[Cite as R.H. v. J.H., 2020-Ohio-3402.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

R. H.                                                  C.A. No.      18CA0115-M

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
J. H.                                                  COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellant                                      CASE No.   18DV0246

                                 DECISION AND JOURNAL ENTRY

Dated: June 22, 2020



        TEODOSIO, Judge.

        {¶1}     J.H. appeals the consent agreement and domestic violence civil protection order

issued by the Medina County Court of Common Pleas. We reverse and remand.

                                                  I.

        {¶2}     On October 31, 2018, R.H. filed a petition for a domestic violence civil protection

order against her spouse, J.H. That same day, the trial court issued an ex parte protection order

and scheduled the matter for a full hearing to be held on November 15, 2018. The trial court’s

docket includes a notice of failure of service upon J.H., indicating that service was attempted by

the Cuyahoga County Sheriff but was not successful.

        {¶3}     On the day of hearing, R.H. and her counsel appeared, with J.H. appearing without

counsel. The magistrate indicated the parties could either go forward with a full hearing or discuss

a consent agreement, with both parties indicating a willingness to attempt a consent agreement.

During these discussions, J.H. made a request for a continuance in order to seek counsel, which
                                                  2


was denied by the magistrate. Negotiations then continued, with the parties arriving at a consent

agreement and a domestic violence civil protection order that was signed by both parties.

       {¶4}    J.H. now appeals, raising two assignments of error.

                                                 II.

                                ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
       DISCRETION IN DENYING [J.H.]’S MOTION FOR CONTINUANCE.

       {¶5}    In his first assignment of error, J.H. argues the trial court erred by denying his

motion for a continuance. We agree.

       {¶6}    Under R.C. 3113.31(D)(2)(a), the trial court may grant a continuance of the full

hearing of domestic violence civil protection order if: the respondent has not been served with

notice prior to the date of hearing; the parties consent to a continuance; the continuance is needed

to allow a party to obtain counsel; or the continuance is needed for other good cause. The grant

or denial of a motion for continuance is reviewed for an abuse of discretion. State v. Unger, 67

Ohio St.2d 65, 67 (1981). Accord Swedlow v. Reigler, 9th Dist. Summit No. 26710, 2013-Ohio-

5562, ¶ 9. See Sup.R. 41(A) (“The continuance of a scheduled trial or hearing is a matter within

the sound discretion of the trial court for good cause shown.”). An abuse of discretion means more

than an error of judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the

abuse of discretion standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    “In determining whether to grant or deny a motion for a continuance, the trial court

must balance ‘any potential prejudice to a [party against] concerns such as a court’s right to control

its own docket and the public’s interest in the prompt and efficient dispatch of justice.’” Dus v.
                                                  3


Dus, 9th Dist. Summit No. 18770, 1998 WL 733724, *2 (Oct. 21, 1998), quoting Unger at 67. In

evaluating a motion for a continuance, a trial court should consider:

       the length of the delay requested; whether other continuances have been requested
       and received; the inconvenience to litigants, witnesses, opposing counsel and the
       court; whether the requested delay is for legitimate reasons or whether it is dilatory,
       purposeful, or contrived; whether the defendant contributed to the circumstance
       which gives rise to the request for a continuance; and other relevant factors,
       depending on the unique facts of each case.

Unger at 67-68. This Court examines the same factors in its review of the trial court’s decision

relative to the motion for continuance. Schiesswohl v Schiesswohl, 9th Dist. Summit No. 21629,

2004-Ohio-1615, ¶ 20.

       {¶8}    Although entrusted to the discretion of the trial court, the denial of a motion for a

continuance can have grave consequences, particularly when the motion is related to counsel's

ability to mount a defense on the client's behalf. See State v. Sowders, 4 Ohio St.3d 143, 144

(1983). In this respect, the denial of a request for a continuance can be “so arbitrary as to violate

due process.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964). “‘There are no mechanical tests for

deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must

be found in the circumstances present in every case, particularly in the reasons presented to the

trial judge at the time the request is denied.’” Unger at 67, quoting Ungar at 589. Thus, “not

every denial of a continuance constitutes a denial of due process.” State v. Broom, 40 Ohio St.3d

277, 288 (1988), citing Ungar at 589.

       {¶9}    At the commencement of the hearing on the petition for a domestic violence civil

protection order, the magistrate stated there were two options: (1) to go forward with a final hearing

after which the magistrate would determine if a protection order, which could last for up to five

years, should be issued; or (2) the parties could agree to a consent agreement. The magistrate

noted that violation of either order could result in being held in contempt of court or being charged
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with the crime of violating a protection order. J.H. stated that he was open to discussing a consent

agreement.

       {¶10} During their discussion on the record, the parties agreed that R.H. would have

exclusive possession of an apartment in Strongsville. The parties, who worked in the same office,

also agreed that J.H. could go to the office from Monday through Thursday, while R.H. would

only go to the office on Fridays. While the parties were discussing the use of an automobile, J.H.

expressed concern, and the following exchange took place:

       J.H.: I am so sorry. I think I am going to need to seek counsel. I am so sorry to
       waste your time today.
               Is that okay?

       MAGISTRATE: Well, I mean, the options are: Either we proceed with the hearing
       or we have a consensus to this.

       J.H.: Even though I just got served yesterday and my attorney wasn’t able to show
       today with less than 24-hour notice?
              All I am asking for is a little bit of time to hire an attorney.

       MAGISTRATE: I guess the issue is that we have been doing this, and if you were
       unsure going in about what happens, you didn’t request a continuance before.

       J.H.: I got served yesterday. I just found out about all this yesterday.

       ***

       MAGISTRATE: Yeah, I mean, generally speaking, these hearings, these are
       scheduled quickly, and that is – that is the nature of it.
               And if you are not comfortable with entering into an agreement on it, that
       is okay, you know, that is fine, you don’t have to, but we will move forward with
       the hearing and have, you know, kind of the full hearing on it whether or not she is
       entitled to a protection order.

       J.H.: So I am not – I wouldn’t be able to get a postponement to get an attorney?

       MAGISTRATE: Well, no, I mean, you are – we are here now, and it is – we are a
       half an hour in.
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At that point, discussions continued until an agreement was reached and a consent agreement and

domestic violence civil protection order was signed by the parties.

       {¶11} In examining the circumstances of this matter under the factors set forth in Unger,

it appears from the record that this was the sole continuance requested. Although no specific

length of continuance was requested, J.H. asked for “a little bit of time to hire an attorney.” There

appeared to be no witnesses or other individuals who would have been inconvenienced by a short

delay, other than the parties themselves and R.H.’s attorney. While we recognize there was an

inconvenience to the opposing party and to the court when a request was made one-half hour into

discussions, this inconvenience alone did not necessarily override the potential prejudice; the

nature of the proceedings could clearly involve serious consequences, including both the

possibilities of civil contempt and criminal charges for violation of the agreement.

       {¶12} J.H.’s stated reason for the continuance was for the purpose of acquiring counsel.

Thus, there appeared to be a legitimate reason for the request, where the evidence indicated service

of notice of the hearing had been made less than 24 hours earlier. There was no evidence these

were circumstances of J.H.’s own making. Although counsel for R.G. stated that he believed J.H.

had been “very well aware of this for quite some time[,]” there is no evidence to contradict J.H.’s

testimony that he was served with notice only one day before the hearing.

       {¶13} We are also concerned with the magistrate’s response to the request for a

continuance. Rather than engaging in any consideration of the particular circumstances and factors

surrounding the request as set forth in Unger, the magistrate stated that either the parties reach an

agreement through consent or a full hearing would go forward, the implication being that a

continuance of the proceedings was simply not an option. The rationale for denying the request

appears to be conveyed by the magistrate’s comment that “generally speaking, these hearings,
                                                  6


these are scheduled quickly, and that is – that is the nature of it.” Although the trial court has a

right to control its own docket and the public has an interest in the prompt and efficient dispatch

of justice, this comment seems to suggest that the expediency of the proceeding was the controlling

factor, even at the expense of a party’s ability to retain counsel. We note that an ex parte protection

order had been in effect since October 31, 2018, thereby limiting the necessity of an immediate

hearing.

       {¶14} For these reasons, we find that the trial court’s decision to deny the request for a

continuance was arbitrary and unreasonable, and therefore constituted an abuse of discretion.

J.H.’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN ADOPTING THE NOVEMBER 19, 2018[,]
       CONSENT ORDER AND DOMESTIC VIOLENCE CIVIL PROPTECTION
       ORDER WHICH IS THE PRODUCT OF DURESS, OVERREACHING AND
       UNDUE INFLUENCE.

       {¶15} In his second assignment of error, J.H. argues the trial court erred in adopting the

consent agreement and domestic violence civil protection order because it was the product of

duress, overreaching, and undue influence. We decline to address the second assignment of error

because our resolution of the first assignment of error has rendered it moot.

                                                 III.

       {¶16} J.H.’s first assignment of error is sustained. We decline to address the second

assignment of error. The judgment of the Medina County Court of Common Pleas is reversed and

remanded for proceedings consistent with this decision.

                                                                                   Judgment reversed
                                                                                      and remanded.
                                                 7




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



CALLAHAN, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JOSEPH G. STAFFORD and NICOLE A. CRUZ, Attorneys at Law, for Appellant.

DAVID M. LENEGHAN and K. SCOTT CARTER, Attorneys at Law, for Appellee.
