Delaware's Marriage Equality Act Passed By The General Assembly

Posted by Leslie Spoltore on May 08, 2013

Yesterday the Delaware State Senate passed House Bill 75, otherwise known as the Marriage Equality Act, by a vote of 12 in favor and 9 opposed.  The Bill was previously approved by the House on April 23, 2013, by a vote of 23 in favor and 18 opposed.  With the passage of this Bill Delaware becomes just the 11th state to recognize same-sex marriage.

The synopsis of the Bill describes the detail and purpose of the legislation as follows:

This Act repeals the prohibition on same-gender marriage that was enacted in 1996. The effect of this Act is to allow two individuals, whether of the same or different genders, to marry if otherwise eligible. Upon the effectiveness of this Act, no new civil unions will be formed in Delaware. This Act allows both parties to a civil union that is not subject to a pending proceeding for dissolution, annulment or legal separation to convert their civil union to a marriage prior to July 1, 2014 by application for a marriage license to the clerk of the peace of the county in which their civil union license was issued, with or without further solemnization of such marriage. On July 1, 2014, all remaining civil unions not currently subject to a proceeding for dissolution, annulment or legal separation will automatically convert to marriages.

This Act also provides that for legal unions other than marriages between two persons of the same gender established in another jurisdiction, both parties to such legal union will be afforded the same rights, benefits and protections, and will be subject to the same responsibilities, obligations and duties, as a marriage for purposes of Delaware law. In order for such recognition to apply, such union must be validly formed in such other jurisdiction, the parties thereto must meet the eligibility requirements to enter into a marriage in the State of Delaware, and such union must afford and impose on the parties thereto substantially the same rights, benefits, protections, responsibilities, obligations and duties of marriage.

This Act provides for the equal application of all laws of the State of Delaware relating to marriage, married spouses or their children to same-gender or different-gender married spouses and their children.

This Act protects religious freedoms of religious societies and other persons. The Act specifically protects the freedom of religion guaranteed under the United States Constitution and the Delaware Constitution. Further, the Act specifies that it shall not interfere with or regulate the religious practice of any religious society. Any religious society is free to choose which marriages it will solemnize, and religious societies, clergypersons and ministers of any religion will not be required to solemnize any marriage that does not conform to its religious beliefs.

House Bill 75 may be viewed in its entirety here.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild's Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

 

Appellate Practice - Delaware Supreme Court

Posted by Leslie Spoltore on May 06, 2013

The Delaware Supreme Court recently entered an Order amending Rule 13(a)(i) regarding briefs and appendices.   Effective May 2, 2013, Delaware Supreme Court Rule 13(a)(i) has been amended to read as follows:

The text shall be typeset in Times New Roman 14-point type with two spaces between sentences.  Case names must be italicized or underlined.  The typeface on footnotes shall be Times New Roman 12-point type with two spaces between sentences. 

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild's Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

New Hours For The New Castle County Courthouse

Posted by Leslie Spoltore on April 23, 2013

The Administrative Office Of The Courts has announced that effective May 6, 2013, the “New Castle County Courthouse (NCCCH) will move its opening time for members of the public to 8:30 a.m. Monday through Friday (except holidays).  Prior to that time, only court employees and others with courthouse identification badges will be permitted to enter the courthouse.”  The hours of public operation will be from 8:30 a.m. to 5:00 p.m. Monday through Friday.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild's Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

Supreme Court Rule Amendments

Posted by Seth A. Niederman on April 21, 2013

The Delaware Supreme Court recently amended Rules 13(a)(i) and 16(g).  The amendments are effective immediately.  Relevant portions of the revised Rules are stated below:

Rule 13(a)(i) is amended to delete the following sentence:

All typed matter must be of a size type permitting not more than 11 characters or spaces per linear inch.

and substituting in its place the following:

The text shall be typeset in Times New Roman 14-point type with 2-point or more leading between lines. Case names must be italicized or underlined. The typeface on footnotes shall be Times New Roman 12-point type with 2-point or more leading between lines.

Rule 16 is amended by adding a new subsection, as follows:

(g) Recent cases. In order for a party to rely at oral argument upon any case from any court that was decided after briefing was completed, a copy of that case must be sent to each opposing party and to the Court at least 48 hours prior to the time of oral argument.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild's Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Courthouse Security

Posted by Seth A. Niederman on April 17, 2013

In the wake of the tragic events that occured at the New Castle County Courthouse on February 11, 2013, the Judicial Branch has worked with security experts to review the current security measures in place at Delaware courthouses.  Yesterday, Chief Justice Steele released his remarks in support of a a request for approximately 3.5 million dollars to perform security upgrades. A copy Justice Steele's remarks can be found here. 

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild's Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

Family Court Defines A Mortgage Payments As A Primary Expense For Which A Payor May Receive Credit Against A Child Support Obligation

Posted by Leslie Spoltore on April 16, 2013

In the case of C. v. T., the Delaware Family Court was asked to determine if an obligor can receive credit against a child support obligation for paying the mortgage on a marital residence.  The Court answered the question in the affirmative.

Background

C (“Mother”) and T (“Father”) are the parents of three children. Mother obtained an Order of Protection From Abuse (“PFA”) against Father.  As part of the PFA, Father was required to pay $1,000 in alimony/spousal support.  In addition, he was required to pay the monthly mortgage on the marital residence.

Subsequent to issuance of the Order of Protection, the parties appeared before a Family Court Commissioner on Mother’s petition for child support. In connection with the support calculation, the Commissioner included Father’s spousal support obligation as income to Mother and as a deduction to Father.  In addition, the Commissioner credited the mortgage payment against Father’s child support obligation.  With this credit, Father’s child support obligation was reduced to $0. 

Dissatisfied with this result, Mother requested a review of the Commissioner’s Order arguing, inter alia, Father should not receive credit for the mortgage payment.

Review Of The Commissioner's Order

In rejecting Mother’s argument, the Family Court Judge looked to Section 514 of Title 13 of the Delaware Code and Family Court Civil Procedure Rules 502(a), 505 and 509.  Section 514 and Rule 502(a) require the Court to consider the parties’ net income when determining support.  Net income is determined by subtracting taxes, certain deductions, and a self-support allowance from gross income. Rule 505 then permits the Court to give a support obligor a credit for “[c]hild care, private school or other primary expense claimed [a] parent . . . .” (emphasis added)  Though mortgage payments are not specifically reference as “primary expenses” in Rule 505, the Court concluded that “there is no question that they are considered primary expenses as they are directly related to the basic expenditures of shelter as provided in [Rule] 509.”  Since Father was paying the mortgage, an expense directly related to the children’s basic needs, the Court concluded the credit was appropriate and the Commissioner’s Order was upheld.

Delaware Superior Court Launches Web Initiative For Case Management

Posted by Leslie Spoltore on April 15, 2013

The Delaware Superior Court recently commenced a new web based initiative related to civil case management. In an effort further to assist attorneys, the Superior Court web page now includes a link to information about individual judicial officer's particular practices and procedures.  This information may be viewd here.

Superior Court Amends Civil Rules 3(a) and 10

Posted by Seth A. Niederman on March 19, 2013

The Superior Court recently amended Civil Rules 3(a) and 10.  The amendments will take effect for all civil actions filed after May 1, 2013.  The relevant portions of the amendments are highlighted below:

Superior Court Civil Rule 3(a) is amended by deleting paragraph (a) and by substituting in lieu thereof the following new paragraph (a):

(a) Complaint and praecipe. -- Except amicable actions, an action is commenced by filing with the Prothonotary a complaint or, if required by statute, a petition or statement of claim, all hereafter to be referred to as a "complaint" and a praecipe directing the Prothonotary to issue the writ specified therein. Sufficient copies of the complaint shall be filed so that one copy can be served on each defendant as hereafter provided. An amicable action is commenced by filing an agreement specifying the matters agreed upon. Every newly filed complaint shall be accompanied by a Case Information Statement (CIS). The CIS form is used solely for administrative purposes and the information thereon has no legal effect on the action. If any party objects to the Related Cases listed by another party in the CIS, the objecting party shall separately file a written objection with the Prothonotary no later than ten days after the last responsive pleading is filed. Any non-objecting party may respond in writing within five days to any such objection. The Prothonotary shall forward any objection to the Related Cases, along with any response thereto, to the Civil Administrative Judge. The Civil Administrative Judge may, with prior approval of the President Judge, reassign the case to a different judge.

Superior Court Civil Rule 10 is amended by deleting paragraph (a) and by substituting in lieu thereof the following new paragraph (a) and by adding the following new subparagraph (e):

(a) Caption: Names of parties. Every pleading shall contain a caption setting forth the name of the Court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, except as provided in subparagraph (e) of this Rule, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

(e) No complaint may be filed under a pseydonym without prior Court approval or unless accompanied by a motion seeking approval. A petition or motion seeking approval to proceed by pseudonym must be accompanied by an affidavit stating specific facts explaining why anonymity of the party is necessary and facts sufficient to overcome the presumption of public access to the identities of litigants. Such petition or motion may be filed under seal.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild's Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

 

So You Want To Modify Your Custody Order . . .

Posted by Leslie Spoltore on March 08, 2013

I have previously written about the best interests factors the Family Court considers when entering child custody and visitation orders.  Many parents, however, also want to know what the Court will consider if asked to modify a prior order.  The answer to their inquiry lies in Section 729 of Title 13 of the Delaware Code.

Section 729 of Title 13 of the Delaware Code sets forth various standards for modifying prior custody or visitation orders based on the nature of the modification sought, the timing of the request for modification, and whether the prior order is the result of a trial or an agreement. Specifically, Section 729 provides:

(a) An order concerning visitation may be modified at any time if the best interests of the child would be served thereby in accordance with the standards set forth in § 728(a) of this title.

(b) An order entered by the Court by consent of all parties [a stipulation], an interim order or a written agreement between the parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the best interests standards.

(c) An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:

(1) If the application for modification is filed within 2 years after the Court's most recent order concerning these matters, the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development.

(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering:  a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification; b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and c. [the best interests of the child]. (emphasis added)

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Leslie Spoltore is an attorney with the law firm Fox Rothschhild LLP.  Leslie practices in Fox Rothschild's Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

Delaware Supreme Court Holds That An Indigent Parent Who Is Entitled To Court Appointed Counsel Is Also Entitled to The Same Procedural Protections Under the 6th Amendment As a Defendant In A Criminal Proceeding

Posted by Leslie Spoltore on March 01, 2013

The question regarding the scope of procedural protections due an indigent parent in a termination of parental rights case was recently presented to the Delaware Supreme Court in the matter of Moore v. Hall, Del. No. 27, 2012 (Holland, J.) (February 15, 2013).  Charlene M. Hall (“Mother”) and Christopher Moore (“Father”) are the parents of a child born on August 24, 2005.  Father was incarcerated in December, 2006, on a thirteen year sentence for Burglary in the Second Degree.  For reasons set forth in more detail in the decision, on March 22, 2011 Mother filed to terminate Father’s parental rights (“TPR Petition”).  On August 18, 2011, after finding that Father was indigent, the Family Court appointed counsel to represent Father and a hearing on the TPR Petition was scheduled for December 1, 2011.

Citing a breakdown in the lawyer/client relationship, Father’s counsel sought to withdraw.  The Family Court held a hearing on counsel’s motion on November 18, 2011.  In addition to seeking to withdraw, counsel asked that the hearing on the TPR Petition be continued to allow Father to obtain new representation.  The Court asked Father if he did in fact intend to hire new counsel.  In response, Father advised the Court that he did not plan to do so.  The Court then advised Father: “[Y]ou’re going to represent yourself.  I’m not going to appoint another attorney because you can’t get along with your present attorney.”  At the conclusion of the hearing, the Court granted counsel’s motion to withdraw but ordered counsel to “remain as standby counsel.”   The Family Court declined to continue the hearing on the TPR Petition. 

Consistent with his representation to the Court, Father failed to retain new counsel to represent him at the hearing on December 1, 2011.  During the hearing, Father did not present any testimony on his own behalf and cross examined only one witness.  The Family Court granted the TPR Petition and entered an order terminating Father’s parental rights.

Thereafter, Father filed an appeal to the Delaware Supreme Court.  The appeal alleged, inter alia, the Family Court violated his right to due process under the United States and Delaware Constitutions when it did not appoint new counsel to represent him.

On appeal, the Delaware Supreme Court found Father’s claim convincing.  The Supreme Court held that after a determination that an indigent parent has a right to the appointment of counsel, “that parent is entitled to the same procedural safeguards that are afforded by the Sixth Amendment to defendants in a criminal proceeding.” (Opinion at 10.)  Therefore, as the decision explains, if an indigent parent seeks new counsel the trial court is required to engage in a two pronged inquiry.  First, the trial court must decide if the indigent parent’s reason for seeking the appointment of substitute counsel constitutes good cause.  Examples of good cause cited in the opinion include conflicts of interest, breakdown in lawyer/client communications or an irreconcilable conflict with counsel.  If good cause exists, new counsel should be appointed.

Notably, it is when good cause is lacking that the second prong of the analysis is triggered.  If no good cause exists to appoint substitute counsel, the indigent parent must decide whether to proceed with the assistance of their current counsel or proceed without counsel.  If the parent chooses the later course, the “Court must ensure that any decision by the parent to proceed pro se is made knowingly and intelligently.”

Examining the record below, the Supreme Court concluded that it “unambiguously establishes that the Father did not knowingly and intelligently waive or forfeit his due process right to counsel.”  As a result, the judgment of the trial court was reversed and the matter remanded for a new trial.

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Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild's Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.