COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73843 CYNTHIA HUGHES : : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND : OPINION DONALD C. HUGHES : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : DECEMBER 10, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Division of Domestic Relations case No. C.P D-214193 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Diane M. Gonda, Esq. 75 Public Square Suite 920 Cleveland, Ohio 44113 For defendant-appellant: John J. Montello, Esq. 15356 Longvale Maple Hts., Ohio 44137 MICHAEL J. CORRIGAN, J.: Defendant-appellant, Donald C. Hughes, appeals the decisions of the Cuyahoga County Court of Common Pleas which denied his -2- motion for a continuance and overruled his objections to the Magistrate's Report. Defendant-appellant raises two errors for review. This court, finding error, reverses and remands this case to the common pleas court for further proceedings consistent with this opinion. On September 29, 1992, plaintiff-appellee, Cynthia Hughes, and defendant-appellant were divorced. The parties had entered into a Separation Agreement which was incorporated into the Divorce Decree. Portions of the Separation Agreement concern the disposition of a 24-unit apartment building located at 15112 Euclid Avenue, Cleveland, Ohio, in which the parties both had an interest. At the time of the Separation Agreement, foreclosure actions were under way on this property. Defendant-appellant was given eighteen (18) months in which to bring the outstanding debts on the property current (e.g. property taxes) or to final date of foreclosure, whichever is sooner. Failure to do so on the part of defendant- appellant would result in a transfer of the property to plaintiff- appellee by way of a quitclaim deed.1 If defendant-appellant complied with these conditions, the building would be transferred to defendant-appellant. The Separation Agreement also provided that plaintiff-appellee was to pay $15,000 to defendant-appellant if he brings the debts current on the building.2 1The parties executed quitclaim deeds which were held by a mutually agreed upon attorney during this period. 2If plaintiff-appellee was able to obtain the additional $15,000 through refinancing, the monies were to be deposited into an escrow account. -3- On May 18, 1994, plaintiff-appellee filed a motion to show cause arguing defendant-appellant failed to comply with the conditions set forth in the Separation Agreement as it pertains to the apartment building. Plaintiff-appellee then dismissed said motion and filed a motion for declaratory judgment seeking the same relief. Defendant-appellant filed a motion to strike and a brief in opposition arguing not only that plaintiff-appellee failed to comply with the procedural mandates of the Ohio Revised Code pertaining to declaratory judgments and service, but also that at the time the divorce decree was entered, the property was subject to a foreclosure action. Since a foreclosure action on the property was under way, defendant-appellant filed an Application for Reorganization under Chapter 13 of the Federal Bankruptcy Code. Instead of having the property foreclosed upon, a re-organization plan was implemented which was not objected to by plaintiff- appellee and which required payment of the debts referenced in the divorce proceeding over a sixty (60) month period. Defendant- appellant argued he has made payments pursuant to the re- organization plan thereby substantially reducing the debt and has kept current on mortgage payment. If the motion for declaratory judgment is granted, defendant-appellant argues plaintiff-appellee will receive a windfall not intended by the agreement. On May 7, 1996, the trial court denied plaintiff-appellee's motion on procedural grounds. On May 23, 1996, plaintiff-appellee filed a motion for an order directing transfer of title. On -4- September 9, 1996, after a number of continuances, defendant- appellant then filed a motion to show cause. Defendant-appellant argued pursuant to the Settlement Agreement, plaintiff-appellee was to put $15,000 in escrow which was to be paid in eighteen (18) months to husband if he brings debts current on the building. Defendant-appellant argued that plaintiff-appellee never placed the monies in an escrow account. Again, a number of continuances were filed. On June 24, 1997, the Cuyahoga Child Support Enforcement Agency ( C.S.E.A. ) was joined as a new party defendant seeking reimbursement of funds from defendant-appellant's failure to provide child support. A hearing was scheduled on August 11, 1997 with the other pending motions. On August 8, 1997, defendant-appellant's counsel motioned the court for leave to withdraw as counsel. That same day, defendant- appellant requested another continuance in order that he may obtain new counsel. The motion to withdraw as counsel was granted. On August 11, 1997, a hearing was held before the Magistrate and defendant-appellant failed to appear. At that point in time, the motion for a continuance had not been ruled upon. It was later denied. On September 4, 1997, the Magistrate filed his decision ruling that defendant-appellant's motion for a continuance was not filed in accordance with D.D.R. Rule 3(B) and that his motion to show cause was denied for want of prosecution. The Magistrate also found that defendant-appellant failed to bring the debts of the property at issue current and that the motion to order the transfer of title -5- was well taken. Finally, the Magistrate held that defendant- appellant owes C.S.E.A. $1,382. On September 18, 1997, defendant-appellant filed objections to the Magistrate's decision. On December 12, 1997, the trial court subsequently overruled defendant-appellant's objections and adopted the Magistrate's decision. Defendant-appellant timely filed this appeal. Defendant-appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S MOTION TO SHOW CAUSE FOR WANT OF PROSECUTION AND IN FAILING TO GRANT APPELLANT'S MOTION FOR CONTINUANCE GIVEN WITHDRAWAL OF HIS COUNSEL, THE EXTREME PREJUDICE TO HIM, AND THE FACTS AND CIRCUMSTANCES OF THIS PARTICULAR CASE. It is well established that the grant or denial of a continuance lies within the sound discretion of the trial court. State v. Lorraine (1993), 66 Ohio St.3d 414, 423; State v. Unger (1981), 67 Ohio St.2d 65, 67; Bland v. Graves (1994), 99 Ohio App.3d 123, 129. The ultimate ruling is thus reviewable for an abuse of discretion. "The term 'abuse of discretion' implies that the court's attitude is unreasonable, arbitrary, or unconscionable." State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 161, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223. A review of a trial court's decision to grant or deny a continuance consists of a balancing test--the trial court's interest in controlling its own docket, including facilitating and prompting an efficient dispatch of justice, versus any potential -6- prejudice to the moving party. Unger, supra; Bland, supra. Some of the objective factors to be considered by a trial court in evaluating the need for a continuance are the following: "the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the [moving party] contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of the case." Unger, 67 Ohio St.2d at 67-68. In this case, there was a pending motion to show cause and a motion to order the transfer of property.3 These motions relate back to a Separation Agreement entered into by the parties. While the interpretation of the Separation Agreement may, at first glance, be straightforward, the subsequent actions in bankruptcy court (and the parties' acquiescence to said actions) have created a situation whereby legal counsel would be preferable, if not necessary, to protect each party's rights. Three days before the scheduled hearing, defendant-appellant's counsel filed a motion to withdraw. That same day, defendant- appellant filed a motion for continuance in order to obtain new counsel. The trial court granted the motion to withdraw and, by way of implication, denied the motion for a continuance. In view of the short amount of time between the day the motion to withdraw was filed and the hearing (three days) as well as the complexity of the 3As well as a motion by CSEA for child support backpay. -7- issues involv ed, we find it was an We find the facts and circumstances of this case somewhat analogous to those in Griffin v. Lamberjack (1994), 96 Ohio App.3d 257. In that case, a jury trial on a quiet title complaint was scheduled for February 23, 1993. Lamberjack filed a pro se motion for a continuance on February 18, 1993, the day after his attorney filed a motion to withdraw. The trial court overruled both the motion for a continuance and the motion to withdraw on the day before trial. Id. at 261. Lamberjack's attorney renewed the withdrawal motion on the day of trial. The trial court granted the motion, but then denied Lamberjack's motion for continuance which was based upon the withdrawal. Instead, the court ordered Lamberjack to proceed pro se. Id. at 262. In finding the trial court abused its discretion, the appellate court recognized the issues before the trial court were also involved in a bankruptcy proceeding in federal court. The court also noted the time between notice to the court of the severed attorney-client relationship and the scheduled trial. Moreover, in that case, there was no evidence in the record the continuance was dilatory, purposeful or contrived. Finally, the court recognized that the requested length of the continuance was not unreasonable. Id. at 264. 4We note also that the actual granting of the motion to withdraw was on August 13th, two days after the scheduled hearing date. Whether the hearing was postponed is unclear from the record. -8- While we note the record demonstrates this was defendant- appellant's second attorney in the matter which could lead to an inference of dilatory conduct, we would state that in such a situation the trial court should not have permitted the attorney's motion to withdraw. This is especially true in light of the complexity of the issue and the short period of time between the withdrawal and the hearing. While we stress that our holding today does not concern the actual merits of the underlying motions, we do hold that under these unique circumstances, the trial court abused its discretion in denying defendant-appellant's motion for a continuance. Defendant-appellant's first assignment of error is well taken. Defendant-appellant states as his second assignment of error: II. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S OBJECTIONS TO MAGISTRATE'S DECISION, GRANTING APPELLEE'S ORDER FOR DIRECTING TRANSFER OF TITLE AND CSEA'S MOTION TO RECOVER FUNDS GIVEN APPELLANT'S MOTION FOR CONTINUANCE, WITHDRAWAL OF HIS COUNSEL, THE EXTREME PREJUDICE TO HIM, AND CONSIDERING THE UNIQUE FACTS AND CIRCUMSTANCES OF THIS PARTICULAR CASE. This court's disposition of defendant-appellant's first assignment of error renders this assigned error moot. See App.R. 12(A)(1)(c). Judgment reversed and remanded to the trial court for further proceedings consistent with this opinion. -9- It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, P.J., AND JAMES D. SWEENEY, J., CONCUR JUDGE MICHAEL J. CORRIGAN N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .