MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jul 16 2019, 8:38 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Auger                                         Karl L. Mulvaney
Franklin, Indiana                                        Jan K. Keefer
                                                         Bingham Greenebaum Doll LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jenny Anne Lee,                                          July 16, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-DR-2737
        v.                                               Appeal from the
                                                         Marion Superior Court
Paul William Lee,                                        The Honorable
Appellee-Respondent                                      Timothy Oakes, Judge
                                                         The Honorable
                                                         Caryl Dill, Magistrate Judge
                                                         Trial Court Cause No.
                                                         49D02-1201-DR-209



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019                      Page 1 of 8
                                          Case Summary
[1]   After Jenny Anne Lee (“Mother”) filed a notice of intent to relocate and Father

      objected, the trial court set the matter for a hearing sixteen days out. Shortly

      after the hearing was scheduled, Mother filed a pro se motion to continue the

      hearing, claiming that she needed time to find an attorney. On the day of the

      hearing, the trial court denied Mother’s motion to continue and proceeded with

      the hearing. Mother represented herself while Father was represented by

      counsel. Following the hearing, the trial court issued an order that, among

      other things, denied Mother’s request to relocate and awarded sole legal

      custody to Father. Mother appeals, raising several issues, one of which we find

      dispositive: whether the trial court erred in denying Mother’s motion to

      continue. Finding that the trial court should have granted Mother’s motion to

      continue, we reverse and remand.



                            Facts and Procedural History
[2]   The facts relevant to this appeal are as follows. Mother and Father

      (collectively, “Parents”) are the parents of six children, including O.L., who is

      their oldest daughter. Mother and Father divorced in January 2014. Parents

      were each represented by counsel throughout the dissolution proceedings.


[3]   As of May 2018, Mother had primary physical custody of O.L., with Father

      exercising parenting time. Meanwhile, Father had primary physical custody of

      Parents’ five younger children, with Mother exercising parenting time. Parents


      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019   Page 2 of 8
      shared joint legal custody of all six children. Father was living in Indianapolis

      and Mother was living in a house near a lake outside of Nineveh. On May 14,

      Mother filed a pro se notice of intent to relocate to a new house across the lake.

      She stated there would be “no negative effects of [sic] the children with this

      move, and they are supportive and excited for the opportunity.” Appellant’s

      App. Vol. II p. 91.


[4]   On June 4, Father objected to the proposed relocation, asserting that Mother’s

      move “is not for a legitimate purpose, is made in bad faith and not in the best

      interests of the children as it is her third move in less than two years.” Id. at 93.

      He asked the trial court to set the matter for a hearing and to ultimately bar the

      relocation. Father also asked the trial court to modify child support,

      emancipate O.L., order Mother to contribute to private-school tuition for the

      five youngest children, and find Mother in contempt of the trial court’s previous

      order regarding parenting time, child support, and children’s medical expenses

      and order her to pay Father’s attorney fees. See id. at 96.


[5]   On June 5, the trial court set the matter for a hearing on June 21. On June 11,

      Mother filed a pro se motion to continue the hearing, alleging, in part, that she

      needed time to retain an attorney. See id. at 100. On June 20, the day before

      the hearing, Father filed an objection to Mother’s request for a continuance. He

      alleged that Mother “has had sufficient time to retain an attorney to represent

      her in this matter” and requested that Mother “be ordered to pay his attorney

      fees for the filing of this Objection.” Id. at 107.



      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019   Page 3 of 8
[6]   On the day of the hearing, the trial court denied Mother’s request for a

      continuance and proceeded with the hearing. Mother represented herself while

      Father was represented by counsel. During the hearing, Mother struggled to

      comply with the rules of evidence and trial procedure. For example, after

      Father’s attorney asked to admit screen shots of some contentious

      communication between Mother and Father, the following colloquy ensued:


               [Mother]:       I don’t know if I object or it just seems to be going
                               on at this point.


              The Court: Well, you may only object. That’s your alternative
                         and it must be a proper objection.


              [Mother]:        Can I learn how to just object?


              The Court: No, we’re not here to teach you how to be your own
                         lawyer.


              [Mother]:        Okay.


      Tr. p. 20. Mother also struggled to present evidence in response to Father’s

      assertion that she was in contempt of previous child-support orders:


              [Mother]:        . . . I would like to call for [sic] witnesses. I don’t
                               know how to do this. I don’t want to be here to be
                               my own attorney.


              The Court: Did you bring any witnesses?




      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019      Page 4 of 8
              [Mother]:        I didn’t know to. I don’t know how to subpoena
                               them.


              The Court: [Mother,] you have been in court innumerable times
                         over the years.


              [Mother]:        Correct.


              The Court: You know how this works.


              [Mother]:        Correct. But they are subpoenaed and I don’t know
                               a way to subpoena.


      Id. at 47-48. Furthermore, throughout the hearing, Mother repeatedly asked for

      an attorney:


              The Court: . . . Again, [Mother,] is there anything you want to
                         talk about, about these issues?


              [Mother]:        I mean, . . . there is a lot but I need an attorney.


      Id. at 51.


[7]   In August, the trial court issued an order in which it (1) denied Mother’s

      request to relocate, (2) found that O.L. would be emancipated by operation of

      law on September 17, 2018, and thereafter Father’s duty to pay child support to

      Mother for O.L. would cease, (3) modified Mother’s child-support obligation to

      Father for the five youngest children, (4) ordered Mother to pay fifty percent of

      private-school tuition for the five youngest children, (5) ordered Mother to pay

      fifty percent of children’s extracurricular-activity costs, (6) awarded sole legal
      Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019   Page 5 of 8
       custody to Father, (7) found Mother in contempt of the trial court’s previous

       order regarding parenting time, child support, and children’s medical expenses

       and ordered her to pay $1,000 of Father’s attorney’s fees.


[8]    Mother now appeals.



                                  Discussion and Decision
[9]    Mother contends that the trial court should have granted her motion to

       continue. Indiana Trial Rule 53.5 provides, in part, that a motion to continue

       “shall be allowed upon a showing of good cause established by affidavit or

       other evidence.” We review a trial court’s decision to grant or deny a motion to

       continue for an abuse of discretion. J.P. v. G.M., 14 N.E.3d 786, 789 (Ind. Ct.

       App. 2014). An abuse of discretion may be found in the denial of a motion for

       a continuance when the moving party has shown good cause for granting the

       motion, but no abuse of discretion will be found when the moving party has not

       demonstrated that he or she was prejudiced by the denial. In re K.W., 12

       N.E.3d 241, 244 (Ind. 2014).


[10]   Mother has demonstrated good cause for a continuance. Mother’s June 11

       motion to continue asserted that she needed time to hire counsel. She likely did

       not already have counsel because she could not have anticipated that her May

       14 notice of relocation would result in Father requesting a modification of child

       support and emancipation of O.L. and alleging that she was in contempt.

       Moreover, delaying the hearing to allow Mother to retain an attorney would


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019   Page 6 of 8
       not have prejudiced Father to an extent to justify the denial of the continuance.

       That is, the hearing was scheduled a mere sixteen days after Father objected to

       Mother’s relocation and requested that the court modify child support and find

       Mother in contempt, among other things. As such, we conclude that good

       cause existed at the time of Mother’s motion and that the trial court should

       have continued the hearing.


[11]   Mother has also shown that she was prejudiced by the denial of her motion. It

       is obvious that Mother was unprepared to represent herself, and for good

       reason: the trial court denied her motion to continue the hearing the same day

       that the hearing was scheduled to occur. And Mother clearly suffered by

       representing herself. That is, she did not call any witnesses, struggled to cross-

       examine Father, and struggled to make objections. After the hearing, the trial

       court not only gave Father everything he asked for, but also gave him

       something he did not ask for, namely, sole legal custody. The trial court’s ten-

       page order includes numerous findings regarding the evidence presented with

       respect to the criteria found in Indiana Code sections 31-16-8-1 (modification of

       child support), 31-16-11-1 (attorney’s fees), 31-16-12-6 (contempt), and 31-17-2-

       21 (modification of child custody). This case required comprehension of the

       law with respect to a parent’s relocation as well as the rules of evidence and trial

       procedure. Under the circumstances of this case, we conclude that the denial of

       Mother’s request for a continuance deprived her of counsel at a “critical stage in

       the proceedings” in a case involving at least some complexity and that Mother

       was prejudiced by the denial of her motion to continue. See Hess v. Hess, 679


       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019   Page 7 of 8
       N.E.2d 153, 155 (Ind. Ct. App. 1997). We reverse the trial court’s order and

       remand for a new hearing.


[12]   Reversed and remanded.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019   Page 8 of 8
