AppealPursuant to Supreme Court Rule 6(a)(i) an appeal in a civil case must be filed within 30 days after the entry upon the docket of the final judgment, order or decree from which the appeal is taken.  The timely filing of an appeal is a critical jurisdictional requirement.  The appeal period may be tolled in limited circumstances, such as a timely filed motion for reargument.  The case of Woods v. Woods, Del. Supr. 606, 2015 (Aug. 19, 2015) tested whether a post judgment motion for clarification would also toll the appeal period.

Mr. Woods and Ms. Woods were married in September 2000, and divorced by Order of the Delaware Family Court in January 2009.  A hearing on matters ancillary to their divorce was conducted on April 22, 2015.  On July 13, 2015 the Family Court issued its Order dividing the parties’ property and awarding Ms. Woods certain attorney’s fees (“Ancillary Order”).  Her counsel was permitted to submit an affidavit of fees, and on July 23, 2015 the Court issued its Order awarding Ms. Woods $2,500 (“Fee Order”). Thereafter, on August 7, 2015, Mr. Woods filed a Motion for Clarification seeking to clarify only one sentence in the Ancillary Order.  Specifically, he sought guidance on whether the Court intended a flat 50% division of the account or whether the Court intended that the account would be divided equally using the Cooper formula (a specific formula approved by the Delaware Supreme Court for dividing pension benefits).  Ms. Woods argued that no clarification was necessary because the Ancillary Order was sufficiently clear that the Cooper formula only applied to the parties’ pensions.  In its Order dated October 14, 2015 the Family Court agreed with Ms. Woods (“Clarification Order”).  On November 10, 2015, Mr. Woods filed an appeal to the Delaware Supreme Court challenging both the Ancillary Order and the Clarification Order.

The Supreme Court examined the issue of the timing of the appeal sua sponte.  The Court found that the Ancillary Order became final on July 24, 2015, the day the Fee Order was docketed.  Therefore, any appeal should have been filed by August 24, 2015.  The Court noted that although a motion for reargument can toll the 30 day appeal period, the Motion for Clarification filed by Mr. Woods could not be characterized as a motion for reargument.  Specifically, the Court held that “even given a generous reading, the motion [for clarification] could not be construed as a motion for reargument . . . The Husband’s Motion for Clarification did not take any issue with any substantive aspect of the Family Court’s [Ancillary] Order but merely sought to correct an error that, upon reading the clearly expressed intent of the [Ancillary] Order as a whole, was an obvious typographical error.”  Id.  at 5.  In addition, the Supreme Court noted that even if the Motion for Clarification could be construed as a motion for reargument, it was not timely filed and “only timely motions for reargument toll the finality of a trial court’s judgment.”  Id. at 6.  As a result, the Court concluded that it had no jurisdiction to consider the appeal.

The opinion may be read in its entirety here.

******************************

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.

Seasons IIA recent article in Medical News Today highlights a study by University of Washington Associate sociology Prof. Julie Brines and doctoral candidate Brian Serafini that found patterns in the timing of filing for divorce. Specifically, the study found “biannual patterns of filings for divorce – that divorce is seasonal during the periods following winter and summer vacations.” In exploring the reason for the patterns the article notes,

Prof. Brines mentions that troubled couples may see the holidays as a time to mend relationships, and they might believe that if they have a happy Christmas or a successful camping trip, everything will be “fixed” and their lives will improve.

However, in reality, those periods of the year can be both emotionally charged and stressful for many, and they may expose cracks in a marriage. The seasonal nature of divorce filings may reflect the disillusionment unhappy spouses experience when vacation time does not live up to their high expectation, the research team points out.

The study did not include data from Delaware. However, future research will examine whether these patterns are found in other states so stay tuned.

******************************

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.

HouseA prior post examined House Bill 271 regarding the definition of “marital property.”  Marital property was generally defined as “all property acquired by either party subsequent to the marriage.”  House Bill 271, which has now been signed into law, expands the definition of marital property to include “jointly-titled real property acquired by the parties prior to their marriage, unless excluded by valid agreement of the parties.” With this expanded definition real estate that was acquired before the parties were married, perhaps even long before, could be divided in a divorce.

 

******************************

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 consequences of missing the statute of limitations – even by only one day – can be dire, as illustrated by the recent Delaware Superior Court case of Vicks v. Justison Landing Apartments, C.A. No. N16C-01-063-ALR (Rocanelli, J.) (Order, April 28, 2016).  The full opinion can be read here:  http://courts.delaware.gov/opinions/

 The plaintiff, a tenant in an apartment complex owned and managed by the defendant, filed suit on January 11, 2016 for physical injuries she sustained on January 10, 2014 when she slipped and fell on ice outside the apartments.  Defendants moved to dismiss based on the two-year statute of limitations for bringing personal injury claims.  The two-year statute of limitations is set forth in Section 8119, Title 10 of the Delaware Code: “No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained[.]”

The Court granted the defendant’s motion to dismiss, concluding that “although plaintiff’s complaint was filed only one day after the statute of limitations, it was nevertheless filed outside the applicable statute of limitations and is untimely.”  The Court further noted that:

 “While the Court is cognizant of the public policy favoring resolution of cases on their merits, and that dismissing a claim that has been filed only one day after the statute of limitations may be harsh, the Court is satisfied that even if this matter were to proceed, Plaintiff’s claims have no merit under the Continuing Storm Doctrine.  Specifically, at the time that Plaintiff suffered her alleged injuries, Defendant did not owe Plaintiff any duty to remove snow or ice at the Apartments because a winter storm was ongoing.  Accordingly, because Plaintiff’s claims are time-barred and Plaintiff cannot succeed on the merits of her claims, Defendant’s motion to dismiss with prejudice must be granted.”

 Thus, it appears that the Court dismissed the case for two reasons: (1) because the plaintiff’s claim was time-barred under the statute of limitations; and (2) because the Plaintiff would not have been able to prevail anyway, due to the Continuing Storm Doctrine.

Even though the Court appeared to give a second rationale for dismissing the case, the decision still illustrates the importance of filing your complaint within the applicable statute of limitations. 

 

 

Dollar SignsIn addition to stress and host of other emotions, a divorce will likely raise a number of financial concerns. Lawyers and financial planners can partner to help clients through the court process.  Although each case is unique and requires specific consideration and analysis, the commonly asked questions set forth in my recent article in ThinkAdvisor, titled “Top 5 Things Financial Planners Need to Know About a Divorce,” can assist financial planners in their general understanding  of the divorce process and the role that finances play.

__________________________

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.

 

On May 20, 2016, the Vincent Bifferato Trial Practice Forum will offer a rare chance for practitioners to talk to Judges from the Superior Court.  Admission to the forum is free and attendees will have the opportunity to hear what issues and concerns are most on the minds of the Judges.  The following Judges will be on the panel:

The panel will be moderated by David White, Esquire., and held in the NCC Courthouse, Jury Assembly Room.

———————————

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.

Appeal-300x300In the case of Grant v. Grant, Del. Supr., No. 283, 2015 (Apr. 25, 2016), Justin Grant sought to challenge the Family Court order requiring him to pay $254.21 per month in alimony to Darlene Grant.   Mr. Grant did not argue that in reaching its decision the Family Court had erred as a matter of law.  To the extent he argued that the Family Court erred in its findings of fact, the Supreme Court noted those findings “will not be disturbed on appeal unless [they] are clearly wrong and justice requires they be overturned.”  Id. at 3.  However, Mr. Grant did not provide the Supreme Court with the transcript of the alimony hearing.  The Supreme Court concluded that under the circumstances it had no basis to overturn the Family Court’s findings.  The judgement of the Family Court was affirmed.

 

*****************

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 interlocutory appeal in the case of Genuine Parts Company v. Cepec presented one question:  “whether Delaware may exercise general jurisdiction over a foreign corporation for claims having nothing to do with Delaware, as a price for the corporation agreeing simply to be able to do business in Delaware.” Genuine Parts Company v. Cepec, No. 528, 2015, *1 (Apr. 18, 2016).

Genuine Parts Company (“Genuine Parts”) brought this significant question to the forefront when it filed a motion to dismiss the claims against it for lack of personal jurisdiction in the trial court.  The Superior Court denied the motion.  The Superior Court relied on the decision in Sternberg v. O’Neil, 550 A.2d 1105 (Del. 1988) in holding that consent to Delaware’s general jurisdiction is found in registering to do business in Delaware.  On appeal Genuine Parts urged the Supreme Court to depart from Sternberg and to overrule the Superior Court.  It support of its position, Genuine Parts argued that United States Supreme Court decisions such as Daimler AG v. Bauman, 134 S. Ct. 746 (2014) altered the legal landscape since the Sternberg decision.

In a four to one decision reversing the Superior Court the Majority agreed with Genuine Parts stating in part:

After Daimler, we hold that Delaware’s registration statutes must be read as a requirement that a foreign corporation must appoint a registered agent to accept service of process, but not as a broad consent to personal jurisdiction in any cause of action, however, unrelated to the foreign corporation’s activities in Delaware.  Rather, any use of the service of process provision for registered foreign corporations must involve an exercise of personal jurisdiction consistent with the Due Process Clause of the Fourteenth Amendment.

In most situations where the foreign corporation does not have its principal place of business in Delaware, that will mean that Delaware cannot exercise general jurisdiction over the foreign corporation. In that circumstance, the core statute to evaluate whether the foreign corporation is subject to specific jurisdiction is Delaware’s long-arm statute, 10 Del. C. § 3104. The long-arm statute operates smoothly in tandem with § 376, which provides that a foreign corporation can be served via its registered agent in the state. Under the long-arm statute, a foreign corporation ‘submits to the jurisdiction of the Delaware court’ as to any cause of action that arises out of certain enumerated acts by the corporation in this state such as ‘transact[ing] any business or perform[ing] any character of work or service,’ or ‘contract[ing] to supply services or things.’ Moreover, a plaintiff who brings a cause of action fitting under the long-arm statute against a registered foreign corporation need not use cumbersome means of service of process, but instead can serve the foreign corporation‘s registered agent, as contemplated in the long-arm statute. Genuine Parts Company v. Cepec, No. 528, 2015, *3. (citations omitted)

The dissenting opinion by Justice Vaughn states:

I agree with those federal judicial officers who have concluded that Daimler and Goodyear have no effect upon general jurisdiction that is based upon consent through corporate registration statutes. Daimler and Goodyear involved only general jurisdiction by presence where the corporate defendant had not consented to jurisdiction. Just last month, a circuit court judge of the Federal Circuit wrote in a concurring opinion mentioned by the Majority that ― Daimler did not overrule the line of Supreme Court authority establishing that a corporation may consent to jurisdiction over its person by choosing to comply with a state‘s registration statute. The case originated in Delaware and the opinion concluded that [Sternberg v. O’Neil, 550 A.2d 1105 (Del. 1988)] itself remains good law. I fully agree with the reasoning of that concurring opinion and see no need to duplicate it here.

It may be that the United States Supreme Court will go in the same direction as the Majority. But we won‘t know until it gets there. I would not divest the trial courts of this state of significant jurisdiction unless I was sure I was right, and I am not sure the Majority is right. I would affirm the judgment of the Superior Court. Id. at 45. (citations omitted)

The decision may be read in its entirety here.

*****************

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.

Last month, the Delaware Supreme Court announced that non-confidential oral arguments will now be available online live as they happen in Dover.  A link to the Court’s live stream can be found on the Court’s website and here.  The Court hopes that the live broadcasts will provide an educational opportunity for those interested in learning about he Delaware Courts.

Live broadcasting from the Courtroom is not a new concept.  Perhaps the most notable example is the television broadcast of the OJ Simpson murder trial.  For those that are interested, the new FX miniseries The People v. O.J. Simpson: American Crime Story highlights some of the controversy that came out of the broadcast of that trial.

———————————

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.

 

A divorce raises any number of tax issues in the short and long term.  As described in my recent article in Delaware Business Times entitled “If there’s one sure thing in divorce, it’s taxes,” couples going through a divorce may need to consider who will claim the dependency exemption for their children, whether financial support is considered alimony for tax purposes, and whether legal fees associated with a divorce are deductible.  Gathering the necessary information and planning ahead can help parties avoid stress at tax time and beyond.

__________________________

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.