Gregory Reasons v. Joanne Reasons (mem. dec.)

MEMORANDUM DECISION FILED
Apr 28 2016, 7:58 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Michael Katz Debra Lynch Dubovich
Goodman Katz & Scheele Levy & Dubovich
Highland, Indiana Merrillville, Indiana
Adam J. Sedia Lynn F. Hammond
Rubino Ruman Crosmer & Polen Valparaiso, Indiana
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Reasons, April 28, 2016
Appellant-Respondent, Court of Appeals Case No.
45A03-1508-DR-1250
v. Appeal from the Lake Superior
Court
Joanne Reasons, The Honorable Elizabeth F.
Appellee-Petitioner. Tavitas, Judge
Trial Court Cause No.
45D03-1211-DR-927
Vaidik, Chief Judge.
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Case Summary
[1] Twenty-four days before the final hearing in his divorce case, Gregory Reasons
(“Husband”) was notified that his attorney would be moving to withdraw from
representing him. Husband filed a motion to continue the final hearing,
claiming that he needed more time to retain a different attorney. The trial court
denied the motion, and Husband appeals. Because Husband had sufficient time
to find a new attorney if he so desired, because the hearing had already been
continued six times over the course of two years, and for the other reasons
stated below, we conclude that the trial court did not abuse its discretion when
it denied Husband's motion.
Facts and Procedural History
[2] On November 14, 2012, Susan Reasons (“Wife”) filed a petition to dissolve her
marriage to Husband. Husband was served a month later, but his attorney did
not enter an appearance on his behalf until April 2013. That August,
Husband’s attorney asked that the matter be set for a final hearing, and the trial
court scheduled the hearing for September 16, 2013. Because the couple’s only
child was an adult, the hearing was to be limited to property issues.
[3] A few days before the hearing, for reasons not specified in the record, the court
continued the matter until October 15, 2013. On October 10, 2013, Wife
moved for a continuance for medical reasons. The trial court granted the
motion and reset the hearing for February 11, 2014. The parties appeared in
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court that day but jointly requested an additional continuance, and the trial
court rescheduled the matter for June 23, 2014. Shortly before the new hearing
date, the parties again made an agreed request for a continuance, and the
hearing was set for September 4, 2014.
[4] On August 8, 2014, Husband’s attorney filed a motion to continue, explaining
that she would be in the middle of a murder trial on the day set for hearing.
The trial court granted the motion and set a new hearing date of October 21,
2014. Then, on October 15, 2014, Husband’s attorney requested another
continuance because the murder trial had been pushed back and again
conflicted with the dissolution hearing. The trial court reset the matter for
January 13, 2015.
[5] On December 19, 2014, twenty-four days before the hearing, Husband was
notified that his attorney wished to withdraw from the case. That same day, his
attorney sent him a letter to the same effect. The letter stated, in part:
Please be advised that due to our irretrievably broken
attorney/client relationship, this letter shall serve as notice that I
intend to request permission from the Court to withdraw my
representation of you in the above-captioned matter within the
next ten (10) days.
If my withdrawal is granted, please be advised that you must
enter your appearance pro se, meaning you are representing
yourself, or, secure the services of another attorney, whom you
advised you have already consulted. As a reminder, a Final
Hearing is scheduled for Tuesday, January 13, 2015 at 2:00 p.m.
Said Hearing will take place at the Lake Superior Court located
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at 15 West 4th Avenue, Gary, Indiana 46402. Your attendance
will be required at said Hearing, so please conduct yourself
accordingly.
Appellant’s App. p. 55.
[6] On December 23, 2014, Husband personally filed a motion to continue,
explaining that “[h]is attorney wishes to withdraw her representation” and
asserting that he “does not have adequate time to find legal representation
before the current hearing scheduled for January 13th, 2015.” Id. at 53. He also
filed a CCS Entry Form that stated, “Filing motion of continuation due to
defendant’s attorney leaving case.” Id. at 51.
[7] On January 2, 2015, Husband’s attorney filed her petition to withdraw, stating
that Husband had been notified of her intent and that he “has consulted with
other counsel[.]” Id. at 54. She attached a copy of her December 19, 2014
letter to the petition. On January 6, 2015, the trial court wrote “Motion
Denied” on the CCS Entry Form that Husband had filed along with his motion
to continue. Id. at 51. However, no corresponding entry was made on the
CCS, and Husband did not receive notice of the denial at any time before the
final hearing. On January 12, 2015, one day before the hearing, the trial court
granted Husband’s attorney’s petition to withdraw.
[8] Husband appeared for the hearing the next day without counsel. When the
court informed him that his motion to continue had been denied, he reiterated
his request, explaining that he had spoken to some attorneys and had been told
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that “there was no way they could properly present a case in that amount of
time.” Tr. p. 2. The trial court asked Wife’s attorney what her position was,
and she said that the hearing should go forward as scheduled because there had
already been many continuances, including the two recently requested by
Husband’s attorney, and because the dispute was limited to property division
and did not involve children. The trial court decided to proceed with the
hearing, noting that “this matter has been pending for quite some time” and
that “[Husband] has been granted several Motions to Continue.” Id. at 4.
Husband continued to press for additional time, and the court again asked
Wife’s attorney what her position was. Wife’s attorney said, “I attempted to
have a conversation with him regarding this continuance and he was very
obstreperous and I had to say, thank you very much and goodbye.” Id. at 6.
Having heard that, the court reaffirmed its decision that the hearing would
proceed as scheduled.
[9] The trial court issued its decree of dissolution on April 21, 2015. Husband,
believing that the trial court’s ultimate division of property would have been
different if the final hearing had been continued, now appeals.
Discussion and Decision
[10] Husband contends that twenty-four days was not enough time for him to retain
replacement counsel, that the trial court therefore should have granted his
motion to continue the final hearing, and that we should vacate the decree of
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dissolution and remand this matter for a new final hearing.1 Whether to grant
or deny a motion to continue a trial is a decision that our trial rules specifically
leave to the discretion of the trial court. Ind. Trial Rule 53.5. Accordingly, we
will reverse such a ruling only if we find that the trial court has abused that
discretion, that is, reached a conclusion that is clearly against the logic and
effect of the facts or the reasonable and probable deductions which may be
drawn therefrom. Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct. App. 1997).
Applying this deferential standard of review, we cannot say that the trial court
abused its discretion by denying Husband’s motion.
[11] Several facts weigh in favor of the trial court’s decision. First, when Husband
filed his motion, the case had been pending for more than two years, in part
because Husband did not have his attorney enter an appearance until four
months after he was served. Second, the final hearing had already been
continued six times, including twice on motions by Husband’s attorney and
twice on agreed motions. Third, absent extraordinary circumstances not
present here, twenty-four days is enough time to retain a new attorney and
prepare for a straightforward, one-hour property-division hearing. Fourth, the
December 19, 2014 letter written by Husband’s former attorney, which was
attached to her petition to withdraw, indicated that Husband had already
“consulted” with other counsel. Fifth, Husband did not identify any of the
other attorneys with whom he spoke, the dates on which he spoke with them,
1
Husband does not appeal the trial court’s decision to grant his attorney’s petition to withdraw.
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or the dates on which they allegedly refused to represent him without a
continuance. Sixth, Wife’s attorney told the trial court that she had attempted
to discuss the need for a continuance with Husband and that Husband had been
“very obstreperous.” Under these circumstances, the trial court acted well
within its discretion when it denied Husband’s request to postpone the final
hearing for a seventh time.
[12] Husband relies on Hess, where we held that a trial court abused its discretion by
denying a continuance after the husband’s attorney withdrew just five days
before a dissolution hearing. 679 N.E.2d at 154-55.2 We found it significant
that “the denial of the continuance deprived Husband of counsel at the most
crucial stage in the proceedings, the dissolution hearing itself.” Id. at 155. In
this case, Husband was also without counsel at the final hearing, but we find
that the difference between five days and twenty-four days is substantial enough
to distinguish the two cases. In addition, the dissolution in Hess involved a
child-custody determination, whereas this dissolution was limited to the
division of property. Finally, nothing in the record in Hess showed that the
husband “could foresee that counsel would withdraw at such a late hour.” Id.Here, on the other hand, we know that Husband had already consulted with
other counsel when his attorney wrote to him that she intended to withdraw.
2
We said “four days,” but the hearing was set for March 13, and the attorney withdrew on March 8. Hess,
679 N.E.2d at 154.
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[13] Husband also makes much of the fact that he was not notified until the day of
the final hearing that his motion to continue had been denied. He would have
us hold that, absent notice of the denial, he was entitled to assume that his
motion had been or would be granted. He cites no authority in support of this
proposition, and we are aware of none. To the contrary, all parties to litigation,
represented or not, should plan to proceed as scheduled unless specifically told
otherwise.
[14] Affirmed.
Barnes, J., and Mathias, J., concur.
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