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Delaware Trial Practice Blog

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Delaware Courts Increase Fees

Posted in Delaware Court of Common Pleas, Delaware Family Court, Delaware Superior Court, Delaware Supreme Court

The Delaware Courts announced that they will be implementing fee increases.  The increases, which become effective on September 1, 2015, are as follows:

Supreme Court— Filing fee ($50 increase: $450 – $500)

Chancery Court — Docketing fee = $.75 increase ($1 – $1.75)

Superior Court — Additional docket fee ($20 increase: $225 – $245)

Superior Court— Civil filing (complaints) fee ($15 increase: $175 – $190)

Superior Court — Writs/Foreign Judgments ($5 increase: $50 – $55)

Family Court — Divorce filing fee ($10 increase: $150 – $160)

Family Court — Ancillary matters filing fee ($10 increase: $75 to $85)

Family Court — Civil filing — custody, guardianship, visitation & minor to marry ($5 increase: $80 – $85)

Family Court — Civil filing — all others fee ($10 increase: $75 – $85)

Family Court — Review of Commissioner’s Order ($10 increase: $100 – $110)

Family Court — Rule 60(b) motions ($10 increase: $75 – $85)

Court of Common Pleas — Criminal jury trial fee ($5 increase: $125 – $130)

Court of Common Pleas — Criminal non-jury trial fee ($2 increase: $50 – $52)

Justice of the Peace Court— Civil debt action filing fee ($5 increase: $30 – $35)

Justice of the Peace Court — Alias summons fee ($5 increase: $15 – $20)

Justice of the Peace Court — Wage attachment fee (execution)($5 increase: $25 – $30)

Justice of the Peace Court — Levy fee (execution)($5 increase: $25 – $30)

Justice of the Peace Court — Subpoena ($5 increase: $5 – $10)

Justice of the Peace Court — Motions ($5 increase: $10 – $15)

Justice of the Peace Court — Garagekeepers liens ($15 increase: $20 – $35)

 

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leslie_SpoltoreLeslie 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.

Who Is More Likely To File For Divorce?

Posted in Delaware Family Court, Family Law

Wedding bandsA recent article on MSN.com highlighted a survey titled How Couples Meet and Stay Together.  A report on the survey, authored by Michael Rosenfeld, associate professor of sociology at Stanford University, examined data from 2009 – 2015 that tracked 2,262 American adult relationships.  As the article notes, the study found that of those couples who divorced during the period of the study, women were the instigators 69% of the time.  It may take another study to fully understand why.

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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

 

Supreme Court Affirms Family Court Ruling In Dependency Hearing

Posted in Delaware Family Court, Delaware Supreme Court, Family Law

The Department of Services for Children, Youth and Their Families (“DSCYF”) serves the families of Delaware in a myriad of ways.  “Its primary responsibility is to provide and manage a range of services for children who have experienced abandonment, abuse, adjudication, mental illness, neglect, or substance abuse.” In the course of those services, the Division of Family Services (“DFS”), a division of DSCYF, investigates allegations of child dependency, neglect and abuse. In an emergency situation DFS may file a petition in the Family Court seeking immediate custody of a child. If warranted, emergency relief may be granted on an ex parte basis – without an opportunity for the child’s parents to be heard. However, if an emergency order is granted then a hearing must be held within ten (10) days. That hearing is commonly referred to as a Preliminary Protective Hearing or PPH. At the PPH, the Family Court is charged with determining “whether the evidence demonstrates that probable cause exists to believe that a child continues to be in actual physical, mental, or emotional danger or there is a substantial imminent risk thereof.” The nature of that standard was the subject of a recent appeal to the Delaware Supreme Court.

The Family Court Preliminary Protective Hearing

The facts and procedural history of the case captioned Department of Services for Children, Youth and Their Families v. Fowler et al., No. 681, 2014 (Aug. 26, 20150), are set forth in detail in the decision and only a brief synopsis is included here. In short, the Family Court granted the emergency petition filed by DSCYF seeking custody of A.F.  Thereafter, the Court conducted a PPH at which the Department, Ms. Fowler and Mr. Tower appeared. Also present was the Court Appointed Special Advocate (“CASA”) who represented the child’s interests. DSCYF presented testimony in support of its request to continue custody of A.F. Ms. Fowler and Mr. Tower testified and opposed the DSCYF’s request. The CASA also opposed DSCYF’s request to continue custody with the Department. After hearing the evidence the Judge concluded that the Department did not establish probable cause to believe that [the child] was dependent, neglected, or abused in the care of Ms. Fowler and Mr. Tower.

The Appeal

The Department appealed the Family Court’s decision alleging that Family Court misapplied the PPH probable cause standard. DSCYF argued that it presented sufficient evidence to establish probable cause and its evidence at the hearing should have been accepted by the Family Court as conclusive. Id. at 7. It was DSCYF’s contention that the Family Court may not “compare and contrast the evidence presented by the parties at a PPH, but must confine its analysis to the Department’s knowledge and belief.” Id. at 8. Ms. Fowler responded arguing, inter alia, that it is a fundamental due process right of a parent to contest the taking of his or her child by DSCYF and that the PPH is designed for this purpose. Therefore, Ms. Folwer argued, the Judge must consider all the evidence at the PPH.

In its decision the Supreme Court agreed with Ms. Fowler’s contention that during a PPH parents can respond to the allegations raised by the Department and the Family Court may assess their credibility. The opinion, authored by Justice Collins J. Seitz, Jr., concluded that “[b]efore reaching a probable cause determination, the court must weigh all the evidence presented at the hearing, including the hearsay presented by the Department and the parents, consider the totality of the circumstances, and determine whether the State has met its burden to prove probable cause.” Id. at 11.

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leslie_SpoltoreLeslie 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.

Supreme Court Reinstates Order Of Protection From Abuse

Posted in Appellate Practice, Delaware Family Court, Delaware Supreme Court, PFA

At the heart of every Petition for Order of Protection from Abuse (“PFA”) is the question of whether a respondent has committed an act of abuse.  That very issue was presented to the Delaware Supreme Court in the case of King v. Booker, No. 29, 2015 (Aug. 20, 2015).

In The Family Court

The procedural history and details of the case are set forth in greater detail in the decision.  In a nutshell, Ms. King filed a PFA against Mr. Booker.  She alleged that Mr. Booker forced his way into her residence (she was not there at the time), and while he was there he took some personal property.  At the hearing before the Family Court Commissioner, Mr. Booker admitted that “he kicked in the door” to Ms. King’s residence and took some items that “either were gifts that he had given King, gifts that King had given him, or items that he had purchased for himself.”  Id. at 3.  The Commissioner concluded that Booker’s admission that he kicked in the door and took items from the home established that he had engaged in conduct that constituted abuse.

Mr. Booker appealed that decision to a Family Court Judge.  The Judge overturned the Commissioner’s Order and directed that the PFA be vacated.  The Judge determined that, among other things, the “act of kicking in the door was not an act of abuse because a reasonable person in [King’s] shoes would not have felt threatened or harmed.”  The Judge also concluded that the removal of items from the home was not considered an act of abuse because “King failed to prove that [Booker] had no property interests in the items he took.” Id. at 5.

An appeal by Ms. King followed in which she argued, inter alia, that the Judge erred in finding that Mr. Booker’s conduct did not constitute abuse.

The Appeal

The Supreme Court agreed with Ms. King.  The Court noted that abuse includes “intentionally or recklessly damaging, destroying or taking the tangible property of another person.”  13 Del. C. § 1041(1).  The Court further noted that Mr. Booker’s testimony, which was not contradicted, was that he intentionally kicked in the locked front door and took property.  Based on this evidence, the Court concluded that the Family Court Commissioner did not err in concluding that the evidence established that an act of abuse occurred.  The Court remanded the case to the Family Court with instructions that the PFA Order issued by the Commissioner be reinstated.

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leslie_SpoltoreLeslie 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.

Delaware Enacts A Bill Of Rights For Dependent, Neglected And Abused Children

Posted in Family Law, Legislation

bill of rightsEarlier this month Governor Jack Markell signed House Bill 46 into law.  The Bill establishes a Bill of Rights for children in the custody of the Department of Services for Children, Youth and Their Families.  The Bill of Rights provides:

 

Rights of children in DSCYF custody.

(a) All dependent, neglected and abused children in DSCYF custody under this chapter shall have the following rights in accordance with his or her age and developmental level, unless prohibited by Court order:

(1) To be informed of the reason they have been placed in DSCYF custody.

(2) To receive water, food, shelter, and clothing that is necessary and appropriate for their age and individual needs.

(3) To be free from abuse or neglect.

(4) To have assistance in obtaining access to medical, vision, and dental treatment that is necessary and appropriate for their age and individual needs; and to have assistance in obtaining access to necessary and appropriate mental health and substance abuse treatment if the need for such treatment is identified.

(5) To receive appropriate placement services.

(6) To contact and visit with their parents, siblings in DSCYF custody, and other individuals, including their own child in DSCYF custody. If such contact or visitation is inappropriate, the child has the right to be notified of the reason for that decision.

(7) To have assistance in obtaining access to an education, at their school of origin when feasible, with minimal disruption to their education when they are placed in DSCYF custody.

(8) To participate in the formation and maintenance of their foster care service, independent living and transition plans, where applicable.

(9) To have regular and meaningful access to and have confidential contact with their caseworker and attorney or court-appointed special advocate.

(10) To be notified, attend, and participate in court hearings and to speak to the judge regarding any decision that may have an impact on their life.

(11) To have their confidentiality protected as required by state and federal law.

(12) To receive independent living services and supports beginning at age 16 if eligible and if resources are available.

(13) To report any violation of their rights or the violation of the rights of others without being punished or retaliated against for such reporting.

(14) To receive a copy of the rights set forth in this section.

(b) Any child aggrieved by a violation of this section may motion the Court, through an attorney or court-appointed special advocate, for appropriate equitable relief.

 

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leslie_SpoltoreLeslie 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.

 

Supreme Court Affirms Family Court Decision Attaching FERS Account

Posted in Delaware Family Court, Delaware Supreme Court, Family Law

In a recent appeal, Mr. Tanner challenged the Family Court order that found him in contempt and issued an attachment against his U.S. Postal Service pension.  The appeal argued that the Family Court’s decision was improper because Mr. Tanner’s Federal Employees Retirement System (“FERS”) disability retirement benefits may not be subject to attachment pursuant to 5 U.S.C. § 8470(a).  Section 8470 provides that “[a]n amount payable under . . . [FERS] is not assignable, either in law or equity, except under the provisions of section 8465 or 8467 . . . .”  The Delaware Supreme Court rejected Mr. Tanner’s argument and upheld the Family Court’s decision based on the language of section 8467.  Specifically, section 8467(a)(1) permits FERS benefits to be paid to another person pursuant to “any court decree of divorce, annulment or legal separation or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.”

AppealThe Delaware Supreme Court decision in Tanner v. Allen, No. 626, 2014 (Aug. 20, 2015) may be read in its 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.

 

The Marital Affair And Equitable Division

Posted in Delaware Family Court, Family Law, Property Division

The Ashley Madison data breach has raised many eyebrows and may be the cause of many uncomfortable dinner conversations lately.  A recent post on the Pennsylvania Family Law Blog by Aaron Weems, a Partner in our Blue Bell, Pennsylvania office, explores what that data breach could mean to divorce lawyers and their clients. Just as Aaron points out for Pennsylvania cases, the existence an affair (if a spouse had an affair) in and of itself may not have an impact on the division of marital property in a Delaware divorce action.  Delaware is what is often referred to as a “no fault” state because when Family Court is asked to divide marital property, it does so “without regard to marital misconduct.”  Does that mean that an affair can never be relevant?  Certainly not.  It may be relevant if, for example, in the course of the affair a spouse wasted marital asset or funds.  So, while a data breach may help establish that an affair occurred, that is only the beginning of the analysis in the context of the equitable division of assets.

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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.

 

Is Too Much Homework Adding To Parental Stress?

Posted in Custody, Delaware Family Court, Family Law

A new school year is almost here.  While many parents enjoy the structure the school year brings, other households struggle with the added stress of homework.  According to a recent article published by CNN’s Kelly Wallace those feeling the stress may have a good reason.  The article entitled “Kids have three times too much homework, study finds; what’s the cost?” notes that homework levels have increased above the standard levels endorsed by the National Education Association and the National Parent-Teacher Association.  Those Associations endorse a “10-minute rule” for 10 minutes of homework per grade level per night.  As Ms. Wallace points out, a recent study shows that in some instances children are getting significantly more homework.  Understandably, this can place increased stress on children, their parents and the entire household.

Homework

What can parents do to address the problem?  The article provides recommendations and insight on what parents can do to make the homework experience less “anxiety-producing.” For example, if homework is taking too much time parents may want to examine where, when and how their children are doing homework.  If there are environmental distractions, discuss eliminating them. And if it is not already clear, the article recommends that parents present “clear expectations at the beginning of the school year about the homework getting done and ending up in the teacher’s hands.”

These solutions may be helpful but they may not always be easy – particularly for parents who are involved in custody litigation.  Implementing these suggestions requires discussion and agreement.  It may be necessary for parents to agree upon and establish similar homework routines in two separate households.  Difficult as it may be, sorting these issues out early may reduce everyone’s stress in the long run.

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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

 

 

Custody Disputes May Be International Matters

Posted in Custody, Family Law

The dispute between actress Kelly Rutherford and her former husband, Daniel Giersch, has placed a spotlight on international custody matters.  A number of past posts on our Pennsylvania Family Law Blog and New Jersey Family Law Blog and this blog have explored and examined international cases and the Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”).  Our past posts include:

Parent-childChild Abduction: Capital Anonymity.  A True Story about the Hague Convention

Parent’s rights under the Hague Convention Upheld

The Tangled World of International Custody; The Hague Convention

International Custody Disputes and the Hague Conventions

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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 Examines The Time Of Discovery Rule And Tolling The Statute Of Limitations

Posted in Delaware Superior Court

The case of Young & McPherson Funeral Home, Inc. v. Butler’s Home Improvement, LLC a/k/a Butler’s Home Improvement, Inc. a/k/a Kevin Butler presents several issues in connection with Defendant’s Motion to Dismiss.  Among them is Defendant’s claim that certain of Plaintiff’s claims are time-barred by a three-year statute of limitations.  In addressing Defendant’s claim, the Superior Court provides a helpful and interesting review of the analysis applied when a claim accrued outside the statute of limitations.

The Court observes that normally on a motion to dismiss it is the defendant who bears the burden of proving that the relevant statute of limitations has lapsed and that the claim is time-barred.  “However, ‘[w]hen a complaint asserts a cause of action that on its face accrued outside of the limitations [] the plaintiff has the burden of pleading facts leading to a reasonable inference that one of the tolling doctrines adopted by Delaware courts applies.’” Id. at 2.  If the complaint sets forth a cause of action that accrued outside the statute of limitations, then the Court must consider and determine whether the facts as plead are sufficient to invoke a tolling doctrine.  In reviewing and explaining the Time of Discovery Rule the Court stated,

‘The [T]ime of [D]iscovery rule provides that in certain cases, a cause of action does not accrue until a party has reason to know that he or she has a cause of action.’  The Time of Discovery rule ‘is narrowly confined in Delaware to injuries which are both: (a) inherently unknowable; and (b) sustained by a blamelessly ignorant plaintiff.’ The statute of limitations ‘will begin to run only upon the discovery of facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery of such facts.’ ‘These facts must usually be observable or objective factors that would alert laymen to the problem.’ (citations omitted)  Id. at 3.

The decision may be viewed in its entirety here.

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leslie_SpoltoreLeslie 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