Kemp v. Kemp , 2019 Ohio 1581 ( 2019 )

[Cite as Kemp v. Kemp, 2019-Ohio-1581.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANGELA R. KEMP JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18 CAF 08 0063
ALLEN D. KEMP
Defendant-Appellee O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court
of Common Pleas, Domestic Relations
Division, Case No. 16 DRA 08 0387
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2019
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GREGG R. LEWIS ROBERT C. HETTERSCHEIDT
ERIC E. WILLISON 580 South High Street, Suite 200
Harry Lewis Co., L.P.A. Columbus, Ohio 43215
625 City Park Avenue
Columbus, Ohio 43206-1003
Delaware County, Case No. 18 CAF 08 0063 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Angela R. Kemp ("Wife") appeals the August 7, 2018
Final Judgment for Divorce with Children entered by the Delaware County Court of
Common Pleas, Domestic Relations Division, which granted a divorce to Wife and
defendant-appellee Allen D. Kemp ("Husband"), divided the parties' marital property and
debt, awarded spousal support to Wife, and allocated the parties' parental rights and
responsibilities.
STATEMENT OF THE FACTS AND CASE
{¶2} Husband and Wife were married in Las Vegas, Nevada on May 31, 1998.
The parties have one adopted child. On August 17, 2016, Wife filed a pro se Complaint
for Divorce, a motion and affidavit for a temporary restraining order, and a motion and
entry for temporary orders. Husband filed a timely answer and cross-claim for divorce.
{¶3} The trial court conducted a pre-trial on October 11, 2016. Counsel for
Husband advised the trial court Husband had been in a serious motorcycle accident in
South Carolina on September 28, 2016, and a date for his release from the hospital and
return to Ohio was not yet known. Wife was in South Carolina assisting and attending to
Husband's affairs. Wife filed an answer to Husband's cross-claim for divorce on October
12, 2016. Husband was released from the hospital and the parties returned to Ohio in
November, 2016.
{¶4} On March 14, 2017, the magistrate conducted a hearing on the parties'
respective motions for temporary orders. Via Magistrate's Order filed March 14, 2017,
the magistrate granted Husband exclusive use of the parties' marital residence; granted
Wife exclusive use of a second property owned by the parties; designated Wife as the
Delaware County, Case No. 18 CAF 08 0063 3
temporary residential parent of the parties' minor child; and ordered Husband to pay
temporary child and spousal support as well as $5,000.00 for interim attorney fees.
{¶5} Wife filed a request for oral hearing on the temporary orders in accordance
with Civ. R. 75(N) on May 2, 2017. The magistrate conducted a Rule 75 hearing on May
26, 2017. On the day of the hearing, Wife filed a motion to restrain Husband from
encumbering insurance proceeds from his motorcycle accident. Via Magistrate's Order
filed June 7, 2017, the magistrate found the March 14, 2017 temporary orders to be
appropriate and ruled such would remain in effect. The magistrate also ordered Husband
not to encumber, dispose, or lessen the value of the proceeds from his accident.
{¶6} Via Case Management Order filed July 13, 2017, the trial court scheduled
the matter for trial on December 13, 2017, and set discovery and exchange of information
deadlines. The trial court conducted a final pre-trial on October 9, 2017. Counsel for
Wife attended the hearing, however, Wife did not attend. Wife did not file a final pretrial
statement as required by the trial court's Local Rules and as ordered by the court in its
July 13, 2017 order. On October 30, 2017, Wife filed a Notice to the Court and All Parties
of Discharge of Counseling, advising she had discharged her attorney and was seeking
new counsel. Counsel for Wife filed a motion to withdraw on November 3, 2017, which
the trial court granted on November 9, 2017.
{¶7} On December 4, 2017, the guardian ad litem requested an extension of time
to file her final report. The trial court granted the request and rescheduled the trial for
January 23, 2018.1 On January 16, 2018, Wife filed a motion to vacate the January 23,
1 We find the fact the trial court continued the trial at the request of the guardian ad litem does not inure to
Wife’s position as she seems to assert. The continuance was not at Husband’s request and the guardian
ad litem’s report could potentially have benefitted either party at that time. If anything, it extended the time
for Wife to seek new counsel.
Delaware County, Case No. 18 CAF 08 0063 4
2018 trial date. The trial court denied the motion via Judgment Entry filed January 19,
2018, noting the motion was untimely, unfair to Husband, and not justified based upon
the recent procedural history.
{¶8} Prior to the commencement of trial on January 23, 2018, Wife made an oral
motion for a continuance noting she had not received her case file from her former
attorney. The trial court called the attorney’s office and requested the file be delivered.
The trial court then denied the request and proceeded with the hearing, which lasted three
days. Via Final Judgment for Divorce with Children filed August 7, 2018, the trial court
granted the parties a divorce, divided the parties' marital property and debt, awarded
spousal support to Wife, and allocated the parties' parental rights and responsibilities.
{¶9} It is from this judgment entry Wife appeals, raising as her sole assignment
of error:
I. THE TRIAL COURT ERRED WHEN IT OVERRULED THE
APPELLANT'S MOTIONS FOR CONTINUANCE TO OBTAIN NEW
COUNSEL. [R. 84] AND TRIAL TRANSCRIPT, VOLUME 1, PAGE 9,
LINES 15-20.
I.
{¶10} In her sole assignment of error, Wife contends the trial court erred in failing
to grant her requests for a continuance in order to secure new counsel. We disagree.
{¶11} The grant or denial of a continuance is a matter entrusted to the broad,
sound discretion of the trial court. State v. Unger (1981), 67 Ohio St. 2d 65. In order to find
Delaware County, Case No. 18 CAF 08 0063 5
an abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore (1983), 5 Ohio St. 3d 217.
{¶12} In determining whether a trial court abused its discretion in denying a motion
for a continuance, an appellate court should consider the following factors: (1) the length
of the delay requested; (2) whether other continuances have been requested and
received; (3) the inconvenience to witnesses, opposing counsel, and the court; (4)
whether there is a legitimate reason for the continuance; (5) whether the defendant
contributed to the circumstances giving rise to the need for the continuance, and other
relevant factors, depending on the unique facts of each case. Unger, supra, at 67–68,
423 N.E.2d 1078. The reviewing court must also weigh the potential prejudice to the
movant against the trial court's right to control its own docket. In re Barnick, Cuyahoga
App. No. 88334, 2007–Ohio–1720, ¶ 10, quoting Unger.
{¶13} Upon review of the record, we find the trial court did not abuse its discretion
in denying Wife's request for a continuance. Wife contributed to the circumstances giving
rise to the need for the continuance. Wife fired her attorney in late October, 2017. Wife
did not seek new counsel at that time or attempt to retrieve her case file from her former
attorney. Rather, she waited several months before requesting additional time to retain
new counsel and obtain her file. Wife had been aware of the original December trial date
since July, 2017, yet waited until a week before the rescheduled January 23, 2018 trial
date to request the continuance. Wife’s inaction in securing new counsel contributed to
the delay.
{¶14} Wife's sole assignment of error is overruled.
Delaware County, Case No. 18 CAF 08 0063 6
{¶15} The judgment of the Delaware County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur