Appeal-300x300The Sex Offenders Act is found in Chapter 7A of Title 13 of the Delaware Code.  Section 724A of the Sex Offenders Act imposes a rebuttable presumption “that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child.”  In the case of Division of Family Services v. Mark O’Bryan, No. 175, 2016 (May 31, 2017) the Division of Family Services (“DFS”) presented a single issue to the Delaware Supreme Court – whether the Sex Offenders Act and its rebuttable presumption operate outside of Family Court custody proceedings.  (In the interest of full disclosure, I should note that I was involved in this appeal. George R. Tsakataras, Esquire, Achille C. Scache, Esquire and I were appointed to serve as amicus curiae to file a supplemental answering brief in opposition to DFS.)

The facts as described by the Delaware Supreme Court are as follows:

“The facts of this case are essentially undisputed. Mark O’Bryan lives in Delaware with his wife, their daughter, and his wife’s two daughters. They lived together as a family for over eight years. O’Bryan is the sole financial provider for the family. On January 13, 2016, O’Bryan’s wife hit and scratched him during an argument. O’Bryan called the police to de-escalate the situation. The police ended up filing criminal charges only against O’Bryan’s wife. Although not involved in the altercation, one of O’Bryan’s stepdaughters (then age 17) and his biological daughter (then age 2) were present during the incident. Because the children were witnesses to the fight, DFS conducted a follow up investigation. DFS learned as part of its investigation that O’Bryan was a Tier II sex offender because of his 2002 guilty plea to rape fourth degree. DFS went to the family home on February 3, 2016, and told O’Bryan that, based on his status as a Tier II sex offender, and children living in the home, O’Bryan had to leave. O’Bryan left the family home that night. The next day, O’Bryan filed a petition in the Family Court to return home. The Family Court granted the petition on an ex parte basis pending a hearing scheduled for February 9, 2016. At the February 9 hearing, DFS argued that the Sex Offenders Act prohibited O’Bryan from primarily residing with any child unless he rebutted the statutory presumption. O’Bryan, his wife, and a DFS representative testified at the hearing. His wife testified that she wanted her husband to return home, and that she had no concern about him being around her or her children.  O’Bryan admitted that if the Act applied, he was unable to rebut the presumption because he did not complete his sex offender therapy. The Family Court judge asked the DFS witness whether there were concerns about the children’s safety. The DFS witness testified that DFS had ‘no proof of anything’ and had ‘no reason to believe that anything specifically ha[d] happened to these kids other than there had been domestic violence in their presence.’ O’Bryan also was not under any restrictions as a Tier II sex offender, such as restrictions limiting his contact with children.  Id. at 1 – 3.

The Family Court granted O’Bryan’s petition to return home stating,

“13 Del. C. § 724A does not on its face provide for the removal of a parent from the home of an intact family, nor can the Court conclude that the legislature intended for the statute to apply in such a manner. Section 724A merely creates a presumption that a sex offender parent will not be awarded custody, primary residency[,] or unsupervised visitation by the Court, without first rebutting the presumption. The Court is not awarding any type of custody or residency in instances where there is no dispute between parents or between a parent and DFS. In instances where there is no ongoing custody issue, the registered party is not required to rebut the presumption and there actually is no forum in which to apply the presumption ”  Id.

The Delaware Supreme Court affirmed the Family Court’s decision and agreed that the statute does not provide a basis for DFS to remove a parent from an intact home. The Court concluded “that the General Assembly intended that the Act and its rebuttable presumption to operate only when the Family Court determines custody, residency, and visitation as part of a Family Court custody proceeding.” The Court explained that “DFS does have broad authority to bring custody proceedings under another chapter of Title 13 if it believes a child or children must be protected. That statute— Chapter 25 of Title 13—encompasses situations where DFS believes a child is in danger of being sexually violated. But, in those proceedings, DFS has the burden of persuasion, and the presumption in § 724A does not apply. DFS has not brought an action under Chapter 25, even though the sex offender status of a parent or guardian may be relevant in a petition for custody under that Chapter.” Id. at 10 – 11.

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.

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.

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.

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.

 

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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.

ballotPetitioner, La Mar Gunn, requested a writ of certiorari issue from the Delaware Supreme Court to the Superior Court of Kent County to review the results of the Kent County Recorder of Deeds election.  Matter of La Mar Gunn, No. 268, 2015 (Aug. 27, 2015).  The Supreme Court decision, authored by Justice Randy J. Holland, succinctly sets forth the underlying facts as follows:

The relevant facts are set forth in the Petition. There was a general election where Petitioner was declared the winner by two votes on November 4, 2014.  The Board of Canvass convened on November 6, 2014.  The Board of Canvass conducted three recounts on November 6, 2014.  After the first recount, the Petitioner’s lead increased from two votes to three votes.  After the second recount, the Petitioner’s lead increased from three to seven votes.  After the third recount, Petitioner’s opponent had a two vote lead.  The Board of Canvass certified the third recount.  According to the Petition, a tabulation of the votes on the record shows that the third recount does not account for two votes.  Id. at 2.

The Petition for Writ of Certiorari was the filed nearly seven months later on June 3, 2015.  Id. at 3.

As prior decisions have shown, timing can mean everything.  The Supreme Court noted that a petition for a writ of certiorari “must be filed within the time [thirty days] set for direct appeals.”  Id.  A writ filed after that deadline is accepted only in the case of exceptional circumstances.  The Supreme Court sitting en banc concluded that exceptional circumstances did not exist in this case and dismissed the Petition.

The decision in the Matter of La Mar Gunn, may be viewed 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.

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.