Opinion
File No. CN17-02462 Pet. No. 17-06030
09-26-2017
D--- O------ Petitioner, v. M---- O------ Respondent.
Petitioner, represented by Benjamin S. Gifford, Esq. Respondent, pro se
REVIEW OF COMMISSIONER'S ORDER
Petitioner, represented by Benjamin S. Gifford, Esq.
Respondent, pro se J. Buckworth
INTRODUCTION
This is the Court's decision regarding the Request for Review of Commissioner's Order ("ROCO"), timely filed on September 5, 2017, by Dawn O------ ("Petitioner"), represented by Benjamin S. Gifford, Esq., against M---- O------ ("Respondent"), pro se. The Petitioner's ROCO pertains to an Order of the Court denying Petitioner's Motion to Vacate the Dismissal and Reopen a Protection From Abuse ("PFA") Order dated August 1, 2017. For the reasons set forth below, Petitioner's request is DENIED.
Appeal from and Obj. to Comm'r Order, D.I. 10.
Order, D.I. 9.
PROCEDURAL HISTORY
Petitioner filed her Petition for Order of PFA ("the PFA Petition") on May 30, 2017. A hearing was held before the Commissioner on June 23, 2017. Petitioner explained that Respondent was her stepdaughter, as Petitioner was married to Respondent's biological father until his death on May 29, 2017. The Commissioner interrupted Petitioner's testimony to determine whether the Court had jurisdiction over the matter. The Court believed that, because the parties did not reside in the same household, it did not have jurisdiction over the matter. The Commissioner gave Petitioner's counsel an opportunity to make a record alleviating the Court's concerns, but Petitioner testified that the parties had not lived in the same household for six (6) and a half years. As a result of not living together, the Court dismissed the PFA Petition for lack of jurisdiction.
Pet. for Order of Protection from Abuse, D.I. 1.
Appeal from and Obj. to Comm'r Order at ¶ 2, D.I. 10.
See Transcript of Proceedings at 6.
Id. at 11.
See id.
Id.
Order, D.I. 7.
On June 26, 2017, Petitioner filed a Motion to Vacate Order of Dismissal and Reopen Order of PFA ("the Motion"). Petitioner argued that the dismissal of the PFA Petition constituted plain error and contended that the Court did not suffer from a want of jurisdiction. In support of her argument, Petitioner reasoned that: (1) neither 10 Del. C. § 901(12) nor §1041(2) requires that a step-child be below the majority age for a step-parent to have standing to file a Petition for PFA; (2) there is no requirement under Delaware law for individuals who are related to one another to have ever resided together in order to qualify as a member of a protected class; and (3) the Delaware Supreme Court's decision in Div. of Family. Servs. V. James, which permitted children to file PFA's against parents who have had their parental rights terminated, supported the proposition that a step-parent remains protected after the death of a spouse. On August 1, 2017, the Court denied the Motion and found that the stepparent and stepdaughter relationship was extinguished upon the death of Respondent's biological father. Furthermore, the Court found Petitioner's argument that the reasoning in the James case suggested an affirmative answer as to whether a step-parent remained a member of a protected class against a step-child unpersuasive because James dealt with "a specially carved out provision within the statute that did not extend the step-parent and step-child relationship."
Mot. to Vacate Order of Dismissal and Reopen Order of PFA, D.I. 8.
Id. at ¶ 22.
Pursuant to 10 Del. C. § 1041, "'Domestic Violence' means abuse perpetrated by 1 member against another member of the following protected classes: (a) Family, as that term is defined in § 901(12) of this title. . . ."
Id. at ¶ 12.
Id. at ¶ 13.
128 A.3d 635 (Del. 2015).
See Mot. to Vacate Order of Dismissal and Reopen Order of PFA, D.I. 8 at ¶ 17-19, D.I. 8.
Order, D.I. 9.
Id.
Petitioner timely filed her ROCO on September 5, 2017. Petitioner contends that Delaware law does not support the conclusion that the step-parent and step-child relationship is extinguished upon the death of a natural parent. Specifically, Petitioner argues that the James case supports the proposition that a stepparent still has a relationship with a stepchild sufficient to obtain the protections of a PFA order, despite the death of the natural parent. Petitioner believes that, by dismissing her petition one day after the death of a biological parent, the Court "fails to account for the purpose of the PFA act in preventing domestic violence."
Appeal from and Obj. to Comm'r Order, D.I. 10.
Id. at ¶ 14.
Id. at ¶ 23.
Id. at ¶ 24.
STANDARD OF REVIEW
A party may seek a review of a Commissioner's order pursuant to 10 Del. C. § 915(d)(1), which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by rules of the Court, within 30 days from the date of a Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject or modify in whole or in part the order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
10 Del. C. § 915(d)(1); see also Fam. Ct. Civ. R. 53.1(e), emphasis added.
Pursuant to Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must "set forth with particularity the basis for each objection." Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order. A judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party. Findings of fact by the Commissioner, however, are accepted unless those findings were clearly wrong and justice requires a different result.
Fam. Ct. Civ. R. 53.1(b).
10 Del.C. § 915(d)(1), see also Fam. Ct. Civ. R. 53.1(e).
C. M. v. L. A., 2007 WL 4793042, *1 (Del. Fam. 2007).
10 Del. C. § 915(d)(1); see also Moffett v. Archer, 1998 WL 665582 (Del. Fam. 1998).
DISCUSSION
The threshold issue, which is one of first impression in Delaware, is whether a marriage ended by death severs the stepparent-stepchild relationship for purposes of deciding whether the Court has jurisdiction over Petitioner's PFA.
The stepparent and stepchild relationship is one of affinity, which is a relationship created as the result of a marriage and not by blood or adoption. Though the definition of "Family" under 10 Del. C. § 901(12) includes the stepparent and stepchild relationship, the statute does not address whether an affinity relationship terminates upon the death of the natural parent. Petitioner contends that the stepparent and stepchild relationship is not extinguished by the death of a natural parent and cites to the James case to support this proposition. The Court, however, agrees with the Commissioner's view and finds James to be unpersuasive. In James, the Supreme Court of Delaware was confronted with the question of whether the termination of a father's parental rights deprived his biological children of standing to file a Petition of PFA against him. The Supreme Court analyzed a 2015 amendment added to Section 1041(a), and found that children have standing to file a Petition for PFA against a parent whose parental rights had been terminated. James fails to address the issue in the present matter, as the amendment analyzed is a carve-out specifically for children seeking protection against parents who have had their rights terminated.
"Family" means . . . any group of persons related by blood or marriage who are residing in 1 home under 1 head or where 1 is related to the other by any of the following degrees, both parties being residents of this State . . . r. Stepmother; t. Stepdaughter."
2015 WL 7252581 at *2.
The phrase "or whether parental rights have been terminated" was added as a protected class.
Id. at *2
While considered non-binding authority, courts in the State of New York have addressed this very issue in a similar context. In Rita F. v. Neil F., stepmother filed a petition in the Family Court of New York, alleging that stepson committed acts of harassment against her. Stepmother had been married to stepson's biological father until his death. In response to stepmother's petition, stepson filed a motion to dismiss, on the grounds that the Family Court of New York lacked subject matter jurisdiction. Specifically, stepson argued that the death of biological father ended the relationship between stepmom and him. The Family Court of New York agreed with stepson and transferred the case back to the New York County Criminal Court. In making its decision, the Family Court of New York cited to several cases within the context of child support and insurance coverage supporting the proposition that the affinity relationship terminates upon death. Additionally, the Court is persuaded by authority from California and Texas, which affirm the proposition that affinity is extinguished upon the termination of the marriage that created it, unless live issue are still living.
819 N.Y.S.2d 439 (Fam. Ct. 2006).
Id.
Id.
Id.
Id.
See Id. (citing to Kaiser v. Kaiser, 402 N.Y.S.2d 171 (Fam. Ct. 1978) ("[o]nce the marriage is dissolved, be it by divorce, death, or for any other reason whatsoever, the stepparent relationship ceases."); Randolph v. Nationwide Mutual Fire Ins. Co., 242 A.D.2d 889 ( App. Div. 1997) ("[t]o the extent that the stepchild was a relative by affinity of plaintiff's decedent, that relationship terminated upon the death of the spouse of plaintiff's decedent.").
See Herrera v. Hernandez, 80 Cal. Rpt. 3d 491 (Ct. App. 2008) ("When a marriage has been dissolved, it no long exists, and there can be no affinity. . . ."); See Also Pomerantz v. Rosenberg, 593 S.W.2d 815, 817 (Tex. App. 1980) ("[t]his relationship is also terminated upon the death of a spouse, unless live issue was born of the marriage and are still living.").
Petitioner cites to two Alabama cases, Hays v. Hays and Conner v. Alabama State Bar, to support her position that the relationship between her and Respondent is not extinguished as a result of the death of Respondent's biological father. In Hays, the Alabama Court of Civil Appeals ruled that the death of the natural parent did extinguish such a relationship based on the plain language of an adoption statute which used the phrase "a stepchild by marriage." After conducting a plain-language analysis, the Court of Civil Appeals held that the phrase "a stepchild by marriage" meant that the stepparent and stepchild relationship ended when the marriage ended. In Connor, the Supreme Court of Alabama distinguished the Court of Civil Appeals decision and held that, where a statute does not include the words "by marriage," but merely requires two people be "related," the affinity relationship is not terminated. Petitioner requests that the Court follow Conner, as Delaware law simply requires that two people be "related to the other" by any of the specifically enumerated degrees of relationship. However, the Court is more persuaded by the similarity of Rita F., as well the California and Texas appellate court decisions.
946 So. 2d 867 (Ala. Civ. App. 2006).
59 So. 3d 29 (Ala. 2010).
Id. (analyzing Ala. Code § 26-10A-6(2)(c)).
See 59 So. 3d at 41. --------
The Court is satisfied with the Commissioner's finding, as there is persuasive case law to support the proposition that Petitioner and Respondent's relationship terminated upon the death of Respondent's biological father. Since the Stepmother and Stepdaughter relationship no longer exists, the Court does not have jurisdiction over the PFA Petition. Though she is not a protected class pursuant to 10 Del. C. § 1041(2), Petitioner may still seek protection by pursuing any criminal issues she may have.
WHEREFORE, based on the aforementioned reasons, Petitioner's ROCO is hereby DENIED.
IT IS SO ORDERED.
/s/ _________
Mark D. Buckworth , Judge MDB/mac 9/26/17
cc: Benjamin S. Gifford, Esq.
M---- O
Commissioner