Decot v. Decot

[Cite as Decot v. Decot, 2012-Ohio-2897.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CAROL DARELLE DECOT JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 11-CA-16
TIMOTHY LEO DECOT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of
Common Pleas, Domestic Relations
Division, Case No. 10DV00438
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 15, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS E. WALSER CHARLES M. ELSEA
14878 S.R. 13 109 North Broad Street, Suite 200
P.O. Box 510 P.O. BOX 130
Thornville, Ohio 43076 Lancaster, Ohio 43130
Perry County, Case No. 11-CA-16 2
Hoffman, J.
{¶1} Defendant-appellant Timothy Leo Decot appeals the Judgment Entry
entered by the Perry County Court of Common Pleas, Domestic Relations Division.
Plaintiff-appellee is Carol Darelle Decot.
STATEMENT OF THE CASE
{¶2} The parties were married on April 20, 1974. Appellee filed a complaint for
a divorce in this matter on October 26, 2010.
{¶3} Following initial discovery and motion proceedings, the trial court set the
matter for trial to commence July 8, 2011. On July 7, 2011, one day prior to the
commencement of trial, Appellant filed a request for a six month continuance on the
grounds he had just been released from jail. The trial court partially granted the
continuance, and rescheduled the trial for October 14, 2011.
{¶4} On September 23, 2011, Appellant filed a second continuance request
stating he had been incarcerated since July 18, 2011, and would not be released until
October 30, 2011. Appellant argued he would not be able to obtain an attorney to
represent him in the trial.
{¶5} The matter proceeded to trial on October 14, 2011. Appellee and her
attorney were present, but Appellant did not appear and he was not represented by
counsel.
{¶6} Via Findings of Fact and Conclusions of Law journalized on October 26,
2011, the trial court treated the proceedings as an uncontested hearing for divorce,
without children, and granted Appellee a divorce. Appellant now appeals, assigning as
error:
Perry County, Case No. 11-CA-16 3
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE
OF THE APPELLANT BY DENYING HIS PRO SE REQUEST FOR A CONTINUANCE
WHERE THE APPELLANT WAS TO BE RELEASED FROM INCARCERATION
SIXTEEN DAYS AFTER THE TRIAL DATE, AND AN EXTENSION OF TIME WOULD
NOT PREJUDICE THE APPELLEE.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING AN
UNCONTESTED DIVORCE HEARING WHERE THERE EXISTED CLEARLY
EXPRESSED ISSUES IN CONTENTION AND THE FACTS, ON THEIR FACE, GAVE
RISE TO TRIABLE ISSUES.”
I.
{¶9} The decision to grant or deny a continuance is entrusted to the broad,
sound discretion of the trial court and will not be disturbed absent an abuse of
discretion. Lemon v. Lemon, Stark App. No. 2010CA00319, 2011-Ohio-1878, citing
State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078. 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
Perry County, Case No. 11-CA-16 4
its own docket. In re Barnick, Cuyahoga App. No. 88334, 2007–Ohio–1720, ¶ 10,
quoting Unger.
{¶10} We note a party does not have a guaranteed or constitutional right to be
represented by counsel in a domestic relations proceeding. Hilliar v. Hilliar, Stark
App.No.2007–CA–00161, 2008–Ohio–2153; DiGuilio v. DiGuilio, Cuyahoga App.No.
81860, 2003–Ohio–2197, ¶ 16, quoting Rodriguez v. Rodriguez (April 29, 1983), Wood
App. No. WD–82–78.
{¶11} Considering the factors set forth above, we note the trial court previously
granted Appellant an extension due to his incarceration, and his pending release,
affording him ample opportunity to retain counsel. Furthermore, Appellant’s second
incarceration was the result of his own actions.
{¶12} Based upon the above, we do not find the trial cour5t abused its discretion
in overruling his second motion for continuance.
{¶13} Appellant's first assignment of error is overruled.
II.
{¶14} In the second assignment of error, Appellant maintains the trial court
abused its discretion in proceeding as if the divorce was uncontested when the record
reflects there were contested issues.
{¶15} The transcript of the final divorce hearing indicates Appellee appeared
represented by counsel and Appellant failed to appear. The magistrate heard the
testimony and considered the evidence presented. The time for Appellant to present his
response to the disputed issues was at trial, and he failed to do so. As set forth above,
Perry County, Case No. 11-CA-16 5
Appellant's unavailability to present a defense arose from his own actions and
subsequent incarceration.
{¶16} Appellant’s second assignment of error is overruled.
{¶17} The judgment of the Perry County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE
Perry County, Case No. 11-CA-16 6
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CAROL DARELLE DECOT :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TIMOTHY LEO DECOT :
:
Defendant-Appellant : Case No. 11-CA-16
For the reasons stated in our accompanying Opinion, the judgment of the Perry
County Court of Common Pleas, Domestic Relations Division, is affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE