Appeal by plaintiff from orders entered 13 July 2001 and 4
December 2001 by Judge Charlie Brown in Rowan County Superior Court.
Heard in the Court of Appeals 19 February 2003.
Kary C. Watson for plaintiff appellant.
Robert L. Inge for defendant appellee.
TIMMONS-GOODSON, Judge.
Cristina Lynn Ruth (“plaintiff”) appeals from orders of the
trial court granting Vaughn Alan Ruth (“defendant”) custody of
Heather Dawn Ruth and Danatha Marie Ruth (“the minor children”) and
denying plaintiff's motion for a new trial. For the reasons stated
herein, we reverse the order of the trial court.
Plaintiff and defendant are the natural parents of the minor
children. Plaintiff and defendant were married on 26 June 1992 and
subsequently divorced. On 21 January 1997 and 2 June 1998,
plaintiff was awarded custody of the minor children and defendant
was granted visitation.
On 29 March 2001, defendant filed a motion to modify the
custody order, alleging that (1) since the entry of the prior order,
plaintiff moved to West Virginia, which interfered with his
visitation rights; (2) plaintiff moved several times and withnumerous people, which continuously disrupted the minor children (3)
the defendant was ordered to pay for day care and the minor children
no longer attended day care; and (4) that defendant's income had
been reduced since the entry of the prior order. Defendant's motion
to modify sought a “workable” visitation schedule, custody of the
minor children and a modification in defendant's child support
obligations. A hearing on defendant's motion was initially set for
24 April 2001.
On 24 April 2001, plaintiff made arrangements with Milton Bays
Shoaf (“Shoaf”) to represent her in court. On 26 April 2001,
Shoaf's secretary telephoned plaintiff to inform her that Shoaf
appeared in court and was granted a continuance on the matter. The
hearing was calendered for 27 June 2001 and plaintiff met with Shoaf
on 26 June 2001 to prepare for the trial. At the meeting, plaintiff
paid Shoaf $400.00 as an initial deposit for his services and they
discussed the case. On 27 June 2001, thirty minutes prior to trial,
plaintiff was informed by Shoaf's secretary that Shoaf would not
appear in court. According to testimony from Shoaf, he did not
“feel that [plaintiff] had faith in [him] as an attorney.” Because
of comments she made, and because plaintiff did not pay him his full
retainer, Shoaf informed the court on the morning before trial that
he did not represent plaintiff. Shoaf then returned to plaintiff a
portion of the money given to him and charged her for the conference
they had on 26 June 2001.
As a result of Shoaf's withdrawal from the case, plaintiff
appeared in court, answered at calendar call and informed the court
that she was not represented by counsel. The court then requestedthat plaintiff meet with Robert Inge (“Inge”), defendant's counsel,
in an effort to resolve defendant's motion by agreement.
According to plaintiff, during the meeting with Inge and
defendant, they discussed defendant's visitation rights. However,
the parties were unable to agree on a schedule and Inge suggested
that the court should decide the matter. Plaintiff testified that
Inge spoke with Judge Brown in his chambers and that she also asked
to speak with Judge Brown. According to plaintiff, Judge Brown
informed her that if she was going to ask for a continuance it would
be denied.
Following the trial, defendant was granted custody of the minor
children and plaintiff was granted visitation. On 31 July 2001,
plaintiff filed a motion pursuant to Rule 59 of the North Carolina
Rules of Civil Procedure requesting that the 13 July 2001 order be
set aside and that she be granted a new trial. Plaintiff's motion
was denied on 4 December 2001. Plaintiff appeals the order denying
her motion for a new trial and the order granting custody of the
minor children to defendant.
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The dispositive issue in the case is whether the trial judge
abused his discretion in denying plaintiff's motion for a new trial
under Rule 59 of the North Carolina Rules of Civil Procedure when
her due process rights were violated. For the reasons stated
herein, we reverse the order of the trial court.
“Orders under Rule 59 are within the trial court's sound
discretion and should not be disturbed on appeal, unless it appears
from the record that 'the trial judge's ruling probably amounted toa substantial miscarriage of justice.'”
Allen v. Beddingfield, 118
N.C. App. 100, 101-102, 454 S.E.2d 287, 289 (1995) (quoting
Burgess
v. Vestal, 99 N.C. App. 545, 550, 393 S.E.2d 324, 327,
disc. rev.
denied, 327 N.C. 632, 399 S.E.2d 324-25 (1990)). “[W]here a motion
for a continuance raises a constitutional issue, the trial court's
decision . . . involves a question of law, not fact, which may be
reviewed by an examination of the circumstances of each case.”
State v. Williams,
51 N.C. App. 613, 616,
277 S.E.2d 546, 548
(1981). Due process involves the fundamental element of a
reasonable time for preparation for a trial.
Benton v.
Mintz, 97
N.C. App. 583, 589, 389 S.E.2d 410, 414 (1990)
;
see also McMillan v.
Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964).
“An
unrepresented party's failure to formally request a continuance does
not preclude review of this issue.”
Id.
at 588, 389 S.E.2d at 413;
see also Underwood v. Williams, 69 N.C. App. 171, 174, 316 S.E.2d
342, 344 (1984).
Here, plaintiff's request to continue the case at the time of
trial raises a constitutional issue. Therefore, we must examine the
circumstances of this case to determine whether the ruling from the
trial court amounted to a miscarriage of justice. An examination
of the record reveals that plaintiff was unrepresented by counsel,
did not make a formal request for a continuance until she was on the
witness stand, and believed that the issue before the court was
visitation and not a change of custody. A close review of the
record further indicates that plaintiff was likely misled as to the
nature of the proceedings during her pretrial discussions with Shoafand Inge. At the motion for a new trial, Shoaf gave the following
testimony:
Q: Did you have any conversations with Inge
about what was at issue in this case?
A: . . . I think he and I had a couple of
brief telephone conversations and, yes, I do
recall a few things that we talked about. . .
. I think since she had the children . . . that
he had not had any visitation in the past or .
. . and that he was wanting just some standard
. . . visitation could be worked out rather
than full custody. I think it was sort of
understood that she would retain custody and he
would get some sort of visitation.
On cross-examination plaintiff gave the following testimony:
Q: At the calendar call you never asked for a
continuance, correct?
A: I don't know the process if I could ask for
a continuance at that time.
Q: I'm just asking you did you or didn't you?
A: I just did what they told me to do. They
called roll, I answered, and I told him about
Attorney Shoaf withdrawing.
Q: And, in fact, later on that morning or
right before lunch you asked the judge if you
could go ahead and have your hearing, correct?
A: Because I still assumed it was under
scheduling visitation.
Q: And at that point even then after you had
spoken with me [Inge] you didn't ask for a
continuance, did you?
A: All we spoke about was visitation.
Q: Didn't I tell you -- and I realize I'm
walking a fine line here -- but didn't I tell
you that [defendant] would like to have custody
but we might be able to work out something if
we could come up with an agreeable schedule?
A: No.
Q: Do you recall something like that being
said?
A: No, you didn't. You came back after you
told me what [defendant] wanted for . . .
visitation and he wanted all summer. Then when
you left and came back, you said that was not
agreed upon, we would let the judge decide.
Q: Okay. And when we came back in you again
still did not ask for a continuance; . . .
A: When I realized that this hearing was going
on and I was put up here on the stand and I did
not have an attorney and I realized what was --
or had a fathom of what was happening then I
asked for a continuance till I could have an
attorney.
We
find the case of
Benton instructive. In
Benton, the
defendant's attorney entered a court appearance on the defendant's
behalf and three months later filed a motion to withdraw.
Id. at
584, 389 S.E.2d at 411. The trial court conducted a special
proceeding on the motion to withdraw and the defendant was present
in court.
Id. at 585-86, 389 S.E.2d at 411-12. The defendant
believed that
the purpose of the hearing was to address the motion
to withdraw; however, after the motion to withdraw was granted, the
trial court proceeded with the hearing on the merits of the case.
See id. at 586, 389 S.E.2d at 412. Because the defendant was
confused, he asked for additional time to prepare his case, but the
request was denied.
See id. The trial court refused to continue
the case even though the defendant's former attorney confirmed that
he had probably put his ex-client under the impression that only the
motion to withdraw would be heard that day.
Id. The trialcommenced with the defendant representing himself.
Id. When
defendant expressed that he could not secure his witnesses and when
complicated legal issues arose during the trial, the defendant asked
for a delay in the proceeding.
Id. at 588, 389 S.E.2d at 413.
The
defendant was denied a delay in the trial and the trial court
entered judgment against the defendant.
Id. at 586, 389 S.E.2d at
412.
Likewise, in the case at bar, Shoaf entered an appearance for
plaintiff in April 2000 and was successful in obtaining a
continuance. After a new trial date was scheduled, plaintiff met
with Shoaf to discuss the merits of the case. The record reveals
that during the meeting with Shoaf, plaintiff paid him money to
represent her in the matter; however, Shoaf withdrew from the case
thirty minutes before trial. Plaintiff then appeared in court
without the benefit of counsel, answered calendar call, and informed
the court that her attorney had withdrawn from the case. At the
request of the court, plaintiff then met with defendant and his
attorney, was unable to agree on visitation, and proceeded to trial
at the suggestion of Inge. When plaintiff realized that issues
which did not pertain to visitation were being raised, she asked for
a delay in the trial. Here, we note that defendant is a layman and
while she may have failed to request a continuance at the
appropriate time, she made a notable layman's attempt to stop the
proceeding once she realized that the trial had moved in a direction
she was unprepared to defend. “A continuance may be granted only
for good cause shown and upon such terms and conditions as justice
may require.” N.C. Gen. Stat. § 1A-1, Rule 40(b) (2001). Furthermore, Shoaf, a licensed attorney with approximately
twenty years of legal experience in family law, testified that he
talked with Inge and believed that the “primary issue” before the
court was visitation. Therefore, it is likely that plaintiff in
consulting with Shoaf on the eve of trial, and in discussing the
case with Inge before proceeding to trial, was prepared to proceed
on the issue of visitation and not a change of custody. Moreover,
nothing in the record here indicates that plaintiff sought to delay
or evade the trial, and plaintiff was likely unaware or misled about
the true nature of the trial. Accordingly, we grant a new trial.
See Benton, 97 N.C. App. at 589, 389 S.E.2d at 414 (holding that a
reversal of the trial court's refusal to grant a continuance is
especially warranted when nothing in the case indicates that the
movant's purpose for the motion was to delay or evade trial).
Because we reverse the trial court's order denying plaintiff's
motion for a new trial, it is unnecessary for us to address the
other assignments of error raised by plaintiff.
New trial.
Judges WYNN and LEVINSON concur.
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