Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY FOR A PPELLANT Michael R. Auger Franklin, Indiana A TTORNEY S FOR A PPELLEE 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 Ca se No. 18A

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- 2737 Appeal from the Marion Superior Court The Honorable Timothy Oakes, Judge The Honorable Caryl Dill, Magistrate Judge Trial Court Cause No. 49D02

- 1201

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- 209

Vaidik, Chief Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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# Case Summary

[1] After Jenny Anne Lee ( “Mother”) filed a notice of intent to relocate and Father objected, the trial court s et the matter for a hearing sixteen days out

. Shortly

a fter the hearing was scheduled , Mother filed a pro se motion to continue the hearing , claiming that she needed time to find an attorney. On t he 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 His tory

[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 b y 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. ParentsCourt of Appeals of Indiana | Memorandum Decision 18A

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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 Ninev e h. 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 , asserti ng 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 ultimat ely 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 regard ing 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 s et 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.Court of Appeals of Indiana | Memorandum Decision 18A

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[6] On t he day of the hearing, the trial court denied Mother’s request for a continuance and proceeded with the hearing

. Mother represent ed 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 att orney 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 yo ur 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 a ny witnesses?Court of Appeals of Indiana | Memorandum Decision 18A

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[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 a nd 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. w ou l d be emancipated by operation of law on September 17, 2018, and thereafter Father’s duty to pay child support to Mother for O.L. w ould 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 legalCourt of Appeals of Indiana | Memorandum Decision 18A

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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] Mot her 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 tri al 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 g ood 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 den ial. In re K.W. , 12 N.E.3d 241, 244 (Ind. 2014)

.

[10] Mo ther has demonstrated good cause for a contin uance . Mother’s June 11 motion to continue asserted that she needed time to hire counsel

. She l ikely did not already have counsel because she could not have anticipated that her May
14 notice of relocation would result in Father requesting a modif ication of child support and emancipat ion of O.L. and alleg ing that she was in contempt

. Moreover, d elaying the hearing to allow Mother to retain an attorney wouldCourt of Appeals of Indiana | Memorandum Decision 18A

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not have prejudiced Father to an extent to justify the denial of the continuance. That is, the he aring 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 mo tion 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 un prepared to represent herself , and for good

reason : the trial court denied her moti on to continue the hearing the same day that the hearing was scheduled to occur. And Mother clearly suffered b y representing herself

. That is, s he did not call any witnesses, struggled to cross

examine 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 ten

page order includes numerous findings regarding the evidence presented wi th respect to the criteria found in Indiana Code sections 31

- 16

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- 1 (modification of child support), 31

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- 11

- 1 (attorney’s fees), 31

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- 6 (contempt), and 31

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- 2

- 21 (modification of child custody). This case required comprehension of the law with resp ect 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 , 679Court of Appeals of Indiana | Memorandum Decision 18A

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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 re manded

.

Kirsch, J., and Altice, J., concur

.