Stewart v. Ousley

[Cite as Stewart v. Ousley, 2017-Ohio-8021.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

CURTISS B. STEWART, JR.,

PLAINTIFF-APPELLEE, CASE NO 1-17-21

v.

ONDREA OUSLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 2015 JS 32683

Judgment Affirmed

Date of Decision: October 2, 2017

APPEARANCES:

F. Stephen Chamberlain for Appellant
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SHAW, J.

{¶1} Mother-appellant, Ondrea Ousley (“Ousley”), brings this appeal from

the April 11, 2017, judgment of the Allen County Common Pleas Court, Juvenile

Division, allocating parental rights and responsibilities of the minor child O.S.

between Ousley and father-appellee, Curtiss Stewart (“Stewart”). On appeal,

Ousley argues that the trial court erred by denying her oral request for a continuance

that she made at the final hearing and that the trial court erred by accepting a partial

agreement to which she now claims that she did not actually agree.

Relevant Facts and Procedural History

{¶2} Ousley had a relationship with Stewart that resulted in the birth of O.S.

in January of 2006. Stewart was established as the father of O.S. by the Allen

County Child Support Enforcement Agency and the record indicates that Stewart

paid child support for O.S.

{¶3} The relationship between Stewart and Ousley ended and Ousley moved

to North Carolina to attend college. Meanwhile, Stewart attended college in

Columbus. During the time that the two were in college, O.S. stayed with her

maternal grandparents. Both Stewart and Ousley visited O.S. while she resided with

her maternal grandparents.

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{¶4} After Ousley graduated college, she secured a position in her

accounting field with a bank in North Carolina. Ousley then indicated that she

wanted to relocate O.S. to North Carolina with her.

{¶5} On July 23, 2015, Stewart filed a complaint to allocate parental rights

and responsibilities related to O.S., a motion for custody of O.S., and a request for

child support. On August 6, 2015, Ousley filed a response.

{¶6} The case proceeded through pretrial litigation and negotiations,

resulting in a final hearing being held before a magistrate on October 18, 2016.

After negotiations held on the morning of the final hearing, the parties indicated that

they had reached an agreement on some of the pending issues, which included, inter

alia, that Ousley would be named residential parent and legal custodian of O.S., and

that Stewart would exercise visitation with O.S. the first weekend of each month in

North Carolina.

{¶7} The partial agreement left 6 unresolved issues for the magistrate to

determine including such things as when Stewart’s summer parenting time with O.S.

would begin. The parties seemed to be in agreement that Stewart would get

extended summer parenting time with O.S. in Ohio since the distance made it

difficult for Stewart to exercise visitation with O.S. more than one weekend per

month. Other issues included the amount of phone contact that would be facilitated

with O.S., the Spring Break schedule, and child support.

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{¶8} At the final hearing, Stewart testified on his own behalf. Ousley

testified on her own behalf, and she also called her mother to testify. At the

conclusion of the hearing, the matter was submitted to the court for a decision.

{¶9} On December 29, 2016, the magistrate filed a lengthy decision

determining all the issues pending in the matter.

{¶10} Ousley filed objections to the magistrate’s decision, and later

supplemented those objections when permitted by the trial court. The trial court

conducted an independent review of the objections and overruled them.

{¶11} On the same date that Ousley’s objections to the magistrate’s decision

were overruled, Ousley had a new attorney file an appearance and request an

extension of time to file supplemental objections. The trial court denied that motion.

{¶12} On April 11, 2017, the trial court filed its final judgment entry on the

matter determining the parties’ parental rights and responsibilities and ordering

Stewart to pay child support.

{¶13} It is from this judgment that Ousley appeals, asserting the following

assignments of error for our review.

Assignment of Error No. 1
The Trial Court below committed error prejudicial to the
Defendant/Mother by denying her legitimate request for a
continuance of a hearing for parental rights and responsibilities
where substantial, creditable [sic] evidence exists that
demonstrates a breakdown in the attorney client relationship and
clear desire of both client and counsel that counsel be permitted
to withdraw.

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Assignment of Error No. 2
The Trial Court below committed error prejudicial to the
Defendant/Mother by accepting any agreement, partial or
otherwise, where competent and credible evidence exists that the
Defendant/Mother did not enter into an agreement voluntarily
and with the assistance of counsel.

First Assignment of Error

{¶14} In Ousley’s first assignment of error, she argues that it was error to

deny her request for a continuance when she expressed at the final hearing that she

wanted to hire a new attorney. She contends that she was essentially forced to either

proceed without counsel or proceed with an attorney that she did not trust. We

disagree with her characterization of what happened at the final hearing, and we find

no merit to her argument on appeal.

Standard of Review

{¶15} It is well settled that the decision to grant or deny a continuance is

within the sound discretion of the court. State v. Unger, 67 OhioSt.2d 65 (1981).

We will not reverse a decision to deny a continuance absent an abuse of discretion.

Id. An abuse of discretion implies that the court’s attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). Notably, the Supreme Court of Ohio has held that “ ‘There are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process. The answer must be found in the circumstances present in every

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case, particularly in the reasons presented to the trial judge at the time the request is

denied.’ ” Unger at 67, citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841,

849 (1964).

Analysis

{¶16} At the final hearing in this case, the parties initially represented to the

magistrate that they had reached an agreement on a number of issues, though not all

outstanding issues. Ousley’s attorney began to recite the parties’ partial agreement

on the record, which included that Ousley would be designated residential parent

and legal custodian of O.S. Then, Ousley’s attorney began to recite what he

believed was the parties’ agreement as to visitation for various holidays, but Ousley

indicated that she had a different understanding of the holiday schedule. The court

went off the record so that Ousley and her attorney could speak further regarding

various issues.

{¶17} When court reconvened, the following conversation took place.

THE COURT: * * * When last we left we were reciting the terms
of an alleged agreement but we didn’t get very far into what that
agreement was during that recess/lunch break, hour long
opportunity to talk have we come any closer to an agreement or
how do we now wish to proceed?

[OUSLEY’S ATTORNEY]: Your Honor, it [is] my
understanding that we are not any closer to an agreement, um,
and that my client wishes to seek alternate counsel.

THE COURT: Ms. Ousley is that accurate?

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MS. OUSLEY: That is correct.

THE COURT: The matter is set for a final hearing today.

MS. OUSLEY: Well, it wouldn’t have to be heard today.

THE COURT: Well, that’s why we set out an entire day for that
hearing. The Court gave the parties the opportunity, you and Mr.
Stewart and your attorney’s [sic] and [the GAL] * * * to try to
resolve the matter prior to going to hearing given Mr. Stewart
residing in Columbus, you residing in North Carolina, is that
correct ma’am?

MS. OUSLEY: Yeah, that is correct.

THE COURT: The inability to have face-to-face communication
and the opportunity for everyone to try and resolve the issue or
we could have we could’ve started the hearing this morning. But,
the Court gave you and Mr. Stewart the opportunity to discuss
the matters, in hopes that we wouldn’t have to have the hearing
there would be some meeting of the minds and resolution reached.
Unfortunately, that has not yet occurred, so we would be
scheduled for a hearing starting this afternoon and continuing
until another date and time, whenever we can reconvene if we
don’t get the hearing done today.

[OUSLEY’S ATTORNEY]: I would request, Honor, that this
Court grant her a continuance of the Final Hearing today, so she
can seek alternate counsel. Uh, Your Honor, I understand the
Court’s scheduling issues and, and the fact that we did work to
resolve this matter this morning. However, if, if when [we] had
had [sic] that face-to-face ability to discuss things at Pre-Trial
because the parties lived close together the issues that my client
would have had with me would have been brought to the forefront
much quicker in the process and so I’m asking that the Court
consider that and grant her a continuance, uh, to obtain
replacement counsel to represent her in this matter.

THE COURT: The problem that I have is that this case has
[been] filed since July of 2015. It’s well over a year old. There

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are no future orders from the Court by way of interim agreement
or temporary orders for the father’s continued visitation or
parenting time with the child. And, quite frankly I don’t know
that there will ever be a resolution short of having a hearing in
regards to the matter. That’s that’s [sic] where I’m coming from.
I don’t know what happened in the hour that we were gone
between you and your client * * * or Miss Ousley ** * [and] you[.]
* * * I can’t force [your attorney] to represent you and if you want
to hi, [sic] fire him that’s totally up to you. But, prior to taking
that recess everybody came in informing the Court that there was
at least a tentative agreement except for two (2) in the grand
scheme of things minor details that weren’t agreed upon. I believe
which were summer, the start of the summer parenting time for
the father and the amount of notification in case something were
to come up for the father’s father’s [sic] visitations. * * *
Everything else had been tentatively agreed upon. Is that not
accurate?

MS. OUSLEY: It was my understanding that we had different
understandings on what the agreement was.

THE COURT: Okay.

MS. OUSLEY: To begin with, so, no I didn’t agree to what
thought [sic] was, that was, was what was said in here I thought it
was different outside of here.

***

THE COURT: Yeah, what, what was the misunderstanding?

[OUSLEY’S ATTORNEY]: I believe it had to deal with Spring
Break and the other holidays Memorial Day, Labor Day, those
sorts of things. I don’t want to speak for you but is that correct?

THE COURT: And, and I think before we broke, I think
[Stewart’s attorney] said that Mr. Stewart would not be
exercising those holidays.

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[STEWART’S ATTORNEY]: Correct. The understanding was
that [Stewart] would be exercising each Spring Break kind of in
lieu of those other holidays and that he would exercise a weekend
where mother resides, where the child resides the first weekend of
every month.

MS. OUSLEY: And, I’m sorry. I wasn’t aware of each Spring
Break that wasn’t in the layout that we had for that. My attorney
had agreed upon with me in the other room.

***

THE COURT: I, I guess I don’t understand what the, what the,
what the crux of it was that fell apart.

MS. OUSLEY: Well, the issue was, it was I haven’t heard a lot
from my attorney.

THE COURT: Um-hum.

MS. OUSLEY: Um, he hasn’t really, I feel like he hadn’t been
getting back with me as far as correspondence wise. So, a lot of
me talking to him has just been the day of. I would call, I would
email and I would get maybe, uh, a mail response. I wouldn’t get
a call or an email back. * * * I did come a little earlier to talk to
him yesterday, and so, I just kind of feel that, um, he’s not
properly representing me. I don’t feel like he’s considering my
interest.

THE COURT: Okay.

MS. OUSLEY: Yes.

THE COURT: Um, so you wish to terminate his services at this
time?

MS. OUSLEY: Well, would I be able to get a continuance to get
a different person?

THE COURT: I haven’t made that determination yet.

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MS. OUSLEY: Oh.

THE COURT: My question is do you wish to terminate [your
attorney’s] representation of yourself?

MS. OUSLEY: I wouldn’t feel comfortable going into this
without a representative.

THE COURT: Well the, those are two (2) different questions
ma’am. Is, is has there [been] a breakdown in the communication
or the relationship to the point where you don’t believe you can
talk with [your attorney] and he can’t represent you in talking
with [Stewart’s attorney] for a potential resolution or do you wish
to see if there’s yet a glimmer of hope for a resolution. I don’t, I
can’t read your mind. I can do a lot of things….

MS. OUSLEY: (Laughs)

THE COURT: …..but I can’t read your mind.

MS. OUSLEY: Can I talk to him for a second? [Meaning her
attorney]

THE COURT: Sure, do you want to go off the record and talk to
him?

MS. OUSLEY: Yes.

THE COURT: Okay, let’s take yet another recess.

(Tr. at 10-15).

{¶18} When court reconvened Ousley’s attorney indicated that she had

authorized him to make a proposal to Stewart regarding some of the outstanding

issues. The following exchange then occurred.

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THE COURT: Ms. Ousley is that accurate [that you have
authorized your attorney to make a proposal]?

MS. OUSLEY: That’s correct.

THE COURT: You wish to keep [your attorney] as your counsel
at this time?

MS. OUSLEY: Yes, yes.

THE COURT: Okay, it’s your decision, correct?

MS. OUSLEY: Yes.

(Tr. at 16). The court then went off the record again so the parties could discuss the

new proposal that Ousley had authorized her attorney to make.

{¶19} When the court again reconvened, Ousley’s attorney indicated that

they were prepared to put a partial agreement on the record settling all but 6 issues.

That agreement was read into the record. The court then conducted a colloquy with

both Stewart and Ousley asking them if they approved and adopted the agreement,

if they understood the agreement, if they had any questions, if they understood that

they had a right to a hearing on the agreed issues, if they understood that they were

giving up the right to have a hearing on the agreed issues, if there were any threats

or promises made to enter the agreement, and if they were entering the agreement

voluntarily. Both parties explicitly and affirmatively indicated that they were

entering the agreement voluntarily. Ousley was specifically addressed by the trial

court and she stated that she understood the rights she was giving up and that she

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was entering the partial agreement voluntarily. The trial court then approved the

partial agreement and proceeded to a hearing on the remaining issues in dispute

between the parties.

{¶20} Ousley’s attorney represented her throughout the hearing, cross-

examining Stewart and examining Ousley and her mother. Ousley never again

indicated at the hearing that she wished to discharge her counsel or wanted a further

continuance. She did fire her attorney approximately four months later and obtain

new counsel, but that was after the magistrate had issued his decision and her

counsel had filed objections to the magistrate’s decision.

{¶21} On appeal, Ousley now argues that it was error to deny her “request

for a continuance” that was made at the final hearing. She contends that the trial

court essentially pressured her to go forward without any attorney or go forward

with an attorney that she no longer wanted.

{¶22} At the outset, we note that the trial court never affirmatively denied

Ousley’s request for a continuance because it did not have to since Ousley changed

her mind about getting a new attorney. Even assuming that the trial court

functionally denied Ousley’s initial request for a continuance, a reading of the

transcript in its entirety, rather than just an earlier portion of it, makes clear that

while Ousley initially indicated that she wanted a new attorney and a continuance,

she later changed her mind. The trial court specifically questioned her on whether

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she wanted to keep her attorney and Ousley indicated that she was satisfied with her

attorney.

{¶23} Ousley similarly never requested a continuance at any later point in

the hearing, and she did not file any objections to the magistrate denying her request

for a continuance at the final hearing. Finally, Ousley could not show any resulting

prejudice here, given that her interests were fully represented by counsel at the

hearing and she agreed to the vast majority of the issues with Stewart in the partial

agreement. It is unclear, at best, how any continuance would have altered the

testimony that was presented.

{¶24} For all of these reasons Ousley’s first assignment of error is overruled.

Second Assignment of Error

{¶25} In Ousley’s second assignment of error she contends that the trial court

erred by accepting the partial agreement of the parties. Specifically, she contends

that the statements she made in court were “under duress” since she had indicated

that she did not trust her attorney to represent her interests. We disagree.

{¶26} In reviewing Ousley’s argument, we find that the record directly

contradicts her contention. Ousley spoke with her attorney and actually made the

proposal that was discussed that ultimately turned into the “partial agreement.”

Then, both parties were engaged in a colloquy by the magistrate to determine

whether they understood the partial agreement and agreed to it. Both parties

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affirmatively indicated that they were entering into the partial agreement of their

own free will. To find duress in these circumstances we would have to explicitly

discount the statements of Ousley to the contrary. We see no reason to go to such

drastic measures here. Finding no merit to Ousley’s second assignment of error, it

is overruled.

Conclusion

{¶27} For the foregoing reasons Ousley’s assignments of error are overruled

and the judgment of the Allen County Common Pleas Court, Juvenile Division, is

affirmed.

Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.

/jlr

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