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Smith v. Smith

Court of Appeals of Indiana

December 18, 2019

Rickey Smith, Appellant-Respondent,
v.
Leslie Smith, Appellee-Petitioner.

          Appeal from the Marion Superior Court The Honorable Heather Welch, Judge The Honorable Jeffrey L. Marchal, Magistrate Trial Court Cause No. 49D01-1811-DN-43933

          Attorney for Appellant Jonathan D. Harwell Indianapolis, Indiana

          Appellee Pro Se Leslie M. Smith Indianapolis, Indiana

          Tavitas, Judge.

         Case Summary

         [¶1] Rickey Smith ("Husband") appeals the trial court's denial of his motion to continue the dissolution hearing. We reverse and remand.

         Issue

         [¶2] Husband presents one issue on appeal, which we restate as whether the trial court abused its discretion when it denied Husband's motion for continuance.

         Facts

         [¶3] Husband and Leslie Smith ("Wife") married in 1986 and separated on November 2, 2018, when Wife filed a petition for dissolution of marriage. The couple has one emancipated adult child. On December 19, 2018, the trial court set the final hearing for March 5, 2019, at 9:00 a.m.

         [¶4] On March 4, 2019, Husband's attorney filed a motion to withdraw, indicating that: (1) "a breakdown in the attorney client relationship has occurred. Counsel is no longer able to adequately represent the Respondent. . ."; and (2) "[a]s of the date of filing, Respondent no longer wishes Counsel to continue representation and has obtained a copy of his entire file." Appellant's App. Vol. II p. 15. Husband's attorney did not include a motion to continue the dissolution hearing, which was set for the following day. That same day, the trial court granted Husband's attorney's motion to withdraw.

         [¶5] On March 5, 2019, Husband appeared pro se at the dissolution hearing and Wife appeared with her counsel. When Wife's attorney called Wife to testify, Husband and the trial court engaged in the following discussion:

[HUSBAND]: I had surgery the 19th of February. I still have 14 stitches in me. [Husband's former attorney] did not send me nothing. I have not - I - I have not seen our - uh W2 forms. I go to VA to try and get my VA started again. And after the paperwork they said I haven't had my taxes done in 5 years. But Josh said she has tax forms. So, Josh got mad at me - I've been sleeping on the street since September, sir. I'm 65 years old. She ran me out of the house by turning off the thermos - the - uh. . . . (Unintelligible) - uh - on both sides of the house. And then she started using the nest - uh - (Unintelligible) setting that off in the middle of the night. Then she started. . .
[WIFE'S ATTORNEY]: . . . Objection, Judge. . . .
[HUSBAND]: . . . I haven't seen anything. Josh haven't [sic] given me anything. I had surgery the 19th. I was down (Unintelligible) - you can ...

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