656, 658 (Ind. Ct. App. 2019). "A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect......
  • D.W. v. Ind. Dep't of Child Servs. (In re K.W.), 21A-JC-598
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 2021
    ...cause for requesting a continuance." Id. at 285. "We will reverse the trial court only for an abuse of that discretion." Smith v. Smith, 136 N.E.3d 656, 658 (Ind.Ct.App. 2019). "A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of......
  • Request a trial to view additional results
9 cases
  • In re Marriage of Popejoy, 19A-DR-2887
    • United States
    • Indiana Court of Appeals of Indiana
    • July 14, 2020
    ...within the sound discretion of the trial court, and we will reverse the trial court only for an abuse of that discretion. Smith v. Smith, 136 N.E.3d 656, 658 (Ind.Ct.App. 2019). "An abuse of discretion may be found on the denial of a motion for a continuance when the moving party has shown ......
  • Lyons v. Parker, 21A-JP-386
    • United States
    • Indiana Court of Appeals of Indiana
    • August 12, 2021
    ...No abuse of discretion will be found when the moving party has not shown that he was prejudiced by the denial. Smith v. Smith, 136 N.E.3d 656, 658-59 (Ind.Ct.App. 2019) (quoting F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.Ct.App. 2012) (citations and quotations omitted) (emphasis added)). "'[A......
  • K.W. v. Ind. Dep't of Child Servs., Court of Appeals Case No. 21A-JC-598
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 2021
    ...cause for requesting a continuance." Id. at 285. "We will reverse the trial court only for an abuse of that discretion." Smith v. Smith , 136 N.E.3d 656, 658 (Ind. Ct. App. 2019). "A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect......
  • D.W. v. Ind. Dep't of Child Servs. (In re K.W.), 21A-JC-598
    • United States
    • Indiana Court of Appeals of Indiana
    • October 21, 2021
    ...cause for requesting a continuance." Id. at 285. "We will reverse the trial court only for an abuse of that discretion." Smith v. Smith, 136 N.E.3d 656, 658 (Ind.Ct.App. 2019). "A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT