Father Wins Custody Fight, Despite Mo...

Father Wins Custody Fight, Despite Mother's Claims | WBNS-10TV,...

There are 3057 comments on the 10TV WBNS story from Mar 30, 2010, titled Father Wins Custody Fight, Despite Mother's Claims | WBNS-10TV,.... In it, 10TV WBNS reports that:

A Scioto County judge on Tuesday awarded custody of a 5-year-old girl to her father, after her mother spent months in jail, for keeping her away from him.

Join the discussion below, or Read more at 10TV WBNS.

Nameless

Van Wert, OH

#263 Apr 2, 2010
hrmm wrote:
Nameless can go somewhere else bc if its nothing but drama dont read it? i mean isn't it kind of stupid to post drama drama drama over and over? how much time do you have on your hands honestly? rofl.
MORE DRAMA DRAMA
Sickened and Outraged

Columbus, OH

#264 Apr 2, 2010
People wake up! Ethical standards are put into place for a reason...because of misuse of power and authority. Jaeyln's little voice has been silenced repeatedly by Judge Crow of Portsmouth County Courts and it sickens me that he is still able to sit on the bench and hear cases.

Any time someone has stood up for this child they were punished by Judge Crow. First Jaelyn's mother and now Jaelyn herself. Her father is a known sexual preditor and no this little girl is being shipped out of state where incest can continue without witnesses or someone to stand up for her.
What prudent judge does this? A biased Judge Crow has been permitted to rule in tyranny and it is time for Ohio to stand up and give your voice of dissent! Jaelyn needs an impartial judge to hear the facts...all the facts and allow a fair trial to be conducted. There is an overwhelming amount of proof to support the allegations of abuse. Why won't Portsmouth Courts let the evidence be heard...why won't they let Jaeyln be heard?!!
If this sickens you as it does me, then contact your state officals and ask them to put Jaeyln into protective custody from the father until this matter is resolved.
Sickened and Outraged

Columbus, OH

#265 Apr 2, 2010
Yes, it is a sad day that Jaeyln must live in constant fear because Judge Crow is not impartial and refused to remove himself from the case. He had his mind made up even before the case began. His decision was not based on what is in the best interest of the child but what was good for his ego. Well Ohioians are taking notice and when it comes time for elections, the voters wont be silenced like how he silenced Jaelyn.
Support Justice wrote:
<quoted text>this decision was not made lightly!!! It was done withich consideration and weighed out the best interest of the child. This is by far not the first time this has happened by this judge and our deliberate efforts are to make sure this is the last time. No judge should be able to abuse their discretion. The appeals court has over ruled judge crow rulings 2 out 2 times and will over rule this to. In the meantime this little angel has been placed with a man that children services substantiated abused her.
AMD

Columbus, OH

#266 Apr 2, 2010
Why must you name mein these posts without probable cause are you so desperate for a scape goat that you search all over the internet for someone to victimize? Well dearie I am not Jaelyn. You are lashing out at anyone to deflect what is really going...incest in the Rice Family. So allow me to enlighten your ignorant small town mind.
JaelynLuvsRices wrote:
<quoted text>
First of all a "proffesional" would know how to spell professional! Also Advocate, Gods will_Advocate, Gods will, Concerned, Specialist, Anne...you're far from professional, you give your agency a bad name, you can't even spell, you just graduated college last year, you clearly do not have a life - so get one! Thank you for helping raise awareness about Jaelyn so that she could be back in the loving arms of her father Stephen and mommy! THANK YOU FROM THE BOTTOM OF MY HEART!!!!!
sjm

Columbus, OH

#267 Apr 2, 2010
Nameless wrote:
<quoted text>
MORE DRAMA DRAMA
Then get some damn popcorn and enjoy it.
AMD

Columbus, OH

#268 Apr 2, 2010
Again, I am the target of your anger. What are you trying to cover-up by seeking me out? This forum is about Jaelyn and how she has been jerked around the court system at the mercy of Judge Crow. If you want someone to blame take your finger and point to your family photo album...for you support a pediphile.
JaelynLuvsRices wrote:
<quoted text>
Ohhhh Concerned or Anne Marie Dennison or Advocate, whichever your alias of the hour is....
Just because someone may or may not be a FB fan doesn't mean they don't support Stephen and Megan. You're such a goofball! How about the fact that we have maybe 40+ family members who don't have FB accounts, however, they support Stephen & Megan all the way! So are you implying that you must have a FB account in order to support and back a cause? Where would this world be without FB?! Oh Heavens to Betsy! I better get on the phone and contact the Ronald McDonald House and CaringBridge to let them know that they may have some "supporters" that do not have FB accounts, therefore...be weary for they aren't true supporters! What a joke! Also, don't worry about where the donations are going you silly lady. Of course they are going to everything which is stated on www.bringjaelynhome.com . In my opinion, we aren't crooks and criminals such as the likes of Cherish and her family. I'll have you know that Stephen and Megan were approached by this business...she wanted to help them get THEIR daughter back! Also, would you rather she have put up Stephen and Megan's home address so that psychopaths such as yourself and Advocate 2, Lewis', Larry, etc. would be able to know where they live and pay them a visit? You definitely aren't the sharpest tool in the shed. Anyways, Jaelyn, Stephen and Megan are having a blast together and are so thrilled to be reunited! Thank you again for raising so much awareness about Jaelyn's tragic life in my opinion which was a result of living with the Lewis' because now she is finally content, happy and SAFE with her daddy and mommy!
AMD

Columbus, OH

#269 Apr 2, 2010
I found out about the Rice family being fans of mine so now I will have presence here. They can silence Jaeyln because she is child but I won't be bullied or threatened by weak minds. Again this discussion should not be geared toward personal attacks on me but about the safety of a little girl who is now at the mercy of her abuser thanks to Judge Crow and a failed judicial system.
Advocate wrote:
<quoted text>Im not Anne I don't even think Anne posts on here.
Advocate

Chicago, IL

#270 Apr 2, 2010
AMD wrote:
I found out about the Rice family being fans of mine so now I will have presence here. They can silence Jaeyln because she is child but I won't be bullied or threatened by weak minds. Again this discussion should not be geared toward personal attacks on me but about the safety of a little girl who is now at the mercy of her abuser thanks to Judge Crow and a failed judicial system. <quoted text>
Itis nice for you to join us and sorry you were blamed for my postings!! It is wonderful how many supporters showed from all across Ohio in support of Jaelyn. Too bad her own father didn't show up. I bet he was afraid Jaelyn would run screaming if she saw him. That's my guess to why he doesn't want any big camera scene when they are reunited.
Nameless

Van Wert, OH

#271 Apr 2, 2010
I see more
DRAMA DRAMA DRAMA
SO FUNNY
DRAMA DRAMA DRAMA
Appeals Decision

Columbus, OH

#273 Apr 2, 2010
Cherish Lewis,: JUDGMENT ENTRY
:
Defendant-Appellant.: File-stamped date: 3-11-10
__________
APPEARANCES:
Holly P. Regoli, Law Offices of Holly P. Regoli, Lancaster, OH, and Gregory P. Barwell,
E. Joel Wesp, and Randi Ostry LeHoty, Wesp/Barwell, L.L.C., Columbus, Ohio, for
Appellant.
Rebecca L. Bennett, Portsmouth, Ohio, for Appellee.
__________
Kline, J.:
{¶1} Cherish Lewis (hereinafter “Lewis”) appeals the judgment of the Scioto
County Court of Common Pleas, Domestic Relations Division, which found her in
contempt of court. On appeal, Lewis contends that the trial court erred in denying her
motion for a continuance. We agree. First, Lewis requested a continuance for
legitimate reasons. Second, Lewis had not requested and received a continuance after
this case was remanded to the trial court, but the Plaintiff-Appellee had. Third, Lewis
requested a reasonable delay of time. Fourth, we believe Lewis did not contribute to
the circumstances that gave rise to her request for a continuance. And finally, the
denial of Lewis’s motion for a continuance put her at an unfair disadvantage. Because
the prejudice to Lewis outweighs any competing interests, we find that the trial court
Scioto App. No. 09CA3307 2
abused its discretion by denying Lewis’s motion for a continuance. Accordingly, we
reverse the judgment of the trial court and remand this cause for further proceedings
consistent with this opinion.
Appeals Decision

Columbus, OH

#274 Apr 2, 2010
{¶2} This matter is before this court for a second time. See Rice v. Lewis, Scioto
App. No. 08CA3238, 2009-Ohio-1823 (hereinafter “Rice I”). Because Rice I recounts
many of the facts of this case, we will not repeat those facts here. Instead, we will
discuss only the facts pertinent to this particular appeal.
{¶3} Stephen A. Rice (hereinafter “Rice”) and Lewis are the biological parents of
the Child, and Regina Kelley (hereinafter “Kelley”) is Rice’s mother. In Rice I, we
reversed an order that designated Rice as the Child’s residential parent. We found that
the trial court abused its discretion because, in determining the best interest of the
Child,“the trial court relied on too many [R.C. 3109.04(F)] factors that were not
supported by competent and credible evidence[.]” Id. at ¶94. Accordingly, we
“remand[ed] this cause to the trial court for further proceedings consistent with [Rice I].”
Id. at ¶95.
{¶4} One of Lewis’s prior attorneys (hereinafter “The Fired Attorney”) made his first
appearance in this case on July 16, 2007. From that day on, The Fired Attorney
represented Lewis throughout the trial court proceedings, during our consideration of
Rice I, and immediately after we remanded this cause to the trial court. Different
attorneys represent Lewis in this appeal.
{¶5} After our decision in Rice I, the trial court set a hearing for May 22, 2009. On
May 14, 2009, Rice filed a Motion to Continue because of a previously scheduled
Scioto App. No. 09CA3307 3
vacation. The trial court granted Rice’s motion and rescheduled the hearing for July 24,
2009.
{¶6} Before the July 24, 2009 hearing, Rice and Lewis filed the following motions:
(1) Lewis’s Motion For Recusal of the trial court judge; (2) Lewis’s two-branch Motion To
Find Contempt; (3) Rice’s Motion For Compensatory Parenting Time; (4) Lewis’s
second Motion To Find Contempt; and (5) Rice’s two-branch Motion To Cite In
Contempt; Motion For Attorney Fees. The trial court was to consider these motions at
the July 24, 2009 hearing.
Appeals Decision

Columbus, OH

#275 Apr 2, 2010
{¶7} On July 20, 2009, Lewis filed a pro se Motion For Continuance, wherein she
asked the trial court for “a continuance based on her loss of legal counsel. Attorney for
the Defendant,[The Fired Attorney], has been requested to file a MOTION TO
WITHDRAW AS COUNSEL, due to a conflict of professional interest.” Lewis further
stated that she was “actively seeking counsel to properly represent her in this matter
and [was] requesting a 90 day continuance to allow her counsel proper time to
acclimate themselves with the case at hand.”
{¶8} On July 22, 2009, The Fired Attorney filed the aforementioned Motion To
Withdraw Of Counsel.
{¶9} On July 23, 2009, Lewis filed an affidavit to supplement her Motion For
Continuance. In her affidavit, Lewis stated the following:
{¶10}“2. On or about July 16, 2009 I discovered information that [The Fired
Attorney had] represented Stephen Rice on a previous matter. I was never informed by
[The Fired Attorney] or anyone else that [The Fired Attorney] had previously
represented Stephen Rice in a criminal matter which is under seal by the juvenile court.
Appeals Decision

Columbus, OH

#276 Apr 2, 2010
{¶10}“2. On or about July 16, 2009 I discovered information that [The Fired
Attorney had] represented Stephen Rice on a previous matter. I was never informed by
[The Fired Attorney] or anyone else that [The Fired Attorney] had previously
represented Stephen Rice in a criminal matter which is under seal by the juvenile court.
Scioto App. No. 09CA3307 4
The attached transcript will demonstrate that Regina Kelley states under oath that [The
Fired Attorney] previously represented Stephen Rice on sexual abuse allegations
involving a minor child.
{¶11}“3. On July 20, 2009, due to this extreme conflict of interest I released [The
Fired Attorney] as counsel. Please see attached letter of disengagement dated
7/20/091 which includes a request for [The Fired Attorney] to immediately file a Motion
to Withdraw as counsel, and request for copy of my case file in its entirety. To date
[The Fired Attorney] has not provided a copy of my file.
{¶12}“4. On July 20, 2009 I filed a Motion for Continuance with this court because
of the clear conflict of interest on behalf of my attorney[, The Fired Attorney].
{¶13}“5. I am actively seeking new counsel at this time.
{¶14}“6. In the best interest of my child, this matter, the fact that [The Fired
Attorney] will not provide me with a copy of my file, in consideration of the facts
presented, and in order to have reasonable time to obtain new counsel and for new
counsel to have reasonable time to acclimate themselves with the case, I pray the court
grant my Motion for Continuance for at least 90 Days.”
{¶15} The July 24, 2009 hearing proceeded as scheduled. Lewis, The Fired
Attorney, Rice, and Rice’s attorney all attended the hearing. At the hearing, the trial
court heard arguments on the various motions and, initially, overruled Lewis’s Motion
For Continuance. The trial court kept The Fired Attorney at the hearing and told The
Fired Attorney that Lewis “can use you if she wants you here.” 7/24/09 Transcript at 18.
1 The letter is actually dated June 20, 2009. Presumably, the letter contains a
typographical error, and July 20, 2009 is the letter’s correct date. Lewis’s affidavit, the
contents of the letter, and The Fired Attorney’s actions between June 20, 2009, and July
22, 2009, support this presumption.
Scioto App. No. 09CA3307 5
{¶16} During the hearing, the trial court (1) found Rice in contempt (based on one
branch of Lewis’s two-branch contempt motion) and (2) granted Rice’s Motion For
Compensatory Parenting Time. Towards the end of the hearing, the trial court also
granted Lewis’s Motion For Continuance and The Fired Attorney’s Motion To Withdraw
Of Counsel. Further, the trial court ordered Lewis to turn the Child over to Rice at 6:00
p.m. that evening.
Appeals Decision

Columbus, OH

#277 Apr 2, 2010
{¶17} At the close of the hearing, the following events unfolded:
{¶18}“[RICE’S ATTORNEY]: I do have some concerns. There was a statement
that Miss Lewis made out in the hallway that was overheard by the former ... the
guardian ad litem that she would be refusing to return the child today.
{¶19}“THE COURT: Then she’s gonna go to jail if she does that. File an affidavit
and then I’m going to put her into jail. You understand, ma’am?
{¶20}“MS. LEWIS: Yes, sir.
{¶21}“THE COURT: We can’t ... every time we exchange children, we can’t allege
abuse and not do it.
{¶22}“MS. LEWIS: It’s substantiated, your Honor.
{¶23}“THE COURT: Huh?
{¶24}“MS. LEWIS: It is substantiated. It’s no longer alleged.
{¶25}“THE COURT: Alright. We’ll order the exchange to take place right now.
Where is the child at?
{¶26}“MS. LEWS: I don’t know, your Honor.
{¶27}“THE COURT: Alright. Remanded to the custody of the sheriff until you find
out where the child is and ...
Scioto App. No. 09CA3307 6
{¶28}“[THE FIRED ATTORNEY]: Go ask your dad where the child is?
{¶29}“MS. LEWIS: He doesn’t know either.
{¶30}“[THE FIRED ATTORNEY]: The child’s with your mother. Where’s your
mother?
{¶31}“MS. LEWIS: No, she’s not. My mother’s at home. You can send an officer if
you’d like.
{¶32} THE COURT: Alright. She’s remanded to the custody of the sheriff until she
produces the child, Mr. Bailiff.” 7/24/09 Transcript at 106-08 (ellipses sic).
{¶33} Lewis was immediately taken into custody. On November 5, 2009, this court
granted Lewis a temporary stay of the trial court’s order. However, she had to fulfill
several conditions before the stay was to become effective. Lewis refused to comply
with those conditions, and the stay never went into effect. As a result, she remains in
jail, and the Child’s whereabouts are undetermined.
{¶34} Lewis appeals the trial court’s order and asserts the following five
assignments of error: I.“The trial court’s July 24, 2009 contempt order and the order
granting Plaintiff-Appellee Stephen Rice compensatory parenting time should be set
aside because the trial court erred in denying Defendant Cherish Lewis’ Motion for a
Continuance to obtain new counsel upon discovery of the irreconcilable conflict arising
from her then counsel’s prior representation of Plaintiff in a juvenile sexual abuse
criminal matter.” II.“The trial court abused its discretion in convicting Defendant
Cherish Lewis of contempt because the court never had filed and journalized the order
requiring Ms. Lewis to produce the child, hence rendering the order invalid and
unenforceable.” III.“The trial court’s July 24, 2009 contempt order must be set aside
Scioto App. No. 09CA3307 7
because the trial court abused its discretion by sua sponte orally modifying the initial
‘order’ requiring Defendant Cherish Lewis to turn the child over to Plaintiff at 6 PM that
evening by then requiring her to immediately turn the child over with no prior notice that
she was required to have the child present in the courtroom during that same hearing.”
Appeals Decision

Columbus, OH

#278 Apr 2, 2010
IV.“The trial court’s July 24, 2009 contempt order should be set aside because the trial
court erred in sua sponte modifying the initial order to turn the child over to Plaintiff at 6
PM that evening by requiring Defendant Cherish Lewis to turn the child over to Plaintiff
immediately at the hearing because the trial court improperly concluded that she was
refusing to comply with the court’s initial order [t]o turn the child over to Plaintiff at 6 PM
that evening because the court’s erroneous conclusion was based on inadmissible
hearsay upon hearsay and without affording Defendant the opportunity to present or
cross-examine witnesses and without even questioning Defendant directly as to
whether she was then and there refusing to comply with the initial 6 PM turn over order.”
And, V.“The trial court’s July 24, 2009 contempt order and the order granting Plaintiff-
Appellee Stephen Rice compensatory parenting time should be set aside because the
trial court erred by not allowing Defendant Cherish Lewis to present evidence
substantiating the sexual abuse of her daughter. This evidence, if sufficient, as this
court has held, is a valid defense to a violation of a visitation order and would also be
extremely relevant to the issue of compensatory parenting time.”
II.
{¶35} In her first assignment of error, Lewis contends that the trial court erred in
denying Lewis’s Motion For Continuance. For that reason, Lewis argues that the orders
resulting from the July 24, 2009 hearing should be set aside.
Appeals Decision

Columbus, OH

#279 Apr 2, 2010
{¶36} The trial court’s rulings on Lewis’s Motion For Continuance are not entirely
clear. Early in the July 24, 2009 hearing, the trial court judge said,“obviously, I’ve
overruled the Motion for a continuance at this time.” 7/24/09 Transcript at 30. Then, the
trial court (1) heard testimony from Rice and Lewis,(2) heard arguments related to the
various motions,(3) tried to sort out the custody situation after our decision in Rice I,
and (4) ruled on some of the pending motions. Toward the end of the hearing, the trial
court judge said,“We’ll grant the Motion for a continuance at this stage.” Id. at 80.
Despite this ruling, the trial court then proceeded to hear additional evidence related to
the various motions. Thus, the trial court’s actions are somewhat hard to follow.
Nevertheless, under this assignment of error, we will focus on the trial court’s initial
denial of Lewis’s Motion For Continuance.
{¶37}“We review the denial of a motion for a continuance for abuse of discretion.”
State ex rel. Athens Cty. Dept. of Job & Family Servs. v. Martin, Athens App. No.
07CA11, 2008-Ohio-1849, at ¶22. See, also, Gussler v. Morris, Ross App. No.
06CA2884, 2006-Ohio-6627, at ¶8. An abuse of discretion connotes more than a mere
error of judgment; it implies that the court’s attitude is arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.“The trial
court has broad discretion in ruling on requests for continuances.*** However, that
discretion is not unlimited.” State v. Miller (Apr. 20, 1987), Tuscarawas App. No.
86AP060038 (internal citation omitted).
{¶38}“Our review of a denial of a motion for a continuance requires us to ‘apply a
balancing test, thereby weighing the trial court’s interest in controlling its own docket,
including the efficient dispensation of justice, versus the potential prejudice to the
Scioto App. No. 09CA3307 9
moving party.’” Foley v. Foley, Franklin App. Nos. 05AP-242 & 05AP-463, 2006-Ohio-
946, at ¶16, quoting Fiocca v. Fiocca, Franklin App. No. 04AP-962, 2005-Ohio-2199, at
Appeals Decision

Columbus, OH

#280 Apr 2, 2010
{¶39}“In evaluating a motion for a continuance, a court should note, inter alia: the
length of the delay requested; whether other continuances have been requested and
received; the inconvenience to litigants, witnesses, opposing counsel and the court;
whether the requested delay is for legitimate reasons or whether it is dilatory,
purposeful, or contrived; whether the defendant contributed to the circumstance which
gives rise to the request for a continuance; and other relevant factors, depending on the
unique facts of each case.” State v. Unger (1981), 67 Ohio St.2d 65, 67-68. Although
Unger was a criminal matter, appellate courts have also applied these factors in civil
cases. See, e.g., King v. Kelly, Lawrence App. No. 02CA42, 2003-Ohio-4412, at ¶11;
Henson v. Highland Dist. Hosp., 143 Ohio App.3d 699, 707, fn. 4, 2001-Ohio-2513;
Integrated Payment Systems, Inc. v. A & M 87th Inc., Cuyahoga App. Nos. 91454 &
91473, 2009-Ohio-2715, at ¶73; Truex v. Truex, 179 Ohio App.3d 188, 2008-Ohio-5690,
at ¶15.
{¶40} Here, we find the Unger factors to be in Lewis’s favor. Most significantly, we
believe that Lewis requested a continuance for compelling, legitimate reasons.
Throughout this case, Lewis has alleged that Rice may have sexually abused the Child.
And shortly before the July 24, 2009 hearing, Lewis discovered that her attorney had
represented Rice in a previous case where Rice was accused of sexually molesting a
young relative. In the affidavit supporting her Motion For Continuance, Lewis stated that
“[on] or about July 16, 2009 I discovered information that [The Fired Attorney had]
Scioto App. No. 09CA3307 10
represented Stephen Rice on a previous matter.” A portion of the transcript from the
May 15, 2007 hearing was attached to Lewis’s affidavit. At that hearing, Kelley testified
as follows:
Appeals Decision

Columbus, OH

#281 Apr 2, 2010
{¶41}“Q. And does a document exist that ... that has ... it’s basically a
confession saying that [Rice] molested your daughter?
{¶42}“A. No. There is not.
{¶43}“Q. There is no document as such as that?
{¶44}“A. Not that I know of.
{¶45}“Q. Okay.
{¶46}“THE COURT: What happened to the investigation?
{¶47}“MS. KELLEY: What happened to the investigation is [The Fired Attorney]
was his lawyer and he decided that it would in our best interest that my son not be put
through this type of trial so ... I don’t understand all the legal part. All I know is that
charges, I think, were dropped and it was put in ... it was sealed and everything was
dropped with Children Services.” 5/5/07 Transcript at 36-37 (ellipses sic).
{¶48} A different attorney represented Lewis at the May 15, 2007 hearing. The
Fired Attorney did not make an appearance in this case until July 16, 2007.
{¶49} Even if The Fired Attorney initially forgot about previously representing Rice,
Lewis contends that The Fired Attorney continued to represent her despite learning of
the potential conflict. A December 20, 2007 Defendant’s Exhibit List includes the
transcript of a voice mail message that Rice left for The Fired Attorney.“Yeah! Hi! This
message is for [The Fired Attorney;] this is Steven Rice the plaintiff against your
defendant Cherish Lewis. I have recently been informed that she is trying to get me for
Scioto App. No. 09CA3307 11
sexual abuse charges. Well,[The Fired Attorney], if you remember correctly you
defended me for a similar case and I don’t see how there is any possible way that you
can represent her in the same matter that you have already represented me for. So I
am going to do some further research and I would like a phone call back *** because I
just want to make sure that everything is legal and that there is gonna be no miscommunications
[sic] or any lawsuits. Thank you.” Lewis claims that her attorney
should have disclosed the potential conflict after receiving this voice mail message.
Appeals Decision

Columbus, OH

#282 Apr 2, 2010
{¶50} In relevant part, Rule 1.7(a) of the Rules of Professional Conduct provides:“A
lawyer’s acceptance or continuation of representation of a client creates a conflict of
interest if *** there is a substantial risk that the lawyer’s ability to consider, recommend,
or carry out an appropriate course of action for that client will be materially limited by the
lawyer’s responsibilities to *** a former client[.]”(Emphasis sic.) Lewis presented
evidence of alleged sexual abuse at hearings before our decision in Rice I. And during
the July 24, 2009 hearing, Lewis testified about the potential conflict created by the
sexual abuse allegations.“I was advised by [The Fired Attorney] to stop reporting every
time there was a sexual assault.*** There is a direct conflict here and I filed the Motion
for a continuance so I could seek new counsel and I was not prepared for today’s
hearing to hear all of these Motions.*** Without having an opportunity to weigh the
evidence of sexual abuse, you know, what am I, as a mother, supposed to do? You
know, there was evidence and court hearings before where he had molested *** a
young child and, you know, now my daughter[.]” 7/24/09 Transcript at 95-96.
{¶51} As an appellate court, we do “not have jurisdiction over the issue of whether
an attorney violated the Rules of Professional Conduct[.]” State v. Snyder, Williams
Scioto App. No. 09CA3307 12
App. No. WM-08-004, 2009-Ohio-49, at ¶35. Thus, we offer no opinion as to whether
The Fired Attorney’s prior representation of Rice created an actual conflict of interest.
Instead, Rule 1.7(a) merely provides insight into the reason for Lewis’s Motion For
Continuance. Here, Lewis believes that evidence of sexual abuse is relevant in
determining the best interest of the Child. The Fired Attorney represented Rice in a
prior matter involving sexual abuse charges. And because the prior case is under seal,
The Fired Attorney necessarily has (1) confidential information about that case and (2)
responsibilities to Rice as to that information. Thus, it was reasonable for Lewis to
believe that her attorney may have been limited in pursuing the allegations of sexual
abuse. Further, because The Fired Attorney failed to disclose his prior representation of
Rice, Lewis apparently lost confidence and trust in her attorney. These are legitimate
reasons for a continuance. See, e.g., State v. Landingham, Lucas App. No. L-03-1339,
2005-Ohio-1216, at ¶20 (finding the trial court should have considered “clear and
uncontroverted breakdown *** in the attorney-client relationship” before denying a
continuance).
Appeals Decision

Columbus, OH

#283 Apr 2, 2010
{¶52} Other Unger factors also weigh in favor of granting Lewis’s Motion For
Continuance. By themselves, the following factors are not necessarily dispositive. But
when considering the totality of the circumstances, and in light of the compelling
reasons behind Lewis’s request for a continuance, we believe the following factors are
relevant. First, Lewis had not requested and received a continuance after we remanded
this matter to the trial court. In contrast, Rice had requested and received a
continuance after Rice I. The trial court set a hearing for May 22, 2009. On May 14,
2009, Rice filed a Motion to Continue because of a previously scheduled, prepaid
Scioto App. No. 09CA3307 13
vacation. The trial court granted Rice’s motion and continued the hearing until July 24,
2009. Thus, the trial court granted Rice a continuance shortly before a hearing date,
but denied one to Lewis.2 Second, we believe that Lewis’s request would have
amounted to a reasonable delay of time. Ninety days seems appropriate in light of (1)
Lewis having to find a new attorney and (2) the new attorney having to become
acquainted with such a complex matter. Lewis’s request seems all the more reasonable
considering the trial court had already continued the original hearing date for sixty-three
days because of Rice’s vacation, a reason wholly unrelated to the proceedings.
{¶53} Finally, we do not believe that Lewis contributed to the circumstance that
gave rise to her request for a continuance. Rice argues that Lewis’s Motion For
Continuance was untimely because she already knew, or should have known, of the
potential conflict. Essentially, Rice argues that Lewis was at fault because she was
present for the May 15, 2007 hearing where Kelley testified that The Fired Attorney had
previously represented Rice. We disagree. Before hiring The Fired Attorney, Lewis had
attended five hearings and heard extensive testimony from multiple witnesses.
Furthermore, The Fired Attorney’s name was mentioned just one time during the May
15, 2007 hearing. Therefore, we do not believe that Lewis should be charged with
remembering The Fired Attorney’s name simply because she was present for Kelley’s
testimony.
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