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Mediation in Family Court – Unique Rules For A Court Of Special Jurisdiction Part III

Posted in Civil Procedure, Delaware Family Court, Family Law

Mediation, it is a process and concept with which most people are familiar. The Court rules define it as follows:

Mediation is a process by which a mediator facilitates the parties in reaching a mutually acceptable resolution of a controversy. It includes all contacts between the mediator and any party or parties until a resolution is agreed to, the parties discharge the mediator, or the mediator determines that the parties cannot agree.

See Superior Court Civil Procedure Rule 16(f)(ii) Court of Common Pleas Civil Procedure Rule 16(a)(9) and Family Court Civil Procedure Rule 16.1(e)(2). In Family Court, however, the mandatory mediation of child support and custody matters conducted by Court mediators are governed by a separate Rule and are handled a bit differently.

Child Support

Child support matters are scheduled for mediation with a Family Court mediator (unless one of the parties has committed an act of domestic violence or if there is a no contact order). If the parties cannot reach an agreement then the mediator has the authority to recommend a resolution which will become a temporary court order. Specifically, Family Court Civil Procedure Rule 16(a) allows parties to proceed immediately to a hearing if they cannot agree at mediation. However, if they elect not to proceed to a hearing immediately, Rule 16 provides:

If an evidentiary hearing is not held. . . and if the matter is not resolved at the mediation conference by a permanent, temporary, or interim agreement of the parties, then, absent good reason otherwise to be stated on the mediator’s report, the mediator shall prepare an interim order based upon the documentation provided and the Delaware Child Support Formula which upon review and adjustment by the Court shall issue promptly and may include an order for such discovery as the Court deems appropriate. (emphasis added)

Custody

Custody matters are also referred to mediation in the first instance unless there are issues of domestic violence.  With regard to custody mediation Rule 16 provides,

If the matter is not resolved at the mediation conference by a permanent, temporary or interim agreement of the parties, the mediator shall recommend an interim contact schedule based on information received at the mediation conference and in the best interest of the child(ren).

The mediator’s recommendation shall be reviewed by a Judge and if the recommendation is approved, it shall become an interim order of contact, without prejudice to either party, pending a full hearing. In the event that the mediator’s recommendation is not approved, the Court shall enter an appropriate interim order. (emphasis added)

In each instance the mediator is obligated to make a recommendation and to prepare a form of order based on his or her assessment of the facts of the case. These recommended orders are frequently signed by the Court.

Practitioners and litigants often debate the pros and cons of this system. The benefit of the process is that it allows the Court to issue temporary, interim orders quickly.  This gives families a framework for support and/or custody until they can have a hearing before a judicial officer.  This structure can be invaluable to families in transition.  However, because the process may result in the imposition of an order over the objection of one or both of the parties, litigants and practitioners also have some concerns.  For example, concerns arise that: (1) no witnesses are presented at mediation so an order results from what may be limited information; (2) there is no record of the mediation so the judicial officer does not have an opportunity to hear from the parties and to gauge credibility for himself or herself prior to signing a recommended order;  (3) it may be difficult for parties to feel free to negotiate when the neutral is also the person who will be drafting the interim resolution; and (4) the mediator’s notes remain in the file and as a result confidential settlement discussions are contained in the Court file.  For better or worse, this is the system that is in place and recognizing that it is not a typical mediation process can be helpful.

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Leslie Spoltore is a Partner 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.

The Kurt Busch Case Places a Spotlight on Petitions for Orders of Protection from Abuse

Posted in Delaware Family Court, Family Law

A variety of headlines in the news today announced that the Delaware Family Court granted the Petition for Order of Protection from Abuse (“PFA”) filed against NASCAR driver Kurt Busch. The PFA Order, which has been published by The News Journal, prohibits Busch from having any contact with Patricia Discoll.  A written opinion setting forth the Commissioner’s findings is expected to issue later this week.

For those unfamiliar with the process, a PFA is a civil order issued by the Family Court. PFA Orders are designed to prevent one person from committing acts of abuse against another. Acts of abuse include, but are not limited to, physical violence. Rather, abuse as it is defined in the PFA statute also includes other forms of abuse, such as placing someone in fear of physical harm, intentionally or recklessly damaging property and any other conduct that a reasonable person under the circumstances would find threatening or harmful. If a PFA petition is granted the Court may entered various forms of relief. For example, the Court may:

(1) Prohibit the respondent from committing acts of domestic violence;
(2) Prohibit the respondent from contacting or attempting to contact the petitioner (including but phone, text or email);
(3) Grant exclusive possession of the residence to the petitioner;
(4) Order that the petitioner be given temporary possession of specified personal property;
(5) Grant temporary custody of the parties’ children to the petitioner;
(6) Require the respondent to pay support for the petitioner and/or for the parties’ children;
(7) Order the respondent to pay to the petitioner monetary compensation for losses suffered as a direct result of domestic violence;
(8) Require the respondent to temporarily relinquish to a law enforcement his/her firearms and to refrain from purchasing or receiving additional firearms for the duration of the order;
(9) Issue an order directing any law-enforcement agency to forthwith search for and seize firearms of the respondent; and
(10) Require the respondent to participate in treatment or counseling programs.

A complete list of the relief available may be found in 10 Del. C. § 1045.

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Leslie Spoltore is a Partner 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.

For Better or Worse – Lawsuit in Mississippi Brings Attention to the Claim of Alienation of Affection

Posted in Delaware Family Court, Delaware Superior Court, Legislation

The Associated Press and CBS Sports have recently reported on an action filed in Mississippi by Sherrie Allison Miller.  Ms. Miller, the ex-wife of pro golfer John Daly, is pursuing a claim for alienation of affection. In essence, Ms. Miller claims that Mr. Daly’s girlfriend, Anna Cladakis, is responsible for the brake up her marriage.  One thing that makes this case so interesting is that Mississippi is one of only a handful of states that permits a claim for alienation of affection.  What is equally interesting is that Mr. Daly and Ms. Miller were not residents of Mississippi, nor was Ms. Cladakis.  Despite the absence of residency, Mississppi found the forum proper stating,

Because Miller’s prima facie showing evidences that Cladakis availed herself of the “privilege of conducting activities” with Daly in the state of Mississippi, we do not find it improper to bring her back into Mississippi to defend the alienation-of-affection case that arose out of those alleged activities.

Miller v. Provident Advertising and Marketing, Inc., 2014 WL 2735194 (Miss. App. June 17, 2014).

Notably, Delaware prohibits actions for alienation of affection.  In 1972 the First State passed legislation prohibiting such claims here. Specifically, Section 3924 of Title 10 provides,

Causes of action abolished for alienation of affections, criminal conversation, seduction, enticement and breach of contract to marry.

The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, enticement, or breach of contract to marry are abolished. No act done in this State shall operate to give rise, either within or without this State, to any such right of action. No contract to marry made or entered into in this State shall operate to give rise, either within or without this State, to any cause or right of action for its breach.

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Leslie Spoltore is a Partner 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.

Sanctions For Violation of Visitation Orders

Posted in Custody, Delaware Family Court, Family Law

Getting a custody/visitation order in place may be only the first step for some parents in achieving a contact schedule.  Unfortunately, we have all heard accounts of one parent refusing to permit visitation and frustrating a contact schedule.  What relief can the Family Court provide?   

In fact, there are several possibilities.  If the Court finds that one parent impaired or impeded the rights of the other parent, the Family Court can impose 1 or more of the following remedies or sanctions:

(1) Extra visitation with the child to enable the child to make up any wrongfully denied visitation with a parent;

(2) A temporary transfer of custody or primary residence or both of the child to a parent applying for relief under this section for up to 30 days without regard to the factors set forth in § 729 of this title;

(3) A surcharge to be assessed against the parent with rights of visitation with the child or children for his or her unilateral failure, without just cause and/or without sufficient notice, to comply with the visitation schedule. Failure to comply consists of more than minimal violations, such as, but not limited to, slight alterations in the times for visitation. The amount of the surcharge shall be up to 10 percent of the visiting parent’s monthly child support obligation for each violation and shall be payable to the parent with whom the child resides or children reside;

(4) A fine in the discretion of the Court; or

(5) A term of imprisonment if a person is found to be in contempt of prior orders of the Court.  See, 13 Del. C. §728

In addition, the Court can order the violating party to pay the other party’s legal fees.  Clearly, no one sanction fits every situation.  Rather, whether a sanction is appropriate at all, and what an appropriate sanction might be, is determined on a case-by-case basis.    

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Leslie Spoltore is a Partner 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.

Motion for Appointment of Counsel Denied

Posted in Civil Procedure, Delaware Superior Court

In Damiani v. Gill, C.A. No. N14C-05-186-ALR (Rocanelli, J.) (Order dated January 26, 2015), the Delaware Superior Court addressed Plaintiff Pablo Damiani’s request to have that Court appoint counsel to represent him.  The Court began by noting the general principle that “[s]elf represented litigants in civil proceedings have no legal or equitable right to appointed counsel.”  Id. at 1.  However, the Court did not immediately reject.

In analyzing the request, the Court applied a six pronged test previously set out by the Third Circuit Court of Appeals in Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) to determine whether appointment was necessary or appropriate.  Applying this test, the Court concluded appointment was neither because:

(i) plaintiff has demonstrated the ability to present his own case; (ii) plaintiff is in the best position to develop the facts on his own behalf; (iii) significant factual investigation is not necessary as plaintiff is likely is own main witness; (iv) the case is likely to turn on credibility determinations; (v) expert testimony will not be required; and (vi) plaintiff’s inability to afford counsel is not significant under the circumstances presented.

The case provides concise insight into the test for and analysis of a request for the appointment of counsel in Superior Court civil proceedings.

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Leslie Spoltore is a Partner 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.

 

Conversion of a Motion to Dismiss into a Motion for Summary Judgment

Posted in Civil Procedure, Delaware Superior Court

In Johnson v. Student Funding Group and Sergio Sotolongo, C.A. No. N14C-08-098-ALR (Rocanelli, J.) (Order dated January 26, 2015), the Delaware Superior Court provided a comprehensive and useful overview of the legal standard for converting a motion to dismiss into a motion for summary judgment when the motion relies on information outside the pleadings.  The defendants in this breach of contract case had attached two documents to their Motion to Dismiss for Failure to State a Claim: (1) an agreement (“EEA”) that was not attached to the plaintiff’s Complaint, but was incorporated by reference into the main agreement at issue (the “DCA,” which was attached to the plaintiff’s Complaint); and (2) an Affidavit from defendant Sergio Sotolongo.  Thus, the Court was required to decide whether to convert the motion to dismiss into a motion for summary judgment.

The Court began by reciting the familiar legal standard:

  • “Generally, the Court will not consider matters outside the pleadings when considering a motion to dismiss.  However, if a party presents extraneous documents in support of its motion to dismiss, it is within the Court’s discretion to include or exclude the extraneous documents from its consideration.  If the Court excludes the extraneous documents from its consideration, the motion to dismiss is preserved.  On the other hand, if the Court considers the extraneous documents, the Court shall treat the motion to dismiss as a motion for summary judgment, unless an exception applies.”
  • “The first exception is when the document is integral to the complaint…[t]he second exception is when the document is not being relied upon to prove the truth of its contents.”

Next, the Court analyzed the two documents that the defendants attached to their motion to dismiss:

  • “Here, consideration of the extraneous documents requires conversion of the motion to dismiss to a motion for summary judgment because neither exception applies.”
  • “While Plaintiff’s complaint does incorporate the EEA by reference, the Court finds that the EEA is not integral to Plaintiff’s claim because Plaintiff’s claim alleges breach of the DCA, the contract succeeding the terminated EEA.”
  • “Likewise, Defendants submitted an affidavit of Defendant Sergio Sotolongo, seeking to verify the contents and truth of the EEA.”

The Court then decided, in its discretion, to exclude the documents from its consideration of Defendants’ motion to dismiss, stating that “[i]f Defendants want the Court to consider the extraneous documents, Defendants may file a motion for summary judgment.”

Finally, the Court denied the defendants’ motion to dismiss for failure to state a claim, concluding that the plaintiff’s Complaint is “well-pleaded” and states a claim upon which relief may be granted.

In sum, this case provides a useful overview of the legal standard for converting a motion to dismiss into a motion for summary judgment, and how that standard applies.

Delaware Supreme Court Adjusts the Assessment For Admission Pro Hac Vice

Posted in Civil Procedure, Delaware Supreme Court

The Delaware Supreme Court has amended Rules 71 and 72 related to the assessment for an application for admission pro hac vice.  Since 2002 the fee has been $300.  Effective February 1, 2015, it will be $375 and in calendar year 2016 it will increase to $400.  In 2017 and beyond the fee will increase annually by the rate of inflation as determined by the Court.  The amendments may be viewed in their entirety here.

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Leslie Spoltore is a Partner 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.

Superior Court – Complex Commercial Litigation Division

Posted in Uncategorized

President Judge Vaughn now Justice Vaughn‘s movement to the Supreme Court created a vacancy on the CCLD panelAdministrative Directive 2015-1, names Judge Davis to the panel of CCLD judges.  The panel now consists of:

  • President Judge Jurden
  • Judge Carpenter
  • Judge Johnston
  • Judge Davis

See our previous post on the CCLD here.

The Court also issued Administrative Directive 2015-2, which states the judicial assignments for 2015.

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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.

Expert reports cannot be based merely on “common sense”; that’s common sense!

Posted in Delaware Superior Court, Evidence

In Knott v. Covert, C.A. No. K13C-05-006-RBY, decided January 15, 2015, the Delaware Superior Court (Young, J.) excluded an expert report for failing to meet the admissibility requirements of Delaware Rule of Evidence 702 because it was based entirely on “common sense” rather than scientific expertise.

This case involved an automobile collision.  The defendant, Deborah Covert, moved to exclude the expert report prepared by co-defendant Nationwide Insurance Co.’s expert, William C. Camlin.  The Camlin Report disputed defendant Covert’s claim that her car was hit from behind by another unidentified driver, which resulted in a domino effect that ultimately, and unavoidably, caused her car to collide with Plaintiff’s car.  According to defendant Covert, the Camlin Report was based on the depositions of the Plaintiff and Covert, the photographs of Plaintiff’s and defendant Covert’s vehicles, and the accident report.  Based on these materials, Camlin observed “a slight scuff mark in the approximate center of the rear bumper with slight scratches on the leading edge of the rear bumper in the area of the meeting for the trunk lid.”  (Opinion at 5-6.)  Further, Camlin’s concluded that the damage to defendant Covert’s rear bumper could not have been caused by vehicular impact.  (Opinion at 6.)

Defendant Covert argued that these observations are not “scientific, technical, and/or specialized,” and could easily be grasped by the jury; hence, they are not instructive.  The Court agreed, concluding that “Camlin’s note regarding the location of the scuff mark on the rear of the car is something ‘within the common knowledge of the jury,’ and further something the jury is ‘equally competent to form an opinion about.'”  (Opinion at 6.)  As such, the Court concluded that Camlin’s Report “cannot be said to assist the trier of fact to understand the issue or to determine a fact in issue” as required by Delaware Rule of Evidence 702.  (Id.).

This result is soundly in keeping with D.R.E. 702 and the U.S. Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. opinion.  The bottom line is, if your expert report is merely saying something that a lay person could have figured out, then it will likely be excluded.

 

 

Family Court Has Updated the Delaware Child Support Formula

Posted in Child Support, Delaware Family Court

The Family Court has updated the Delaware Child Support Formula and related Rules.  Some of the notable changes, which became effective on January 1, 2015, are:

  • Minimum income – The minimum income attributable to a parent is $1,430 per month.  This reflects 40 hours of work per week at minimum wage, or $8.25 per hour.
  • Out-of-pocket medical expenses – The prior practice, which required the parent receiving support to pay the first $350 of out-of-pocket medical expenses per year, will no longer apply.  Parents will share out-of-pocket expenses pursuant to their respective percentage share of the total net available income.
  • Income from a second job – Whether income from a second job may be included in a child support calculation will be determined on a case-by-case basis.  “Second job income is more likely to be included if it has been historically earned, raises the standard of living of the parent, or is necessary to meet the minimum needs of the child.  It is more likely to be excluded if it merely allows the parent to make ends meet, is used to pay extraordinary medical or educational expenses, is necessitated by the nonpayment of support, or substantially conflicts with visitation.  Fluctuations in income or that wage income may exceed 40 hours per week is not a basis for exclusion.  The Court must determine average monthly income likely to prospectively recur.  Previously earned second job income and overtime will not be considered if it is no longer earned, has been over 2½ years since the last determination of current support, and income from primary employment is consistent with reasonable earning capacity.
  • The fact that the Formula was updated does not constitute a change of circumstances for modification purposes.

To assist litigants, Family Court has revised the Instructions for child support.  If you have a child support proceeding on your calendar, understanding these any all the other changes will be helpful.  The revised Instructions may be found here.  The child support calculator may be found here.

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Leslie Spoltore is a Partner 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.