Opinion
NO. 2017-CA-001849-MR
04-26-2019
NAZIA SARWAR APPELLANT v. HAMZA KADIR APPELLEE
BRIEFS FOR APPELLANT: Amanda L. Dohn Louisville, Kentucky BRIEF FOR APPELLEE: Ashley B. Sexton Crestview Hills, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 17-CI-00713 OPINION
VACATING AND REMANDING
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BEFORE: COMBS, NICKELL, AND K. THOMPSON, JUDGES. COMBS, JUDGE: The Appellant, Nazia Sarwar, appeals the decree of dissolution of marriage entered by the Boone Circuit Court, Family Division, on October 13, 2017. After our review, we vacate and remand this matter for further proceedings.
The parties were married on November 2, 2010, in Bangladesh. One child was born during the marriage. Sarwar's brief details numerous incidents of verbal and physical abuse throughout the six and one-half years of the marriage.
The Appellee, Hamza Kadir, "unexpectedly" filed a petition for dissolution of marriage on June 2, 2017. At the time the petition was filed, Sarwar's entry of appearance and waiver of service were also filed. When this action began, Kadir was represented by counsel, but he refused to allow Sarwar to retain an attorney because of the cost. On June 7, 2017, a separation agreement signed by both parties was filed and a final hearing was set for August 4, 2017. The final hearing was then re-noticed for October 13, 2017, by agreement of the parties.
On September 20, 2017, counsel, acting pro bono on behalf of Sarwar, entered their appearances. On September 29, 2017, Sarwar filed a motion for a continuance in order to give counsel time to prepare for the final hearing. The family court heard Sarwar's motion on October 2, 2017. Sarwar's counsel explained that a continuance was necessary because they planned to contest the dissolution on the ground that Sarwar had signed the previously filed separation agreement under duress. The family court denied the motion to continue, stating that the case was scheduled for an "uncontested hearing." On October 6, 2017, Sarwar filed motions for expedited discovery and to set aside the settlement agreement on the ground that Sarwar signed it under duress, alleging that she had endured "years of spousal abuse." A declaration signed by Sarwar under penalty of perjury was attached to the motion to set aside.
Nonetheless, the family court held a final hearing on October 13, 2017. Sarwar was not present at the hearing because she had returned to her home country of Bangladesh, and according to her counsel, she was unable to re-enter the United States. At the hearing, Kadir argued that Sarwar's declaration should not be considered by the court because her signature was not notarized. Sarwar's counsel made an oral motion for a continuance to allow time for discovery or to have Sarwar appear telephonically at the hearing. The family court denied the motion to set aside because Sarwar was not present and no affidavit was attached to the motion. The family court also denied Sarwar's motion for expedited discovery. The family court did not state any reason for denying her counsel's motion for a continuance but allowed the final hearing to proceed. The court entered the decree of dissolution, incorporating the settlement agreement by reference. This appeal followed.
On appeal, Sarwar argues the following issues: (1) the family court abused its discretion by refusing to grant her motion to continue the final hearing; and (2) the family court abused its discretion by denying her motion to set aside the separation agreement.
We first address Sarwar's argument that the family court abused its discretion by refusing to grant her motion to continue the final hearing.
With respect to the denial of a continuance, our standard of review is whether the court abused its discretion. The court's discretion has been described as "a liberty or privilege allowed to a judge, within the confines of right and justice, to decide and act in accordance with what is fair, equitable, and wholesome as determined by the peculiar circumstances of the case[.]"Deleo v. Deleo, 533 S.W.3d 211, 216 (Ky. App. 2017) (quoting Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (citations omitted)). Furthermore, "[a]lthough an abuse of discretion is the standard of review, the decision to grant or deny a continuance must be made within a legal framework so that there can be some meaningful appellate review." Id. at 217 (citation omitted).
The Kentucky Supreme Court has set forth the following factors that a court must consider in determining whether to grant or deny a continuance:
(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.Id. (citing Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). Although a family court is not required to make written findings when granting or denying a continuance, the court must weigh these factors and consider the totality of the circumstances. Id. We note that the family court cited none of the Snodgrass factors in denying either of Sarwar's motions to continue the final hearing. Based upon our review of the record, we have applied each factor to this case.
First, the record does not provide clear information regarding the length of delay that may be caused by a continuance. The first notice of final hearing was filed on June 7, 2017, and the hearing was scheduled for August 4, 2017. Later, when the parties agreed to continue the final hearing, the notice filed on July 28, 2017, set the hearing for October 13, 2017. Additionally, in Sarwar's first motion for a continuance, counsel requested a two-month continuance. Based upon this information, it appears reasonable that a continuance would cause a delay of two to three months. However, considering that this action was commenced on June 2, 2017, merely four months before the date of the final hearing, we conclude that this factor would have favored granting the continuance.
Second, the final hearing was rescheduled from August 4, 2017, to October 13, 2017, by agreement of the parties. Otherwise, no prior continuances were granted in this matter. Therefore, this factor would have favored granting the continuance.
Third, "[t]he Kentucky Supreme Court has held that any change in trial date is going to cause some inconvenience. Thus, in order to become a factor for consideration there must be some significant or substantial inconvenience, which should be demonstrated on the record." Deleo, 533 S.W.3d at 217 (citations and internal quotation marks omitted). Kadir's counsel argued that a continuance would delay her client's ability "to move on with his life." However, a mere delay of the hearing is "insufficient to establish a significant or substantial inconvenience." Id. Therefore, this factor would have favored granting the continuance.
Fourth, Sarwar was unrepresented prior to entry of appearance by pro bono counsel on September 20, 2017. However, she had knowledge of this matter in June 2017, and was aware of the final hearing as early as June 7, 2017, allowing her four months in which to hire counsel. This factor arguably favored denying the continuance.
Fifth, counsel for both parties were present on October 13, 2017, and neither made arguments regarding unavailability. Therefore, this factor neither favored nor disfavored granting the continuance.
Sixth, this case is somewhat complex. As the family court repeatedly stated, this matter was initially set for an "uncontested hearing" on October 13, 2017, because the parties filed a signed settlement agreement. However, as early as October 2, 2017, it became apparent that Sarwar planned to contest the settlement agreement on the grounds of unconscionability and duress. This development clearly added complexity to the case. Furthermore, Sarwar returned to Bangladesh during the pendency of the action and was unable to return to the United States, making her participation in the case more difficult. Additionally, Sarwar's counsel had only been representing her for approximately one week at the time of filing the first motion to continue and for three weeks at the time of the final hearing, giving them a relatively short period of time to prepare for the hearing. Therefore, this factor would have favored granting the continuance.
Finally, "the Snodgrass factors demand a showing of identifiable prejudice." Guffey, 323 S.W.3d at 372 (emphasis in original). Because of the family court's denial of a continuance, Sarwar was unable to participate in the hearing -- either by appearing in person or telephonically. Therefore, Sarwar was undoubtedly prejudiced by the family court's denial of the continuance, and this factor would have favored granting the continuance.
Upon review of the record and consideration of the totality of the circumstances in this matter, we are compelled to conclude that the family court abused its discretion in denying Sarwar's motions to continue the final hearing. This abuse of discretion ensured that Sarwar would be bound by a settlement agreement which may have been signed under duress. She had no opportunity to present her case. Therefore, we vacate and remand this matter for further proceedings.
Because we are remanding this matter to the family court based on the improper denial of a continuance, we need not address the validity of Sarwar's declaration or arguments regarding unconscionability of the settlement agreement. On remand, Sarwar will have the opportunity to participate in the final hearing and to present her arguments in support of her motion to set aside the settlement agreement -- whether telephonically or in an affidavit acceptable to the family court.
To reiterate, we vacate and remand the order of the Boone Family Court for further proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Amanda L. Dohn
Louisville, Kentucky BRIEF FOR APPELLEE: Ashley B. Sexton
Crestview Hills, Kentucky