Bennena Roe v. Sebastian Roe ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
BENNENA ROE, formerly known as BENNENA UNPUBLISHED
CARPER, August 22, 2017
Plaintiff-Appellant,
v No. 336452
Gladwin Circuit Court
Family Division
SEBASTIAN ROE, LC No. 11-006000-DS
Defendant-Appellee.
Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
RONAYNE KRAUSE, J. (concurring).
I concur in the result reached by the majority. I write separately because I respectfully
disagree with the majority’s assessment of the trial court’s denial of plaintiff’s request for an
adjournment. I conclude that reversal is unwarranted on the basis of the record the trial court
made after the fact, at plaintiff’s subsequent motion to stay. However, a review of the record up
to the point at which the trial court denied the motion for adjournment would indicate to me a
clear abuse of discretion at the time.
As the majority states, a proper denial of a motion to adjourn generally “involve[s] some
combination of numerous past continuances, failure of the movant to exercise due diligence, and
lack of any injustice to the movant.” Tisbury v Armstrong, 194 Mich. App. 19, 20; 486 NW2d 51
(1991). A last-minute request for a continuance to obtain counsel might properly be denied
where “the record establishes a substantial basis for challenging a litigant’s good faith in
preparing for trial,” which could be indicated simply by failing to make use of being afforded a
reasonable amount of time in which to obtain counsel. Wykoff v Winisky, 9 Mich. App. 662, 669-
670; 158 NW2d 55 (1968). Conversely, failure to afford a party sufficient time to find counsel
“‘will in appropriate circumstances’” constitute an abuse of discretion, the propriety of the
circumstances again turning on some showing that the party made good-faith efforts. See People
v Stinson, 6 Mich. App. 648, 653-656; 150 NW2d 171 (1967). Critically, the reasonableness of
the time allotted may depend on unique characteristics specific to the party. See Percy v Percy,
227 Mich. 407; 198 N.W. 931 (1924).
Plaintiff was notified approximately a month in advance of the hearing. At her motion,
she indicated that she had not been able to obtain the funds for an attorney and an unspecified
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“they” had advised her to ask for a continuance at the hearing. The trial court was
understandably unimpressed with plaintiff’s implied reliance on advice from, apparently, court
or Friend of the Court employees who should not have been giving legal advice in any event.
However, an unsophisticated layperson in pro per and possessed of few other resources for
navigating the labyrinthine procedures of the legal system might reasonably be expected to rely
on it, no matter how improper. See Willis v Newsome, 747 F 2d 605 (CA 11, 1984). The trial
court made no effort to evaluate whether acting pursuant to any such advice should be
considered good faith due diligence under the circumstances. The trial court likewise made no
effort to determine what plaintiff’s financial situation is and how practical it would have been for
her to seek counsel in one months’ time. Indeed, the trial court made precisely no effort
whatsoever to evaluate whether good cause existed for the motion and instead simply proceeded
as if the motion could not be proper at that time. I appreciate that the trial court was not strictly
required to articulate findings of fact on the record in decisions on motions. MCR 2.517(A)(4).
However, I would find the circumstances tantamount to failing to exercise discretion when called
upon to do so, which is per se an abuse thereof. See People v Stafford, 434 Mich. 125, 134 n 4;
450 NW2d 559 (1990).
Nonetheless, I cannot find that the trial court’s after-the-fact justifications to be
unprincipled or unwarranted. The trial court explained, most convincingly to me, that it wished
to ensure that any custody decision was made prior to the commencement of the children’s
school year, which is an entirely reasonable and laudable concern. The trial court further noted
that it had already developed very serious concerns about the well-being of the children while
under plaintiff’s care. It therefore stands to reason that the trial court had little luxury to grant an
indefinite postponement. I find the trial court’s concern about “defendant’s witnesses” having
travelled from Georgia to be somewhat overstated given that the only such witnesses were
defendant himself and his wife, but certainly a non-trivial inconvenience for a party that did not
seemingly contribute to plaintiff’s inability to obtain counsel. Although I find completely
implausible the suggestion that a lack of representation by counsel did not meaningfully harm
plaintiff’s ability to present her position, the trial court did discuss having taken that into
consideration, including its belief that plaintiff made a competent showing for herself. This
Court must defer to the trial court’s superior ability to assess the credibility, demeanor, and to at
least some extent situation and history of the witnesses before it. See McGonegal v McGonegal,
46 Mich. 66, 67; 8 N.W. 724 (1881).
Consequently, I believe the trial court seriously mishandled plaintiff’s motion for
adjournment, and consequently I do not agree with the majority’s conclusion that it was within
the range of principled outcomes at the time; but on review of the entire record, I reluctantly
cannot find reversal on that basis to be warranted.
/s/ Amy Ronayne Krause
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