MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Nov 28 2018, 9:40 am

this Memorandum Decision shall not be                                            CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Mark Small                                              Nissa M. Ricafort
Indianapolis, Indiana                                   Broyles Kight & Ricafort, PC
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jorge Arredondo,                                        November 28, 2018
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        18A-DR-1239
        v.                                              Appeal from the Marion Superior
                                                        Court
Holly Arredondo,                                        The Honorable John Hanley,
Appellee-Petitioner.                                    Judge
                                                        The Honorable Christopher B.
                                                        Haile, Magistrate
                                                        Trial Court Cause No.
                                                        49D11-1611-DR-41110



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018                Page 1 of 9
                               STATEMENT OF THE CASE
[1]   Appellant-Respondent, Jorge Arredondo (Jorge), appeals the trial court’s

      Decree of Dissolution of Marriage to Appellee-Petitioner, Holly Arredondo

      (Holly).


[2]   We affirm.


                                                   ISSUE
[3]   Jorge presents us with one issue on appeal, which we restate as: Whether the

      trial court abused its discretion when it denied Jorge’s request to continue the

      final hearing after his counsel withdrew.


                      FACTS AND PROCEDURAL HISTORY
[4]   Jorge and Holly were married on July 5, 2014 and legally separated on

      November 18, 2016. During the marriage, one child, L.A., was born on

      September 23, 2015. Prior to the final hearing on February 14, 2018, the parties

      participated in two contested hearings regarding child custody, parenting time,

      and child support. Each time, both parties were represented by counsel and

      presented evidence and witnesses on the contested issues. At the start of the

      final hearing, Jorge requested a continuance in order to obtain new counsel and

      noted that his counsel had just withdrawn her appearance the day prior to the

      hearing. Holly’s counsel objected to Jorge’s request for a continuance, noting

      that the cause had been pending since November 2016, that Jorge had

      employed three different attorneys during this pendency, that Jorge had sought

      and been granted several continuances of prior hearing dates, and had failed to
      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 2 of 9
      participate in mediation on five different occasions despite the trial court’s order

      to participate. The trial court denied Jorge’s request and proceeded to the final

      hearing.


[5]   On February 28, 2018, the trial court issued its Decree of Dissolution of

      Marriage, and concluded in pertinent part:


              5. It is in the best interests of the child that [Holly] have sole
              custody of [L.A.]
              6. [Jorge] shall have unsupervised parenting time as outlined in
              Section II C 3C – Parenting Time age 19 months through 36
              months – of the Indiana Parenting Time Guidelines with the
              following modification for work schedules.

              ****

              11. The parties are not able to communicate and there is a
              history of conflict between them since this action was initiated.
              12. The [c]ourt finds that a Parenting Time Coordinator would
              assist the parties regarding parenting of [L.A.] and the [c]ourt
              grants the Petition requesting one previously filed by [Holly] and
              taken under advisement by the [c]ourt.

              ****

              15. The [c]ourt finds that Petitioner’s Exhibit 5 – Child Support
              Worksheet – is supported by the evidence in the record.
              16. [Jorge] shall pay $128.00 per week child support through the
              state support agency.
              17. [Jorge] shall pay an additional $10.00 per week on his child
              support arrearage of $3,121.00.

              ****



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 3 of 9
              23. [Jorge] shall have the marital residence located at 1533 W.
              75th Place, Indianapolis, IN 46260 and be responsible for all
              obligations on the property including utilities, insurance, and
              taxes.

              ****

              25. The presumption of an equal division of the marital estate
              has been rebutted in this case by the short duration of the
              marriage, the contribution of each spouse to the acquisition of
              property, and the extent to which the property was acquired by
              each spouse before marriage.
              26. The [c]ourt finds that the real property was acquired by the
              parties for $89,500.00 using [Jorge’s] sole funds and therefore
              that amount of the value of the property should be set aside to
              him and not divided by the parties.
              27. The [c]ourt finds that Emigrant Direct and Edward Jones
              funds were owned by Jorge prior to the marriage and should be
              set off to him and not subject to division between the parties.
              28. The [c]ourt finds that the Ascension Retirement should be set
              off to [Holly] and not subject to division between the parties.
              29. The [c]ourt finds that the balance of the marital estate should
              be divided equally and the [Jorge] shall pay [Holly] the sum of
              $52,550.05 within sixty days to equalize it.

              ****

              34. [Jorge] has delayed these proceedings; not complied with
              court orders; and refused to participate in mediation as ordered.
              35. The [c]ourt orders [Jorge] to pay $5000.00 attorney fees to
              [Holly’s counsel] within sixty days.

      (Appellant’s App. Vol. IV, pp. 38-39, 41-42). On March 28, 2018, Jorge filed a

      motion to correct error, which the trial court denied on April 10, 2018.


[6]   Jorge now appeals. Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 4 of 9
                              DISCUSSION AND DECISION
[7]   While not contesting the trial court’s findings and conclusions in its Decree of

      Dissolution, Jorge focuses on the trial court’s denial of his motion for

      continuance. He maintains that the trial court abused its discretion by denying

      his motion for continuance on the morning of the final hearing and asserts that

      he was prejudiced by this decision.


[8]   We review a trial court’s ruling on a motion to correct error for an abuse of

      discretion. Old Utica School Preservation, Inc. v. Utica Twp., 7 N.E. 3d 327, 330

      (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs when the trial

      court’s decision is contrary to the logic and effect of the facts and circumstances

      before it or the reasonable inferences therefrom. Id. Accordingly, a trial court

      is vested with broad discretion to determine whether it will grant or deny a

      motion to correct error. Williamson v. Williamson, 825 N.E.3d 33, 44 (Ind. Ct.

      App. 2005). Similarly, the decision to grant or deny a continuance is within the

      sound discretion of the trial court. Hess v. Hess, 679 N.E.2d 153, 154 (Ind. Ct.

      App. 1997).


[9]   Indiana Trial Rule 53.5 states: “Upon motion, trial may be postponed or

      continued at the discretion of the court, and shall be allowed upon a showing of

      good cause established by affidavit or other evidence.” When considering a

      motion for continuance, the moving party must be free from fault and show

      that his rights are likely to be prejudiced by the denial. Scott v. Crussen, 741

      N.E.2d 743, 746 (Ind. Ct. App. 2000), trans. denied. “A denial of a motion for


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 5 of 9
       continuance is [considered to be an] abuse of discretion only if the movant

       demonstrates good cause for granting it.” Blackford v. Boone Co. Area Plan

       Com’n, 43 N.E.3d 655, 664 (Ind. Ct. App. 2015). “However, no abuse of

       discretion will be found when the moving party has not demonstrated that he or

       she was prejudiced by the denial.” Id. There are no mechanical tests for

       deciding when a denial of a continuance is so arbitrary as to violate due

       process. Id. The answer must be found in the circumstances present in every

       case, particularly in the reasons presented to the trial court at the time the

       request was denied. Id.


[10]   On the morning of trial, Jorge moved for a continuance because his counsel had

       filed an emergency motion to withdraw from his case the previous day. Prior to

       filing the emergency motion, Jorge’s counsel had sent Jorge an email ten days’

       prior providing in pertinent part:


               Jorge,


               I am required to give you 10-days’ notice before withdrawing on
               your case should your account not be paid in time. The total
               amount still needs to be paid by Monday. If you have questions
               regarding your account, please give me a call Monday morning
               to discuss. The following language is required by statute and will
               be provided to the [c]ourt along with my motion to withdraw.
               Again, I don’t plan on withdrawing; I am providing this just in
               case.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 6 of 9
       (Appellant’s App. Vol. IV, p. 20). Jorge presented evidence that he paid his

       delinquent account in full on February 5, 2018, prior to Jorge’s counsel seeking

       emergency leave to withdraw.


[11]   While it could be argued that counsel did not give the 10-day required notice to

       her client, it has been established that “[t]he unexpected and untimely

       withdrawal of counsel does not necessarily entitle a party to a continuance.”

       F.M. v. N.B., 979 N.E.2d 1036, 1040 (Ind. Ct. App. 2012). “Under some

       circumstances, however, denial of a continuance based on the withdrawal of

       counsel may be error when the moving party is free from fault and his rights are

       likely to be prejudiced by the denial.” Id. (citing Koors v. Great Southwest Fire Ins.

       Co., 530 N.E.2d 780, 783 (Ind. Ct. App. 1988), reh’g denied). Among the items

       to be considered on appeal from the denial of a motion for continuance, we

       must consider whether the denial of a continuance resulted in the deprivation of

       counsel at a crucial stage in the proceedings. F.M., 979 N.E.2d at 1040. We

       also consider whether the record demonstrates dilatory tactics on the part of the

       movant designed to delay coming to trial. Id. at 1041. Additionally, we must

       consider whether a delay would have prejudiced the opposing party to an extent

       sufficient to justify denial of the continuance. Id.


[12]   Under the particular circumstances of this case, we cannot conclude that Jorge

       carried his burden in establishing prejudice by the trial court’s decision to deny

       his motion. At the time of the final hearing, the cause had been pending for

       several months. During the course of the proceedings, Jorge had been

       represented by three different attorneys and several continuances had been

       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 7 of 9
       granted—including two continuances of the final hearing. Two contested

       hearings regarding child custody, parenting time, and child support had already

       been conducted and each time, the parties had been represented by counsel and

       had submitted evidence to the trial court. Jorge had failed to participate in

       mediation efforts leading up to the final hearing, despite the trial court’s order.


[13]   Even though the final hearing is a crucial stage of the proceedings, where Jorge

       was unrepresented, Jorge was nevertheless able to adequately present his case,

       cross-examine witnesses, and submit exhibits. While the trial court adopted

       Holly’s values for the marital residence and personal property, the trial court

       rejected Holly’s request for an equal division of the marital estate and instead

       found that Jorge had rebutted this presumption. Deviating, the trial court

       awarded each party the assets they had brought into the marriage and equally

       divided the remaining assets, with Jorge being ordered to pay an equalizing

       payment to Holly in an amount significantly less than Holly had requested.

       Furthermore, Jorge had presented evidence and witnesses on child custody,

       child support, and parenting time during the provisional hearing on April 11,

       2017, and the modification hearing on January 10, 2018. During the final

       hearing, Jorge also presented evidence on his income, which resulted in a

       decrease of his weekly child support obligation. Moreover, in a finding

       uncontested by Jorge, the trial court concluded that Jorge’s actions had

       “delayed these proceedings; [he had] not complied with court orders; and [had]

       refused to participate in mediation as ordered.” (Appellant’s App. Vol. IV, p.

       42).


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 8 of 9
[14]   In sum, and based on the specific circumstances before us, we conclude that the

       withdrawal of Jorge’s counsel at a critical stage in the proceedings did not

       prejudice him. Accordingly, the trial court did not abuse its discretion by

       denying his motion to continue.


                                            CONCLUSION
[15]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by denying Jorge’s motion to continue after his counsel withdrew on the day

       prior to the final hearing.


[16]   Affirmed.


[17]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-1239 | November 28, 2018   Page 9 of 9
