Delaware Supreme Court

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.

AppealThe appeal in the case of Jones v. Jones focuses on alimony and the question of whether certain expenses are reasonable. In this particular case, the conduct of the alimony obligor was a significant consideration.

Mr. Jones (“Husband”) was dissatisfied with the Family Court Order awarding his former wife, Ms. Jones (“Wife”), alimony. Seeking relief, he filed an appeal. The Supreme Court rejected most of his arguments but explored one related to medical expenses. Specifically, the Court remand the case back to the Family Court so that the Family Court could explain how it concluded that Wife’s out of pocket medical expenses of $300 per month and her monthly health insurance expense of $715 were reasonable.

On remand, the Family Court conducted a hearing to expand the record. At that hearing, Wife testified that the cost of COBRA insurance through Husband’s employer was $715 per month. Wife also testified that due to Husband’s failure to pay alimony as ordered she was unable to pay for the COBRA insurance. As a result, Wife was receiving medical benefits through Medicaid. She also testified to out of pocket medical expenses of $143.57 per month. Husband did not dispute that he failed to pay alimony. Based on this record, the Family Court held that Husband should not be able to benefit from his refusal to pay alimony and found the $715 monthly expense for medical insurance to be a reasonable expense even though Wife was receiving benefits through Medicaid. The Court also found $143.57 per month for out of pocket medical expenses to be reasonable.

The Supreme Court agreed with the Family Court’s conclusion that Husband should not benefit from his refusal to pay alimony.  The Court affirmed the finding that Wife’s medical expense of $715 per month and her out of pocket medical expenses of $143.57 per month are reasonable.

The Supreme Court 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 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.

 

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.