Touzeau v. Deffinbaugh

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Tara M. Touzeau v. Scott E. Deffinbaugh, No. 126, Sept. Term 2005. FAMILY LAW - CHILD CUSTODY PROCEEDINGS - CONTINUANCE Petitioner sought review of the Court of Special App eals s decision affirming the c ircuit court s denial of her motion for continuance of a hearing to modify child custody, which had been premised on the groun d that her pro bono co unsel wa s not able to a ttend the sch eduled he aring on the date scheduled. The Court of Appeals held that the trial judge did not abuse his discretion in denying the continu ance b ecause , under the circumstances, it was not mandated by law, the Petitioner had not been taken by surprise by an unforeseen event, and the Petitioner had not acted with due diligence to mitigate the consequences of not being represented by counsel at the hearing to modify custody. The Court determined that, even where the denial of the continuance has the effect of leaving the moving party without the benefit of counsel, it does not constitute a denial of due process of law. The Court further concluded that the denial of the pro se litigant s motion was not subject to a h igher stand ard of scru tiny than those p ut forth by litigants with retaine d counse l. IN THE COURT OF APPEALS OF MARYLAND No. 126 September Term, 2005 TARA M. TOUZEAU v. SCOTT E. DEFFINBAUGH Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Bell, C.J., Ca thell, and G reene JJ. D issent. Filed: September 19, 2006 This case presents us with the question of whether the trial judge abused his discretion when he denied the mo tion of Petitioner, Tara M. Touzeau, for continuance of a hearin g to modify child custod y. We hold that the trial judge did not abuse his discretion in denying Ms. Touzeau s motion and therefore affirm the judgment of the Court of Special App eals. Facts Tara M. Touzeau and Scott E. Deffinba ugh are the biological pare nts of Victoria, born on June 27, 1994. In 1997, Ms. Touzeau and Mr. Deffinbaug h presented to the Circu it Court for Montgom ery County a Child Custod y, Visitation, and Child Support Agreem ent, which was adopted by the court and afforded the two shared legal custody of Victoria, granted Ms. Touzeau primary residential custody of their daughter, and gave Mr. Deffinbaugh liberal visitation rights. The agreement also provided that a party relocating outside of the D.C./Baltimore Metropolitan area would provide the other with at least sixty days advance notice. Since entering into the Agreement, Ms. Touzeau and Mr. Deffinbaugh have had numerous skirmishes in the courts. In 1999, Mr. Deffinbaugh, through c ounsel, mo ved to enforce the agreement s terms because he alleged that Ms. Touzeau was interf ering with h is mid-week visits with Victoria. The parties, both re presented b y counsel, we re able to settle the disp ute out o f court b y agreein g to gre ater visita tion righ ts for M r. Deff inbaug h. In 2001, M s. Touzea u, through counsel, pe titioned to reduce M r. Deffinbaugh s visitation schedule, and Mr. Deffinbaugh responded by requesting that he be granted residential custody of Victoria. The court subsequently ordered a custody/visitation evaluation, the report of which stated that, although Ms. To uzeau ha s done m uch to contribute to the disputes be tween the parents, an d has little insig ht into how she is contributing to the problems, a change of residential custody at this point wo uld not be in Victoria s best interests, and therefore recommended that the arrangement remain co nstant. A three-day trial ensued, at which both parties were represented by counsel, after which the judge ultimately ordered that Victoria continue to reside with Ms. Touzeau, that the two parents continue to share legal custody, and that Mr. Deffinbaugh be granted greater visitation rights. In 2002, Mr. Deffinbaugh, pro se, filed an emergency motion to prohibit Ms. Touzeau from withdrawing Victoria from her private school in order to home school her, to which Ms. Touzeau responded, without the assistance of counsel. The court held an emergency hearing and ordered that Victoria be returned to school. Ms. Touzeau subsequently filed a motion requesting that she be g ranted sole le gal custody of Victoria, an d a hearing was held before a master on the merits of Ms. Touzeau s motion, at which both parties represented themselves. After hearing argu ment by both parties, the master recommended that Ms. Touzeau s motion be denied, and Ms. Touzeau subseque ntly filed excep tions on he r own to the master s recommendations. The court agreed with and adopted the master s recommendations and ordered that Ms. Touzeau and Mr. Deffinbaugh continue to share legal custody of Victoria, that Victoria continue to live with Ms. To uzeau, and that M r. -2- Deffinbaugh continue to have liberal visitation rights. On September 1, 2004, Ms. Touzeau informed Mr. Deffinbaugh that she and V ictoria would be moving from Silver Spring to Churchton, Maryland1 in two weeks, and Ms. Touzeau and Mr. Deffinbaugh agreed to meet with a court-appointed parent coordinator on September 22 to discuss Mr. Deffinbaugh s new visitation schedule and Victoria s schooling. During the meeting with the coord inator, Ms . Touzeau announ ced that she and Victo ria would be moving to Churchton on October 2, and that Victoria would be attending a new school, the Cardinal Hickey Academy, beginning October 4. The two w ere not able to come to any agreement as to Mr. Deffinbaugh s new visitation schedule. On September 28, Mr. Deffinbaugh, through counsel, filed an emergency motion for modification of custody and attorney s fees in the Circuit Court for Montgomery County, alleging that Ms. Touzeau s divorce from her husband and relocation to Churchton constituted a material change in circumstances sufficient to justify a modification in the custody arrangem ent. In his motion, Mr. Deffinbaugh requested injunctive relief prohibiting Ms. Touzeau from relocating Victoria to Chu rchton, temporary primary physical custody of Victoria until a court evaluation and a hearing on his petition could be conducted, and permanent primary physical custody of Victoria. W hen M s. Touzea u later mov ed with Victoria to Churchton, Mr. Deffinbaugh amended his motion to include a request that Ms. 1 Churchton is located in Anne Arundel County approximately forty miles southeast of Ms. Touzeau s former residence in Silver Spring, which is located in Montgomery County, and fifty miles southeast of Mr. Deffinbaugh s residence in Olney, which also is located in Montgomery County. -3- Touzeau be held in c ontempt o f court for re stricting his access to Victoria through the relocation. Ms. Touzeau, proceeding pro se, responded by filing a petition for an emergency order and coun ter-petition to modify custody requesting tie-breaking authority with respect to legal custod y of Victoria to enable he r to relocate V ictoria to Churchton and to enroll her in a new school. She also amended her initial petition, after she moved, to include a request that Victoria s visitation schedule with Mr. Deffinbaugh be altered so that Victoria no longer would be required to visit with her father during the school week because of the length of the commute. An exp edited sche duling con ference w as set for Se ptember 3 0, 2004, at w hich Mr. Deff inbaug h appe ared w ith coun sel and Ms. T ouzea u appe ared pr o se. The judge ordered that another custody/visitation evaluation be conducted, the results of which w ere to be announced at a January 21, 2005 settlement conference, and set a custody modification hearing for Fe bruary 8, 2 005. The parties convened before a master at the January 21 settlement conference and were presented w ith the results of the court-ord ered Cus tody/Visitation E valuation R eport. The evaluator recommended that Mr. Deffinbaugh be granted both residential and legal custody of Victoria and that Ms. Touzeau be consulted on major decisions w ith regard to Victoria and that she be granted liberal visitation. On January 28, 2005, Ms. Touzeau filed a motion fo r continuan ce of the F ebruary 8 cus tody modific ation hearin g, alleging tha t, in light of the court evaluator s unfounded recommendations, she was attempting to obtain pro bono counsel. The motion was denied. -4- At the custody modification hearing, co nvened on F ebruary 8, 2005, Mr. Deffinbaugh appeared with counsel and Ms. Touzeau appeared pro se. Before the proceedings began, Ms. Touzeau renewed her request for a continuance, and the following dialogue ensued: THE COURT: I m going to hear your motion to continue, and then whatever happens with that will either be heard by someone today or whenever the y get to it or -MS . TO UZEAU: O kay. W ith re gard s to th e, I m sorry. THE COU RT: Go ahead. MS. TOUZ EAU: O kay. With regards to the con tinuanc e. I filed a continuance following our pre-trial conference in light of the unwarranted findings and recommendations of the Court evaluator s report. That was on January 21, 2004. The master recommended at that time, because I was pro se, that I should seek counsel in light of the findings. I filed a motion for continuance. It was opposed by plaintiff and for the fact that it was considered a delaying tactic and it was denied. H owever, I have taken many steps even before to try to secure pro bono representation through, I tried to go through the legal aid bureau and they said they would o nly be able to even evaluate it if I got a continuance, which was denied. Last Thursday I met with Stephen Cullen of Miles and Stockbridge, he s a partner and the director of pro bono services for Miles and Stockbridge and he is willing to represent me on a pro bono basis, but was unable to file a line of appearance because he already had another co mmitment at today s hearing date. I have an affidavit from Mr. Cullen.[2] May I approach? 2 The affidavit, which Ms. Touzeau filed on February 14, 2005, stated: I, Stephen J. Cullen, Esquire, being duly sworn, depose and say as follows: 1. On Thursday, February 3, 2005, Ms. Tara Touzeau contacted me to see if I could represent her pro bono in her custody trial -5- THE C OUR T: I don t ne ed that. MS. T OUZ EAU : You do n t? THE COU RT: No. Go ahead. MS. TOUZEAU : So I would like to requ est a continu ance in light of the fact that this is a serious nature regarding my daughter, so that I may be ab le to procee d with cou nsel. THE COURT: All right. What I d like to do is to decide the continuance issue first and then we ll see whe re we go after that, but I definitely want to figure out whethe r it s going to be heard today or not. A ll right. Anything else on your motion to continue? MS. TOUZEA U: No. Mr. Deffinbaugh responded that he was opposed to a continuance because of the urgency of the matter and argued that Ms. Touzeau had ample time to obtain counsel and that the request was nothing more than a delay tactic. Ms. Touzeau responded: MS. TOUZEAU: Okay. I think it needs to be also pointed out scheduled for Tuesday, February 8, 2005. 2. I am the firm s Director of Pro Bono Services and a partner at Miles & Stockbridge P.C., One West Pennsylvania Avenue, Suite 900, Towson, Maryland 21204. 3. Unfortunately, I am in a pre-scheduled mediation in the Circuit Court for Howard County in the case of Wilhelm v. Wilhelm, Case. No.: 13-C-04-058298 DL on February 8, 2005 and am therefore unable to enter my appearance and appear at the trial on a pro bono basis as requested by Ms. Touzeau. 4. This firm will represent Ms. Touzeau pro bono in the event that the trial is continued to a later date. I SOLEMNLY AFFIRM under the penalties of perjury and upon personal knowledge that the contents of the foregoing paper are true. -6- to the Court that at the pre-trial conference, wh ich was January 21st, is the first time we were even orally presented with the recommendations and findings. They vastly differed from the Court evaluator s report that had been don e just a few years previous. And, in addition to that, I only received from the Court evaluator the full report five business days ago. And it is very clear from that report that Victoria s wishes are being considered. But, as you know , the Court e valuator s re port is not non-p arty and not non-adversarial and she has not been appointed a Guardian Ad Litem, which should ha ve been a nd is appropriate at this point, considering the fact that they are taking into consideration her views. Add ition ally, and m ore imp ortantly, the recommendations of the Court evaluator are high ly, are gathered from just hearsay and double hearsay and triple hearsay and her findings are unwarranted and have no factual basis. So it s very important for my daughter s best interest for us to continue this so I can proceed with repres entation in o rder, becau se of this ob stacle that has been unjustly thrown into the mix of things five business days ago. Th is isn t a scrambling tactic, You r Honor, this is a valid request based on the circumstances of the findings of the report that are unwarranted. And in the best interest of my daughter and considering that no Guardian Ad Litem has been appointed for her, I think that that s necessary and another reason why this s hould b e contin ued. *** THE COU RT: [C ounsel fo r Mr. De ffinbaug h s] point, Ms. Touzeau, is that since September you ve known that this was at issue and you could have sought counsel whether retained w ith money or a pro bono attorney, you had that much time. MS. TOU ZEAU : I understan d that, and in terms of w ith m oney, I m not in a fi nancial p osition to pay for counsel. I still have legal debt from the time we were in a three-day trial, two hearings ago. THE COURT : But you had that situation b eginning in -7- September. MS. TOUZEAU : I understand that. And I was actually, I ve gone through Montgomery County. I was speaking to Legal Aide Bureau before we actually heard, before we actually came to the, it was ac tually on the 21s t is when we were here getting the oral recommen dations, the summary and I had already been in contact with them. But, as you know, it is very dif ficult, most p articularly in custody cases, to secure pro bono representation. And it was only by a Godsend that last Thursday I found Stephen Cullen who is partner and the director of pro bono services at Miles and Stockbridge, who was willing to come in. But he was already committed today and I hav e an affid avit from h im saying where he is, saying he is willing to represent me on a pro bono basis. The trial judge subsequently denied Ms. Touzeau s request for a continuance, stating: THE COURT: It seems to me that Ms. Touzeau had plenty of time as this case was pending to seek and be able to find someone perhaps to represent her in this. It s a crisis that I think unfortun ately has been generated by Ms. To uzeau w aiting until the very last to see k counse l. So the Court s ruling on the renewed oral motion to continue is denied. The custody modification hearing proceeded with Ms. Touzeau representing herself. She called various witnesses: the pastor of her church, who also founded the Cardinal Hickey Aca dem y, who testif ied to Victoria s ac clim ation to the Ac adem y and to Ms. Touzeau s relationship with both her own family and with Victoria; Ms. Touzeau s mother and her aunt, both of whom testified to Ms. T ouzeau s and Victoria s family life and mother-daughter relationship. Ms. Touzeau also testified on her ow n behalf regarding her maternal abilities and the fact that Churchton was located within the Washington/Baltimore metropolitan area; -8- cross-examined each of Mr. Deffinbaugh s two witnesses, Mr. Deffinbaugh and his wife, and introduced ten exhibits into evidence comprised of a copy of the Cardinal Hickey Academy s philosophy and mission statement; the report of the court-ordered custody/visitation evaluation conducte d in 2001 ; the transcript of the 2002 hearing before the master; the separation agreeme nt betwee n Ms. T ouzeau a nd her hu sband; a host of e-mails between Ms. Touzeau and Mr. Deffinbaugh regarding Victoria s visitation schedule; driving directions from Mapquest from Ms. Touzeau s former residence in Silver Spring to her new residence in Churchton, from Mr. Deffinbaugh s residence to Ms. Touzeau s previous residence in Silver Spring, and from Mr. Deffinbaugh s residence to Ms. Touzeau s new residence in Churchton; a computer printout from a website, e .Podunk .com, listing C hurchton as within the Baltimo re metropo litan area, and Victoria s re port card fro m her new school. After Ms. Touzeau and counsel for Mr. Deffinbaugh gave their closing arguments, the trial judge iterated that: One of the comm ents, one of the paragrap hs that s been read and re-read, is the one in the December 20, 2001 evaluation which is [Ms. Touzeau s] Exhibit 2 on page 10. The full paragra ph states M rs. Touzea u does no t seem to understand that Victoria needs her father to be involved in her life on his own terms, not just when she finds it convenient or acceptable. The parties appropriately have joint custody, yet she had numerous times made decisions unilaterally which are debatable as to whether they were in Victoria s b est interest. She has little insight into how she is contributing to the problems and she seems to have difficulty accepting that she cannot control what goes o n when V ictoria is with her father. Her propensity to become upset has been very upsetting to the child who desperately wants to please her and her father both. -9- Her decision to stop Victoria s counseling with the school couns elor, eve n temp orarily, is a c oncern . *** In reading that paragraph and liste ning to the te stimony that I have heard today and what has transpired since that time, I do not believe that there has been any change in that opinion or that conclusion. *** Having taken into account the best interest of Victoria and, fran kly, this is a reluctant decision because I do think that there are a number of positive things about Ms. Touzeau and the efforts that she has taken on behalf of her dau ghter, but I cannot ignore what I believe is a pattern of behavior of eliminating her father, Victoria s father fro m Victoria s life in her ef forts to control Victoria regardless of what Mr. Deffinbaugh believes or perceives as being the correct approach, totally disregarding any input by Mr. Deffinbaugh and particularly the cessation of counseling after it had been court ord ered, after it had been recommended in 2001. Mr. Deffinbaugh was awarded both residential and legal custody of Victoria, and Ms. Touzeau was granted liberal visitation rights. Ms. Touzea u, through the same p ro bono c ounsel w ho was unable to attend the hearing, noted a timely appeal to the Court of Special Appeals. In an unpublished opinion, the interme diate ap pellate c ourt aff irmed th e trial jud ge s de nial of b oth M s. Touzeau s pretrial motion for a postponement and her renewal of that motion on the day of the hearing. The court based its holding on the fact that, despite having had four months to prepare for the custody modification hearing, Ms. Touzeau waited until the last moment to file a motion -10- for a postponement, having filed the m otion on ly elev en days before the scheduled trial date. The Court of Special Appeals also concluded that the fact that the parties were not presented with the results of the custody/visitation evaluation until two weeks before the hearing did not require that a continuance be granted because they had been informed at the September scheduling conferen ce that the res ults would be available to them in January. The court also determined that the trial judge correctly denied Ms. Touzeau s request for a continuance because of the policy established by the Admin istrative Order of the Court of Appeals for Continuances, 3 instructing tha t counsel sh ould not ex pect contin uances of proceedin gs in cases in which c ounsel acc epted em ployment after having already scheduled a proceeding 3 The Administrative Order to which the Court of Special Appeals referred is entitled Revised Administrative Order For Continuances For Conflicting Case Assignments Or Legislative Duties, promulgated by Chief Judge Robert C. Murphy on May 15, 1995. The pertinent parts are: 2. RESPONSIBILITIES OF COUNSEL. *** b. If counsel accepts employment in a case in which a date or time for argument, hearing, or trial has already been set after [the] counsel has been notified of a conflicting assignment for the same date or time, [the] counsel should not expect to be granted a continuance. c. If a conflict in assignment dates develops after representation has been accepted, counsel shall make every effort to obtain the presence of a partner or associate to act in one of the cases before a continuance is requested. Obviously, this provision is subject to obligations counsel may have to the client. However, a request for continuance because of conflicting cases should include a statement that it is not practical for a partner or associate to handle one of the conflicting cases. -11- on the same date in another case.4 We granted Ms. Touzeau s petition for writ of certiorari to address the following issue: Whether the Court of Special A ppeals erred when it held that the circuit court did not abuse its discretion in denying Ms. Touzeau s request for a continuance of a contested hearing so that she cou ld be repres ented by cou nsel. Touzeau v. Deffinbaugh, 391 Md. 114 , 892 A.2d 477 (2006). Discussion Ms. Touzeau contends that, because the hearing to modify custody implicated her fundamental right to parent, she had a due process right under A rticle 24 of the Maryland Declaration of Rights to be represented by counsel at the hearing, which was abrogated by the denial of h er motion f or continuance. Ms. Touzeau also argues that, in light of that fundamental right, and the fact that she was surprised by the adverse findings of the custody/visitation evaluation, of which she was informed only two weeks prior to the hearing to modify custody, justice required under Maryland Rule 2-508 (a) that the trial judge grant her continuan ce to enab le her to obta in pro bon o counse l. Moreover, she maintains that she had made a conce rted effort to obtain counsel, as evidenced by the affidavit she attempted to move into evidence at the hearing, and that the trial judge abused his discretion in refusing 4 The Court of Special Appeals also held that the trial judge did not abuse his discretion in denying Ms. Touzeau s request to have a guardian ad litem appointed to Victoria or in determining that a material change in circumstances existed justifying a modification in the custody and visitation arrangements. These issues were not raised in Ms. Touzeau s petition for writ of certiorari to this Court, and we therefore do not reach them. -12- to consider h er affidav it. Further, M s. Touzea u asserts that b ecause sh e was utilizing pro bono representation the trial judge should h ave been mo re lenient in his decision of whether to grant her continuance. She alleges that the record clea rly demonstrate s that she w as unable to effectively represent herself and therefore counsel was needed to protect her custodial rights. Conve rsely, Mr. Def finbaugh posits that Ms. To uzeau ha s no constitu tional right to counsel in a contested custody case and, therefore the trial judge was not required to grant her motion . Mr. Deffinbaugh also claims that, based upon Ms. Touzeau s level of education, experience in the court system, and the urgency of the matter to be addressed at the hearing, the trial judge did not abuse his discretion in denying Ms. Tou zeau s motion. M r. Deffinbaugh argues that Ms. Touzeau s requested continuance completely ignores the prejudice that a delay wo uld have c aused to h imself and Victoria, an d that such prejudice required that the request f or a continu ance be d enied. He asserts that, under M aryland Rule 2-508, the decision to grant a continuance lies within the sound discretion of the trial judge, who is uniquely situated to evaluate the facts and make an informed determination of whether justice requires the continuance, and the trial judge did not abuse his discretion in this case . Maryland Rule 2-50 8 govern s requests fo r continuan ces and state s in pertinent pa rt: (a) Generally. On motion of any party or on its own initiative, the court may continue a trial or other proceeding as justice may -13- require.5 5 The genesis of Rule 2-508(a) is Chapter 9, Sections 1, 4, and 9 of the Maryland Laws, which provided: Whereas, by law no action can be continued in the general court beyond the end of the fourth court after the appearance court, except only in causes where evidences are wanted from beyond sea: And whereas by law no action can be continued in any county court beyond the end of the third court after the appearance court, unless on affidavit that testimony material is wanting: And whereas the said courts respectively ought to have a discretionary power to continue causes, under certain circumstances, as long as they may think absolutely necessary for the due and full administration of justice between parties. Sec. 4. And be it enacted, That in any action of trespass or ejectment, if plots returned in any cause are defective, or if plots are not returned from the neglect of the surveyor, or if he is prevented by sickness, or other accident, from returning the same, and the said courts shall think a continuance of such cause necessary for the trial of the merits between the parties, they may continue such cause for such time as they shall judge necessary, not exceeding three courts after the usual time of continuance limited by law, and on such terms as they may think just and reasonable; and if plots are not returned from the neglect of any surveyor, the court may order him to pay the costs of the term, and they may impose on him such fine as the circumstances of his neglect may require. Sec. 9. And be it enacted, That on a special verdict, or case stated, the said courts respectively shall not continue any cause on a curiae advisare vult longer than to the end of the third court after verdict taken, or case stated. 1787 Md. Laws, Chap. 9, Sections 1, 4, and 9. Nineteen years later, the General Assembly repealed Section 1 and replaced it with Chapter 41, Section 1, which stated: Be it enacted, by the General Assembly of Maryland, That no action commenced or to be commenced, shall continue longer than the end of the first court after the imparlance court, unless with consent of parties, at the discretion of the court, or for such cause as the law heretofore allowed for granting a continuance beyond the time limited herein appearing to the satisfaction of the court; Provided, that such actions as have been transferred from the -14- general court to the county courts, by the act to provide for the organization and regulation of the courts of common law in this state, and for the administration of justice therein, shall continue in the same manner, for the same time, and under the same circumstances, as they might have continued in the general court. 1806 Md. Laws, Chap. 41, Section 1. In 1860, these three sections were again repealed and replaced by Maryland Code, Sections 34, 43 and 44 of Article 75, which provided: 34. No cause shall be continued beyond the second term after process has been served on the defendant, unless by consent of parties, or upon good cause shown by the party asking the continuance. *** 43. On a special verdict, or case stated, the court shall not continue any case on a curia advisari vult longer than two terms. 44. If plots returned in any cause are defective, and cannot be amended at bar, or if plots are not returned from the neglect of the surveyor, his sickness, or other accident, and the court shall think a continuance necessary for a fair trial of the cause, the same may be continued for such reasonable time as the court may determine. Maryland Code (1860), Article 75, Section 34, 43, and 44. These three sections were renumbered in 1904 as Maryland Code (1904), Sections 58, 67 and 68 of Article 75, in 1924 as Maryland Code (1924), Sections 62, 71 and 72 of Article 75, in 1939 as Maryland Code (1939), Sections 62, 71 and 72 of Article 75, and again in 1951 as Maryland Code (1951), Sections 62, 71 and 72 of Article 75 without any substantive changes. On July 18, 1956, this Court adopted Maryland Rule 527 (a), Order Adopting Rules of Practice and Procedure (July 18, 1956), reprinted in Md. Rules (1956), effective January 1, 1957, which combined the three sections and provided, in pertinent part: 1. In Court s Discretion. The court may upon motion of any party, or of its own motion, continue an action from time to time in order that a trial may be had upon the merits or as the interests of justice may require; but 2. Not beyond Second Term unless by Consent, for Cause, or by Rule. No action shall be continued beyond the second term after process has been served on the defendant, unless by consent of the parties, -15- We have not specified what the phrase as justice may require means, but have said that the decision to grant a continuance lies within the sound discretion of the trial judge. Absent an abuse of that discretion we historically have not disturbed the decision to deny a motion for continuance. Greenstein v. Meister, 279 Md. 275, 294, 368 A.2d 451, 462 (1977); Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 28 , 320 A.2d 266 , 273 (1974); Butkus v. McClendon, 259 Md. 170, 173, 269 A.2d 427, 428 (1970). We have defined abuse of discretion as discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Jenkins v. City of College Park, 379 Md. 142, 165, 840 A.2d 139, 153 (2003) (emphas is not inclu ded). See also Garg v. Garg, 393 Md. 225, 238, 900 A.2d 739, 746 (2006) ( The abuse of discretion standard requires a trial judge to use his or her discretion soundly and the record must reflect the exercise of that discretion. Ab use occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law. ) quoting Je nkins v. State , 375 Md. 284, 295-96, 825 A.2d 1008, 1015 (2003); In re Adoption/Guardianship No. 3598, 347 Md. 295, 312, 701 A.2d 110, 118-19 (1997) ( There is an abuse of discretion where no reasonable person would take the view adopted b y the trial court, or w hen the co urt acts without re ference to or upon good cause shown by the party asking the continuance, or when these Rules otherwise so provide. Md. Rule 527 (a) (1956). On April 6, 1984, this Court rescinded Rule 527(f) and replaced it with Rule 2-508, effective July 1, 1984. See, Order Adopting Rules of Practice and Procedure (April 6, 1984), reprinted in Md. Rules, Vol. 1, at 7-8 (2006). -16- any guiding rules or principles. An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court, or when the ruling is vio lative of fact and logic. ) (citations omitted). We have found th at it wo uld b e an a buse of discre tion for a trial j udge to d eny a continuance when the continuance was mandated by law, see Mead v. Tydings, 133 Md. 608, 612, 105 A. 863, 864 (1919), or when counsel was taken by surprise by an unforeseen event at trial, wh en he h ad acte d diligen tly to prepa re for tria l, Plank v. Summers, 205 Md. 598, 604-05, 109 A.2d 914, 916-17 (1954), or, in the face of an unforeseen event, counsel had acted with diligence to mitiga te the ef fects of the surp rise, Thanos v. Mitchell, 220 Md. 389, 392-9 3, 152 A .2d 833 , 834-3 5 (195 9). We had the opportunity to address the circumstance in which a continuance was mandated by statute in Mead v. Tydings, supra, in which we stated that, while normally the decision regarding a continuance is reviewed under an abuse of discretion standard, when explicitly required by statute, th e appro val of a continu ance w as man datory. Id. at 612, 105 A. at 864. In the present case, there was no statute or rule requiring that the trial judge grant Ms. Touzeau s motion for continuance. We recognized that due diligence combined with surprise could justify a continuance in Plank v. Summers, supra, which was a case on remand to the Circuit Court for Prince George s County from this Court for the sole purpose of determining the value of hospital and medical services rendered to the plaintiffs. In Plank, the plaintiffs issued a subpoena -17- duces tecum to the authorities at a naval hospital, requesting medical records and directing that the records should be ac companied by 'someo ne who w ould be familiar with w here these records were kept and that they were kept in the regular course of business'. Id. at 604, 109 A.2d at 91 6. The Navy, neverthe less, sent an individual unfam iliar with the records. When the plaintiffs sought to have their medical records admitted into evidence, the defenda nts objected to their admission on the grounds that a proper foundation had not been laid. The trial judge sustained the objection, and the plaintiffs subsequently requested, and were denied , a contin uance . We reversed the trial judge s denial of the continuance, noting that the plaintiffs counsel had exercised reasonable diligence in preparing for trial, that he clearly had been surprised by the Navy s failure to send the medical records with the appropriate officer, and that he could not have anticipated that the Navy would disregard the instructions in the subpo ena duce s tecum, an d held that: [I]n some exceptional situations, refusal to grant a continuance has been held to be reversible error. In the instant case we think the appellants were virtually denied their day in court under the mandate. The transcript of the former trial could not supply the evidence as to the precise nature and extent of the treatme nt. To try the case w ithout this basic evidence was like the play of Hamlet with H amlet le ft out. We think the ruling was prejudicial and amounted to an abuse of discretion under the circum stances . Id. at 605, 1 09 A.2 d at 917 (emph asis add ed) (cita tions om itted). We also recognized another exceptional situation as a basis for a finding of abuse of his discretion when the judge denied a continuance in Thanos v. Mitchell, supra. In that -18- case, plaintiff s cou nsel was in formed o n the Friday be fore the M onday trial date th at his client was incapable of attending the trial due to mental illness. In response, plaintiff s counsel immediately notified both the op posing counsel an d the trial judge of his client s illness, and when the trial was called on Monday, requested a continuance and presented two medical affidavits in support thereof. The trial judge denied the request. We reversed the trial judge s ruling and emphas ized that the a ffidavits, w hich mad e it clear that the plaintiff was not capable of attending the proceeding, also indicated that the [Plaintiff] would be available within a reasonable time (a different situation would be presented if her illness w ere permanent or the pro gnosis w as fo r a len gthy d isability). Id. at 392, 152 A.2d at 835. Moreover, we noted that the plaintiff had not yet testified and that her testimony was material to the pr oceed ings. Id. at 393, 152 A.2d at 835. Subsequent to Thanos, we had occasion to iterate that a request for continuance must reflect that the basis for the dela y will be o bviated within a brief p eriod o f time. In King v. Mayor of Rockv ille, 249 Md. 243, 238 A.2d 898 (1968), Mrs. King requested a continuance six days before trial and in support thereof submitted a letter from her doctor stating that the day before she had had an acute episode of atrial fibrillation and aggra vation of her He art Failure and that she could not appear in court until further convalescence. Id. at 246, 238 A.2d at 900. Observing that [i]t appears to the Court that the elderly defendant may never be well enough to attend Court, the trial judge denied Mrs. King s motion for continuance. Id. We aff irmed the trial ju dge s ruling , emphasiz ing that availability within a reasonable, -19- rather than a protracted, period of time is an important consideration in a continuance decision. Id. In the present case, neither M s. Touzea u, nor her p roffered a ffidavit, 6 proposed when her pro bono counsel would be available. In fact, consistent with the Administrative Order for Continuances, supra, counsel should not have expected a continuance, but rather shou ld have m ade every ef fort to secure the presence of a partner or associate from his large firm to act in one of his conflicting cases in his stead. We also have declined to overrule the trial judge s denial of a motion for continuance where the moving party has failed to demonstrate due diligence to mitigate the effects of what was alleged to be a surprise. In Hughes v. Averza, 223 Md. 12, 16 1 A.2d 671 (1 960), Barbara Hughes and two of her siblings filed a notice of caveat to their father s will alleging, among other things, fraud and forgery. During the trial, the caveators requested a continuance in order to engage a handwriting expert, and the trial judge d enied their re quest, which we affirmed. We noted that the caveators were well aware of their need to retain a handwriting expert in advance of the hearing, and thus, [t]here was no element of surprise and if [the caveators] needed an expert, they should have employed him before trial. Id. at 18, 161 A.2d at 67 5. We conclud ed that [u]nder such circumstances there is no doubt that the failure of trial counsel to adequately prepare for trial was not a ground for a continuance 6 Ms. Touzeau also argues that the judge abused his discretion in not considering the affidavit itself, when in fact, the affidavit does not add anything to what Ms. Touzeau orally presented at the hearing to modify custody, except to the extent that it is specific that Ms. Touzeau only spoke to proffered counsel on February 3, 2005, five days before the custody hearing. -20- or postponement. Id. at 19, 161 A.2d at 675. In another case where we affirmed the denial of a motio n for co ntinuan ce, Butkus v. McClendon, supra, Mrs. Butkus had requested a continuance seven days before the date set for trial in order to depose a witness, claiming that the witness did not agree to testify on Mrs. Butkus s behalf until thirty days before the trial date and that Mrs. Butkus was not able to locate a reporter to conduct the deposition. The trial judge denied the motion. We differentiated the Plank and Thanos situations from that of Mrs. Butkus, explicating that [t]he differenc e betwee n those cas es and the o ne before us is significa nt, especially as to the double-barreled elements o f surprise an d diligence. Id. at 174, 269 A.2d at 429. We emphasized the lack of diligence on Mrs. Butkus s counsel s p art in attemptin g to secure the witness s deposition, stating: [E]ven if we overlook the seven preceding years, the plaintiffs' lawyer knew of [the w itnes s s] a vaila bility a t leas t thirty days before trial, a remarkable glimmer of hope that should have dictated imm edia te action. Howev er, th ey failed to utilize the quickest means available to secure her testimony. With the exception of their initia l con tact, the a ppellant s' atto rneys communicated with each other by mail rather than telephone. When they slowly came to the realization that the court reporter there could not do the job, they still had seve n days in which to make other arrangements; instead they elected to wait for the court's ruling on their motion for continuance. But even when this was denied on February 14 they had at least thre e ful l days before trial in which to a ct. The law yer was not c onfronted with the temporary an d uncorre ctable illness of his own client but just the inability of one court reporter to dispose of a brief deposition. Yet there was no attempt to contact another reporter in Washington, Baltimore or Philadelphia who could accompany him on a one day excursion to Pennsylvania and have a -21- deposition r eady for trial. Id. at 175, 269 A.2d at 426. We concluded that there was no element of surprise here and that there was no reason why [Ms. Butkus] could not have maintained frequent contact w ith [the witness] concerning her willingness to testify. Id. at 174, 269 A.2d at 429. See also Fontana v. Walker, 249 Md. 459, 464, 240 A.2d 268, 271-72 (1968) (holding no abuse of discretion where trial judge failed to grant a continuance sua sponte where there was no element of surprise); Martin v. Rossignol, 226 Md. 363, 366-67, 174 A.2d 149, 150-51 (1961), (holding no abuse of discretion in denying motion for a continuance and subsequent motion for new trial where there was n o element of m istake or surprise ), overruled on other grounds, Buck v. Cam s Broadloom Rugs, Inc., 328 Md. 51, 61 2 A.2d 1294 (1992). Our reticence to find an abuse of discretion in the denial of a motion for continuance has not been ameliorated, nor have we found it to be an exceptional situation, when the denial has had the effect of leav ing the m oving p arty witho ut the be nefit of couns el. In Cruis Along Boats, Inc. v. Langley, 255 Md. 139, 257 A.2d 184 (1969), the defendant requested a continuan ce the day bef ore trial becau se one of his counse l, Mr. Blatt, was scheduled to be in court in another matter on the trial date. The trial judge refused to grant a continuance and, on appeal, the defendant argued tha t the denial of his motion constituted a denial of h is constitutional right to have effective assistance of co unsel because M r. Blatt was his primary counsel in the m atter. Id. at 142, 257 A.2d at 186. We held that there was no abuse of discretion in the trial court s ruling because defendant had at least four days notice that Mr. -22- Blatt would not be available, and therefore the defendant should have made other arrangements, perhaps adopting the suggestion of the trial judge that an associate of Mr. Blat t's . . . firm handle the trial. Id. at 142-43, 257 A.2d at 186. See also Travelers Indem. Co. v. Nationw ide Cons t. Corp., 244 Md. 401, 407, 224 A.2d 285, 288 (1966) (affirming the trial judge s denial of the defendants motion for continuance made the morning of the day set for trial on the gro und that co unsel had a schedu ling conflict w ith another proceeding, and the denial resulted in the defendants lack of representatio n at trial); Clarke Baridon, Inc. v. Union Asbestos & Rubber Co., 218 Md. 480, 482-83, 147 A.2d 221, 222 (1958) (affirming entry of summary judgm ent by default against defend ant where defe ndant s attorney requested a continuance in absentia on the date set for hearing because of a scheduling conflict with another case ). Ms. Touzeau distinguishes the case before us from these latter cases and posits that her circumstances warrant a reversal of the denial of her motion for continuance because she was surprised by the results of the evaluatio n and bec ause she a cted with d ue diligenc e in securing pro bono counsel, thus bringing her motion within the holdings of Plank and Thanos. We disagree. The present case is differentiated primarily because it was expedited as a consequence of the immedia te impact tha t Victoria s relo cation had on her relatio nship with Mr. Deffinb augh . Ms. To uzeau s counsel ac knowle dged at ora l argumen t before this Court that the continuance requested was not merely for one day, but for a protracted period of time to enab le him to be come fa miliar with the case and to prepare for the hearing. Such -23- a delay w ould ha ve com pletely ob viated th e expe dited na ture of t he proc eeding s. Further, unlike the plaintiffs in Plank and Thanos, this case lacks the elements of surprise and due diligence. The parties had been notified in September that within four months a custody eva luation wo uld be undertaken and complete d and that a hearing w ould be held, unless a settlement could be achieved. Although Ms. Touzeau s asserts that she was ambushed by the unfavorable custody/visitation evaluation results, contested custody proceedings are adversarial proceedings and therefore unfavorable results cannot be deemed surprising per se. Moreov er, Ms. Touzeau clearly was cognizant of the significance of the custody/visitation evaluation, the results of which she was advised to anticipate during the September scheduling conference. She had prior experience w ith unfavo rable custody/visitation evaluation results; the 2001 custody/visitation evaluation, which the trial judge partially relied upon in this proceeding , also was n ot favorab le to her. De spite this experience, the record sho ws a lack of diligenc e on M s. Touzea u s part to secure counsel for the February hearing to modify custody; she stated on the record at the February hearing that she had made no attempt to obtain counse l until after the settlement conference on January 21, only two weeks before the custody hearing and some four months after Mr. Deffinbaugh filed his emergency motion for modification of custody and attorney s fees, even though she was advised in September to anticipate receiving the report on January 21, 2005. Nevertheless, Ms. To uzeau ass erts that, even if she is deemed not to have presented those exceptional situations in which we found an abuse of discretion in the denial of a -24- continuance, she had a right to be represented by counsel because the proceedings implicated the right to parent, a right that we recognized to be fundamental. See In re Adoption /Guardia nship Nos. J9610436 and J9711031, 368 Md. 666, 669-70, 796 A.2d 778, 780 (2002 ). We have said that the right to parent is fundamental even in custody disputes. See McDermott v. Doug herty, 385 Md. 320, 353, 869 A.2d 751, 770 (2005). The fundamental nature of the right to parent, however, does not necessarily imp licate the range of due process protections statutorily afforded to parents in Child In Need of Assistance ( CINA ) procee dings a nd invo luntary term ination o f paren tal rights p roceed ings. See Maryland Code (1974, Repl. Vol. 2002), Section 3-813 of the Courts and Judicial Proceedings Article (affording indigent parents counsel in Child In Need of Assistance proceedings); Maryland Code (1999, 2004 Repl. Vol.), Section 5-323 of the Family Law Article (affording indigent parents counsel in involuntary termination of parental rights proceedings). Even in the two latter situations, we heretofore have declined to require the full panoply of constitutional due process protections to litigants, as afford ed to defe ndants in crimina l cases. See In re Blessen H., 392 Md. 684, 705-08, 898 A.2d 980, 993-95 (2006) (holding that a personal dialogue with a parent was not required prior to her waiver of a contested CINA adjudicatory hearing because she was not entitled to the same constitutional due process protections a fforded a party facing co nfinement). App aren tly, however, Ms. Touzeau also is asking that we afford pa rties seeking pro bono representatio n a higher s tandard of scrutiny in our re view of a denial of motion for -25- continuance. She contends that the stand ard wou ld be cons istent with this Court s adoption of Rule 6.1(a) of the Maryland Rules of Professional Conduct, which states that [a] lawyer has a professional responsib ility to render pro bono publico legal service , and Maryland Rule 16-903, which requires that a ll attorneys practicin g law in Maryland annua lly file a Pro Bono Legal Service Report. These rules, however, do not embody distinctions between retained and pro bono attorneys; the fact tha t Ms. Tou zeau wa s seeking a continuan ce in order to utilize pro bono counsel does not distinguish her situation from those cases in which we have affirmed the denial of continuances when retained counsel was unavailable, such as Fontana v. Walker, 249 M d. 459, 4 63, 240 A.2d 268, 271 (1968). In that case, the Fontanas counsel withdrew from the case the day before the hearing. Acknowledging that the Fontanas interests would have been better protected had they been represented by counsel at the hearing, we noted that the unfortunate position in which the [Fontanas] find themselves is partially attributable to their inability or unwillingness to retain counsel at the hearing in the court below. Id. at 463, 240 A.2d at 271. We affirm ed the trial judge s denial of the con tinuance, em phasizing th at: The granting or denial of a continuan ce or postp onemen t is within the sound discretion of the trial court. This rule applies even where the ground for the reques ted continu ance is withdrawal of movant s counsel from the proceedings. Id. (citations omitted). The only distinction between Fontana and the case at hand is the fact that in Fontana the moving party was unrepresented because of the withdrawal of retained counsel, while in the present case Ms. Touzeau was unrepresented because of the temporal -26- unavailab ility of pro bono counsel. Were we to adopt Mrs. Touzeau s duality, we would be elevating the rights of litig ants who utilize pro bono counsel over the rights of litigants who retain counsel, the reby creating tw o distinct classe s of litigants in o ur courts. W e decline to do so. In the case sub judice, Ms. Touzeau has failed to demonstrate that she experienced an unforeseen circumstance in the contested custody proceedings that she reasonably could not have anticipated and that she acted with due diligence to mitigate the consequences of not being represented by counsel a t the hearing to modify custody. Accordingly, we hold that the trial judge did not abuse his discretion in denying Ms. Touzeau s motion for continuance and affirm the judgment of the Court of Special Appeals. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED WITH COSTS. -27- IN THE COURT OF APPEALS OF MARYLAND No. 126 September Term, 2005 TARA M. TOUZEAU v. SCOTT E. DEFFINBAUGH Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C. J., which Cathe ll, and G reene, J J., join. Filed: September 19, 2006 The issue in the case sub judice is whether the trial judge abused his discretion when he denied the appellant T ara M. Touzeau s motion for continuance of a custody modification hearing in order to secure pro bono counsel. The majority concludes that the trial judg e did not abuse his discretion in denying Ms. Touzeau s motion; however, I believe that the trial judge erred, and thus abused his discretion, as did the Court of Special Appeals, by not considering pro bono counsel s affidavit, and, further, by not taking into a ccount the totality of Ms. Touzeau s situation, a situatio n in which there existed the dange r of a substa ntial, fundamental right being lost - Ms. Touzeau s custodial rights of her daughter, Victoria. A. Maryland R ule 2-508 provides in pertinent pa rt: (a) Gene rally. On m otion o f any par ty or on its o wn init iative, the court may continue a trial or other proceeding as justice may require. (Emphasis adde d). To be sure, this Court has held that the determination as to whether a continuance should be granted lies with in the dis cretion o f the trial judge, and, absent an abuse of that discretion, the decisio n shou ld not b e disturb ed. See, e.g., Greenstein v. Meister, 279 Md. 275, 294, 368 A.2d 451, 462 (1977); Butkus v. McClendon, 259 Md. 170, 173, 269 A.2d 427, 428 (1970). The trial judge, thus, plays a very important role in our judicial system, as he or she has the opportun ity to view the proceedings first hand and the responsibility of overseeing them. It is for this reason, as the majority points out correctly, the trial judge is given great deference with regard to the m any discre tionary m atters tha t may arise at the trial level. Touzeau v. Deffinbaugh, __ Md __ , __, __ A.2d __, __ [slip op. at 16] (2006). It is never this Court s intention to usurp the role of the trial judge as such a usurpation would serve the purpose of undermining the trial judge s authority, and, in turn, his or her effectiveness. This Court does, howev er, have the a uthority, indeed, th e obligation , to review, o n appeal, the exercise of discretion by the trial court to determine whether, in that exercise, it acted arbitrarily or prejud icially. On the date of the subject hearing, Ms. Touzeau presented the trial court with an affidavit from her attorney, Mr. Cullen. Mr. Cullen had agreed to represent Ms. Touzeau, pro bono, in the custody modification hearing concerning her daughter; however, due to a scheduling conflic t, Mr. C ullen w as not a ble to ap pear on that date . When Ms. T ouzeau indicated to the trial judge that she had an affidavit from Mr. Cullen, the trial judge refused to even look at the affidavit stating, I don t need that. The majority accepts the trial judge s complete altogether d isregard of the affidav it stating that the affidavit [did] not add anything to what Ms. Touzeau orally presented at the hearing to modify custody. Id. at __ n. 6 [slip op. at 19 n. 6]. The majority, further, relying on this Court s ruling in King v. Mayor and Co uncil of R ockville, 249 Md. 243, 246, 238 A.2d 898, 900 (1968) (finding that the trial court did not err in denying a request for continuance because such a request must reflect that the basis for the delay will be obv iated within a brief period of time), maintains that neither M s. Touzea u, nor her p roffered a ffidavit, proposed when her pro bono counsel would be available. Id. at __ [slip op. at 19]. -2- In addition to being significantly flawed, the majority s rationale for excusing the court s refusal to consider counsel s affidavit is, to me, even more unsettling. The best that can be said for the rationale is that it is informed, pe rhaps, by hindsight, and, from that perspective, the affidavit may be dismissed as having no independent significance. It must be said that when presented, the trial judge did not know, nor could he have known without looking at it, what was being offered in the affidavit. The question that concerns the majority so greatly, when Mr. Cullen would have been available for the hearing, id., very well could have been answered in the affidavit itself, but the trial judge would never have known since he ref used to ev en accep t, much less to consider, it. In addition, the trial judge could have easily ascertained, by inquiry, when pro bono counsel would have been available. He could have asked Ms. Touzeau if she had discu ssed with c ounsel w hen coun sel would be available, or he could have telephoned counsel to determine when, not if, since counsel had agreed already to represe nt Ms . Touz eau, co unsel w ould ha ve bee n availa ble for t rial. The failure to even look at the affidavit was, I submit, a total abdication of the trial judge s responsibility, not only to the parties in this matter, but to the overall system of justice in which h e serves suc h an impo rtant, critical role. Thus, rather than simply abuse his discretion, I believe the trial judge, in eff ect, refused, but certainly failed, to exercise any discretion. I can not understand how there ever can be a proper exercise of discretion when a threshold piece of info rmation is rejected, before it is even seen, not to mention considered. It must also be stressed that Mr. Cullen did not simply communicate his commitment in a -3- letter, he c hose to do so b y affidav it. If, as the m ajority hold s, id. at __ [slip op. at 26], the trial judge exercised discretion, it was abused. The matter before the trial court certainly was impo rtant enough to require that information bearing on the question of whether justice may be served by the continuance be con sidered serious ly, rather tha n simp ly ignored . The majority, in arriving at its holding, also accepts the trial court s analysis that Ms. Touzeau waited until the last minute to look for counsel, and, thus, that she did not [ac t] with due diligen ce to mitigate the consequences of not being represented by counsel at the hearing to modify custody. Id. I do not agree. Ms. Touzeau found herself in a situation in which, unfortunately, too many litigants in our court system find themselves today. What happened to her was not the result of an unwillingness on her pa rt to secure co unsel, but, instead, was the result of her financial situation. Ms. Touzeau made it very clear at trial that she could not afford an attorney and that she tried to secure counsel even before being presented with the results of the Report of Custody/Visitation Evaluation on January 21, 2005. Ms. Touzea u tried to secure representation from the Legal Aid Bureau as well as the Pro Bono Resou rce Ce nter. He r attemp ts did no t yield fav orable r esults. This, to me, is not at all surprising since many of the agencies o ffering this type of aid to litigan ts are genera lly overworked and understaffed. The Legal Aid Bureau would only consider representing Ms. Touzeau if she were granted a continuance. This response to Ms. Touzeau was more than likely the result of th e Legal A id Bureau trying to save tim e and reso urces; how ever, its -4- inability to represent Ms. Touzeau at the modification hearing was a great detriment to her and lef t her wi thout leg al repre sentatio n. Ms. Touzeau was not simply looking to retain an attorney; she was looking for pro bono representation, which, as the record indicates, is not always easy to find. Ms. Touzeau was fortunate enough to find pro bono representation, albeit only five days before the scheduled modification hearing. It is my opinion th at, like the trial cou rt, the majority is too pre-occupied with the timing of Ms. Touzeau s retention of counsel and not nearly concerned enough about the adverse consequences that potentially awaited her were she not to have counsel. The majority asserts tha t Ms. Tou zeau wa s not entitled to a continuan ce merely because her attorney ha d a sched uling conf lict. The majority cites to the Revised Administrative Order For Continuances For Conflicting Case Assignments or Legislative Duties ( Administrative Ord er ) as support of its affirman ce of the trial c ourt. 1 Although 1 The pertinent part of the Administrative Order upon which the Court of Special Appeals relied in finding that the trial judge did not err in denying Ms. Touzeau s motion is: 2. RESPONSIBILITIES OF COUNSEL b. *** If counsel accepts em ployment in a case in wh ich a date or time for argumen t, hearing, or trial has already been set after counsel has been notified of a conflicting assignment for the same date or time, counsel should not expect to be granted a continuance. *** -5- the majority correctly cites to the Administrative Order, I w ould assert that the rules themselves are not to be applied so rigidly as to negate a consideration of the equities and the context of the case. I believe, moreover, that the trial court s hard and fast, perha ps more appropr iately, mechanical, application of the Administrative Order is counterproductive to, and indeed, is inconsistent with, courts purported goal of assuran ce of fairn ess, a goal w ith which this Court certainly and ultimately should be concerned. The majority also seems to agree with the trial court s u se of exp edition as the main reason for denying Ms. Touzeau s motion for a continuance. The majority opined that [t]he present case is differentiated primarily because it was expedited as a consequence of the immedia te impac t that Vic toria s re location had on her rela tionship with M r. Deff inbaug h... Id. at __ [slip. op. at 23]. The trial court, however, in an effo rt to s ettle the m atter quic kly, did not make the proper decision. A lthough the trial court wa s correct in tak ing into account the urgency of the situation, it is my opinion that this urgency supported a different conclusion. The gravity of the situation did not warrant a speedy trial as much as it did a fair and tho rough one. As Judge Hollander so poignantly put it, in dissent, [t]he court s calendar was not more important than the parties fundamental parental rights or the child s best interest. Although the Administrative Order does not distinguish between pro bono counsel and retained counsel, I think that that is something that the majority, as well as the trial court, sh ould ha ve con sidered . See m y discussio n of the differe nces of couns el, infra at p. 8. -6- She continues, [ t]he child s be st interest, whic h is at the hea rt of this case, is served best when the parents are on equal footing, so that the custody fight is fought fairly and the court has before it all relevant information. That is not likely to happen when one parent is unrepr esented . I agree with Judge Hollander. Like her, I believe the trial court should have weighed the importance of the issue - the right to be lost - against the amount of time to be lost by granting a postponement. That this was the first request for a postponement, and by no mean s at all an unre asonable o ne, should have rece ived cons iderable w eight. I do not disagree with the majority s argument that Ms. Touzeau may not have been surprised, or, as the ma jority puts it, that she failed to demonstrate that she experienced an unforeseen circumstance ... that she reasonably could not have anticipated. Id. at __ [slip op. at 26 ]. I also do not find that observation to be particularly pertinent, and certainly not dispositive. It is true that Ms. Touzeau should have, at the least, because of the nature of the proceedings themselves, anticipated an ad verse report by the court-appointed evaluator. To acknowledge that this is so is not to say that her efforts to obtain counsel were unreasonable. I do not asc ribe the respo nsibility for her co unsel situation to Ms. Touzeau s dilatoriness or failure to app reciate the po ssibility that an adv erse recom mendatio n could be the result of custody/modification analysis th e court o rdered . In shor t, I do not agree with the majority s contention that merely because [s]he had prior ex perience w ith unfavo rable custody/visitation evaluation results, id. at __ [slip op. at 23], that she clearly was cognizant of the significance of the custody/visitation evaluation, id. and, thus, of her need -7- for coun sel. I believe tha t Ms. Tou zeau wa s diligent in her search for counsel and that she acted appropriately, given her circumstances. The trial court, again, should have looked at the totality of her situatio n before d enying her m otion for a c ontinuanc e. And this Court should permit no less. It is my contention that a grave disservice was done in a llowing M s. Touzea u to represent herself, particularly since she was neither prepared, nor equipped, to do so. The trial court seems, as does the majority, to have given weight to the appellee s argument that Ms. Touzea u had enough education and pro se expertise in the legal f ield to allow her to represent herself. To the extent that this is true, such reasoning is significantly flawed. To be sure, this Court sets the requirements for admission to the Bar. At minimum a law degree is required. We have never, nor should we, equated a college degree and some pro se experience to an adeq uate level of experienc e needed to defend oneself in a matter bef ore this Court, never mind a trial court, much less a matter of such significance and complexity as in the case sub judice. It was clearly a stretch, particul arly when Mr. Deffinbaugh was represented by able and experienced counsel, and, as the record indicates, Ms. Touzea u could not effectively examine or cross-examine her witnesses, properly introduce evidence, and make all pertinent arguments. B. The majority s unwillingness to consider and take into account the seriousness of Ms. Touzeau s circumstan ces is, I repeat, d isturbing to m e. It also highlights another point, -8- whose importanc e is understa ted and un derapprec iated. It has its roo ts in public policy. Ms. Touzeau made the effort to secure pro bono counsel, and she was successful. We have been, as a Court, concerned with increasing representation available for indigent litigants, and we have made substantial efforts to increase the level and amount of pro bono representation the legal profession provides.2 Our eff orts culmina ted, years ago, in th e adoption of a rule pertaining to pro bono service, providing a goal toward which attorneys should work . See Md. Rule Prof. Conduct 6.1.3 More recently, we have amended our rules to provide for 2 Maryland has a strong policy of encouraging attorneys to provide pro bono represe ntation t o indig ent litigan ts, as a pu blic serv ice and as a pro fession al respo nsibility. The P reamb le to our Rules o f Prof essiona l Respo nsibility, see Maryland Rule 16-812, recognize s a lawyer s resp onsibilities in this re gard. It prov ides, in pertine nt part: A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poo r, cannot af ford adeq uate legal ass istance. The refore, all lawyers shou ld devote p rofessiona l time and res ources an d use civic influence to ensure equal access to our system of justice for all those who becau se of econom ic or social barriers cannot afford or secure adequate legal coun sel. A lawyer s hould aid th e legal prof ession in pursuing these objectives and should help the bar regulate itself in the public in terest. 3 Rule 6.1 was initially adopted April 15, 1986, effective Jan. 1, 1987. As adopted, it provided: A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, or by financial su pport for o rganization s that provid e legal servic es to person s of lim ited me ans. It was amended April 9, 2002, effective July 1, 2002. That amendment did not change the aspirational goal; instead, it added the minimum number of hours that every full- or part-time law yer should asp ire to comp lete and that th e failure to co mplete the h ours is -9- not groun ds for discip linary action. Ne ither did the late st amendm ent substan tively change the Rule s goal. In its current iteration, Rule 6.1 provides: (a) Profession al Respon sibility. A lawyer ha s a profess ional respo nsibility to render pro bono publico legal service. (b) Discharg e of Prof essional R esponsibility. A lawyer in the full-time practice of law should aspire to render at least 50 hours per year of pro bono publico leg al service, and a lawyer in pa rt-time practice should asp ire to render at least a pro rata number of hours. (1) Unless a lawyer is prohibited by law from rendering the legal services described below, a substantial portion of the applicable hours should be devoted to rendering legal service, without fee or expectation of fee, or at a substantially reduced fee, to: (A) people of limited means; (B) cha ritab le, re ligio us, civic, com mun ity, governm ental, or edu cational org anizations in matters designed primarily to address the needs of people of limited means; (C) individuals, groups, or organizations seeking to s ecure or pr otect civil rights, c ivil liberties, or public rights; or (D ) cha ritab le, re ligio us, civic, com mun ity, governm ental, or edu cational org anizations in matters in furtherance of their organizational purposes whe n the payment of the stand ard legal fees would significantly deplete the organizatio n's econom ic resources or would otherwise be inappropriate. (2) The re mainder o f the applica ble hours m ay be devote d to activities for improving the law, the legal system, or the legal profession. (3) A lawyer also may discharge the professional responsibility set forth in this Rule by contributing financial support to organizations that provide legal services to persons of limited means. (c) Effect of Noncompliance. Thi s Ru le is a spira tional, no t man dato ry. Noncompliance with this Rule shall not be grounds for disciplinary action or other sanctions. -10- mandatory reporting and set up an infrastructure to keep track of the ho urs provided and to encou rage an d facilita te greate r pro bo no part icipation and ho urs. See Md. Rules 16-901 to -903. Given all of our efforts and our continu ed attemp ts to secure more pro bono representation for those who c annot afford to retain their ow n attorney, we ought to be sensitive to, and encouraging of, those who join our effort or take the goal seriously. We should, more imp ortant, be concerned with the message b eing sent to both attorneys who are willing to provide such a service (like Mr. Cullen in the case sub judice) and to our citizens who are unable to pay for representation. When we rigidly and mechanically apply the rules, rather than encouraging the rendering of pro bono services, we discourage it. We have done more than simply ask lawyers to volunteer and then g ive us the ap proximate number of ho urs spent on pro bono service; we have required them to report to us and have given them target hours to achieve. Indeed, we have, in Rule 6.1, emphasized the importance of representational legal ser vices. See Rule 6.1 (b) (1). If our thrust with regard to pro bono service is to mean anything, especially representational services, we cannot in any way discourage attorneys from offering such aid to th ose who so despera tely need it, nor w ould we want to se nd the me ssage to those who work hard to secure such representation that their efforts are in vain. That is what we do with respect to lawyer and litigant under the circumstances sub judice. It would be unreasonable for us to expect that Mr. Cullen would have put Ms. Touzeau s interest in front of those of one of his paying clients. The fact that -11- he was willing to help Ms. Touzeau should have been given some level of attention. At the least, his a ffidav it should have b een ac cepted and co nsidere d seriou sly by the co urt. The majority m aintains that [w ]ere w e to ado pt Mrs . [sic] Touzeau s duality, we would be elevating the rights of litigants who utilize pro bono counsel over the rights of litigants who reta in counse l, thereby creating two distinct classes of litigants in our courts. Id. at __ [slip op. at 26]. I am not persuaded. Instead, I contend that the kind of representation rendered is a factor, even if not, in all cases, a dispositive factor, that sh ould be taken into account when the court, in considering the totality of the circumstances, decides whether a continuance is warranted. That f actor tak es on g reater sig nifican ce, I submit, when a poor litigant h as secured counsel, but, unfortunately, pro bono counsel s schedule is not exactly compatib le with the trial co urt s trial or hearin g schedu le. The stand ard wou ld not be heightened in any way and would still be the same in that justice would require additional time in such a circumstance. By taking into account the kind of representation being rendered, this Court would not frustrate or undermine its pro bono service efforts and, at the same time, further a nd encou rage a goa l that has always been, and continues to be, of param ount im portan ce - acc ess to jus tice for a ll. C. In addition to the implications that the ruling in this case may have pertaining to pro bono representatio n, there is ano ther issue that I feel cannot be overlooked. In denying Ms. Touzeau a continuan ce, the trial cou rt, in effect, denied her representation of counsel. Her -12- motion was heard at the commencement of the modification hearing, thus an adverse ruling left her with no choice but to represent herself. It is important that the majority, as well as the trial courts, understand the consequences of their decisions. We would n ot be faced with the case sub judice if Civil Gideon, a right to repre sentation in c ertain civil cases implicating fundamental rights - basic human needs, was a reality in our legal system. Ms. Touzeau would have been entitled to counsel as a matter of right and would not have had to scrounge to find pro bono representation. Unless the notion of Civil Gideon is adopted, Ms. Touzeau s situation is one that this Court will see again and again. As Judge Cathell so succinctly declared in his concurrence in Frase v. Barnhart, 379 Md. 100, 138, 840 A.2d 114, 140 (2003), this issue will not go away. There is a lot to be said for Judge Cathell s concurrence in Frase. His candor was very refreshing and reflected the importance of the issue from a societal perspective and the zeal with which it is espoused by its advocates. He was correct in his assertion th at [t]he answers being sought in this Court, whatever the a nswers may be, cann ot be found anyw here else...we should no longer leave them, and this issue, in limbo. Id. at 134, 840 A.2d at 134. What happened to Ms. Touzeau in this case is a travesty and sad commentary on an aspect of our legal system. Would that there were these safeguards in place, she, and her rights, would have b een be tter prote cted. The discussion surrounding the notion of Civil Gideon is one that is gaining more and more momentum. There are many who believe that indigents need protection when -13- fundamental rights, other than those involving incarceration, are being threatened . Recently the AB A has m ade the fo llowing rec ommen dation: [T]h e Am erican B ar Asso ciation u rges fe deral, sta te, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic huma n need s are at sta ke, such as those involv ing she lter, sustenance, safety, health or child custody as determined by each ju risdiction . [4] The ABA define s child custo dy as embra c[ing] pro ceedings w here the cu stody of a child is determined or the termination of parental rights is threatened. The ABA could not be more correct in its position, and as a member of the task force that made the above rec ommen dation, I fully sup port its sentiment. Ms. Touzeau is entitled to counsel, and she should have been allowed a continuance so as to be able to benefit from counsel s service s. Parenting is at the heart of our culture and is a right that must be 4 This recommendation is found in the ABA House of Delegates Report that was adopted on A ugust 7, 2006. The unanimously approv ed documen t is part of the ABA s effort to ensure equal justice fo r all in the United States, an effort that ha s a long history dating back to the 1920's. In its amicus brief, at pages 3-4, in Lassiter v. Dept. of Social Services o f Durha m Cou nty, 425 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the ABA demonstrated its support of the notion of Civil Gideon by stating that in o rder to minimize [the risk of error] and to ensure a fair hearing, procedural due process demands that counsel be made available to parents, and that if the parents are indigent, it be at public expense. The ABA further noted that skilled counsel is needed to execute the basic adv ocac y function s: to d eline ate th e issu es, in vestigate and conduct disc overy, present factual contentions in an orderly manner, cross-examine witnesses, make objections and preserve a record for appea l...pro se litigants cannot adequately perform any of these tasks. -14- protected at all costs. A s the record indicates, Ms. Touzeau was unable to perform the pertinent tasks required in order to defend herself adequately against the competent counsel of Mr. De ffinbaug h and bec ause of this lost cust ody of h er daug hter. Ms. Touzeau has had custody of her daughter from birth. She deserved to be able to fight for her daughter on equal footing with Mr. Deffinbaugh, and, by denying her continuance request, the trial court denied her that right. Ms. Touzeau s circumstance clearly underscores the need for legal assistance in th e civil arena a s a matter of right. Judge Cathell and Judge G reene hav e authorize d me to state that they join in this dissenting opinion. -15-

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