[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
