APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. THOMAS (D.C. Civil No. 389-1972).
Seitz, Chief Judge, and Van Dusen and Rosenn, Circuit Judges.
VAN DUSEN, Circuit Judge.
This is an appeal from an adjudication of contempt and the modification and enforcement of certain terms of a divorce decree. The decree, which was filed on May 23, 1973, by Judge Young, of the District Court of the Virgin Islands, granted a divorce to both parties "on a 'no fault' basis." The decree gave both parties "equal legal custody of the child," with "physical custody" in the wife and "reasonable rights of visitation" in the husband. The court ordered the husband to pay $100. per month alimony and $15.00 per week child support. Further, the wife was to have rent-free occupancy of one of two downstairs apartments located in the house which the parties had owned during their marriage as tenants by the entireties.*fn1 Both husband and wife were to share equally debt service, taxes, and other costs of maintaining the jointly-held property.
In July 1973, the wife filed a motion for modification of the decree and clarification of visitation rights. That motion was assigned for hearing to Judge Hoffman, of the Municipal Court of the Virgin Islands, sitting by designation in the district court.*fn2 The motion was set down for hearing on September 26, 1973, to allow the taking of additional testimony. When neither the husband nor the attorneys for either party*fn3 appeared for the September 26, 1973, hearing, the matter was continued to November 21, 1973. As a result of the November 21 hearing, an order was filed December 5, 1973,*fn4 finding the husband in contempt for failure to pay both alimony and child support, and ordering increased payments to be made covering current and past due amounts in order to eliminate the arrearages. No substantial change in the situation of the parties was found to warrant any modification in the amounts of alimony or child support awarded by the May 23 decree. Another hearing was set for December 10, 1973;*fn5 that hearing led only to further continuances. The case was scheduled for February 25, 1974, to accommodate the husband's attorney,*fn6 but his inability to appear led to another continuance until March 6, 1974.*fn7 Upon notification of the March 6 date, the husband's attorney immediately requested a continuance until April to accommodate his trial schedule. This request was denied in a letter dated February 26, 1974. The letter also suggested that the husband retain other counsel should his attorney remain unable to appear on March 6. This the husband declined to do, choosing to appear without counsel at the March 6 hearing and refusing either to testify or to cross-examine any witnesses. On the basis of the testimony at the hearing and an affidavit filed by the husband, the court orally announced its orders. Judge Hoffman determined that the husband was in contempt for continuing nonpayment of alimony and child support.*fn8 No sanction was imposed for the contempt; the court merely required that payments be made in accordance with the December 5 order. The trustee whom the court had appointed to collect rents and pay the mortgages on the jointly-held property was ordered to make arrangements for selling the property. The husband's monetary obligations under the divorce decree were to be deducted from his share in the proceeds of the sale. The court also suspended the husband's rights of visitation pending his payment of alimony and child support.*fn9 No reduction was ordered in the amount of alimony or child support, as requested by the husband.
Notice of appeal to the court of appeals was filed in the district court on March 11, 1974. Judge Hoffman's written order was filed March 14, 1974. The appeal was thus premature. See Moore, Federal Practice, para. 204.14 at 981-82 (2d ed. 1973). So long as the order is an appealable one and the non-appealing party is not prejudiced by the prematurity, however, the court of appeals should proceed to decide the case on the merits, rather than dismiss on the basis of such a technicality. Foman v. Davis, 371 U.S. 178, 181, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Hamilton v. Stillwell Van & Storage Co., 343 F.2d 453 (3d Cir. 1965).
We will consider the husband's allegations that the district court fatally erred in adjudging him in contempt and abused its discretion both in enforcing and in refusing to modify the May 23, 1973, divorce decree, as altered by the December 5, 1973, order.
The husband asserts that the finding of contempt cannot stand because he was denied assistance of counsel by Judge Hoffman's refusal to continue the March 6, 1974, hearing until April. The matter of granting a continuance is within the discretion of the trial judge. United States v. Scott, 460 F.2d 45, 47 (3d Cir. 1972); United States v. Greenberg, 419 F.2d 808, 809 (3d Cir. 1969). The refusal to grant a continuance is not, without more, a denial of the right to counsel even though the refusal prevents a party from being represented by a particular attorney because of that attorney's other professional commitments. United States v. DiStefano, 464 F.2d 845, 846 n.1 (2d Cir. 1972); United States ex rel. Bronzell v. Rundle, 410 F.2d 371, 372 (3d Cir. 1969).
The Supreme Court of the United States, in Ungar v. Sarafite, 376 U.S. 575, 11 L. Ed. 2d 921, 84 S. Ct. 841 (1964), considered a claim that denial of a motion for a continuance deprived the defendant in a contempt hearing "of his constitutional right to engage counsel and to defend against the charge." Id. at 589. The Court concluded that "there are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances presented in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Id. No denial of due process was found where the defendant, an attorney charged with criminal contempt for certain court room remarks, was given five days' notice to hire counsel and prepare a defense.
The husband in the case now before this court received 10 days' notice that the continuance had been denied and that he should obtain other counsel. As in Ungar, the evidence of contempt -- nonpayment of moneys owing under the decree and ability to pay -- "was fresh, the witnesses and the evidence readily available, the issues limited and clear-cut. . . ." Id. at 590.
The rule in this circuit, enunciated in United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969), cert. denied, 397 U.S. 946, 25 L. Ed. 2d 127, 90 S. Ct. 964 (1970), is that "although the right to counsel is absolute, there is no absolute right to a particular counsel." Id. at 1215. Carey held that the trial court had neither abused its discretion nor denied the defendant due process by failing to grant a third continuance so that the defendant could retain private counsel. The court noted that it was "desirable" for a defendant to "obtain private counsel of his own choice;" however, "that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of . . . justice."
The case now before the court presents both interests identified in Carey. Both at the March 6 hearing and on appeal, the husband asserted a right to be represented by particular counsel. This attorney was the second to represent the husband in the case, and had appeared on the husband's behalf at only three hearings, all of which had been adjourned. Moreover, several matters relating to the case had not been handled personally by the attorney of choice, but by other attorneys in the office. No reason appears why one of ...