{ "id": 4343134, "name": "ROBERT L. SKELLY v. JENNIFER FRYE SKELLY", "name_abbreviation": "Skelly v. Skelly", "decision_date": "2011-09-20", "docket_number": "No. COA11-150", "first_page": "580", "last_page": "587", "citations": [ { "type": "official", "cite": "215 N.C. App. 580" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "381 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "343" }, { "page": "342-43" }, { "page": "343" }, { "page": "343" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527744 ], "year": 1989, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0688-01" ] }, { "cite": "315 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2393760, 2402759, 2395224, 2403098, 2403967 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0626-04", "/nc/310/0626-02", "/nc/310/0626-01", "/nc/310/0626-03", "/nc/310/0626-05" ] }, { "cite": "309 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524423 ], "year": 1983, "pin_cites": [ { "page": "406-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0404-01" ] }, { "cite": "321 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "516", "parenthetical": "\"Where an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion!" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 215", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524828 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/71/0215-01" ] }, { "cite": "339 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "436", "parenthetical": "\"It appears from the record that the defendant in this case told his attorney that he did not require his services any longer, which constitutes just cause for the attorney's withdrawal within the meaning of the rule.\"" }, { "page": "436", "parenthetical": "stating the defendant received \"notice of his attorney's withdrawal as evidenced by the defendant's statement in court that he did not want a lawyer\"" }, { "page": "436" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521618 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "475", "parenthetical": "\"It appears from the record that the defendant in this case told his attorney that he did not require his services any longer, which constitutes just cause for the attorney's withdrawal within the meaning of the rule.\"" }, { "page": "475" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0474-01" ] }, { "cite": "141 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1965, "pin_cites": [ { "page": "305", "parenthetical": "citations omitted" }, { "page": "306" }, { "page": "306", "parenthetical": "holding the denial of a motion to continue a trial was improper where defense counsel withdrew a day before trial and stating \"the attorney must give specific and reasonable notice so that the client may have adequate time to secure other counsel\"" } ], "opinion_index": 0 }, { "cite": "264 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572185 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "211", "parenthetical": "citations omitted" }, { "page": "211" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0208-01" ] }, { "cite": "703 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "181", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "223 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "386", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "289 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570748 ], "year": 1976, "pin_cites": [ { "page": "483", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0473-01" ] }, { "cite": "357 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "183", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127072 ], "year": 1987, "pin_cites": [ { "page": "224", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0222-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-278", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 671, "char_count": 16206, "ocr_confidence": 0.746, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3660601448192539 }, "sha256": "7ffd0972fd30161885746908644259ec8dc33a0bf3827a9b793ebae8239eac6a", "simhash": "1:0865156261e7fcf0", "word_count": 2707 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEPHENS concur." ], "parties": [ "ROBERT L. SKELLY v. JENNIFER FRYE SKELLY" ], "opinions": [ { "text": "THIGPEN, Judge.\nJennifer Frye Skelly (\u201cDefendant\u201d) appeals from a custody order granting Robert L. Skelly (\u201cPlaintiff\u2019) custody of their two minor children and an order denying Defendant\u2019s post-trial motions. On appeal, Defendant argues she was not provided reasonable notice of the withdrawal of her attorney, such that the trial court\u2019s denial of her motion to continue was an abuse of discretion. We agree.\nPlaintiff filed a complaint against Defendant on 6 August 2009, seeking custody of and support for their two minor children. On 17 September 2009, the trial court entered a temporary custody order awarding the parties joint legal and physical custody of the children consistent with a separation agreement executed on 23 March 2009.\nOn 4 February 2010, counsel for Defendant moved to continue the trial because Defendant sought to retain new counsel. The trial court denied the motion, and called the case for trial on 10 February 2010. On .10 February 2010, the following colloquy ensued:\nJUDGE CHERRY: Robert Skelly and Jennifer Skelly.\nMR. [BEYER]: Your Honor, this morning, I filed a Motion to Withdraw, and I have a proposed Order. Ms. Skelly has asked that I do so.\nJUDGE CHERRY: Ma\u2019am, do you understand that if I let your lawyer out, I\u2019m not continuing the case?\nMR. [BEYER]: Well, Your Honor, on her behalf, at the time of the docket call last week, the matter was left open, and I informed the Court that she wished to discuss her matter with someone else. And I believe she may have \u2014 hasn\u2019t had much chance to do that. I don\u2019t know that the parties would be significantly prejudiced by the matter not being heard today in that they share custody of the children. So, it\u2019s not as if either one is going to keep the children from the other in the interim. But in any event, I\u2019d ask that the Court enter that Order at her request and mine.\nJUDGE CHERRY: Mr. Jones, do you want to be heard?\nMR. JONES: Your Honor, we just indicate the same thing we did the other day; we\u2019re ready. You may recall we were in the same situation last time. We were ready then, and the Court \u2014 It really wasn\u2019t their fault that time. The last time it was a matter of scheduling that we ended up not having enough time to start it and try it, but we were here, ready then, too.\nJUDGE CHERRY: Okay. Ma\u2019am I\u2019m not going to continue the case. Do you want me to sign this Order allowing your lawyer to withdraw?\nMS. SKELLY: What does that mean? I\u2019m not \u2014 I don\u2019t \u2014 I need\u2014\nJUDGE CHERRY: It means you\u2019re going to be representing yourself, ma\u2019am.\nMS. SKELLY: Oh, well, then, No. No, sir.\nMR. BEYER: That puts me in the position of not having prepared for today.\nJUDGE CHERRY: Well, ma\u2019am, did you tell him you didn\u2019t want him to represent you?\nMS. SKELLY: Yes. I told him that last Thursday- \u2014 or Wednesday.\nJUDGE CHERRY: Okay. Well, I\u2019m going to let him withdraw then, because you\u2019ve indicated to him you don\u2019t want him to be your lawyer. Mr. Jones, I believe you\u2019re the Plaintiff.\nMR. JONES: We\u2019re ready, Your Honor.\nJUDGE CHERRY: Call your first witness.\nMR. JONES: Your Honor, we would call Ms. Skelly.\nJUDGE CHERRY: Come around and be sworn, please, ma\u2019am.\nOn 15 February 2010, the trial court entered a custody order awarding Plaintiff custody of the children and dismissing, without prejudice, Plaintiff\u2019s claim for child support. The custody order allowed Defendant visitation privileges with the children and did not expressly deny her claim for child custody or address her claim for attorneys\u2019 fees. On 19 February 2010, Defendant filed a motion to stay, a motion for a new trial, a motion for relief from the judgment or order, and a supporting affidavit. On 3 September 2010, the trial court denied the foregoing motions. On 30 September 2010, Defendant filed notice of appeal specifically designating the following issues for appeal: the denial of her first continuance request; the order permitting counsel for Defendant to withdraw on the day of trial; the denial of her second continuance request; the post-trial order; and pursuant to N.C. Gen. Stat. \u00a7 1-278, \u201cany and all intermediate orders involving the merits and necessarily affecting the aforementioned rulings.\u201d On 11 October 2010, Defendant filed a supplemental notice of appeal specifically designating her appeal from the custody order. Defendant also filed a notice of voluntary dismissal without prejudice of her claims for child support and attorneys\u2019 fees.\nI: Appealability\nPreliminarily, we address the question of whether the appeal in this case was properly taken. Defendant contends, and Plaintiff does not dispute, that the appeal is not interlocutory and that notice of appeal of the custody order was timely. We agree that the appeal is properly before this Court.\nII: Motion to Continue\nIn Defendant\u2019s first argument, she contends the trial court erred by denying Defendant\u2019s motion to continue. We agree.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 40(b) (2009) provides, in pertinent part, the following: \u201cNo continuance shall be granted except upon application to the court[;] [a] continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.\u201d\n\u201cWhether to grant a motion to continue is within the sound discretion of the trial court.\u201d Brown v. Rowe Chevrolet-Buick, Inc., 86 N.C. App. 222, 224, 357 S.E.2d 181, 183 (1987) (citations omitted). However, the trial court\u2019s \u201cdiscretion is not unlimited, and must not be exercised absolutely, arbitrarily, or capriciously, but only in accordance with fixed legal principles.\u201d Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976) (quotation omitted). \u201cOur standard of review for a trial court\u2019s denial of a motion to continue is abuse of discretion.\u201d Kimball v. Vernik,__ N.C. App._,_, 703 S.E.2d 178, 181 (2010) (citation omitted).\nAfter an attorney has made \u201ca formal appearance\u201d on his client\u2019s behalf, he is not \u201cat liberty to abandon [his client\u2019s] case without (1) justifiable cause, (2) reasonable notice to [his client], and (3) the permission of the court.\u201d Smith v. Bryant, 264 N.C. 208, 211, 141 S.E.2d 303, 305 (1965) (citations omitted).\nOn appeal, Defendant does not contest that the attorney had \u201cjustifiable cause\u201d to withdraw: Defendant sought to retain different counsel. County of Wayne ex rel. Scanes v. Jones, 79 N.C. App. 474, 475, 339 S.E.2d 435, 436 (1986) (\u201cIt appears from the record that the defendant in this case told his attorney that he did not require his services any longer, which constitutes just cause for the attorney\u2019s withdrawal within the meaning of the rule.\u201d). However, Defendant contests that she was not provided \u201creasonable notice[.]\u201d \u201c[T]he attorney must give specific and reasonable notice so that the client may have adequate time to secure other counsel[.]\u201d Bryant, 264 N.C. at 211, 141 S.E.2d at 306.\nThe evidence here tends to show that at 8:00 a.m. on 3 February 2010, Defendant met with her counsel, Mr. Beyer, and asked Mr. Beyer to seek a continuance in order for her to seek the advice of new counsel. Defendant called Mr. Beyer\u2019s office the same afternoon to inquire about the status of the continuance, and Mr. Beyer\u2019s paralegal told Defendant that Mr. Beyer would make the motion to continue at the calendar call the next day. On 4 February 2010, Mr. Beyer moved to continue the trial because Defendant sought to retain new counsel. The trial court denied the motion and scheduled the case for trial on 10 February 2010. Defendant called Mr. Beyer\u2019s office at 11:30 a.m. on 4 February 2010, and Mr. Beyer\u2019s paralegal informed Defendant that Mr. Beyer was still in court and that she did not know the status of the continuance. Defendant received no communication from Mr. Beyer or his staff between 4 February 2010 and 9 February 2010. At 2:40 p.m. on 9 February 2010, Mr. Beyer\u2019s paralegal told Defendant by telephone the trial was not continued but would be held the next morning, on 10 February 2010. The paralegal also instructed Defendant to stop by Mr. Beyer\u2019s office before trial the next morning, sign his motion to withdraw, and appear before the court to personally seek a continuance. Defendant followed these instructions. At trial on 10 February 2010, the trial court granted Mr. Beyer\u2019s motion to withdraw, but denied Defendant\u2019s motion to continue.\nDefendant cites Williams & Michael, P.A. v. Kennamer, 71 N.C. App. 215, 321 S.E.2d 514 (1984) in her brief, proposing that Mr. Beyer gave Defendant no prior notice of his intent to withdraw, and therefore, the trial court was without discretion and required to continue the case. Id. at 217, 321 S.E.2d at 516 (\u201cWhere an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion!)] [t]he Court must grant the party affected a reasonable continuance or deny the attorney\u2019s motion for withdrawal.\u201d). We believe the foregoing proposition of law in Kennamer is inapplicable in this case. Defendant was on notice of Mr. Beyer\u2019s withdrawal on 3 February 2010 when she told Mr. Beyer that she intended to seek the advice of new counsel. See Jones, 79 N.C. App. at 475, 339 S.E.2d at 436 (stating the defendant received \u201cnotice of his attorney\u2019s withdrawal as evidenced by the defendant\u2019s statement in court that he did not want a lawyer\u201d). The pertinent question, therefore, is not whether Defendant had notice of Mr. Beyer\u2019s withdrawal, but rather, whether the notice was reasonable. Our case law shows the reasonableness of notice often hinges on whether the party had an adequate opportunity to locate new counsel. See Bryant, 264 N.C. at 211, 141 S.E.2d at 306 (holding the denial of a motion to continue a trial was improper where defense counsel withdrew a day before trial and stating \u201cthe attorney must give specific and reasonable notice so that the client may have adequate time to secure other counsel\u201d); compare, Jones, 79 N.C. App. at 475, 339 S.E.2d at 436 (stating the defendant \u201creceived reasonable notice of his attorney\u2019s withdrawal as evidenced by the defendant\u2019s statement in court [on 10 April 1985] that he did not want a lawyer[,]\u201d after which the case proceeded to trial two weeks later, on 24 April 1985, and holding that the denial of the defendant\u2019s motion for a continuance to obtain new counsel on 24 April 1985 was not error, in part because the defendant had earlier informed the court he \u201cintended to proceed unrepresented\u201d); Roberson v. Roberson, 65 N.C. App. 404, 406-07, 309 S.E.2d 520, 522 (1983), disc review denied, 310 N.C. 626, 315 S.E.2d 691-92 (1984) (holding the trial court did not err in denying respondent\u2019s motion to continue when \u201crespondent chose to allow her attorney of record to withdraw so that she could find more suitable counsel\u201d; respondent \u201cindicated to the court that respondent had already been in contact with other attorneys\u201d; and \u201c[respondent was informed [by the court] that she would have three weeks to locate new counsel\u201d). In this case, Defendant was on notice of the withdrawal of Mr. Beyer as counsel on 3 February 2010, one week before the court date. However, the record shows that Mr. Beyer did not inform Defendant that the trial court had denied Defendant\u2019s motion to continue until 9 February 2010, the day before the trial. Defendant\u2019s reliance on Mr. Beyer to inform her that the motion for a continuance had been denied, which he did not do until the day before trial, essentially reduced Defendant\u2019s time to retain new counsel to less than one day.\nPlaintiff cites Pickard Roofing Co. v. Barbour, 94 N.C. App. 688, 692, 381 S.E.2d 341, 343 (1989) for the proposition that \u201can attorney\u2019s withdrawal from a case on the eve of trial is not ipso facto grounds for a continuance.\u201d We believe Pickard Roofing is distinguishable from the present case. In Pickard Roofing, \u201cone day before the trial was scheduled to commence, defendant relieved his counsel of his duties [,]\u201d and the defendant\u2019s counsel filed a motion to withdraw and a motion for a continuance the next day. Id. at 690, 381 S.E.2d at 342-43. The court allowed counsel\u2019s motion to withdraw but denied the defendant\u2019s motion for a continuance. Id. The trial court stated the defendant \u201cshould have made a decision with respect to representation by counsel prior to the eve of trial[,]\u201d and \u201c[n]o circumstances beyond the control of the defendant have prevented him from appearing in court with an attorney of his choice.\u201d Id. at 691, 381 S.E.2d at 343. This Court, on appeal, stated the defendant in Pickard Roofing \u201coveremphasizes the fact that his attorney was allowed to withdraw the day before the trial was scheduled to commence [,] [and] simultaneously de-emphasizes the reason why the attorney withdrew, because defendant terminated his employment.\u201d Id. at 692, 381 S.E.2d at 343.\nThe present case and Pickard Roofing have similarities: The defendant in Pickard Roofing fired his counsel the day before trial, and Defendant here told Mr. Beyer of her desire to seek the advice of new counsel the day before the calendar call on 4 February 2010. However, unlike in Pickard Roofing, where there was no evidence that notice of withdrawal was unreasonable, the evidence in this case shows that Mr. Beyer, knowing Defendant wanted to seek the advice of other counsel, had six days to inform Defendant that her motion to continue was denied, and he failed to inform Defendant until the fifth day, 9 February 2010, which was the day before trial. Furthermore, unlike Pickard Roofing, where the defendant unequivocally fired his attorney, the evidence here shows Defendant asked Mr. Beyer \u201cif he would ask for a continuance for me so that I could seek advice from a different attorney[,]\u201d after which Mr. Beyer\u2019s staff instructed Defendant \u201cto come by [the] office . . . and sign\u201d the motion to withdraw. Defendant relied on Mr. Beyer and his staff, \u201cexpecting] to come in the courtroom and ask Judge Cherry for a continuance and for it to be granted.\u201d Defendant said Mr. Beyer \u201cnever gave me any indication that [the continuance] wouldn\u2019t happen or that the trial would be held that morning.\u201d When asked, \u201cHow much notice did you have . . . that you were going to be trying this case by yourself[,]\u201d Defendant replied, \u201cTwo minutes.\u201d Furthermore, unlike in Pickard Roofing, where there is no indication that the defendant disputed the withdrawal of his counsel or disputed proceeding to trial pro se, the circumstances of this case show that Defendant revoked her consent of the withdrawal of Mr. Beyer:\nThe Court: ... Do you want me to sign this Order allowing your lawyer to withdraw?\nDefendant: What does that mean? . . .\nThe Court: It means you\u2019re going to be representing yourself, ma\u2019am.\nDefendant: Oh, well, then, No. No, sir.\nBased on the unique facts of this case, and taking into consideration that Defendant did not know her motion to continue had been denied until the day before trial because Mr. Beyer failed to inform her, we believe Defendant had neither \u201creasonable notice\u201d of withdrawal nor an adequate opportunity to secure other counsel. As such, we conclude the trial court abused its discretion by denying Defendant\u2019s motion for a continuance. Defendant was entitled to a reasonable opportunity to obtain new counsel, which she did not receive. Therefore, we reverse the 15 February 2010 custody order and remand for further proceedings.\nREVERSED and REMANDED.\nChief Judge MARTIN and Judge STEPHENS concur.", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "James, McElroy & Diehl, P.A., by Preston -0. Odom, III, and G. Russell Komegay, III, for Defendant.", "Kuehnert & Jones, PLLC, by Jonathan L. Jones, for Plaintiff." ], "corrections": "", "head_matter": "ROBERT L. SKELLY v. JENNIFER FRYE SKELLY\nNo. COA11-150\n(Filed 20 September 2011)\nPretrial proceedings \u2014 motion to continue \u2014 attorney\u2019s intention to withdraw \u2014 no reasonable notice given\nThe trial court erred in a child custody case by denying defendant\u2019s motion to continue. Although defendant was given notice of her attorney\u2019s intention to withdraw from the case, defendant was not given reasonable notice nor adequate opportunity to secure other counsel.\nAppeal by Defendant from orders entered 15 February 2010 and 3 September 2010 by Judge Burford A. Cherry in Burke County District Court. Heard in the Court of Appeals 23 May 2011.\nJames, McElroy & Diehl, P.A., by Preston -0. Odom, III, and G. Russell Komegay, III, for Defendant.\nKuehnert & Jones, PLLC, by Jonathan L. Jones, for Plaintiff." }, "file_name": "0580-01", "first_page_order": 590, "last_page_order": 597 }