Opinion
NO. 2015-CA-000372-MR
04-22-2016
GERALD E. BROWN APPELLANT v. MARIA BROWN (now SLAUGHTER) APPELLEE
BRIEF FOR APPELLANT: Louis P. Winner Sarah M. Tate Kristin M. Birkhold Louisville, Kentucky BRIEF FOR APPELLEE: Lori Arnold Ackerson Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 12-CI-500070 OPINION
AFFIRMING BEFORE: COMBS, KRAMER, AND NICKELL, JUDGES. KRAMER, JUDGE: Maria Slaughter and Gerald Brown have two minor children in common; have been separated since December 2011; and were divorced by a limited decree of dissolution entered in Jefferson Circuit Court, Family Division, on July 8, 2014. On January 27, 2015, the family court entered an order resolving several post-dissolution issues that had been tried earlier that month over the course of a two-day hearing. Those issues involved the division and distribution of certain items of marital property and the custody, supervision, and parenting of the parties' minor children. By subsequent order of February 26, 2015, the family court modified the January 27, 2015 order to reflect that it was final and appealable pursuant to Kentucky Rules of Civil Procedure (CR) 54.02.
The family court awarded Slaughter the marital residence and directed Brown to satisfy a lien one of his former attorneys had placed upon it. It also ordered the parties to keep any bank accounts held in their own names; ordered Slaughter to keep, for the minor children, two bank accounts she held jointly with the children; ordered Slaughter to retain a 2002 Jeep Grand Cherokee and 2005 Chrysler Crossfire; and ordered Brown to retain a 2012 Dodge Challenger.
The family court awarded Slaughter sole custody of the parties' two minor children, subject to review in one year under a best interest standard; ordered the parties to continue their current parenting schedule, with Brown having supervised parenting time; ordered Brown to enroll in and complete the Batterer's Intervention Program; and further ordered Slaughter and the children to continue undergoing therapy.
The various orders described in note 1 resolved rights and claims between Slaughter and Brown and were thus capable of being final and appealable pursuant to CR 54.02. The orders described in note 2 were likewise appealable. See N.B. v. C.H., 351 S.W.3d 214 (Ky. App. 2011) (explaining post-dissolution orders relating to the care, custody, and visitation of minor children are proper subjects of an appeal, and orders relating to counseling are subject to an abuse of discretion standard of review). Nevertheless, some aspects of the January 27, 2015 order remained interlocutory and cannot be a subject of our review despite the family court's use of the CR 54.02 language. Specifically, the order directed the parties to equally divide the marital portions of the parties' retirement and brokerage accounts, and to pay Brown an amount from these brokerage accounts representing his share of the marital residence, but the order further noted the value of these accounts had yet to be determined and it reserved this matter for a later hearing in May 2015. To be clear, however, the only arguments Brown has raised on appeal relate to the family court's denial of his motion for continuance and his assertion that the denial of his motion was erroneous.
Brown now appeals, asking this Court to set aside the January 27, 2015 order. In his words, he argues the family court "acted outside the bounds of justice and equity by forcing him to proceed as a pro se litigant upon granting his former counsel's motion to withdraw on the morning of the first day of [the January 2015 hearing], thereby substantially prejudicing his chances of success and offending notions of due process." He contends the circuit court committed reversible error by failing to grant him a continuance at that point in time. Finding no error, we affirm.
As explained in Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010),
[w]ith respect to the denial of a continuance, our standard of review is whether the court abused its discretion. Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky. 1957). The court's discretion has been described as "a liberty or privilege allowed to a judge, within the confines of right and justice, to decide and act in accordance with what is fair, equitable, and wholesome as determined by the peculiar circumstances of the case[.]" City of Louisville v. Allen, 385 S.W.2d 179, 182 (Ky. 1964) (overruled on other grounds by Nolan v. Spears, 432 S.W.2d 425 (Ky. 1968)) (quoting In re Welisch, 18 Ariz. 517, 163 P. 264, 265 (1917)).
Our Supreme Court has set forth various factors for us to consider when reviewing the denial of a continuance. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)). At the threshold, the Court first admonishes that "[w]hether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case." Id. (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). The factors are:
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and the court;
4) whether the delay is purposeful or is caused by the accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to identifiable prejudice[.]
Id.
With this standard in mind, we now turn to the family court's reasons for denying a continuance to Brown. In the relevant part of its January 27, 2015 order, the family court explained:
Prior to the start of trial, Ms. [Su] Kang [i.e., Brown's seventh consecutive attorney] informed the Court that she had an ethical conflict in her representation of Mr. Brown. She stated that the night prior to Trial, she received information that revealed to her discrepancies in the information she had been provided up to that point. She stated given that fact, she did not feel she could ethically represent Mr. Brown regarding the financial aspects of this case. She requested to represent Mr. Brown regarding matters related to custody only during Trial, but withdraw regarding financial issues and continue those to another date. The Court denied her Motion to bifurcate the issues in this case, because if such an ethical conflict exists, it cannot be confined to only certain issues. The Court then allowed Ms. Kang to withdraw from representation of Mr. Brown. Mr. Brown requested a continuance to obtain other counsel. Ms. Slaughter adamantly objected to a continuance. After considering the circumstances of this case as discussed below, the Court denied Mr. Brown's Motion for a continuance.
Considering Mr. Brown's history with attorneys, the Court has no reasonable expectation that if the Trial were continued, Mr. Brown will have an attorney willing to
represent him once the future date arrives. A review of this case indicates Mr. Brown has been represented by seven different attorneys or law firms, all of whom withdrew prior to trial. Trial has been continued twice: once to allow Mr. Brown's then-counsel to prepare because he entered the case shortly prior to Trial, and once because of an emergency illness of one of Mr. Brown's attorneys (who withdrew from the case after that). The Court has made it clear repeatedly that no further continuances would be granted. While the Court would prefer that Mr. Brown have counsel, it cannot justify further delay of these proceedings over Ms. Slaughter's objections because of his seeming inability to find counsel who will remain on this case.
This case has been pending since January of 2012, and there have been impediments in the progress even prior to any Trial being scheduled. Mr. Brown stipulated in the DNA case[] that his acts of domestic violence placed the children at risk. A primary issue before the Court has been his relationship with the children, and efforts made to facilitate that relationship in a safe manner. At different times in the parties' several cases before the Court, Mr. Brown has been ordered to participate in counseling, and therapeutic visitation with the children. Mr. Brown went from July 2012 to approximately May 2014 without having therapeutic visitation. The Batterer's Intervention Program was ordered on January 4, 2012; Mr. Brown has yet to complete that program. The Court previously ordered an issue focused assessment and a custodial evaluation at Mr. Brown's request, and he then did not fully participate or advance the cost. These actions contributed to delaying progress, and delaying when a Trial date could reasonably be scheduled.
Further continuances of the Trial would have caused inconvenience to the Court, witnesses, and Ms. Slaughter. This Trial had been previously scheduled twice, each time occupying two days of the Court's limited time to hear circuit cases. The parties' witness lists include several professionals, who were required to arrange their professional schedules to be present. Parties, witnesses, and the Court are required to prepare for Trial each time, which is no small matter considering the amount of litigation that has already taken place. Ms. Slaughter was forced to prepare for Trial mentally and emotionally, as well as incur the expenses of Trial preparation. The cases before the Court involving the parties have all contained alarming allegations of domestic violence against Mr. Brown, and the Court has made a finding that domestic violence occurred when it entered a Domestic Violence Order against Mr. Brown. Mr. Brown has been held in contempt twice for violating no contact Orders regarding Ms. Slaughter and the children in the Domestic Violence and DNA cases. Ms. Slaughter argues that Mr. Brown prolongs these proceedings as a form of abuse toward her, and the Court is inclined to agree, given its experience with the parties.
Mr. Brown was not prejudiced by the denial of a continuance. Although the issues in this case are somewhat complex, they are not unusual to a divorce case. At Trial, the Court gave Mr. Brown ample opportunity to present evidence. As stated above, Mr. Brown has had the benefit of legal advice and representation from at least seven different attorneys during the lengthy pendency of this action. Mr. Brown was represented during mediation, the discovery process, and Trial preparation. A Trial Memorandum and a Nonmarital Tracing Memorandum were both filed on his behalf by counsel. In addition, despite the Court's denial of a continuance, the parties' agreement caused many complex financial matters to be continued regardless, and Mr. Brown has the opportunity to obtain counsel.
Earlier in the January 27, 2015 order, the family court further explained that:
[t]he parties have been appearing on the Court's various dockets since December 2011. In addition to this divorce action, they have a Domestic Violence case in which Ms. Slaughter has a Domestic Violence Order against Mr. Brown prohibiting him from having contact [with] her. There are also 2011 Dependency, Neglect, and Abuse (DNA) cases concerning the parties' minor children, related to allegations of domestic violence perpetrated by Mr. Brown against Ms. Slaughter.
In his brief before this Court, Brown does not refute what the family court represented in its January 27, 2015 order in support of why it chose to deny his motion for continuance. Instead, as he argued in his subsequent CR 59.05 motion before the family court, his argument before this Court is limited to the proposition that his lack of an attorney to represent him at the January 2015 hearing left him vulnerable to duress from both the family court and opposing counsel; forced him to sign an agreement drafted by Slaughter's counsel he otherwise would not have signed on penalty of jail time; and accordingly warrants setting aside the January 27, 2015 order and directing a new trial of the issues the order disposed of.
We begin our own analysis by stating, in light of the family court's thorough reasoning noted above, that the family court did not abuse its discretion in denying Brown's motion for a continuance. The family court considered the facts and circumstances of this case and its reasoning was consistent with the Snodgrass factors. As to the specifics of the argument Brown presents on appeal, we reject it for largely the same reasons the family court rejected it in its February 26, 2015 order overruling his CR 59.05 motion. Regarding Brown's assertion that the family court "forced" him to sign a document prepared by Slaughter's counsel, we adopt and quote the following aspects of the family court's February 26, 2015 order:
In his reply brief, Brown attempts to raise several arguments that he did not raise in his appellate brief or in his CR 59.05 motion before the family court. Specifically, he argues the terms of the January 27, 2015 order, which he agreed upon under oath before the family court at the conclusion of the two-day hearing, resulted from mutual mistake; specific items of property were erroneously categorized as marital property; and that the division of marital property was further erroneous because it failed to consider "the extended period of separation prior to entry of a divorce decree and [Slaughter's] birth of a child with another man." We do not consider these arguments because "[t]he reply brief is not a device for raising new issues which are essential to the success of the appeal." Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979).
Any financial matters addressed by the January 27, 2015 Order were those resolved by [Brown's] own agreement. Mr. Brown argues that the agreement the parties reached was entered into under duress. The facts he states to support this assertion all pertain to the document prepared by Ms. Slaughter's counsel. The contents of that document, and the circumstances surrounding Mr. Brown's signing of it, are irrelevant because the document was not entered as an Agreed Order. The agreement, as stated on the record and affirmed by the parties under oath, was made a Court Order, not the writing drafted by Ms. Slaughter's counsel. The Court declined to use the parties' writing because, being all too familiar with Mr. Brown, the Court knew he would change his mind and challenge the accuracy of the writing.
. . . .
Mr. Brown was not threatened with jail time for not signing a document, but for his obstructive and dilatory behavior. [. . .]
More to the point, "The Snodgrass factors demand a showing of identifiable prejudice." Guffey v. Guffey, 323 S.W.3d at 372. As the family court noted, and as a reading of Brown's appellate brief reflects, Brown does not explain how a later hearing in which he might have had representation would have rendered results different from the hearing at which he acted pro se. Furthermore, the lack of an attorney, in and of itself, is not considered prejudicial because, except in limited circumstances that do not apply here, there is no constitutional right to counsel in a civil case. See May v. Coleman, 945 S.W.2d 426, 427 (Ky. 1997) (citing Parsley v. Knuckles, 346 S.W.2d 1 (Ky. Ct. App. 1961)).
To the contrary, "[w]hile litigants may perceive the need to act pro se as a handicap, in reality a court makes an extra effort to compensate for the lack of representation by affording special courtesy and attention to the pro se litigant." Guffey, 323 S.W.3d at 373. --------
In light of the foregoing, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Louis P. Winner
Sarah M. Tate
Kristin M. Birkhold
Louisville, Kentucky BRIEF FOR APPELLEE: Lori Arnold Ackerson
Louisville, Kentucky