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McDerment v. McDerment

Court of Appeals of Ohio, Ninth District, Lorain

June 28, 2019

CHARLENE M. MCDERMENT Appellee
v.
SHAWN D. MCDERMENT Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 15DU080395

          SAM R. BRADLEY, Attorney at Law, for Appellant.

          BRANDON G. OLIVER, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE

         {¶1} Shawn D. McDerment appeals the decision of the Lorain County Court of Common Pleas, Domestic Relations Division, modifying child support and holding Mr. McDerment in contempt. We affirm in part and reverse and remand in part.

         I.

         {¶2} In 2015, Charlene M. McDerment filed a complaint for divorce from Mr. McDerment, with a decree of divorce having been entered on September 26, 2016. At the time of their divorce, the couple had two minor children together. Multiple post-decree motions were filed by the parties, and a hearing was scheduled for November 21, 2017, on Ms. McDerment's motion to show cause, amended motion to show cause, and motion to modify child support. A second day of hearing was held in February 2018, and a third day in May 2018. On June 22, 2018, the trial court entered judgment modifying the child support to be paid by Mr. McDerment and holding him in contempt.

         {¶3} Mr. McDerment now appeals, raising five assignments of error, which have been reordered for the purpose of our analysis.

         II.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S REQUEST FOR A CONTINUANCE.

         ASSIGNMENT OF ERROR FIVE

         THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT PERMITTED COUNSEL TO WITHDRAW FOLLOWING THE COMMENCEMENT OF TRIAL.

         {¶4} In his first assignment of error, Mr. McDerment argues the trial court erred in denying his request for a continuance. In his fifth assignment of error, Mr. McDerment argues the trial court erred when it allowed his attorney to withdraw after trial had commenced. We disagree with both arguments.

         {¶5} On November 21, 2017, an evidentiary hearing commenced on Ms. McDerment's motion to show cause, amended motion to show cause, and motion to modify child support. Due to a family emergency for Ms. McDerment's attorney, the hearing did not commence after breaking for lunch and was continued to February 13, 2018.

         {¶6} On January 25, 2018, Mr. McDerment's attorney, Jeffrey S. Brown, filed a motion to withdraw as counsel. A hearing on the motion to withdraw was conducted on February 5, 2018, with Mr. McDerment agreeing that there had been a breakdown in communication and stating that he would "[p]robably retain new counsel, somebody who can actually do the job properly." The same day, a magistrate's order was entered granting the motion, noting that Mr. McDerment and Mr. Brown were in agreement that there had been a breakdown in communication and that Mr. McDerment indicated he would be retaining new counsel. The order further noted that Mr. McDerment was made aware that his new counsel would need to be prepared to proceed with the evidentiary hearing on February 13, 2018.

         {¶7} On February 12, 2018, Attorney Nancy Bish Robison filed a notice of appearance on behalf of Mr. McDerment, and on February 13, the second day of the evidentiary hearing began with Ms. Robison representing Mr. McDerment. A third day of hearing was subsequently set for March 5, 2018

         {¶8} Ms. Bish Robison filed a motion for leave to withdraw as counsel on March 1, 2018, stating that Mr. McDerment had failed to keep promises to pay attorney fees and costs, had not returned phone calls, and had not been in communication as requested to assist in preparation for the March 5, 2018, evidentiary hearing. She further stated that her health was being adversely affected due to the stress of the situation. At the March 5 hearing, and with the agreement of Mr. McDerment, the trial court granted Ms. Bish Robison's motion to withdraw. The hearing was subsequently continued to May 15, 2018.

         {¶9} Four days prior to the May 2018 hearing, an attorney contacted the trial court by e-mail, indicating that she would be willing to represent Mr. McDerment, but had a conflict with the May 15, 2018, hearing date. No notice of appearance or motion was filed. The trial court stated it would not be inclined to grant a continuance at such a late date. On the day of the hearing, Mr. ...


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