dissenting
Under the circumstances of this case, I believe that the trial court was within its *1254discretion in denying both the request for pauper counsel and the motion for continuance. Therefore, I respectfully dissent.
In order to qualify for the appointment of pauper counsel pursuant to statute, a person must show that he is indigent. Ind.Code § 34-10-1-1 and 2. It is within the trial court’s discretion to determine whether the person requesting pauper counsel has made the requisite showing. In re Johnson, 415 N.E.2d 108, 111 (Ind.Ct.App.1981).
Here, the record discloses that David waited until the day of the 60(B) hearing to file his request for pauper counsel. David was aware of both his alleged indigency and his need of court-appointed counsel well before the time that he filed his request and motion. Under the circumstances, the trial court was within its discretion in determining that David did not timely meet his burden of showing that he was indigent.
The record in this case also discloses that David waited until the day of the 60(B) hearing to file his motion for continuance. The grant or denial of a motion for a continuance rests in the sound discretion of the trial court, and it will be reversed only for an abuse of that discretion. Hoehn v. Hoehn, 716 N.E.2d 479, 485 (Ind.Ct.App.1999).
As a general proposition, I believe that a trial court does not abuse its discretion when it refuses to grant a continuance filed on the day of the hearing. More specifically, I observe that David states as part of his “Verification and Affidavit of Indigency” that he is “wholly indigent and incapable of hiring a private attorney.” (R. 77). In light of this verified statement to the trial court, it was not an abuse of discretion to deny the continuance as the grant thereof would not transform David’s incapability into the ability to hire private counsel.
Furthermore, David did not request that the trial court appoint pauper counsel under Ind.Code § 34-1-10-1 and 2. In fact, he does not raise the propriety of such statutory appointment on appeal. Instead, David asserts a constitutional right to counsel. This is the issue that is before us on appeal.
There is a presumption against appointment of counsel where the litigant’s physical liberty is not at stake, and therefore, as a general rule, an indigent litigant has a due process right to appointed counsel “only when, if he loses, he may be deprived of his physical liberty.” E.P. v. Marion County Office of Family and Children, 653 N.E.2d 1026, 1031 (Ind.Ct.App.1995). This presumption may be overcome, however, where other elements of due process so require. In determining whether an indigent litigant may be entitled to court-appointed counsel, courts must evaluate (1) the private interests at stake, (2) the government’s interest, and (3) the risk that the procedures used will lead to an erroneous decision. Id. The courts then balance these elements against each other and weigh them against the presumption. Id.
The private property interests in dissolution eases, while important, are certainly less substantial than the parental rights discussed in E.P. See id. at 1031-32 (holding that such rights do not override the presumption that there is no right to appointed counsel unless the litigant’s physical liberty is at stake). Additionally, the State’s non-party interest in the orderly dissolution of marriages is a significant counter-balance to those property rights. Finally, as stated in E.P., I acknowledge that litigating any case without the benefit of counsel may increase the risk of an erroneous decision. Id. at 1032. However, after balancing David’s private property interests, the counter-balancing State’s interests, and the increased risk of an erroneous decision, and weighing them against the presumption that there is no right to appointed counsel unless the litigant’s liberty is at stake, I conclude that due process does not require the appointment of pauper counsel in this case.
Because the majority sua sponte raises the application of Ind.Code § 34-1-10-2 in *1255this case, it is appropriate to point out the deficiencies of the statute. The statute states that upon a finding of indigency, a trial court “shall ... assign an attorney to defend or prosecute the cause.” (Emphasis supplied). The statute also states that an attorney “required, to prosecute or defend the action shall do [his or her] duty in the case without taking any fee or reward from the indigent person.” (Emphasis supplied). The statute gives the trial court no discretion to refuse to make such an assignment, and by the use of the word “assign” rather than “request” or some other non-binding term, the statute gives the attorney assigned to the cause no discretion to refuse such assignment or no possibility of being paid by his assigned client. There is, of course, no possibility of compensation for such services from public sources. See Holmes v. Jones, 719 N.E.2d 843 (Ind.Ct.App.1999)
In requiring such service without compensation, I believe the statute runs afoul of the Indiana Constitution, specifically Article 1, § 21, providing that “[n]o person’s service shall be demanded, without just compensation,” and Article 1, § 37, providing that “[t]here shall be neither slavery nor involuntary servitude, within the State.... ” I am aware that there is case law that attempts to interpret the statute in a manner that does not violate our constitution. See e.g., Board of Commissioners of Howard County v. Pollard, 153 Ind. 371, 55 N.E. 87 (1899) (interpreting a predecessor statute containing wording similar to that used in Ind.Code § 34-10-1-2). However, I believe that this case law ignores the plain meaning of the language used in the statute. By its plain language, the statute is in violation of our constitution. Therefore, the majority erred in sua sponte applying the statute to the facts of this case.
I would affirm the trial court on this issue.