Governor Jack Markell has announced the nomination of James G. McGiffin, Jr., Gretchen C. Gilchrist and Theresa A. Sedivec to the Family Court bench.  James McGiffin, Jr. has been nominated to serve as an Associate Judge in Kent County.  He has been nominated to fill the vacancy created by the retirement of Judge William J. Walls, Jr.  Gretchen C. Gilchrist has been nominated to serve as a commissioner in the Kent County Family Court.  Theresa A. Sedivec has been nominated to serve as a commissioner in New Castle County Family Court.  It is anticipated that a special session of the Delaware Senate will convene on October 13, 2016 to consider these nominations.

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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.

I often hear parents express a belief or a fear that the law is biased in custody cases.  Most often I hear concerns that the Delaware Code presumes that mothers are better parents.  Perhaps this fear comes from talking with parents in other states where this may occur. For example, a recent article in Southeast Missourian noted that prior to an amendment in that state’s law the standard custody arrangement in Missouri typically allowed for a mother to have primary placement and for a father to have a visitation.

Delaware residents can take comfort in the fact that Delaware law has long prohibited gender based presumptions in custody cases.  Section 722(b) of Title 13 specifically provides,

The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child’s primary residential parent …

Section 722 directs that decisions regarding the custody and residential placement shall be determined in accordance with the best interests of the child or children at issue.

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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 Supreme Court recently announced amendments to Rules 10.2, 13, 14, 15, 26, 26.1, Official Form K and Internal Operating Procedure XVIII(7)(j).  The amendments alter the formatting and filing requirements for briefs.  For example, the amendment to Rule 13(a)(i) deletes the requirement that parties place two spaces between sentences.  By way of further example, Rule 14(d) has been amended to limit briefs by word count rather than by the number of pages.  The Court’s Internal Operating Procedures have been amended to refer to type-volume extensions rather than page limit extensions.  The amendments, which become effective October 3, 2016, 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.

The American Bar Journal recently published an article about an interesting Kentucky divorce action. The article, entitled “Can mentally incompetent man obtain a divorce? Kentucky Supreme Court to decide,” highlights the case of Elmer Riehle. Mr. Riehle, who has been adjudicated to be disabled and incompetent, is asking the Kentucky Supreme Court to overturn a 1943 decision which held that Kentucky law does not authorize a mentally incompetent person to divorce.

In 1996, the Delaware Family Court was faced with a similar question. Although the Court was generally opposed to allowing petitions to be filed or maintained on behalf of an incompetent person, the Court ultimately concluded that an absolute bar prohibiting these actions is not appropriate. In rendering its decision the Court stated,

This Court agrees with the courts of other jurisdictions that generally a guardian [of an incompetent person] should not be permitted to initiate and maintain a divorce action on behalf of an incompetent ward. But this Court also believes, in accordance with the more recent decisions in other jurisdictions, that an absolute bar to the initiation and maintenance of a divorce action on behalf of an incompetent spouse is not statutorily mandated and that such a bar could lead to inequitable and untenable results in certain cases, especially when the incompetent spouse, when competent, expressed a strong desire to be divorced and when evidence establishes that but for the incompetency, that spouse would have proceeded with a divorce action.” Northrop v. Northrop, 1996 WL 861489, *9 (Del. Fam. Ct.).

In this day and age when people are living longer, and divorcing later in life, cases like Riehle and Northrop take on increasing importance.

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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.

 

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.

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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.

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.

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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.

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.

 

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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 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.

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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.

 

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.

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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.