Straub v. Ford, 21A-DC-2762

Case DateSeptember 15, 2022
CourtCourt of Appeals of Indiana

Carol Straub, Appellant-Respondent,

Debra Ford, Appellee-Petitioner

No. 21A-DC-2762

Court of Appeals of Indiana

September 15, 2022

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Vanderburgh Superior Court The Honorable Les C. Shively, Judge Trial Court Cause No. 82D01-2012-DC-1319

Attorney for Appellant

Matthew J. McGovern Fishers, Indiana




Case Summary and Issues

[¶1] Carol Straub and Debra Ford sought to dissolve their marriage. Following a hearing, the trial court issued an Order Regarding Division of Marital Assets. Straub now appeals, raising multiple issues for our review which we restate as: (1) whether the trial court abused its discretion in denying Straub's request for a continuance of the final hearing; (2) whether the trial court abused its discretion in dividing Straub's retirement assets; and (3) whether the trial court miscalculated the amount of Straub's 401(K) that is subject to division. We conclude the trial court did not abuse its discretion in denying Straub's motion to continue or dividing Straub's retirement assets. However, there is a discrepancy in the trial court's calculation of the amount of Straub's 401(K) that is subject to division. Therefore, we affirm in part and reverse and remand in part.

Facts and Procedural History

[¶2] Straub and Ford began living together in 1998. While they were cohabitating, Ford gave birth to two children. Straub adopted both children at birth. In 2014, Straub and Ford got married.[1] On December 30, 2020, Ford filed a petition to


dissolve her marriage to Straub. Subsequently, the trial court entered a provisional order granting the parties joint legal custody and Straub primary physical custody of the children. Further, the trial court noted that Straub would move back into the marital residence with the children and Ford would pay no child support due to her level of income. The trial court also issued a temporary retraining order, preventing "both parties from selling, transferring, encumbering, concealing or otherwise disposing of any marital assets[.]" Appellant's Appendix, Volume II at 57.

[¶3] On July 14, 2021, the trial court signed an Agreed Entry as to the Value of Property showing the parties agreed the marital residence had a value of $175,000. That same day, Straub's attorney sought permission to withdraw from the case pursuant to Straub's request.[2] See id. at 100-02. Attached to the motion to withdraw is a text message from Straub to her attorney stating:

[P]er our phone call at 1:10 p.m. when I told you I did not need your services anymore[.]

Id. at 103. A final hearing in the case was set for July 28.

[¶4] On July 27, 2021, Mark Phillips entered an appearance on behalf of Straub, but conditioned his representation on the final hearing being continued. On July 28,


at the outset of the final hearing, Straub requested a continuance which the trial court denied. Phillips withdrew his appearance and Straub proceeded pro se.

[¶5] On September 23, 2021, the trial court issued an order allowing the parties to present new evidence regarding the acquisition dates of property. See id. at 11. On October 25, 2021, the trial court issued its decree dissolving the marriage and on November 10, 2021, the trial court entered its Order Regarding Division of Marital Assets. The trial court concluded:

Given the long term nature of the relationship and the factors cited, the Court finds no basis to deviate from a 50/50 division. The Court also concludes that the entire time period of the cohabitation shall be utilized in determining the marital estate

Appealed Order at 2. The trial court then divided the marital assets, including Straub's monthly pension and 401(K) account.

[¶6] Straub receives a monthly pension benefit through her prior employment of $1,092. The trial court determined that 66.7% of this monthly pension should be considered a marital asset. The trial court determined Ford was entitled to 50% of the marital portion, or $366 per month.

[¶7] Next, the trial court determined that Straub's 401(K) had a date of filing value of $288,255.07, and that $198,175 was included in the marital estate and subject to division. Ultimately, the trial court granted Ford $156,000 of Straub's 401(K):

[That amount includes] 50% of that portion of [Straub's] 401(K) in the marital estate plus an equalization payment which takes into consideration [Ford's] interest in the marital residence, the vehicles, personal property, the cash value of [Straub's] life insurance policy, as well as a balancing of the [financial] accounts of the parties.

Id. at 5. The trial court also attached and incorporated a "Cohabitation Marital Balance Sheet" as Exhibit D. Id.

[¶8] Straub now appeals. Additional facts will be presented as necessary.

Discussion and Decision[3]

I. Motion to Continue

A. Standard of Review

[¶9] The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court. Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind.Ct.App. 2003), trans. denied. We will reverse the trial court only for an abuse of that discretion. Id. A trial court abuses its discretion when it reaches a conclusion which is clearly against the logic and effect of the facts or the reasonable and probable deductions which may be drawn therefrom.


F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind.Ct.App. 2012). "An abuse of discretion may be found in the denial of a motion for a continuance when the moving party has shown good cause for granting the motion." Rowlett v. Vanderburgh Cnty. Off. of Fam. & Child., 841 N.E.2d 615, 619 (Ind.Ct.App. 2006), trans. denied. However, no abuse of discretion will be found when the moving party has not shown that he was prejudiced by the denial. Litherland, 796 N.E.2d at 1240.

B. Denial of Continuance

[¶10] Straub argues the "trial court abused its discretion and violated [her] right to due process when it denied her request for a continuance[.]" Brief of Appellant at 14. In determining whether a denial of a continuance violates due process, "[t]here are no mechanical tests[.]" Smith v. Smith, 136 N.E.3d 656, 659 (Ind.Ct.App. 2019) (quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). "The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request [is] denied." Id.

[¶11] The "unexpected and untimely withdrawal of counsel does not necessarily entitle a party to a continuance." F.M., 979 N.E.2d at 1040. Under certain circumstances, however, the withdrawal of counsel can constitute good cause for a continuance if the moving party is free from fault and the party's rights are likely to be prejudiced by the denial. See id. (citation omitted); see also Hess v. Hess, 679 N.E.2d 153, 155 (Ind.Ct.App. 1997) ("Although we cannot say that Husband is wholly free from fault for his counsel's withdrawal, we similarly


cannot say that, in dissolution proceedings where emotions run high, attorney-client disagreement and conflict are unique.").

[¶12] Straub relies on this court's decision in Smith; however, we find the case at hand distinguishable. In Smith, the husband's attorney filed a motion to withdraw one day before the final hearing. The trial court denied the husband's request for a continuance and the husband had to proceed pro se. This court...

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