Denial of Continuance Reversed in Knoxville, Tennessee Child-Support Dispute: Wilder v. Wilder

August 17, 2023 K.O. Herston 0 Comments

Facts: Mother and Father, the parents of three children, divorced many years ago.

In 2020, Mother petitioned for child support for the parties’ youngest child after the child became a legal adult. The trial was continued several times before it was finally scheduled for May 2022.

The month before the scheduled trial, Mother’s counsel moved to withdraw because Mother wanted him to file something that he believed violated the rules of professional conduct that govern lawyers. He also moved that the May 2022 trial be continued.

Five days before the scheduled trial, the trial court granted the motion to withdraw but denied the continuance because an “eve-of-trial firing of counsel” did not justify the continuance of a matter that had been pending for a few years. The trial court also noted the multiple delays of the hearing at Mother’s request and the prejudice to Father, who was paying post-majority temporary child support for three children, two of whom were over 21 years old.

Mother appealed, arguing that the trial court erred in allowing her attorney to withdraw a few days before trial and refusing to grant her a continuance so she could hire new counsel or prepare to try the case pro se.

On Appeal: The Court of Appeals reversed the trial court.

Decisions about continuances are fact-specific, and motions for a continuance should be viewed in the context of all the circumstances existing when the motion is filed. A party seeking a continuance carries the burden of proving the circumstances that justify the continuance. To meet this burden, the moving party must supply some “strong excuse” for postponing the trial date. Factors relevant to the trial court’s decision include

  • the length of time the proceeding has been pending,
  • the reason for the continuance,
  • the diligence of the party seeking the continuance, and
  • the prejudice to the requesting party if the continuance is not granted.

The Court applied the factors above and reached a different conclusion than the trial court:

First, the length of time that the proceeding has been pending does not favor Mother’s request for a continuance. These parties have been engaged in litigation for one reason or another for 16 years. It is in the interest of judicial economy and common sense that this matter finally be resolved. Nevertheless, that is only one factor for consideration.

We also consider why Mother asked for a continuance. Under the circumstances, Mother had good reason to ask for a continuance—her attorney withdrew five days before trial. … Mother did not fire her attorney. Rather, Mother’s attorney determined that the rules of professional conduct required him to withdraw. While that is a proper basis to withdraw, it left Mother unrepresented with five days to go before trial including a Saturday and Sunday. As Mother states in her brief, she was “not a willing pro se litigant.” Thus, this factor weighs heavily in favor of granting Mother a reasonable continuance.

With respect to Mother’s diligence in seeking a continuance, the record shows that Mother timely asked for a continuance without success, including her attorney’s motion for a continuance which was denied in the same hearing before the trial court granted counsel’s motion to withdraw. This factor favors a continuance.

Finally, as to the factor concerning prejudice to the party requesting the continuance, this factor also favors Mother’s request for a continuance. While Father argues that Mother is an experienced litigator after all these years of litigation, the fact remains that she is not an attorney. Furthermore, pro se litigants require adequate time to prepare for trial no less than licensed attorneys do. We therefore conclude that the factors governing whether a continuance should be granted weigh largely in Mother’s favor.

We do not lightly overturn the trial court’s decision when it is reviewed under the deferential abuse of discretion standard. However, the abuse of discretion standard does not fully insulate a trial court’s decision from review. Here, we have no concern as to whether the trial court properly identified and applied the most appropriate legal principles applicable to its decision on whether to grant or deny Mother’s request for a continuance. Nevertheless, the factual basis for the trial court’s decision is not properly supported by the facts in the record but rather is a clearly erroneous assessment of the evidence. Mother did not willingly proceed pro se. She did not fire her lawyer on the eve of trial. Rather, he chose to withdraw. He did so on an appropriate basis, but he withdrew all the same. What is more, the trial court denied Mother’s request for a continuance knowing that her lawyer was withdrawing from the case. This left Mother in a position wherein she was still technically represented by counsel but it was understood that she was on the verge of being unrepresented by counsel five days before trial. Mother attempted to seek a continuance on her own initiative, but she was denied. Mother had only five days to prepare for trial as an unwilling pro se litigant who just lost her attorney. Under these circumstances, the trial court’s decision to deny Mother a reasonable continuance was not within the range of acceptable alternative dispositions. Mother needed an opportunity to either try to retain new counsel or at least have more time to prepare to try the case pro se.

The Court vacated the trial court’s judgment and remanded for a new hearing to be conducted after Mother has had a reasonable continuance in which to retain counsel or otherwise prepare for trial pro se.

Source: Wilder v. Wilder (Tennessee Court of Appeals, Eastern Section, July 27., 2023).

K.O.’s Comment: Mother represented herself on appeal.

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Denial of Continuance Reversed in Knoxville, Tennessee Child-Support Dispute: Wilder v. Wilder was last modified: August 10th, 2023 by K.O. Herston

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