                                                                                 FILED
                                                                             Dec 18 2019, 8:48 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    APPELLEE PRO SE
      Jonathan D. Harwell                                       Leslie M. Smith
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Rickey Smith,                                             December 18, 2019
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                19A-DN-926
              v.                                                Appeal from the Marion Superior
                                                                Court
      Leslie Smith,                                             The Honorable Heather Welch,
      Appellee-Petitioner.                                      Judge
                                                                The Honorable Jeffrey L. Marchal,
                                                                Magistrate
                                                                Trial Court Cause No.
                                                                49D01-1811-DN-43933



      Tavitas, Judge.


                                               Case Summary

[1]   Rickey Smith (“Husband”) appeals the trial court’s denial of his motion to

      continue the dissolution hearing. We reverse and remand.




      Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019                           Page 1 of 9
                                                      Issue

[2]   Husband presents one issue on appeal, which we restate as whether the trial

      court abused its discretion when it denied Husband’s motion for continuance.


                                                      Facts

[3]   Husband and Leslie Smith (“Wife”) married in 1986 and separated on

      November 2, 2018, when Wife filed a petition for dissolution of marriage. The

      couple has one emancipated adult child. On December 19, 2018, the trial court

      set the final hearing for March 5, 2019, at 9:00 a.m.


[4]   On March 4, 2019, Husband’s attorney filed a motion to withdraw, indicating

      that: (1) “a breakdown in the attorney client relationship has occurred. Counsel

      is no longer able to adequately represent the Respondent. . .”; and (2) “[a]s of

      the date of filing, Respondent no longer wishes Counsel to continue

      representation and has obtained a copy of his entire file.” Appellant’s App.

      Vol. II p. 15. Husband’s attorney did not include a motion to continue the

      dissolution hearing, which was set for the following day. That same day, the

      trial court granted Husband’s attorney’s motion to withdraw.


[5]   On March 5, 2019, Husband appeared pro se at the dissolution hearing and

      Wife appeared with her counsel. When Wife’s attorney called Wife to testify,

      Husband and the trial court engaged in the following discussion:


              [HUSBAND]: I had surgery the 19th of February. I still have 14
              stitches in me. [Husband’s former attorney] did not send me
              nothing. I have not – I – I have not seen our – uh W2 forms. I
              go to VA to try and get my VA started again. And after the

      Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019      Page 2 of 9
        paperwork they said I haven’t had my taxes done in 5 years. But
        Josh said she has tax forms. So, Josh got mad at me – I’ve been
        sleeping on the street since September, sir. I’m 65 years old. She
        ran me out of the house by turning off the thermos – the – uh. . . .
        (Unintelligible) – uh – on both sides of the house. And then she
        started using the nest – uh – (Unintelligible) setting that off in the
        middle of the night. Then she started. . .


        [WIFE’S ATTORNEY]: . . . Objection, Judge. . . .


                                              *****


        [HUSBAND]: . . . I haven’t seen anything. Josh haven’t [sic]
        given me anything. I had surgery the 19th. I was down
        (Unintelligible) – you can see all my notes on my phone. . .


        THE COURT: . . . Sir, what – what are you getting to.


        [HUSBAND]: . . . Well, (Unintelligible) a continuance to get an
        attorney.


        THE COURT: No, that’ll be denied.


        [WIFE]: . . . . No.


                                              *****


        THE COURT: . . . Your attorney moved to withdraw yesterday.
        ...


                                              *****



Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019         Page 3 of 9
              THE COURT: . . . And there – and there was no contemplation
              that you needed a continuance at all.


              [HUSBAND]: . . . Well, sir. . .


              THE COURT: . . . He indicated that you fired him at the last
              minute.


              [HUSBAND]: Yes, sir – yes, sir.


              THE COURT: So we’re going to finish this today. . .


                                                    *****


              THE COURT: Now, if you would like a minute to review all of
              that and to talk to [Wife’s attorney], perhaps we can come to an
              agreement. This is a case without children.


                                                    *****


              THE COURT: . . . This is about stuff.


              [HUSBAND]: Yes, sir.


              THE COURT: This should be a very simple proposition.


      Tr. Vol. II pp. 5-6.


[6]   Husband told the trial court: “. . . I’m a 65-year veteran. I have not educated

      [sic] – I educated my wife and all my kids. No, I’m not educated. I’d like to –

      whatever you want that – (Unintelligible) best with you, sir. I don’t know – not

      Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019       Page 4 of 9
      a thing. . .” Id. at 7. Husband also made numerous references to the fact that

      Husband’s former attorney had all of Husband’s documents. The trial court

      then advised Husband that it was time to “get this divorce over with,” and that

      the trial court’s plan was to put everything “all in one pot and [ ] split it right

      down the middle.” Id. at 9.


[7]   During the hearing, Husband testified that the relationship between him and

      his attorney broke down because his attorney called him a liar. Husband also

      made several other statements during the hearing regarding the absence of an

      attorney, including that “[i]f [Husband] had an attorney” he would have been

      able to obtain some bank information and that his attorney “never gave

      [Husband] anything” regarding documentation of the couple’s assets. Id. at 33,

      40. Finally, Husband indicated that he has “a second-grade educat[ion].” Id.
          at
      84. At this March 5, 2019, hearing, the trial court also heard evidence on the

      Wife’s request for an order for protection based on allegations of abuse in the

      couple’s relationship. The trial court orally stated that the evidence presented

      by Wife “justif[ied] the issuance of a permanent protective order.” Id. at 114.

      At the conclusion of this evidence, the trial court took the petition for

      dissolution of marriage under advisement.


[8]   On March 14, 2019, Husband filed a “motion for new divorce hearing,”

      indicating that Wife “presented fraudulent IRS documentation”; “did not put

      the Gold and Diamond watches on her list”; and the “list of assets was not

      correct. . . .” Id. at 18. On March 18, 2019, the trial court denied Husband’s

      petition without a hearing. On March 25, 2019, the trial court entered a written

      Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019          Page 5 of 9
       order granting Husband $318,858.26 or 49.87% of marital assets and Wife

       $320,439.41 or 50.12% of marital assets based on Wife’s valuations of the

       marital property. Husband now appeals.


                                                     Analysis

[9]    Husband raises the sole issue of whether the trial court abused its discretion in

       failing to grant Husband’s motion for continuance.


               The decision to grant or deny a motion for a continuance is
               within the sound discretion of the trial court. We will reverse the
               trial court only for an abuse of that discretion. An abuse of
               discretion may be found on the denial of a motion for a
               continuance when the moving party has shown good cause for
               granting the motion. A trial court abuses its discretion when it
               reaches a conclusion which is clearly against the logic and effect
               of the facts or the reasonable and probable deductions which may
               be drawn therefrom. If good cause is shown for granting the motion,
               denial of a continuance will be deemed to be an abuse of discretion. No
               abuse of discretion will be found when the moving party has not
               shown that he was prejudiced by the denial.


       F.M. v. N.B., 979 N.E.2d 1036, 1039 (Ind. Ct. App. 2012) (citations and

       quotations omitted) (emphasis added).


[10]   As put by the United States Supreme Court:


               The matter of continuance is traditionally within the discretion of
               the trial judge, and it is not every denial of a request for more
               time that violates due process even if the party fails to offer
               evidence or is compelled to defend without counsel. Contrawise,
               a myopic insistence upon expeditiousness in the face of a
               justifiable request for delay can render the right to defend with

       Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019          Page 6 of 9
               counsel an empty formality. 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 was denied.


       Ungar v. Sarafite, 376 U.S. 575, 589-590, 84 S. Ct. 841, 849-50 (1964) (citations

       omitted), reh’g denied.


[11]   In the case before us, the trial court impeded Husband’s ability to show good

       cause as to why the motion for continuance should be granted when it denied

       Husband’s motion to continue without hearing any argument. Shortly after

       denying Husband’s motion without argument, trial court pre-determined the

       outcome of the case, telling Husband that he was going to “split” the marital

       assets “right down the middle.” Tr. Vol. II p. 9. The trial court’s actions

       demonstrated a “myopic insistence upon expeditiousness.” Ungar, 376 U.S. at

       589, 84 S. Ct. at 849.


[12]   The circumstances of this case show that Husband demonstrated good cause as

       to why the motion to continue should have been granted. First, there is no

       evidence in the record that Husband was attempting to prolong the proceedings

       or engage in dilatory tactics. In fact, Husband stated that he hoped the

       dissolution proceeding would be completed quickly. Second, the dissolution

       hearing was held a mere four months after the petition for dissolution was filed.

       The chronological case summary (“CCS”) does not indicate there were any

       other prior motions to continue the dissolution trial. Third, Husband argued

       that he had surgery on February 19—roughly two weeks before the dissolution

       Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019       Page 7 of 9
       hearing—and that Husband’s attorney still had not provided Husband with his

       documents to proceed with the dissolution. 1


[13]   Fourth, and finally, the trial court denied Husband’s motion to continue,

       despite its knowledge that Husband’s counsel withdrew the day prior.

       Although Husband terminated his attorney, Husband was not provided ten-day

       notice of his attorney’s withdrawal as required by the local rule. 2 See Hess v.

       Hess, 679 N.E.2d 153 (Ind. Ct. App. 1997) (“Although we cannot say that

       Husband is wholly free from fault for his counsel’s withdrawal, we similarly

       cannot say that, in dissolution proceedings where emotions run high, attorney-

       client disagreement and conflict are unique.”). We are mindful that the

       “unexpected and untimely withdrawal of counsel does not necessarily entitle a

       party to a continuance.” F.M., 979 N.E.2d at 1040. Still, this consideration is

       relevant when looking at whether the trial court abused its discretion in failing

       to grant Husband’s motion to continue at a crucial stage in the proceedings,

       especially when not insignificant assets were at issue. See Hess, 679 N.E.2d at

       154 (holding “among the things to be considered on appeal from the denial of a



       1
           We acknowledge that these facts were not presented to the trial court under oath.
       2
         The Marion County Local Rule LR49-TR3.1-201, regarding the withdrawal of an appearance, states
       that: “[p]ermission to withdraw shall be given only after the withdrawing attorney has given his client
       ten days written notice of his intention to withdraw. . . .” Moreover, pursuant to the rule:
                  The letter of withdrawal [to the attorney’s client] shall explain to the client that failure to
                  secure new counsel may result in dismissal of the client’s case or a default judgment may be
                  entered against him, whichever is appropriate, and other pertinent information such as trial
                  setting date or any other hearing date. The Court will not grant a request for withdrawal of
                  appearance unless the same has been filed with the Court at least ten days prior to trial date,
                  except for good cause shown.



       Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019                                   Page 8 of 9
       motion for continuance, [is] whether the denial of a continuance resulted in the

       deprivation of counsel at a crucial stage in the proceedings”).


[14]   Accordingly, Husband was prejudiced by all of the above circumstances and the

       denial of Husband’s motion to continue was an abuse of discretion which

       infringed on Husband’s due process rights. See Ungar, 376 U.S. at 589, 84 S. Ct.

       at 849.


                                                   Conclusion

[15]   Based on the facts and circumstances of this case, it was an abuse of discretion

       for the trial court to deny Husband’s requested continuance. We reverse and

       remand.


[16]   Reversed and remanded.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-DN-926 | December 18, 2019     Page 9 of 9
