Continuance of divorce trial - published opinion from Ky Court of Appeals

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DELEO V. DELEO

The court scheduled a two day trial on a dissolution action including custody issues, parenting issues, and division of assets. Wife fired her initial counsel and had difficulty finding alternate counsel given her financial position. Wife ultimately obtained counsel who had a conflict with the scheduled trial date. Wife’s several motions for a continuance were denied and ultimately her new counsel withdrew leaving Wife without an attorney for trial. After trial, Wife filed an appeal arguing she should have been granted a continuance.

The Court of Appeals held that “the family court abused its discretion when it denied [Wife’s] motion for a continuance of the trial without considering any other factor than that it would delay the trial.” The family court should have considered the Snodgrass factors: “1) length of delay; 2) previous continuances; 3) inconveniences to litigants, witnesses, counsel, and the court; 4) whether the delay is purposeful or is caused by the accused; 5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice.” The Court of Appeals considers each factor and holds the totality of the circumstances demonstrate Wife’s motion for a continuance should have been granted. The Court notes Wife was forced to cross-examine her own child, as well as an expert witness, the Court’s failure to consider maintenance, and the Court’s entry to suspension of parenting time without a finding of serious endangerment which all give weight to their conclusion that Wife should have been allowed a continuance so counsel could represent her.

Digested by Elizabeth M. Howell

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