The date of the filing of a petition for modification of a custody order can be important for many reasons.  For example, it sets the burden of proof.  It can also provide parameters for the arguments at trial.  Consider the recently decided case of  Newman v. Newman, No. 119, 2016 (Nov. 29, 2016).

Michael Newman and Sarah Newman are the parents of two children.  After their divorce in 2010 the Newman’s were party to a series of child custody orders. These orders include a stipulation entered on January 26, 2011, a stipulation dated August 7, 2012 (“2012 Order”) and an order dated March 20, 2013 (“2013 Order”), which was entered after a hearing on the merits. The 2013 Order provided that the parties would have joint legal custody and shared residential placement of their children.  A short time later, on August 27, 2014, Mr. Newman filed a petition to modify the 2013 Order.  The Family Court held a hearing on his petition.  Both parties appeared for the hearing and provided testimony. In addition, the Court interviewed the children. In its twenty-six-page opinion dated February 15, 2016 (“2016 Order”), the Family Court denied Mr. Newman’s petition. Mr. Newman appealed the 2016 Order.

AppealIn his appeal Mr. Newman raised two arguments.  First, he appeared to argue that the Family Court erred in its ruling because it did not enforce a provision of the 2012 Order.  The Supreme Court dispatched that argument concluding that “[a]ny issues related to the 2012 custody order are moot … because the 2012 judgment was superseded by the 2013 order and the 2016 order, which is currently before the Court on appeal.”      Id. at *3.

Mr. Newman also argued that with regard to the 2016 Order the Family Court erred when it did not accept his evidence that Ms. Newman had been evicted from several properties, her utilities had been cut off with some frequency, that she was causing the children stress by making false allegations in custody proceedings and that the children’s grades were declining. Id. at *3. This argument was similarly unsuccessful.

The Supreme Court noted that because Mr. Newman’s petition was filed within two years of the entry of the 2013 Order Delaware law provides that the Family 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.” Id. at *3 – 4.  The Supreme Court was mindful that based on the evidence presented at the hearing the Family Court found that,

 

[a]lthough [Ms. Newman] had moved several times in a short period, she had never been homeless or subjected the Children to inappropriate housing arrangements. The court noted that, while both parties cared for the Children, their joint conduct contributed to the Children’s feelings of anxiety and their fluctuating grades. In ordering the parties to maintain joint custody with shared residential placement, the Family Court gave great weight to the Children’s expressed wishes to continue the existing custody arrangement so that they could spend equal time with both of their parents.

Id. at 5.

The Court held that the Family Court’s findings were supported by the record. Further, the Court held that the Family Court properly applied the law to the facts of the case in reaching the conclusion that Mr. Newman did not meet his burden to establish that continued enforcement of the March 2013 Order endangered the children’s physical health or significantly threatened their emotional development.

The decision 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.

 

Background

Family Court SealMr. Davis and Ms. Davis are the parents of two children.  On February 14, 2016, Mr. Davis was personally served with a petition for custody of the children at an address provided by Ms. Davis.  As provided in Family Court Civil Rule 16, the case was then scheduled for mediation.  On February 23, 2016, the Family Court issued a notice to Mr. Davis, which was addressed to him at the same address where he received service of the petition for custody. The notice advised that mediation was scheduled for March 17, 2016 at 10:00 a.m.  A short time later, on March 4, 2016, Mr. Davis filed an answer to the petition for custody. In his answer Mr. Davis listed a different address than the one where he was served with the petition. On March 17, 2016, Ms. Davis appeared for mediation but Mr. Davis did not. As a result, the Family Court entered a default judgment in favor of Ms. Davis. Mr. Davis then filed his appeal appealed. In his appeal Mr. Davis argued that the Family Court erred in issuing a default judgment because he did not receive notice of the scheduled mediation. Davis v. Davis, No. 197, 2016 (Nov. 14, 2016).

Appeal

Supreme CourtIn its review of the record below the Supreme Court noted that it contained the envelope with the mediation notice, which was returned to the Family Court marked “Moved Left No Address, Unable to Forward, Return to Sender.” Id. at *3. The Court also noted that Mr. Davis’s answer listed a different address than the one used on the notice. In its Order reversing and remanding the Family Court’s Order the Supreme Court stated:

‘[D]efault judgments are typically inappropriate when important rights are at stake and there has been a lack of adequate notice to the party.’ The record reflects that the [Mr. Davis] did not receive the mediation notice. Under these circumstances, we conclude that the Family Court abused its discretion in entering a default judgment against [Mr. Davis].

The decision 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.

Appeal-300x300When filing an appeal timing can be everything.  A prior post explored a Delaware Supreme Court decision that held that a motion for clarification does not toll the appeal period. The recent Order issued by the Supreme Court in the case of Scott v. Adams, No. 383, 2016 (Nov. 9, 2016) reminds us that motions for reargument or for a new trial do toll that period.

Background

On June 28, 2016, the Family Court issued its decision on ancillary matters (“Ancillary Order”) in the divorce of Laura Scott and John Adams. A short time later, on July 11, 2016, Mr. Adams filed a motion for reargument. Ms. Scott filed a response to that motion on July 20, 2016. Then, on July 27, 2016, she filed her notice of appeal from the Ancillary Order.

The Clerk of Court issued a notice to Ms. Scott directing her to show cause why her appeal should not be dismissed as interlocutory. Ms. Scott responded and asserted that she had complied with the Court’s procedural rules, which required her to file her notice of appeal within 30 days of the Ancillary Order.

The Order

The Supreme Court dismissed Ms. Scott’s appeal stating:

The timely filing of a motion for reargument or new trial in a civil case tolls the finality of a judgment and also, therefore, the time period for filing an appeal to this Court. The Family Court’s Ancillary Order in this case is interlocutory because its finality was suspended by the Husband’s timely motion for reargument, which has not yet been decided by the Family Court. Absent compliance with Supreme Court Rule 42, this Court has no jurisdiction to hear this interlocutory appeal. The filing fee for any future appeal from the Family Court’s final judgment shall be waived.

The Order 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.

Appeal-300x300In the case of George v. Department of Services for Children, Youth and Their Families (DSCYF/DFS), No. 134, 2016 (Oct. 27, 2016), Ms. George filed an appeal challenging the Family Court’s decision to terminate her parental rights in her twins, M.G. and M.G.  Although appeals are not unusual in cases of termination of parental rights (“TPR”), Ms. George’s appeal presented an interesting argument.

The background and history of the case is set forth in greater detail in the Opinion and are only briefly reviewed in this post. While Ms. George’s case was pending her great aunt filed a petition for guardianship (“Guardianship Petition”) of the twins.    On November 6, 2015, the Family Court conducted a hearing on the TPR.  The Family Court stated at the hearing that it was not deciding the Guardianship Petition filed by Ms. George’s great aunt concurrently with the TPR.  When the Family Court issued its decision after the hearing, the Court granted the TPR, denied the Guardianship Petition, and described the November 6th hearing as a “consolidated hearing.”  Ms. George contended on appeal that this violated her constitutional right to due process.  “She [alleged] that the court’s statement that it was ‘not deciding’ the Guardianship Petition prevented her from presenting, or caused her to limit the presentation of, certain evidence in favor of the Guardianship Petition in an attempt to defeat the TPR.” Id. at *3.

The Supreme Court was not moved by this argument.  In rejecting Ms. George’s assertion, the Court stated:

Here, the procedures used by the Family Court during the Hearing adequately protected George from the risk of erroneous deprivation of her parental rights.  Although the Family Court stated it was “not deciding on guardianship” at the Hearing, it did not limit the parties’ ability to introduce relevant evidence.  Had George’s counsel established the relevance of guardianship-related evidence, it does not appear on this record that the Family Court would have rejected it. We have considered the argument that the Family Court deprived George of a fair opportunity to oppose termination of her parental rights by its approach to handling the guardianship application in this case. However, we do not find favor with that argument because George had every incentive and opportunity to present her arguments against the termination of her parental rights at the hearing on the TPR motion. We note, for example, that during the TPR hearing, DFS called Great Aunt to testify. DFS was required to demonstrate that there were no willing and appropriate relatives with whom to place the Twins. It was also required to demonstrate that the TPR and adoption was the permanency goal that was in the Twins’ best interests.  Mother was given a full and fair opportunity to cross-examine and present evidence in opposition ….  Because the procedure at the Hearing did not pose an undue risk of erroneous deprivation of George’s parental rights, her due process rights were not violated.

The decision 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.

 

Appeal-300x300The case of Tanner v. Allen recently made its second appearance in the Delaware Supreme Court. The first appeal resulted in a decision in which the Supreme Court upheld the Family Court order finding Mr. Tanner in contempt of that Court’s property division order. Following that appeal, on February 22, 2016, Ms. Allen filed a motion seeking reimbursement of a portion of the attorney’s fees incurred to enforce the property division orders. After considering 13 Del. C. § 1515 and Family Court Civil Rule 88 the Court granted the motion, finding that fees were appropriate because Mr. Tanner “exhibited excessively litigious behavior and dilatory conduct by refusing to comply with [the] Court’s Orders.” Tanner v. Allen, Del. Supr. 162, 2016, *3 (Oct. 21, 2016). Mr. Tanner then filed his second appeal.

In the appeal Mr. Tanner argued, inter alia, that the Family Court could not award Ms. Allen attorney’s fees because she is the higher-earning party. In an interesting footnote, the Supreme Court puts this argument to rest stating:

Tanner does not point to any authority suggesting that a disparity in income between parties precludes the Family Court from awarding fees to the higher-earning party if equitable considerations support such an award. In his Reply Brief, Tanner cites Smith v. Francisco for the proposition that, in order for the Family Court to award fees pursuant to Section 1515 [of Title 13], “there must be current evidence that the party from whom the fees are sought is in a position of financial superiority.” Reply Br. 1 (citing Francisco, 2001 WL 578571). Francisco did not construe Section 1515 and does not otherwise support Tanner’s assertion. In Francisco, this Court ordered the Family Court to explain why it awarded fees after a custody dispute pursuant to 13 Del. C. § 731. Francisco, 2001 WL 578571 at *1. The Family Court explained that one party, Smith, had been “litigious” and that “neither party [was] in a position of financial superiority over the other[.]” Id. This Court observed that the Family Court ignored the “potentially significant equitable factor[]” that “Francisco may be in a better financial position than Smith.” Id. at *2. This Court further noted that “the Family Court did not obtain any current information before concluding that neither party was in a position of financial superiority.” Id. Because this and other factors were ignored by the Family Court, this Court concluded that “the award was supported only by the fact that Smith was the losing party.” Id. Francisco does not set forth a rule that the Family Court can never award attorney’s fees to a party with greater income. Instead, this Court’s comments appear limited to the context of assessing the Family Court’s analysis in that case. Additionally, in contrast to the Family Court in Francisco’s general statement that Smith was “litigious[,]” the Family Court in this case specifically explained that its fee award was based on Tanner’s “excessively litigious behavior and dilatory conduct by refusing to comply with [the] [c]ourt’s Orders.” Order at 1.

The decision 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.

 

A prior post on this blog explored the use of social media to in custody cases.  As the  recent post by Mark Ashton, a Partner in our Exton office, points out social media to can have an even greater significance in the context of a protection from abuse order.  His post, entitled “Posts on Social Media, Go to Jail – How a Facebook Post Violated a Court Order” discusses a recent Pennsylvania action in which a contempt order issued for violation of a protective order because the respondent posted a series of Facebook comments about the petitioner.  Interestingly, the protective order specifically prohibited the respondent from posting anything about the petitioner on social media.  Although I have not seen a similar restriction in a Delaware protective order, it is something to be aware of.  Petitioners here may begin to request this type of protection in the future.

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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 many people facing the possibility of paying alimony after separation and/or divorce, the thought that their ex may cohabit makes them positively giddy. There is an expectation that cohabitation will prevent any future obligation to pay alimony. This expectation may be based on the language of Section 1512(g) of Title 13, which provides:

Unless the parties agree otherwise in writing, the obligation to pay future alimony is terminated upon the death of either party or the remarriage or cohabitation of the party receiving alimony. As used in this section, “cohabitation” means regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation. A party receiving alimony shall promptly notify the other party of his or her remarriage or cohabitation.

The view is, however, overly optimistic.  Cohabitation is not an absolute bar to alimony in every instance. The timing of the cohabitation is key. As the Family Court note in the case of C.G.B. v. R.S.B. (which recently became available online),

‘1512(g) is a termination statute, not an eligibility statute for alimony under Delaware Law.’  Delaware Courts have held that where a party has cohabitated, but the cohabitation ends prior to the time the party becomes an ‘alimony recipient,’ § 1512(g) does not preclude an award of alimony.

The decision may be read 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.

 

The Family Court of the State of Delaware recently announced that it will make opinions available on the Delaware Judiciary website.  The September 15th announcement of this significant policy change states:

As of today, written decisions from the Family Court of the State of Delaware will be available on the Delaware Judiciary’s website. The first opinion was published today and can be found on the opinions page at http://courts.delaware.gov/opinions/.  The publishing of decisions on the Delaware Judiciary’s website will bring greater awareness and understanding of the Family Court and family law to the public and the litigants that come before the court. Not every Family Court opinion will be published online, but the discretion will be left to the judge or commissioner to determine if the decision involves a novel point of law or is of interest or importance to the public.

For Family Court decisions, the names of the parties and other confidential information will be redacted and initials or pseudonyms will be used following the practice established by the Delaware Supreme Court when publishing Supreme Court opinions related to Family Court. The names of the parties and other confidential information are redacted to protect the privacy of the parties as required by Delaware law.

“We believe this process appropriately balances the need for transparency with the need to maintain the privacy of parties in Family Court, as mandated by state law,” said Family Court Chief Judge Michael K. Newell.

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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.

 

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.