Pheister v. Pheister , 2020 Ohio 3007 ( 2020 )

[Cite as Pheister v. Pheister, 2020-Ohio-3007.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kevin Pheister, :
Plaintiff-Appellee, :
No. 19AP-672
v. : (C.P.C. No. 17DR-3052)
Robi Pheister, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 19, 2020
On brief: Darryl O. Parker, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
NELSON, J.
{¶ 1} Robi Pheister failed to appear at the (previously postponed) trial in her
divorce case. According to her lawyer, she had taken a medication that prevented her from
driving, and she "didn't have anyone who could bring her to trial." See Appellant's Brief at
6 (mirroring the trial record in failing to reflect any effort by Ms. Pheister or her counsel to
summon a cab, Uber, Lyft, or other means of transportation). Her lawyer did not ask
directly to delay the trial date on this occasion, at least so far as the trial transcript shows,
and does not appear to have objected formally to the court's proceeding without her
(although the Judgment Entry/Decree of Divorce does say that Ms. Pheister's "request for
a continuance was denied"). And while Ms. Pheister now appeals the decision of the
domestic relations court to go ahead without her, she points to nothing to suggest that the
result of the court's rather straightforward division of property would have been different
had she made it to court. After reciting a bit of the background, we will affirm.
No. 19AP-672 2
{¶ 2} The trial date took some time coming. Kevin Pheister filed a complaint for
divorce from Robi Pheister on August 16, 2017. The matter was continued several times.
Ms. Pheister's lawyer filed a motion for a continuance on November 15, 2017, seeking "time
to settle." The parties filed a joint motion for a continuance on January 5, 2018, in order
"to obtain additional information." The trial court set a date of July 17, 2018 for a "final
contested trial." June 11, 2018 Amended Case Management Order. A subsequent court
order set a new "final contested trial" date of September 11, 2018. July 27, 2018
Management Order.
{¶ 3} The trial court granted the motion of Ms. Pheister's initial lawyer to withdraw
as counsel on September 7, 2018, four days before trial as then scheduled. Her new lawyer
filed a notice of appearance, a request for discovery, and a motion for temporary order
seeking "[s]pousal support" and "[p]ayments of debts and/or expenses" on December 2,
2018. A magistrate dismissed the motion without prejudice on January 8, 2019 for failure
to prosecute, as Ms. Pheister failed to appear at the hearing on the motion.
{¶ 4} On March 25, 2019, the court set a new trial date of May 21, 2019. On May 16,
2019, Ms. Pheister's lawyer sought a continuance, citing the conflict of being "in [an]
ongoing trial." The trial court granted Ms. Pheister her continuance and scheduled a new
trial date of June 24, 2019. Id.
{¶ 5} On that date, Mr. Pheister, his lawyer, and Ms. Pheister's lawyer appeared for
trial, which had been set for 1:30 p.m. Ms. Pheister did not show. June 24, 2019 Tr. at 3-
4. When asked at 2:42 p.m. where Ms. Pheister was, her lawyer explained:
My client, I believe, is still at home, Your Honor. She sent me
a text message maybe -- it was before 1:30 -- it was a little bit
before 1:30, that she had a panic attack. She had to take
medication for which she cannot drive on; and she did not, at
that point and when I spoke to her maybe about 30 minutes
ago, have anyone that could bring her to the courthouse.
Id.
{¶ 6} The trial court responded: "Okay. Thank you. Let the record reflect that this
is set for contested trial. This case is ancient, and I intend to proceed today with final
hearing." Id. at 4-5. With Mr. Pheister about to take the stand, Ms. Pheister's lawyer then
asked whether he would have opportunity to cross-examine the witness; the court assured
him that he would, and he responded, "Oh, okay. I was just wondering. I got it." Id. at 5.
No. 19AP-672 3
{¶ 7} Mr. Pheister testified, answering questions posed by his lawyer and by the
trial court concerning the parties' assets and debts and related exhibits. Ms. Pheister's
lawyer cross-examined Mr. Pheister regarding his income, but then conceded to the trial
court that the subject was "irrelevant" because Ms. Pheister had "not made a counterclaim
requesting anything, nor are there children." Id. at 31. His only other questions for Mr.
Pheister concerned what use Ms. Pheister had for a $2,800 sewing machine ("just random,
you know, purses, quilts, things like that") and confirming that a consolidation loan taken
out by Mr. Pheister covered debt only in his name. Id. at 32-33.
{¶ 8} The trial court granted the divorce on September 9, 2019. In the decree, the
trial court stated that Ms. Pheister had "failed to appear" at trial and that her lawyer had
"requested a continuance on behalf of his client"; the court had "noted the case was
extremely dated, and [Ms. Pheister's] request for a continuance was denied and the matter
proceeded to hearing." September 9, 2019 Judgment Entry/Decree of Divorce at 1.
{¶ 9} The court split personal property between the parties based largely on who
possessed what, but the court awarded Ms. Pheister the marital residence because it had
been "her separate, pre-marital property." Id. at 2, 3. Mr. Pheister was awarded the
Corvette and the Harley, along with significant debts attached to them, and he also got the
twenty-year-old Dodge Ram. Id.; Tr. at 25. Ms. Pheister got the 2019 Dodge Ram and its
associated debt, and an insurance settlement held in trust for $6,585.55 was ordered to be
"equally divided between the parties." Decree at 3. The trial court ordered the parties to
produce financial statements concerning their retirement accounts so that it could
"equalize the marital portions," and each party was ordered to hold the other harmless on
debts held in their names, including the vehicle and consolidation loans. Id. at 3-4. The
decree noted that it had been "approved" by Mr. Pheister's lawyer, but that there had been
"no response" when "submitted on 07-01-2019" to Ms. Pheister's lawyer. Id. at 6.
{¶ 10} Appealing to us, Ms. Pheister asserts one assignment of error: "The trial court
abused its discretion when it denied appellant's request for [a] continuance." Appellant's
Brief at 6.
{¶ 11} " 'Ordinarily, the doctrine of waiver precludes a litigant from raising an issue
for the first time on appeal.' " Burwell v. Hardesty Village Home Owners Assn., 10th Dist.
No. 19AP-151, 2020-Ohio-1466, ¶ 34, quoting S & P Lebos, Inc. v. Ohio Liquor Control
No. 19AP-672 4
Comm., 163 Ohio App. 3d 827, 2005-Ohio-5424, ¶ 12 (10th Dist.). Here, because the decree
recited that Ms. Pheister's lawyer did in fact request a continuance (gleaned perhaps off the
record, or through some aspect of the lawyer's demeanor not ascertainable from the
transcript), and absent any argument from Mr. Pheister to the contrary, we will consider
her appeal on that basis.
{¶ 12} State v. Unger, 67 Ohio St. 2d 65, 67-68 (1981), provides a non-exhaustive set
of factors for a court to consider when asked for a continuance. "In evaluating a motion for
a continuance, a court should note, inter alia: the length of the delay requested; whether
other continuances have been requested and received; the inconvenience to litigants,
witnesses, opposing counsel and the court; whether the requested delay is for legitimate
reasons or whether it is dilatory, purposeful, or contrived; whether the defendant
contributed to the circumstance which gives rise to the request for a continuance; and other
relevant factors, depending on the unique facts of each case." Id. On an appeal, Unger
requires us "to apply a balancing test, thereby weighing the trial court's interest in
controlling its own docket, including facilitating the efficient dispensation of justice, versus
the potential prejudice to the moving party." Fiocca v. Fiocca, 10th Dist. No. 04AP-962,
2005-Ohio-2199, ¶ 7, citing Unger, 67 Ohio St. 2d, at 67. "The grant or denial of a
continuance is a matter which is entrusted to the broad, sound discretion of the trial
judge. An appellate court must not reverse the denial of a continuance unless there has been
an abuse of discretion." Unger at 67.
{¶ 13} Ms. Pheister contends that when the Unger factors are applied, "it is apparent
that the [trial] court did act in an unreasonable, arbitrary and unconscionable manner."
Appellant's Brief at 8. She asserts that, because she "did not ask for a lengthy continuance,
the [trial] court could have ordered the parties in the next day if it desired and the Appellant
would have appeared." Id. at 8-9 (also admitting uncertainty as to whether the court "had
room on its docket" to accommodate such a plan). That characterization perhaps overstates
the specificity of whatever continuance was desired, if not voiced, and its premise that the
trial court, Mr. Pheister, and his lawyer all had their calendars free for the next day may not
be accurate. Nor, given Ms. Pheister's previous failure to appear at the hearing on her
motion for temporary spousal support, is it entirely clear that she would have
accommodated the hearing date she now suggests in retrospect.
No. 19AP-672 5
{¶ 14} Noting that only one witness testified at the hearing, Ms. Pheister argues that
the trial court made "no mention on the record regarding inconveniences to the litigants,
witnesses or opposing counsel." Appellant's Brief at 9. But neither did her trial counsel.
And "Unger does not suggest that information will always be available about each of these
factors or require a court to assign particular weight to any one factor." Musto v. Lorain
Cty. Bd. of Revision, 148 Ohio St. 3d 456, 2016-Ohio-8058, ¶ 23. Furthermore, Unger
describes this factor as "inconvenience to litigants, witnesses, opposing counsel and the
court," the interests of which Ms. Pheister's brief does not assess. Unger, 67 Ohio St. 2d, at
67 (emphasis added). The trial court's unwillingness to delay the case in light of how
"ancient" it was suggests that continuing the case might have complicated the court's
docket. This factor does not weigh much in Ms. Pheister's favor.
{¶ 15} Ms. Pheister acknowledges that the case had been delayed at her behest
earlier, although she argues that she had "a legitimate reason" for her previous requests and
that by her count only two of four continuances in the case were attributable solely to her
or her lawyer. Appellant's Brief at 9, 7. That she had sought and received continuances in
the matter before weighs somewhat against her on this record.
{¶ 16} She also asserts that there was "absolutely no reason for the court to believe
that [she] was being untruthful when she stated she * * * couldn't make it to court because
of the medication she took." Id. at 9. We do not conclude, nor did the trial court, that Ms.
Pheister's failure to appear was designed as dilatory or her excuse contrived. But by her
lawyer's account, Ms. Pheister was physically able to attend court. The case was not called
for roughly an hour and ten minutes after its scheduled start time, and Ms. Pheister
expressed her driving concerns to her lawyer half an hour or so before the judge inquired
of her whereabouts. Tr. at 4. Yet apparently neither she nor her lawyer sought to arrange
for any alternate transportation. Moreover, her lawyer said that she had taken the
medication just "a little bit" before the hearing's scheduled 1:30 start time, but she seems
not to have set off for court by that point. Id.
{¶ 17} These Unger factors, on balance, do not signal that the trial court abused its
discretion here, and Ms. Pheister's appeal suffers from a more basic deficiency. The
"balancing test" requires us to weigh "the trial court's interest in controlling its own docket,
including facilitating the efficient dispensation of justice, versus the potential prejudice to
No. 19AP-672 6
the moving party." Fiocca, 2005-Ohio-2199, at ¶ 7, citing Unger, 67 Ohio St. 2d, at 67. Yet
Ms. Pheister fails to identify any prejudice she suffered as a result of the trial going forward
without further delay. Her lawyer made no such argument (or proffer) to the trial court at
the time, and Ms. Pheister does not attempt an explanation of prejudice here either.
{¶ 18} Rather, Ms. Pheister simply asserts that it was an abuse of discretion for the
trial court to proceed "without her having the opportunity to testify and explain to the court
her position on the issues." Appellant's Brief at 6. She does not tell us what her position on
the issues was, or how her expressing it to the trial court would have resulted in a different
(and somehow better) outcome. In fact, she makes no criticism at all of the trial court's
division of the parties' assets, or of any other result under the decree from which she
appeals.
{¶ 19} Ms. Pheister got the house, with no division of its equity (even though Mr.
Pheister testified that he had helped make mortgage payments "for over ten years," see Tr.
at 17). Mr. Pheister got more of the cars, but he also acquired the corresponding debt. And
in the end, although Ms. Pheister's lawyer was provided a draft of the decree well before its
entry, Ms. Pheister made no objection to anything in it. See Decree at 6 (Ms. Pheister's
lawyer gave "no response" to proposed decree after he received it more than two months
before decree issued). Based on the record we find that the trial court by proceeding to
judgment did not cause undue prejudice to Ms. Pheister, and she herself explains no such
claim.
{¶ 20} We overrule Ms. Pheister's single assignment of error, and we affirm the
judgment of the Domestic Relations Division of the Franklin County Court of Common
Pleas.
Judgment affirmed.
BRUNNER, J., concurs.
LUPER SCHUSTER, J., concurs in judgment only.
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