[Cite as Ham v. Ham, 2010-Ohio-1262.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
DANIEL G. HAM,
PLAINTIFF-APPELLEE, CASE NO. 16-09-24
v.
DARLA M. HAM, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Domestic Relations Division
Trial Court No. 05-DR-0122
Judgment Affirmed
Date of Decision: March 29, 2010
APPEARANCES:
David K. Goodin for Appellant
Dennis E. Pfeifer for Appellee
Case No. 16-09-24
WILLAMOWSKI, P.J.,
{¶1} Defendant-Appellant, Darla M. Ham (“Darla”) appeals the decision
of the Wyandot County Court of Common Pleas, Domestic Relations Division,
denying her motion for a continuance. Darla contends that the trial court abused
its discretion when it failed to reschedule the hearing on imposing sentence for her
contempt charge when her preferred attorney was ill. For the reasons set forth
below, the decision is affirmed.
{¶2} Darla and Plaintiff-Appellee, Daniel Ham (“Daniel”) were married
in 1998. In October 2005, Daniel filed for divorce and on January 10, 2007, Darla
and Daniel were divorced pursuant to a final judgment entry decree of divorce.1
{¶3} In May 2008, Daniel moved the trial court for an order directing
Darla to show cause why she should not be held in contempt for failing to comply
with the orders in the divorce decree. In October 2008, the magistrate issued a
decision recommending that the trial court find Darla in contempt of court for
failing to provide Daniel with the property ordered in the divorce decree. On
February 4, 2009, the trial court adopted the magistrate’s decision and found Darla
1
Subsequently, Darla filed a Civ.R. 60(B) motion to vacate, which was denied, followed by a motion for
reconsideration. The trial court granted this motion; vacated the original decree; granted Darla leave to file
objections to the magistrate’s decision; overruled Darla’s objections; and then, issued a second judgment
entry decree of divorce in May 2007, from which Darla appealed and Daniel filed a cross appeal. See
Ham v. Ham, 3d Dist. No. 16-07-04, 2008-Ohio-828. In March of 2008, we found that the trial court erred
in granting Darla’s motion for reconsideration, ordered the trial court to vacate the May 2007 decree of
divorce, and dismissed the appeal as untimely. Id. Thus, the original January 10, 2007, decree of divorce
was reinstated.
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in contempt of court; ordered Darla to provide Daniel with the property and
payments; and ordered her to serve a ten-day jail term with the ability to purge if
she complied with the orders. Darla appealed and this Court affirmed the decision
of the trial court on July 27, 2009. See Ham v. Ham, 3d Dist. No. 16-09-04, 2009-
Ohio-3668.
{¶4} Darla eventually complied with a portion of the order, but did not
give Daniel all of the money that she was obligated to pay. On August 28, 2009,
Daniel filed a motion to impose sentence on the contempt charge. At the time,
Darla was represented by the two attorneys who had represented her since July of
2008, J.C. Ratliff and Jon L. Jensen. The hearing on the motion to impose
sentence was scheduled for November 5, 2009.
{¶5} On the day of the hearing, a third attorney, Jeffrey J. Ratliff, filed a
Notice of Appearance of Co-counsel. Jeffrey Ratliff attended the hearing with
Darla and orally moved for a continuance because Mr. Jensen was ill. The
following exchange occurred at the opening of the hearing:
The Court: This is case 05-DR-0122, Daniel Ham plaintiff and,
Mr. Ham is present with his attorney, Dennis Pfeifer. And Darla
Ham, defendant, and she is present with attorney Jeffrey Ratliff.
Mr. Ratliff: Yes, Your Honor. At this time, Mr. Jensen wanted
me to make a motion to the court for a continuance. *** He is
sick. Uhm, last week his kid had H1N1, he took off for that.
Doesn’t know if that is what he has.
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I am prepared to go forward here today if the court so wishes,
but I believe it is Ms. Ham’s wish that Mr. Jensen would handle
it today. If the court wants me to continue today, I am prepared
to do that.
***
The Court: This motion to impose was filed in August and is
scheduled in November. I would hate to think what date it
would have to be rescheduled to. And so I understand there’s
illness, I’m sympathetic toward it, but Mr. Ratliff, if you’re
prepared to proceed we’re going to proceed.
Mr. Ratliff: I understand, Your Honor.
The Court: All right. Thank you. Unless you’re willing to
agree to the continuance?
Mr. Pfeifer: No, Your Honor.
The Court: All right, all right. Let’s move forward then.
Transcript of Proceedings, pp. 4-5.
{¶6} The hearing proceeded and Mr. Pfeifer and Mr. Ratliff questioned
and cross-examined the several witnesses. At the conclusion of the testimony and
closing arguments, the trial court issued its decision and made the following
findings: that Darla pay Daniel the sums of $212.68 and $2,314.14, as originally
ordered; that Darla pay Daniel $693 for the attorney fees incurred in this action;
and, that the stay on the ten-day contempt sentence be lifted and she shall
immediately report to the Wyandot County Jail to serve the ten-day sentence
pursuant to the Judgment Entry filed February 4, 2009.
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{¶7} A few hours after Darla’s incarceration, Daniel’s attorney advised
the trial court that Darla had paid the amounts she had been ordered to pay and, as
a result, there was no objection to her release. At 2:17 p.m. on that same day, the
trial court filed an order that Darla should be released.
{¶8} Darla timely appealed from the November 5, 2009, judgment entry
raising the following single assignment of error:
Assignment of Error
The trial court erred and abused its discretion in denying
Appellant-Defendant’s oral motion for continuance.
{¶9} Darla asserts that the trial court abused its discretion when it denied
her motion for continuance because it failed to consider or weigh any of the
factors required by State v. Unger (1981), 67 Ohio St.2d 65,423 N.E.2d 1078. As
a result, Darla maintains that she was prejudiced by “forcing representation on her
that was not of her choosing.” She claims that the attorney she had at the hearing
was unprepared and failed to properly represent her interests.
{¶10} A trial court is vested with broad discretion when granting or
denying a continuance. State v. Jones, 91 Ohio St.3d 335, 342, 2001-Ohio-57, 744
N.E.2d 1163, citing State v. Unger, supra. An appellate court will not reverse the
denial of a continuance unless the trial court abused its discretion. Id. Abuse of
discretion is more than a mere error of judgment; it implies that the court’s attitude
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is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶11} When reviewing a trial court’s decision on a continuance, the
appellate court must “apply a balancing test, weighing the trial court’s interest in
controlling its own docket, including facilitating the efficient dispensation of
justice, versus the potential prejudice to the moving party.” Burton v. Burton, 132
Ohio App.3d 473, 476, 1999-Ohio-844, 476, 725 N.E.2d 359. The trial court may
consider several factors when determining whether to grant a continuance,
including: (1) the length of the delay requested; (2) whether previous
continuances have been granted; (3) the inconvenience to the parties, witnesses,
attorneys, and the court; (4) whether the request is reasonable or purposeful and
contrived to merely delay the proceedings; (5) and whether the movant contributed
to the circumstances giving rise to the request. Id., citing State v. Unger; State v.
Hines, 3d Dist. No. 9-05-13, 2005-Ohio-6696, ¶12.
{¶12} Based upon the record, we do not find any abuse of discretion in the
trial court’s denial of Darla’s motion for a continuance. Darla complains that the
trial court erred because it failed to consider any of the factors set forth in Unger.
The transcript shows that the trial court did consider the primary factors it had
before it: 1) Darla’s preference for her other attorney (“I believe it is Ms. Ham’s
wish that Mr. Jensen would handle it today”), versus 2) the length of delay after
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considering the trial court’s docket (noting that it would likely be a considerable
delay). Based upon that and the fact that all witnesses and parties were present
and ready to proceed, it was not unreasonable for the trial court to go forward.
Also, although Darla had not previously requested a continuance in this specific
matter, the case had been on-going since 2005, the orders pertinent to the divorce
decree were issued in January 2007, and the contempt charges against Darla had
been pending since February 2009.
{¶13} Furthermore, Darla did not provide the trial court with any indication
that she would be prejudiced if the continuance was denied. Although she had
indicated a preference for the one attorney who was ill, she was present in court
with another attorney who had filed his appearance as her co-counsel, and who
affirmatively represented to the court on at least two occasions that he was
prepared to go forward, and no objections were ever voiced about going forward.
No information was provided as to why her third attorney was not present. This
was not a case where a party would not have any representation at all if a
continuance was not granted. See, e.g., Burton, supra (where the court based its
decision on the fact that the defendant would likely have to proceed pro se if the
continuance was not granted.) The record shows that the attorney who represented
her at the hearing appeared familiar with the facts in the case and he thoroughly
questioned or cross-examined all of the witnesses. He provided Darla with the
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opportunity to testify in detail as to her position in the case, and she explained that
she did not have the money to pay Daniel.2
{¶14} Appellant’s assignment of error is without merit and is overruled.
Moreover, it appears that the issue has been rendered moot because Darla has
already purged herself of the contempt charge. See, e.g., Green v. Green, 11th
Dist. No. 2007-P-0092, 2008-Ohio-3064, ¶24, quoting Kimbler v. Kimbler, 4th
Dist. No. 05CA2994, 2006-Ohio-2695, ¶27 (“An appeal from a civil contempt
finding and sentence becomes moot when a party purges herself of the contempt
or serves the sentence imposed by the court.”); Bartkowiak v. Bartkowiak, 4th
Dist. No. 04CA596, 2005-Ohio-5017, ¶10 (completion of sentence renders civil
contempt moot); Wesley v. Wesley, 10th Dist. No. 07AP-206, 2007-Ohio-7006
(completion of sentence renders civil contempt moot). We fail to see what relief
Darla might be seeking since she has already paid all of the funds that were
ordered in the original judgment entry leading to the contempt charge.
{¶15} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
2
There is nothing in the record to indicate how she obtained the money to purge the contempt charge after
testifying that she did not have the money to pay.
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