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Date: 04-25-2022
Case Style:
POLLY L. PARKS v. ROGER PARKS
Case Number: 28739
Judge: Jeffrey Froelich
Court:
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
On appeal from The Domestic Relations Appeal
from Common Pleas Court
Plaintiff's Attorney:
Defendant's Attorney: NICOLE RUTTER-HIRTH
Description:
Dayton, Ohio - Divorce lawyer represented Appellant with appealing a final judgment and decree of divorce.
The parties married on January 20, 1990, and have children together. Mrs.
Parks filed a complaint for divorce in October 2017, at which time they had one minor
child (born in May 2002).
{¶ 3} The matter initially was set as a non-contested divorce on November 29,
2017. However, Mr. Parks timely filed an answer and counterclaim. Mr. Parks also
objected to a temporary restraining order that had been issued to Mrs. Parks, and a
hearing on that matter was held on November 21; the court issued a modified temporary
restraining order on November 27, 2017.
{¶ 4} The court scheduled a settlement conference for March 6, 2018, and a
pretrial conference for April 10, 2018. After the pretrial conference, the court scheduled
a final hearing on a non-contested divorce for May 22, 2018. The record does not
indicate what occurred on May 22, but a few days later, the court scheduled an interview
with the parties’ minor child for June 26. The final hearing was rescheduled for August
7, 2018.
{¶ 5} Again, the record does not reflect what, if anything, occurred on August 7,
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but on August 9, the court scheduled a telephone pretrial conference for August 23, 2018.
On August 27, the court scheduled a telephone pretrial conference for September 13.
On September 17, the court scheduled a telephone pretrial conference for September 21.
There is nothing in the record between the September 17 scheduling order and February
19, 2019, when the trial court set a telephone pretrial conference for March 6, 2019. On
March 7, the court scheduled the final hearing for March 22. On March 28, the final
hearing was rescheduled for May 24.
{¶ 6} On April 1, Mrs. Parks filed a motion for a continuance of the March 22 final
hearing date, stating that the parties needed “a bit more time to reach a complete
agreement on the terms of the divorce.”1 The motion noted that opposing counsel was
in agreement and that there had been no prior continuances of this matter. The same
day (April 1), the trial court granted the continuance and rescheduled the hearing for May
24, consistent with its March 28 scheduling entry.
{¶ 7} On May 30, the trial court issued an order scheduling a non-contested
hearing for July 18, 2019 and/or a trial for October 24, 2019. The following day, the court
issued a pretrial order, addressing disclosure of expert witnesses, discovery, the filing of
pretrial statements, and the pending issues. The court noted that the parties and the
court had a pretrial conference on May 28, during which the parties indicated that issues
related to spousal support, retirement, and real estate had not yet been resolved.
{¶ 8} On July 19, the court filed a scheduling entry which changed the noncontested divorce hearing date to August 15; the trial date remained October 24, 2019.
1 It is unclear why Mrs. Parks filed this motion when the trial court had already continued
the March 22, 2019 final hearing date.
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On August 16, the court scheduled a pretrial conference for the anticipated October 24
trial. In October 2019, both parties filed pretrial statements.
{¶ 9} The parties, with counsel, appeared for trial on October 24, as scheduled.
At the beginning of the hearing, Mrs. Park’s attorney informed the court that Mrs. Parks
had expressed the day before that she did not want counsel to represent her at trial.
Counsel indicated that Mrs. Parks believed that counsel had not provided her with pretrial
materials.
{¶ 10} The trial court had a discussion with Mrs. Parks about how she wanted to
proceed.
THE COURT: You’re ready to proceed or do you have another lawyer to
come and represent you? Today is the day for trial.
[MRS. PARKS]: Ma’am, I’ve not received the questionnaire today.
THE COURT: That’s not my question. My question to you is this. Are you
asking me to let [your attorney] off this case?
[MRS. PARKS]: Well, I don’t understand the process, so can I ask you a
couple questions?
THE COURT: What do you want to know, ma’am? You knew today was
trail [sic] today?
[MRS. PARKS]: Yes, I did.
THE COURT: This case has been pending since 2017.
[MRS. PARKS]: Correct. Too much. I’ve asked her to get documents
from them. We’ve never had any concrete documents.
THE COURT: Those are not questions. You can request he – you can ask
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me a couple questions. I’m going to move forward. This case – this case
has been pending for a long period of time. It’s been scheduled for trial
since at least August of this year * * * so I’m ready to proceed with this case.
I’ve taken my time to hear this case – scheduled to hear this case. [Mr.
Park’s counsel] has done the same thing. You – all have done the same
thing. I’m ready to move forward.
[MRS. PARKS]: I don’t have another attorney coming.
THE COURT: Okay. Then you’re representing yourself. You want me to
let [your attorney] off the case; is that correct?
[MRS. PARKS]: I don’t know how to proceed in this. I’m not an attorney.
I thought I had one.
THE COURT: Did you hire [your attorney]?
[MRS. PARKS]: Yes, I did.
THE COURT: Okay. Okay. And you figured out yesterday that you –
[MRS. PARKS]: Because she did not get me the documents I needed for
today. I’ve been waiting since last week. That’s why I called her. And I
talked to her on Monday. She said she would e-mail them.
THE COURT: Ma’am, ma’am, ma’am. As I indicated to you, and
everybody knows, this case has been scheduled for trial since at least
August 15 of 2019.
[MRS. PARKS]: Right.
THE COURT: It was scheduled for today, October 24th.
[MRS. PARKS]: Right.
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THE COURT: You were aware of that, correct?
[MRS. PARKS]: That’s right. You’re correct.
THE COURT: And yesterday you contacted [your attorney] and indicated
you did not want her to represent you or you had some conversation with
her, correct?
[MRS. PARKS]: Yes. Correct. Because I tried her [sic] to get me the
information.
THE COURT: Okay.
[MRS. PARKS]: So I guess we go forward with her representing me. I can’t
represent myself.
THE COURT: Do you have confidence in [your attorney] representing you,
ma’am?
[MRS. PARKS]: Not really.
THE COURT: Okay. So you don’t want her to represent you, is that
correct?
[MRS. PARKS]: I guess. Yeah.
THE COURT: I’ll allow you to withdraw.
[PLAINTIFF’S ATTORNEY]: Thank you, Your Honor.
(Trial Tr. at 3-6.)
{¶ 11} The trial court confirmed with Mrs. Parks that the issues of parental rights,
spousal support, child support, and real estate remained unresolved and were matters
for trial. After Mrs. Parks agreed, the court asked Mrs. Parks to call her first witness.
Mrs. Parks called herself.
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{¶ 12} Before testifying, Mrs. Parks asked if she could make a motion for a
continuance. The court responded, “No,” explaining that the case had been continued
more than 10 times. The court further stated, “This case has been pending since
October of ’17. It’s not that difficult of a case from the facts that I’ve been given.” Mrs.
Parks replied, “Okay. That’s fine.”
{¶ 13} Mrs. Parks then testified to the grounds for divorce and, upon questioning
by the court, the basis for the court’s jurisdiction. The trial court then re-confirmed what
issues remained; Mrs. Parks indicated that retirement funds also needed to be divided.
{¶ 14} At that juncture, the court ordered a brief recess, asking Mr. Parks’s counsel
if she was “opposed to going outside for just a moment.” Mr. Parks’s counsel said that
she was not.
{¶ 15} When court resumed, the parties had reached an agreement on the
disputed issues. Before having the agreement placed on the record, the court
questioned Mrs. Parks about her self-representation:
THE COURT: Polly, you voluntarily came to Court or negotiated this case
without an attorney.
[MRS. PARKS]: Yes.
THE COURT: Do you understand you have the right to an attorney?
[MRS. PARKS]: I guess. Yes.
THE COURT: Is it your desire to go forward today representing yourself?
[MRS. PARKS]: Yes.
THE COURT: You’ve had an opportunity to negotiate this case with [Mr.
Parks’s attorney]; is that correct?
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[MRS. PARKS]: Yes.
THE COURT: We’re – in a minute we’re going to read the agreement into
the record. But you understand and have written down all of the things you
agree to?
[MRS. PARKS]: To the best of my knowledge.
THE COURT: And you are ready to go forward today?
[MRS. PARKS]: Yes.
(Trial Tr. at 14-15.)
{¶ 16} The court then addressed both parties, explaining that once the agreement
was read, it would ask both parties if this was, in fact, their agreement. The court stated
that “[o]nce you say yes, you will be bound by the terms and conditions of the agreement.”
Mrs. Parks asked if she could have an opportunity for another attorney to review the
agreement “before we settle it once and for all.” The court responded that Mrs. Parks
could take the agreement to anyone she chose, but the agreement would be final once
the parties confirmed the agreement in court. Both parties indicated their understanding.
The trial court again emphasized that if the parties refused to sign the decree that would
be prepared from their agreement, the court would “not go back and undo an agreement.”
Both parties again expressed that they understood.
{¶ 17} Mr. Parks’s attorney read the parties’ agreement into the record. With
respect to real estate, Mr. Parks’s attorney stated:
There are three pieces of property. There’s a [B]rownstone property, which
wife is going to retain. She will be responsible from this point forward to
pay the home equity line and any liabilities on that property. Husband is
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going to retain the Rushwood property and he will be responsible for all
debts on that property.
There is a property that husband and his family own on [L]ee Hollow
and husband will get to retain his interest in that property.
The parties will each sign Quitclaim Deeds quitclaiming their
interests in the property that the other is awarded, and all those deeds will
be held until such time that Roger is able to secure $25,000 within 120 days
at which time he will pay that to wife and then all of the Quitclaim Deeds can
be recorded. He’s going to pay her, and that represents a settlement for
all of the real estate and a prepayment of $5,000 in child support. That is
a property settlement to the wife. * * *
(Trial Tr. at 24-25.)
{¶ 18} After the agreement was discussed and stated on the record, the trial court
asked Mrs. Parks if she had heard and understood everything stated by Mr. Parks’s
attorney and if that was, in fact, the agreement; Mrs. Parks responded affirmatively. Mrs.
Parks stated that she had no additions, corrections, or clarifications. The court again
reviewed with Mrs. Parks that she would be bound by the agreement once she said that
this was her agreement. Mrs. Parks again expressed her understanding, that this was
her agreement, and that she was asking the court to adopt the agreement. The court
asked Mr. Parks the same questions, and he responded similarly.
{¶ 19} On February 13, 2020, the trial court issued its final judgment and decree
of divorce. Paragraph 3 addressed the parties’ real property. It ordered that Mrs. Parks
would retain the Brownstone property and that Mr. Parks would retain the Rushwood and
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Lee Hollow properties. The last sentence of paragraph 3 provided: “To offset equity in
the property, Roger shall pay Polly a property settlement as stated in paragraph 13 below
within one hundred twenty (120) days.” Paragraph 13 stated, in its entirety:
13. Property Settlement: to offset equity in real estate, and specifically
Roger’s Lee Hollow property, and as prepayment of child support in the
amount of $5,000, within one hundred twenty (120) days, Roger shall
secure a loan or other means to pay Wife $25,000 as a property settlement.
This represents $20,000 in equity in real estate and $5,000 for child support
(calculated at a rate of $300 per month for 18 months until the child
emancipates). At the time of the payout, Quit Claim Deeds for all pieces
of real estate must be recorded.
{¶ 20} Mrs. Parks appeals from the trial court’s final judgment and decree of
divorce, raising two assignments of error.
II. Continuance / Self-Representation
{¶ 21} In her first assignment of error, Mrs. Parks claims that “the trial court erred
in refusing to grant [Mrs. Parks’s] request for a continuance and forcing her to represent
herself at the divorce hearing unaided by counsel.”
{¶ 22} “The grant or denial of a continuance is a matter which is entrusted to the
broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981). Therefore, an appellate court must not reverse a trial court’s
decision to deny a motion for continuance unless it finds that the trial court abused its
discretion. Id.; Frodyma v. Frodyma, 2d Dist. Greene No. 2013-CA-40, 2014-Ohio-953,
¶ 26. The term “abuse of discretion” implies that the court’s attitude is unreasonable,
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arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983).
{¶ 23} When ruling on a motion for a continuance, “[t]he court must balance the
needs of its docket against the possible prejudice to the party requesting the continuance
if it’s denied.” Kelly v. Kelly, 2d Dist. Montgomery No. 19263, 2003-Ohio-612, ¶ 15. A
court should consider (1) the length of the delay requested, (2) whether other
continuances have been requested and received, (3) the inconvenience to litigants,
witnesses, opposing counsel and the court, (4) whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived, (5) whether the
movant contributed to the circumstance which gave rise to the request for a continuance,
and (6) other relevant factors, depending on the unique facts of each case. Frodyman
at ¶ 27, citing Unger at 67-68. We previously have held that it does not constitute an
abuse of discretion for a trial court to deny a motion for continuance filed on the day a trial
is scheduled to begin. Id., citing State v. Pigg, 2d Dist. Montgomery No. 25549, 2013-
Ohio-4722, ¶ 18.
{¶ 24} In this case, Mrs. Parks requested a continuance at the beginning of the
scheduled trial, despite her acknowledgment to the court that she knew trial was
scheduled for that day. Mr. Parks and his attorney had appeared for trial and were
prepared to proceed with a contested divorce. Mrs. Parks and her attorney both stated
to the trial court that Mrs. Parks had told her attorney that she (Mrs. Parks) no longer
wanted her attorney to represent her, a decision she had made the day before. Mrs.
Parks had not arranged for another attorney, and she did not request a continuance for a
particular length of time. The trial court could have reasonably concluded that the needs
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of its docket and the prejudice to Mr. Park and his attorney weighed heavily in favor of
denying the continuance.
{¶ 25} Mrs. Parks argues that she requested the continuance for a legitimate
reason. Mrs. Parks told the court that she had lost confidence in her attorney because
she had not received documents that Mrs. Parks had asked her attorney to provide to
her. Mrs. Parks suggests on appeal that her attorney’s conduct during the
representation violated three of Ohio’s Rules of Professional Conduct. However, Mrs.
Parks’s attorney disputed Mrs. Parks’s claim, telling the trial court that she had sent Mrs.
Parks the pretrial materials.
{¶ 26} Mrs. Parks acknowledges that the case had been pending for a long time,
but she asserts that the trial court had continued the case sua sponte several times. She
notes that she had previously requested a continuance once, in April 2019, to allow the
parties to attempt to negotiate a settlement. Mrs. Parks argues that she “should not be
faulted for [the trial court’s] unilateral rescheduling of the divorce hearing to repeatedly
accommodate its own schedule.”
{¶ 27} The record does not reflect how many conferences actually were held
between the court and the parties during the pendency of the case,2 nor does the record
explain the reasons for the scheduled pretrial conferences. The trial court reasonably
noted that the case had been pending for a significant period of time without the parties’
reaching a resolution on several issues.
{¶ 28} Mrs. Parks emphasizes that she was prejudiced by the trial court’s denial of
2 Mr. Parks claims in his appellate brief that there were nearly a dozen telephone
conferences.
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a continuance, because it required her to proceed without counsel, to her detriment. She
notes that she expressed to the trial court that she was not confident in her ability to
represent herself. Mrs. Parks states in her appellate brief that her husband had a
“decided advantage, as undecided issues remained concerning the settlement
agreement, and [she], a layperson, faced an experienced negotiator in trying to work out
the details.” Mrs. Parks cites to case law concerning the right to counsel in criminal
cases.
{¶ 29} A party to a divorce action does not have a guaranteed right to counsel in a
domestic relations proceeding. E.g., Wielgus v. Wielgus, 8th Dist. Cuyahoga No. 95214,
2011-Ohio-1569, ¶ 11; Rue v. Rue, 169 Ohio App.3d 160, 2006-Ohio-5131, 862 N.E.2d
166, ¶ 65 (2d Dist.). While it may be unwise for a party to a divorce action to proceed
pro se, Mrs. Parks had been represented by counsel for approximately two years and had
decided, the day before trial, that she no longer wanted her attorney to represent her.
Given the timing of Mrs. Parks’s decision regarding her attorney and of her request for a
continuance, the trial court did not abuse its discretion in denying the continuance, even
though the result of that decision meant that Mrs. Parks proceeded pro se.
{¶ 30} Mrs. Parks’s first assignment of error is overruled.
III. Property Settlement
{¶ 31} In her second assignment of error, Mrs. Parks claims that “the trial court
erred in failing to grant [Mrs. Parks’s] marital equity in jointly-owned property.” Mrs.
Parks asserts that the trial court’s judgment and decree of divorce did not provide her
$20,000 for her equity in the Rushmore property and that the judgment needs to be
corrected to credit her with that amount.
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{¶ 32} The record belies Mrs. Parks’s claim that she was not properly credited with
$20,000 representing her equity in marital property. The parties’ agreement, as stated
in the October 24 transcript, indicates that Mr. Parks agreed to pay $20,000 to Mrs. Parks
as “a settlement for all of the real estate.” That agreement was incorporated into the final
judgment and decree of divorce in paragraphs 3 and 13.
{¶ 33} Mrs. Parks cites to portions of the October 24 transcript that discussed the
mechanics of that payment and the recording of deeds. Specifically, she references the
following discussion:
[MR. PARK’S COUNSEL]: * * * Each party’s going to retan any liabilities for
the real estate which they are awarded. Husband will be taking her name
off of any – is she’s [sic] on the mortgage or home equity line?
[MR. PARKS]: Yes.
[MR. PARK’S COUNSEL]: For your property?
[MR. PARKS]: Yes. I just need her to – when I leave here today, I need
her to sign off.
[MR. PARK’S COUNSEL]: Everybody will cooperate.
[MR. PARKS]: Yes.
[MR. PARK’S COUNSEL]: Okay. So he may ask you to sign some papers
to get you off the mortgage. You’ll do that and vice versa. Everybody will
cooperate in doing that.
THE COURT: So he can get a loan to pay you. He needs you to sign off
on the mortgage that he has right now. You don’t want the mortgage in
your name anyway.
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[MRS. PARKS]: Right. I’m just signing off on the mortgage, or not the
deed?
THE COURT: No, he will not get the deed until you’ve been paid all of your
money.
[MRS. PARK]: Okay.
[MR. PARKS’S COUNSEL]: The Quitclaim Deed may be part of the
closing process to close on his new loan, but it will not be recorded until she
is paid. Once she is paid her money then all the Quitclaim Deeds will be
recorded.
THE COURT: Do you understand that?
[MRS. PARKS]: Yes.
(Trial Tr. at 26-27.) The trial court’s final judgment and decree of divorce is consistent
with this discussion and Mr. Parks’s attorney’s additional representations about the
parties’ agreement concerning the real property. Mrs. Parks was to receive $20,000
from Mr. Parks as a settlement of the real estate property, and the trial court’s judgment
provides for that monetary payment.
{¶ 34} We note that paragraph 13 of the final judgment and decree of divorce
indicates that the property settlement was “to offset equity in real estate, and specifically
Roger’s Lee Hollow property,” plus a prepayment of child support. (Emphasis added.)
This reference to Lee Hollow appears to come from Mr. Parks’s pretrial statement, in
which he proposed to resolve the real estate issue, in part, by “securing a loan for Wife’s
equity in Lee Hollow for $25,000 to be paid to Wife within 120 days.”
{¶ 35} Mr. Parks’s pretrial statement further indicated, however, that the Lee
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Hollow property was inherited by Mr. Parks and his sister and, thus, was his separate
property; Mr. Park did not provide the amount of marital equity in that property. Mrs.
Parks’s pretrial statement claimed marital equity of approximately $74,000 (half the
property’s total value). At the October 24 trial, the parties agreed that Mr. Parks would
retain the Lee Hollow property, which was “property that husband and his family own.”
(Trial Tr. at 25.)
{¶ 36} The parties’ pretrial statements agreed that the parties had equity of
approximately $80,000 in the Rushwood property, which Mr. Parks retained after the
divorce. Their pretrial statements disagreed as to the amount of equity in the
Brownstone property, which Mrs. Parks retained following the divorce. Mrs. Parks’s
pretrial statement asserted that the equity in the Brownstone property was approximately
$66,000; Mr. Parks asserted that it was higher.
{¶ 37} At trial, the parties told the trial court that Mr. Parks had agreed to pay
$20,000 to Mrs. Parks as a property settlement for “all” of the real estate. Based on that
statement, the trial court’s inclusion of the phrase “and specifically Roger’s Lee Hollow
property” perhaps did not accurately reflect the parties’ intention at trial that the $20,000
resolve the equity issue for all of the properties. Nevertheless, the trial court ordered Mr.
Parks to pay $20,000 to Mrs. Parks as a property settlement for the real property, as the
parties had agreed on October 24.
{¶ 38} Mrs. Parks’s second assignment of error is overruled.
Outcome: The trial court’s judgment will be affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: