[Cite as Thompson v. Thompson, 2015-Ohio-4103.]
                          STATE OF OHIO, MAHONING COUNTY

                               IN THE COURT OF APPEALS

                                     SEVENTH DISTRICT


TIERRA THOMPSON                                   )   CASE NO. 14 MA 178
                                                  )
       PLAINTIFF-APPELLEE                         )
                                                  )
VS.                                               )   OPINION
                                                  )
PATRICK D. THOMPSON, SR.                          )
                                                  )
       DEFENDANT-APPELLANT                        )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from the Court of Common
                                                      Pleas, Domestic Relations Division, of
                                                      Mahoning County, Ohio
                                                      Case No. 14 DR 223

JUDGMENT:                                             Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                               Atty. Elsa Reale Gottfried
                                                      Community Legal Aid Services
                                                      160 E. Market Street, Suite 225
                                                      Warren, Ohio 44481

For Defendant-Appellant:                              Atty. Matthew C. Giannini
                                                      1040 South Commons Place
                                                      Suite 200
                                                      Youngstown, Ohio 44514


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                      Dated: September 30, 2015
[Cite as Thompson v. Thompson, 2015-Ohio-4103.]
WAITE, J.


       {¶1}    Appellant Patrick D. Thompson, Sr. appeals the judgment of the

Mahoning County Court of Common Pleas, Domestic Relations Division, granting the

divorce complaint filed by his wife, Appellee Tierra Thompson. Appellant's argument

on appeal is that the final magistrate's hearing should not have been held in his

absence and that a continuance should have been granted.                Appellant was

represented by two different attorneys during the preliminary aspects of the case, but

both filed motions to withdraw due to incompatibility issues with Appellant, and both

motions were granted. Appellant had two months after being notified of the final

hearing to obtain new counsel, but did not. He also could have attended the hearing

himself, but he did not. Appellant claims that he called the magistrate on the day of

the final hearing to ask for a continuance, but there is no record of such a call.

Furthermore, the domestic relations court’s local rules require motions to be in writing

and there is no such writing in the record. There is no basis in the record to support

Appellant's argument on appeal, and the judgment of the trial court is affirmed.

                                          Case History

       {¶2}    The parties were married on April 27, 2011. There is one minor child

from the relationship.      Appellee filed a complaint for divorce on April 29, 2014.

Appellant, through counsel, filed an answer on May 14, 2014. On June 25, 2014,

counsel filed a motion to withdraw due to Appellant's failure to pay his fees and

failure to cooperate in litigation of the case. The motion was granted. Appellant

obtained new counsel.
                                                                                     -2-

        {¶3}   Final pretrial was held before the magistrate on August 8, 2014. The

court noted that Appellant had a history of domestic violence and had a criminal

domestic violence charge pending in Youngstown Municipal Court.               Appellant

became angry during the hearing and walked out before the hearing concluded.

Parenting issues were forwarded to a dispute resolution counselor, and final hearing

was set for October 3, 2014. (See 8/19/14 Magistrate's Decision.)

        {¶4}   On August 11, 2014, counsel moved to withdraw because Appellant

refused to take his advice, constantly interrupted court proceedings, and left the final

pretrial hearing before counsel could present his case. The motion was granted on

August 13, 2014.

        {¶5}   Appellant did not obtain new counsel and did not appear at the final

hearing on October 3, 2014. Appellee appeared with counsel and the hearing went

forward. After presentation of Appellee’s evidence, divorce was granted. Appellee

was designated as the residential parent of the parties' minor child. Appellant was

ordered to pay child support. No spousal support was ordered. The court also

divided the marital property. The magistrate's decision was filed on October 21,

2014.

        {¶6}   On November 3, 2014, Appellant, through his third attorney, filed an

objection to the magistrate's decision. Appellant argued that the court should have

granted a continuance of the divorce hearing due to Appellant’s multiple changes in

counsel. The court held a hearing on the objections on November 25, 2014. The

court found that Appellant had notice of the final divorce hearing. The court found
                                                                                      -3-

that no motion for continuance was filed as required by local court rules. The court

found that there was no evidence to support Appellant’s contention that he attempted

to hire another attorney prior to the final divorce hearing. While it appeared that

Appellant was attempting to overturn the divorce on grounds of excusable neglect,

the trial court noted that neglect is not excusable when the party or his attorney could

have controlled or guarded against the happening or circumstance. The court found

no excusable neglect, overruled Appellant’s objection, affirmed the magistrate's

decision, and issued the final order of divorce. The judgment entry was filed on

December 3, 2014. This timely appeal followed.

                              ASSIGNMENT OF ERROR

       Whether the trial court abused its discretion in failing to balance the

       court's interest in controlling its docket and the public's interest in an

       efficient judicial system with the possibility of prejudice to the defendant

       by proceeding with his divorce trial in his absence under the particular

       circumstances of this case.

       {¶7}   Appellant’s main argument on appeal is that the trial court should have

granted him a continuance rather than conduct the divorce hearing in his absence. It

is within the trial court's discretion whether to grant or deny a motion for a

continuance. Midland Steel Prods. Co. v. U.A.W. Local 486, 61 Ohio St.3d 121, 130-

131, 573 N.E.2d 98 (1991). A reviewing court will not disturb the trial court's ruling

absent an abuse of that discretion. Id. An abuse of discretion connotes more than

an error of judgment; it implies that the court's attitude is unreasonable, arbitrary, or
                                                                                        -4-

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶8}   Appellant understands that a trial court has discretion in granting a

continuance, but he argues that the court's discretion must be balanced between the

interest in an efficient judicial system versus the possibility of prejudice to the moving

party. See, e.g., State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981).

       {¶9}   In considering a party's motion for continuance, a trial court should

consider a variety of factors: (1) the length of the delay requested; (2) if any prior

continuances were requested and received; (3) the inconvenience to all parties

involved, including the court; (4) if the continuance is for legitimate reasons; (5) if the

party requesting the continuance contributed to the circumstances giving rise to the

request for continuance; and (6) any other relevant factors.         Youngstown Metro.

Hous. Auth. v. Barry, 7th Dist. No. 94-CA-147, 1996 WL 734017, at *1.

       {¶10} In this case it is apparent that no motion for continuance was even filed.

Although Appellant claims he made a phone call to the court on the day of trial asking

for a continuance, there is no record of this call. Furthermore, Mahoning County

Court of Common Pleas, Domestic Relations Division Loc.R. 8.10(A) requires all

motions for continuance to be filed in writing with a copy delivered to the court's

assignment commissioner. There is no written motion in the record. A court does

not abuse its discretion in failing to grant a continuance when the local rules require

motions for continuance to be in writing and no written continuance is filed. It is

equally true that no abuse of discretion is present when Appellant alleges that a
                                                                                   -5-

phone call rather than a written motion is made asking for the continuance shortly

before trial. Pritts v. Pritts, 7th Dist. No. 00-BA-48, 2001 WL 1610138. Moreover, the

record in this matter reveals that Appellant was partially at fault for continually

discharging his counsel and failing to be cooperative in these proceedings.

       {¶11} Appellant is mistaken that the trial court erroneously granted a default

judgment of divorce because the default judgment rule, Civ.R. 55, does not apply in a

divorce action. See Civ.R. 75(F); Wood v. Hein, 10th Dist. No. 14AP-382, 2014-

Ohio-5564. No default judgment was requested or issued in this case. The matter

went to trial. Evidence was heard and a ruling was issued on the merits. The alleged

error in this case is that the court failed to grant a continuance. Since there is no

evidence that a continuance was requested, there was no reason to grant

continuance, here. Therefore, Appellant's assignment of error is overruled and the

judgment of the trial court is affirmed.


DeGenaro, J., concurs.

Robb, J., concurs.
