Graham v House, (04-605) 05/03/2005

Appeal by defendant from order entered 3 February 2004 by Judge Amber Davis in Dare County District Court. Heard in the Court of Appeals 25 April 2005.

No brief for plaintiff-appellee.

Aldridge, Seawell, Spence & Felthousen, L.L.P., by W. Mark Spence, for respondent-appellant.

    CALABRIA, Judge.

     Cary V. House (“defendant”) appeals the entry of a domestic violence protective order against him based on the trial judge's denial of his requests for a continuance. We reverse and remand.
    On 26 January 2004, an ex parte domestic violence protective order was entered against defendant. On 27 January 2004, defendant was served with notice of hearing on the domestic violence protective order, which was scheduled for 3 February 2004. According to an affidavit in the record, on 3 February 2004, prior to the hearing, counsel for defendant appeared in the presiding judge's chambers. Counsel requested a continuance based upon the following circumstances: (1) he was representing defendant in othermatters involving his separation from Kristina M. Graham (“plaintiff”); (2) he could not appear with defendant at the hearing that day due to the lack of sufficient notice and other court conflicts; and (3) he would represent defendant in the domestic violence action in the event the case could be continued for hearing at a later date. The judge advised counsel that she would deny the motion to continue.
    At the hearing, both plaintiff and defendant appeared pro se. Plaintiff's testimony was consistent with the allegations in the complaint and the court's findings in the ex-parte domestic violence protective order. When plaintiff finished, the trial judge asked defendant if he “want[ed] to ask her any questions about what she[] testified to?” Defendant responded that he needed to do so. However, he had not been able to talk to his attorney, and his attorney could not appear in court on his behalf that day. The judge asked defendant whether he had been served on 27 January 2004. When he replied that he had, the judge stated that defendant “had some time to make arrangements[,] [and] [t]he matter is on for hearing today.” Shortly thereafter, defendant again informed the judge that he needed to consult with counsel, and added that when he asked his counsel to represent him, his counsel responded he had court and could not appear with him on 3 February 2004. The judge replied, “Today is your hearing date.” The judge then found that an act of violence had occurred and entered a domestic violence protective order against defendant. Defendant appeals.      Defendant asserts the trial judge abused her discretion in denying his requests for a continuance. Specifically, defendant argues the judge failed to determine whether he had acted with diligence and in good faith and failed to properly determine the sufficiency of his grounds for a continuance . We agree.
    The trial court may grant a motion for a continuance “for good cause shown and upon such terms and conditions as justice may require.” N.C. Gen. Stat. § 1A-1, Rule 40(b). Whether to grant a motion for a continuance is within the sound discretion of the trial court. Bowers v. Olf, 122 N.C. App. 421, 426, 470 S.E.2d 346, 350 (1996).
        “In passing on the motion the trial court must pass on the grounds urged in support of it, and also on the question whether the moving party has acted with diligence and in good faith. In reaching its conclusion the court should consider all the facts in evidence, and not act on its own mental impression or facts outside the record, although . . . it may take into consideration facts within its judicial knowledge. . . . The motion should be granted where nothing in the record controverts a sufficient showing made by the moving party, but . . . a denial of the motion is not an abuse of discretion where the evidence introduced on the motion for a continuance is conflicting or insufficient. . . . The chief consideration to be weighed in passing upon the application is whether the grant or denial of a continuance will be in furtherance of substantial justice.”

Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976) (citation omitted). “[G]rant [of] a continuance 'is especially warranted when nothing in the case indicates that the movant's purpose for the motion is to delay or evade trial.'” Benton v. Mintz, 97 N.C. App. 583, 589, 389 S.E.2d 410, 414 (1990) (citationomitted). We also note “'[a]n unrepresented party's failure to formally request a continuance does not preclude review of this issue'” so long as a clear attempt to stop the proceeding was made by the party. Ruth v. Ruth, 158 N.C. App. 293, 296-98, 580 S.E.2d 383, 385-86 (2003) (citation omitted) .
    During the hearing, defendant clearly attempted to stop the proceeding citing the absence of his attorney and his need to consult with his attorney. Furthermore, prior to the hearing, the judge was aware defendant had retained counsel, and his counsel could not appear that day to represent him. The trial judge never asked defendant any questions to determine whether defendant acted with diligence and good faith in trying to secure appropriate substitute counsel. Rather, the judge summarily determined that the seven days between the service of process and the hearing date afforded defendant “some time to make arrangements” and stated the matter was on for hearing that day. Similarly, the judge dispensed with defendant's second statement that he needed to consult with his counsel by merely stating, “Today is your hearing date.” Additionally, nothing in the record indicates defendant's expressed need to consult with his counsel was actually an attempt to delay or evade the hearing.
    Moreover, we note a continuance would not have prejudiced plaintiff. Specifically, the judge could have asked the plaintiff if there was any reason that she could not return to court on a date when defendant's counsel could be present. In addition, judges routinely continue domestic violence hearings when adefendant's counsel has had only a few days notice to investigate the case. The fact that defendant hired counsel shows the judge he acted with diligence, and the fact defendant's counsel appeared before the judge in chambers shows a good faith attempt to inform the court of the lack of notice and his counsel's court conflicts. Under these circumstances, the judge could have ordered that the ex-parte domestic violence protective order remain in effect until the next hearing date, pursuant to N.C. Gen. Stat. § 50B-2 (2003) .
    Accordingly, we hold the trial judge committed an abuse of discretion by summarily dispensing with the grounds urged by defendant for a continuance without determining essential questions, which could have revealed that granting defendant's requests for a continuance, to confer with counsel, would have been “in furtherance of substantial justice.” Shankle, 289 N.C. at 483, 223 S.E.2d at 386. T herefore, we reverse and remand for a new hearing.
    Reversed and remanded.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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