Court of Appeals of Indiana | Memorandum Decision 18A-DR-2737 | July 16, 2019 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Michael R. Auger

Franklin, Indiana

ATTORNEYS FOR APPELLEE

Karl L. Mulvaney

Jan K. Keefer

Bingham Greenebaum Doll LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jenny Anne Lee,

Appellant-Petitioner,

v.

Paul William Lee,

Appellee-Respondent

July 16, 2019

Court of Appeals Case No.

18A-DR-2737

Appeal from the 

Marion Superior Court

The Honorable 

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 2 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 
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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.
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[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 5 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 6 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 
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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 crossexamine 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 tenpage 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 8 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.