RACHEL LOUISA JONES (NOW WALLACE) v. DAVID HOWARD FENLEY
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RENDERED:
NOVEMBER 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-001600-ME
RACHEL LOUISA JONES (NOW WALLACE)
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 02-CI-504335
v.
DAVID HOWARD FENLEY
APPELLEE
OPINION
REVERSING IN PART, VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
BARBER AND TACKETT, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
TACKETT, JUDGE:
Rachel Jones appeals from a decision of the
Jefferson Circuit Court denying her a continuance in order to
obtain counsel to represent her in a custody action.
After two
previous continuances, the trial court stated that no further
continuance would be granted, thus, when Jones’ counsel was
forced to withdraw shortly before the trial date, the trial
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
court refused to allow her a reasonable continuance to obtain
new counsel.
Jones was forced to trial without counsel and, as
a result, lost custody of her son.
In addition, the trial court
failed to address her request to be awarded attorney’s fees.
We
hold that the trial court abused its discretion in failing to
grant a continuance, and this case is reversed in part, vacated
in part, and remanded for a new trial.
The trial court is
directed to allow Jones a reasonable time to secure
representation by counsel and to further consider an award of
attorney’s fees.
Jones was involved in an intimate relationship with
David Fenley, although the two never married.
Fenley is
President and CEO of Fenley Real Estate, a business he co-owns
with his sister and two brothers.
graduate.
Jones is a high school
They dated for several months during 1995.
The
relationship ended after Jones allegedly began using drugs;
however, she would still contact Fenley from time to time when
she was depressed or needed money.
After Jones’ sister was
removed from the home of their mentally ill mother, Fenley paid
for her tuition at Presentation Academy in 1997.
Fenley and
Jones attended a Christmas recital at Presentation after which
they engaged in intimate relations resulting in the conception
of their son.
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The parties’ child was born September 2, 1998.
Fenley
filed a petition for paternity, custody, and visitation in
October 1998.
He was found to be the father of Jones’ child and
ordered to pay child support.
Jones and Fenley entered into an
agreement sharing custody in 1999.
Fenley was very involved in
his child’s life, making decisions such as where the boy
attended school and what religious upbringing he would have.
When the child stayed with Fenley, he rarely used a babysitter.
In addition to paying his court-ordered child support, Fenley
frequently assisted his son’s mother financially, even when the
parties were involved in litigation.
In October 2002, Fenley filed a petition for custody
which the trial court elected to treat as a request for
modification of its custody order in the 1998 paternity case.
The trial court appointed a clinical psychologist to conduct a
full custody evaluation, which was filed in July 2003.
In
August, the trial court entered an order scheduling the case for
trial on October 21-23, 2003.
Jones filed a motion the
following month requesting a continuance.
Her attached
affidavit stated that counsel could not find an expert in
Jefferson County to act as consultant in her case and also that
Jones was to be married on September 27, 2003, and would be
unable to assist her counsel in preparing for trial.
A second
trial date was continued after Jones’ counsel was hospitalized
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for a heart procedure two days before the trial date.
At that
time, the trial court indicated that no further continuances
would be granted.
Jones retained another attorney who began preparing
her case for trial, but withdrew three weeks later after
receiving a judicial appointment.
She secured the services of a
third attorney who entered a limited appearance in order to
request a continuance.
When the trial court declined to
continue the case, the attorney did not enter a formal
appearance.
Subsequently, Jones filed a pro se motion asking
for a continuance, and attached a list of attorneys she had
contacted who declined to accept the case due to the proximity
of the trial date.
Her motion was denied and Jones was forced
to represent herself at trial after even her standby counsel was
disallowed.
The trial court concluded that it was in the
child’s best interest to award sole custody to his father with
Jones having visitation rights.
Jones obtained counsel and
filed this appeal.
Jones argues that the trial court abused its
discretion by failing to grant her a continuance in order to
retain trial counsel.
This failure led to her being forced to
represent herself, and she suffered prejudice when Fenley was
awarded sole custody of their son.
The decision to grant or
deny a request for a continuance is within the sound discretion
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of the trial court and shall not be disturbed absent an abuse of
discretion.
Hunter v. Commonwealth, 869 S.W.2d 719 (Ky. 1994).
The facts of the case determine whether the refusal to grant a
continuance was an abuse of the trial court’s discretion.
Greeley v. Commonwealth, 825 S.W.2d 617 (Ky. 1992).
The
Kentucky Supreme Court previously set forth the following list
of factors for the trial court to consider in determining
whether or not to grant a continuance:
. . . length of delay; previous
continuances; inconvenience to litigants,
witnesses, counsel and the court; whether
the delay is purposeful or is caused by the
accused; availability of other competent
counsel; complexity of the case; and whether
denying the continuance will lead to
identifiable prejudice.
Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991).
Of
these factors, it would appear that the trial court considered
only one: previous continuances.
After granting two previous continuances, the trial
court entered the following order in response to Jones’ third
request to continue the trial date:
This matter came before the Court on
the motion of Hon. Louis I. Waterman to
withdraw. The motion was sustained in a
separate order.
Also, Hon. Stephen J. Kriegshaber filed
a motion to continue the case, and if the
continuance was granted, that he be
permitted to enter his appearance as
attorney for [Jones]. This matter was
previously scheduled for trial on two
separate occasions, and on each occasion,
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the case was continued on [Jones’] motion.
When the case was again set for trial, it
was done with the admonition from the Court
that no additional continuances would be
granted. Therefore, the motion to continue
the case is overruled. With that ruling,
Mr. Kriegshaber withdrew his motion for
entry of his appearance as attorney for
[Jones].
In its order denying the request for a continuance, the trial
court gives as its sole reason the fact that Jones had already
obtained two continuances.
However, a brief examination of all
of the factors in Snodgrass demonstrates that a continuance was
required.
Length of delay — Waterman entered his appearance as
Jones’ attorney on January 26, 2004, and two days later the
trial court scheduled the case for trial on March 16th and 23rd
2004.
After he withdrew as Jones’ counsel on February 18th, she
lost no time obtaining new counsel, and Kriegshaber entered a
limited appearance February 20th for the purpose of requesting a
continuance.
Given that Waterman was prepared to try the case
seven weeks after he entered his appearance and that Kriegshaber
was willing to enter an appearance four weeks before the case
was set for trial, the trial court needed only to grant a
continuance of a few weeks to enable Jones to be represented by
counsel.
Inconvenience to litigants, witnesses, counsel and the
court — Fenley points out that his son has a compelling interest
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in having a timely resolution to the custody dispute between
Fenley and Jones.
While this is certainly true, Fenley does not
demonstrate how a short continuance would have such a negative
impact on the child as to outweigh the mother’s right to a fair
proceeding when faced with the loss of her custodial rights.
Whether the delay is purposeful or caused by Jones —
It is undisputed that the two previous continuances were also
sought by Jones.
In the first instance, she sought a
continuance to enable her attorney to find an expert witness and
also because she was to be married shortly before the trial
date.
The trial court continued the case from October 2003 to
January 6th and 8th 2004.
On the morning of trial, Jones’
counsel, Hon. Britt Stevenson, did not appear in court.
Instead, his partner, Hon. John Olash, appeared and stated that
Stevenson had been hospitalized on Sunday, January 4, 2004, and
would be undergoing heart catheterization.
Olash advised the
trial court that Stevenson would likely be withdrawing from the
case.
It was at this time that the trial court issued its
admonition that no further continuances would be granted.
Stevenson was replaced by Waterman who was forced to withdraw
after he was appointed to the bench.
While Jones was arguably
responsible for the first continuance, neither the second nor
third can be attributed to any conduct on her part.
-7-
Availability of other competent counsel — After
Kriegshaber refused to enter his appearance, Jones made another
request for a continuance on March 2, 2004.
She attached to her
motion a list of attorneys who had declined to represent her
citing lack of time to prepare for trial.
Complexity of the case — Jones made arrangements for
Olash to assist her in presenting her case and cross-examining
Fenley.
When Olash appeared in court on March 23, 2004, Fenley
successfully objected because Olash was on a list of potential
witnesses submitted by Fenley’s counsel.
Olash was required to
leave the courtroom, and Jones received no assistance.
Fenley’s
counsel made numerous evidentiary and technical objections to
Jones’ testimony and her attempts to cross-examine Fenley.
Jones, meanwhile, had no legal training and failed to object to
unfavorable evidence which may not have been admissible.
Whether denying the continuance would lead to
identifiable prejudice — Prior to this trial, Jones had joint
custody of her son with Fenley.
After the trial, in which no
one represented Jones’ interests or protected her right to a
fair proceeding, the trial court granted Fenley sole custody of
the child with visitation rights for Jones.
While we do not
attempt to determine what decision the trial court would have
made in a truly adversary proceeding, Jones suffered a
diminution of her fundamental right as a parent as a result of a
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proceeding where only the prevailing party was represented by
counsel.
It is clear to us that the trial court abused its
discretion in this matter by failing to weigh all of the factors
affecting Jones’ right to a continuance; therefore, this case is
reversed and remanded for a new trial at which Jones will be
given sufficient time to obtain counsel.
On appeal, Jones further claims that the trial court
allowed inadmissible evidence to be entered by Fenley’s
attorney.
Our decision reversing the case renders any
consideration of this argument moot.
Finally, she contends that
the trial court abused its discretion by failing to award her
attorney’s fees and costs as she still owes Stevenson a
substantial amount for his representation.
Since the court’s
order fails to address this issue, we vacate it with regard to
whether Jones was entitled to attorney’s fees and direct the
court to make a determination on the matter.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is reversed in part, vacated in part,
and remanded for further proceedings consistent with this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Allen K. Gailor
Louisville, Kentucky
B. Mark Mulloy
Louisville, Kentucky
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