HOMER L. TALLEY, APPELLANT,
v.
DONNA MAE FAIN, F/K/A DONNA MAE TALLEY, APPELLEE
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The court held that the trial court abused its discretion by denying a continuance for the contempt hearing.
[1] A trial court abuses its discretion by denying a continuance when a party demonstrates a need for counsel and an inability to attend a hearing in person due to short noti…
[2] A trial court generally has discretion to grant or deny a continuance, and its decision will not be disturbed absent a finding of abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceTalley appealed a contempt order for failure to pay child support and other fees, arguing the court abused its discretion by denying his request for a…
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GOSHORN, Judge.
Homer L. Talley appeals the order finding him in contempt for failure to pay child support and requiring him to pay over $30,000 in estimated counseling fees, health insurance premiums, medical bills, and attorneys’ fees. He alleges, inter alia, that the court abused its discretion by failing to grant a continuance to enable him to attend the contempt hearing in person and to obtain the assistance of counsel. We agree and reverse.
Although there is some dispute as to when Talley received notice of the hearing, the earliest that he could have received it was June 19, 1996 when the papers were delivered at his alleged residence in North Carolina. The hearing was scheduled for July 1, 1996 in Orlando. According to Talley, he received actual notice of the hearing only four days (two business days) prior to the hearing. He attempted to retain counsel but was told the attorney would be out of town for two weeks. Talley stated the attorney advised him to contact the court and obtain a continuance. Talley telephoned the court the day and time of the hearing, requested a continuance, and explained that he would have appeared in person but for transportation problems due to the short notice. The court denied the continuance.
Generally, a trial court has discretion to grant or deny a continuance, and its decision will not be disturbed absent a finding of abuse of discretion. Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994). In this case, we find that under the circumstances and considering the substantial relief requested, the trial court did abuse its discretion by denying a continuance until Talley could attend in person and obtain the assistance of counsel. There was no emergency which required proceeding with the hearing, and the requested two-week postponement would not have prejudiced Appellee.
Accordingly, we reverse the contempt order and remand for a prompt hearing. Notice of the hearing may be served on Talley’s attorney, Mr. Murrell, who has filed an appearance on his behalf.
REVERSED and REMANDED for further proceedings.
PETERSON, C.J., and DAUKSCH, J., concur.
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Tropical Jewelers, Inc. v. NationsBANK, 781 So. 2d 381 (Fla. 3d DCA 2000)…however, is addressed to the sound judicial discretion of the trial court and absent an abuse of that discretion, that court’s decision will not be reversed on appeal. See Fleming v. Fleming, 710 So. 2d 601, 603 (Fla. 4th DCA 1998); Talley v. Fain, 692 So. 2d 279, 280 (Fla. 5th DCA 1997); Crespo v. Florida Entertainment Direct Support Org., Inc., 674 So. 2d 154, 155 (Fla. 3d DCA 1996). The trial court’s order denying the continuance reflects that the bank’s motion for summary judgment was not heard until fiv…
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Powell v. Powell, 719 So. 2d 331 (Fla. 4th DCA 1998)…one or two hour notice of a contested final hearing in a dissolution matter where issues of child custody, child support, and alimony were decided. The husband would not have been prejudiced by a brief continuance of this cause. See Talley v. Fain, 692 So. 2d 279 (Fla. 5th DCA 1997) (reversing contempt order where pro se par [*333] ty allegedly received four days notice of hearing, substantial relief was requested, no emergency required proceeding with hearing, and postponement would not prejudice opposing p…
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Klinker v. Klinker, 712 So. 2d 850 (Fla. 5th DCA 1998)…GOSHORN, Judge. Appellant correctly contends that one business day’s notice of the contempt hearing was unreasonable under the circumstances. See Talley v. Fain, 692 So. 2d 279 (Fla. 5th DCA 1997) (actual notice of contempt hearing received only two business days prior to hearing insufficient where father lived out-of-state and had sought continuance to obtain attorney); Anderson v. Sun Trust Bank/North, 679 So. 2d 307 (Fl…
Authorities Cited
- Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994)