Opinion
File No. CN17-02133 CPI No(s) 17-16487
08-14-2018
K---- H------- -- ---------- -- ----- -- ----- Petitioner v. M------ F---- --- ------- --- ----- ----------- -- ----- Respondent
Petitioner Attorney Self-represented Respondent Attorney Staci Pesin, Esquire
Nature of Proceeding
Motion to Reopen Divorce and Set Aside Separation Agreement Petitioner Attorney
Self-represented Respondent Attorney
Staci Pesin, Esquire ORDER - MOTITION TO REOPEN DIVORCE AND SET ASIDE SEPARATION AGREEMENT
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Motion to Reopen Divorce and Set Aside Separation Agreement filed on November 9, 2017, by M------ F----, (herein "Husband"), represented by Staci Pesin, Esquire, against K---- F------- (herein "Wife"), self-represented. The Court held a hearing on May 31, 2018. The Court heard testimony from both parties, as well as C------ H------- (Wife's father) and D----- B------- (Wife's friend).
PROCEDURAL HISTORY
On June 1, 2017, Wife filed a Petition for Divorce. The parties were divorced on July 5, 2017, and their Separation Agreement was incorporated into their Divorce Decree. On November 9, 2017, Husband filed the instant Motion. A Commissioner denied the Motion on November 27, 2017. Husband then filed a Request for Review of a Commissioner's Order (herein "ROCO") on December 22, 2017. This Judge entered an Order reversing the Commissioner's Order. The Court held a hearing on May 31, 2018.
FACTUAL FINDINGS
The parties were married for twenty-three (23) years. In January, 2017, Husband began suffering from depression. Husband saw his primary care physician in January, 2017, and was prescribed medication for the depression. Wife admits he was clinically depressed at that time. In March, 2017, Husband stopped taking his medication. Shortly thereafter, he disappeared for an entire weekend and Wife did not know where Husband was. Wife admitted she was concerned about Husband's whereabouts because he was still depressed at the time. The following month in April, 2017, Wife began to notice that Husband was not eating regularly and suspected that Husband was using drugs. Husband went missing for eleven (11) days in April, 2017. When he came home, he was in the same clothes he was wearing when he left. He would not tell Wife where he had been.
Wife filed a Petition for an Order of Protection from Abuse (herein "PFA") against Husband on April 25, 2017. A Consent PFA Order was entered in May, 2017, protecting Wife from Husband. Husband testified that after the PFA Order was entered, he began to feel "hopelessness" as he was living in cheap motels and out of his truck and had begun using crack cocaine.
The Separation Agreement was signed by the parties on May 30, 2017. Husband was still living in his truck at this time and was in and out of motels. Husband recalls going to Wife's prior counsel's office to review the agreement. When he reviewed the document, Wife sat next to him and went over the document with him. According to Husband, he was under the influence of cocaine at the time he signed the agreement. However, Wife does not believe that Husband was under the influence at the time he signed the agreement.
In the beginning of July, 2017, Wife's father (C------ H-------) and Wife's sister came to learn that Husband was living in a motel, was not eating regularly, and was dressed in "well-worn clothing". Mr. H------- took Husband out to dinner and let him stay in his home. After Husband revealed to him that he was using drugs, Mr. H------- checked Husband into a drug rehabilitation facility. Husband was only there one (1) day when the doctor informed Mr. H------- that Husband was "very depressed" and recommended Husband move to a facility in Dover. Husband spent the next five (5) weeks in Psychotherapeutic Services in Dover, Delaware, getting help for depression. With the exception of the five (5) weeks Husband was in patient at Psychotherapeutic Services in and around July, 2017, Husband maintained full time employment as an automobile detailer where he operated machinery and mixed paint on a daily basis.
LEGAL STANDARD
The instant Motion is governed by Family Court Civil Rule 60(b) which in pertinent part provides:
On motion and upon such terms as are just, the Court may relieve a party or legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Fam. Ct. Civ. R. 60(b) "tends to be liberally construed when the judgment or decision at issue was entered by default; however, when the judgment resulted from a decision on the merits or a consent decree, as in this case, the courts take 'a more restrained approach'." As this case involves a Separation Agreement, the Court begins "with a strong presumption that the agreement is valid as this is consistent with the rationale that settlements are encouraged."
J.H.W. v. K.M.W., 2006 WL 4552887, at *3 (Del. Fam. Ct. Nov. 29, 2006) citing M. (C.) D. v. F. C., Del. Fam. Ct., 2003 Del. Fam. Ct. LEXIS 122 (Jul. 7, 2003).
Id.
If the Court determines that one of the above enumerated grounds has been met, the Court must also consider three (3) additional factors: "(1) whether the party has established that there has been no unreasonable delay filing the motion; (2) whether the party has shown that the outcome of the case would be different if the requested relief is granted; and (3) whether the moving party has shown that the opposing party would not suffer substantial prejudice if the motion is granted."
L.H.M. v. E.M., 2016 WL 8943945, at *4 (Del. Fam. Ct. Nov. 15, 2016).
DISCUSSION
In November, 2017, Husband filed the instant Motion pursuant to Fam. Ct. Civ. R. 60(b). In the Motion as well as in testimony, Husband asserts that his Motion should be granted pursuant to Fam. Ct. Civ. R. 60(b)(1) and/or (6) and that the Court should reopen ancillary jurisdiction for the purposes of dividing the parties' property and determining alimony.
A. Fam . Ct. Civ. R. 60(b)(1): Mistake , inadvertence , surprise , or excusable neglect; and
The Motion pending before the Court is in regards to a Separation Agreement. The Separation Agreement was signed by the parties in May, 2017. The Family Court has held that "[w]hen consent judgments are at issue, mistake must mean mutual mistake before a party may avoid a judgment." To prove that a mutual mistake has occurred, "the plaintiff must show by clear and convincing evidence that (1) both parties were mistaken as to a basic assumption, (2) the mistake materially affects the agreed-upon exchange of performances, and (3) the party adversely affected did not assume the risk of the mistake."
J.H.W., 2006 WL 4552887, at *3.
Hicks v. Sparks, 89 A.3d 476 (Del. 2014); See Cerberus Int'l v. Apollo Mgmt., 794 A.2d 1141, 1151-52 (Del.2002); Am. Bottling Co. v. Crescent/Mach I Partners, L.P., 2009 WL 3290729, at *2 (Del. Super. Ct. Sept.30, 2009); Restatement (Second) of Contracts § 152 (1981).
According to the Delaware Supreme Court, "'[E]xcusable neglect' exists if the moving party has valid reasons for the neglect-reasons showing that the neglect may have been the act of a reasonably prudent person under the circumstances." The Delaware Supreme Court has also held that "[t]o constitute excusable neglect, the conduct of the moving party must have been that of a reasonably prudent person." In support of his Motion, Husband asserts that due to his mental health and his drug addiction, he could not "understand the consequences" of the Separation Agreement and, therefore, it should be set aside and the issue of property division should be reopened.
DiSabatino v. DiSabatino, 2007 WL 812766 at *3 (Del.2007).
Klein v. Littmann, 45 A.3d 148 (Del. 2012).
Husband's Motion, 5.
The Delaware Supreme Court considered a similar argument in Power-Booth v. Power-Booth, 962 A.2d 257 (Del. 2008). In Power-Booth, Husband filed a Motion to Reopen and asserted that "at the time of the divorce proceedings he was mentally ill and, therefore, incompetent to represent himself." The Motion was denied. Husband then filed a second Motion to Reopen arguing, "he was mentally ill during the divorce proceedings, continued to be mentally ill, and that his Wife knew of this mental illness yet failed to inform the court of Husband's incompetence." His second Motion was also denied. Husband appealed.
Power-Booth v. Power-Booth, 962 A.2d 257 (Del. 2008) citing DiSabatino, 2007 WL 812766 at *3 (Del.2007).
Power-Booth, 962 A.2d 257 (Del. 2008)
On appeal, the Delaware Supreme Court found that "Husband essentially reiterates his argument that at the time of the divorce proceedings he was suffering from major depression, was legally incompetent, and that his failure to litigate properly the ancillary proceedings constitutes 'excusable neglect.'" The Court stated that excusable neglect "exists if the moving party has valid reasons for the neglect-reasons showing that the neglect may have been the act of a reasonably prudent person under the circumstances." The Court determined that "[t]he critical issue in this case is evidentiary: was there a sufficient basis in the record for the Family Court to conclude that Husband's mental illness was not severe enough for his failure to prosecute the ancillary proceedings to constitute excusable neglect?"
Id.
Id.
Id.
When the Delaware Supreme Court analyzed the evidence Husband submitted to support his claim, it found that there were "sufficient problems with Husband's proffered evidence that the Family Court could logically and reasonably conclude that Husband's mental illness was not so severe as to render him incapable of understanding the nature of his divorce proceedings and his procedural obligations therein." Husband produced evidence of his Notice of Separation from the Navy which provided that "Husband was discharged because of a disabling medical condition, as personnel on sea duty must not have taken psychotropic medication for three consecutive years." Husband did not supply documentation of what medication he was prescribed or why he was prescribed such medication. Husband also supplied a letter from "a Dr. Glick at Brandywine Counseling, stating that during the period of Husband's divorce he was being treated for major depression." But, the letter "does not indicate Dr. Glick's basis for diagnosing Husband as depressed or for the course of treatment prescribed." Finally, Husband's doctor testified that he "... diagnosed Husband as moderately to severely depressed and 'unable to deal with the least amount of stress.'"
Id.
Id.
Id.
Id.
Id.
The Delaware Supreme Court held that "[a]lthough Husband claims that his mental illness was severe enough to make him incompetent at the time of his divorce, he is unable to reconcile that claim with his ability to work for pay and enter into an agreement with his former spouse to transfer their automobile to him." The Court held that "[a]lthough it is unclear what level of mental illness is sufficient to support a finding of excusable neglect for Rule 60(b) purposes, the level of dysfunction must involve more than an inability to comply with complex court rules." The Court found that "[i]n that regard Husband's incapacity is no different from that of most litigants. Indeed, most fully competent parties are able to comprehend only the general nature of their legal proceedings, but are unable-or able only with great difficulty-to comply with court rules when appearing pro se." The Court held that "it was proper for the Family Court to conclude that Husband was not so mentally ill as to be entitled to relief on grounds of excusable neglect."
Id.
Id.
Id.
Id.
In the case before the Court, the facts are very similar to the facts in Power-Booth. The parties agree that Husband was treated for depression in January, 2017, and Wife conceded that Husband was "clinically depressed". Approximately two (2) months after Husband began treating his depression, he stopped taking his medication. Shortly after he stopped taking his medication, Husband began to disappear. Husband first disappeared for an entire weekend in March and then disappeared again for eleven (11) days in April, 2017. According to Husband, he began to use crack cocaine in May, 2017, after a Consent PFA Order was entered protecting Wife from Husband. Husband then began living out of his truck and in cheap motels. The Separation Agreement was signed in May, 2017. Husband did not seek legal advice before signing the agreement. Husband contended that he was still using drugs and depressed when he signed the Agreement. Husband thereafter received in-patient treatment for depression. Husband now claims that he was not competent to sign the agreement and that the agreement was not "fair" and he did not understand the "alimony obligation".
It is clear that Husband was suffering from depression prior to signing the Agreement and was no longer taking his medication at the time he signed the Agreement. However, Husband was able to go to work on a daily basis and complete his job. Although Husband claims that he did not understand the terms of the Agreement, he failed to establish that his depression was so severe at the time he signed the Agreement that he could not understand what he was signing. Many people who suffer from depression are still able to function in society. Although he may have been homeless, Husband was still functioning. He was going to work every day and performing his job duties on a regular basis. The Court cannot find that it was proven that Husband's mental status was so severe that he is entitled to relief based upon the ground of excusable neglect.
B. Any other reason justifying relief from the operation of the judgment .
In the alternative, if the Court does not find that Husband is entitled to relief on the grounds of excusable neglect, Husband argues that the facts regarding his mental state also constitute extraordinary circumstances that justify the Court granting his Motion. To satisfy this ground, "the movant must establish that extraordinary circumstances exist." The relevant facts in Power-Booth are set forth above. The Delaware Supreme Court held that the facts as presented in Power-Booth "do not provide a sufficient basis to conclude that the circumstances here were so extraordinary as to justify the exceptional remedy of reopening a final judgment." As discussed above, the facts are similar to this case.
R.A. v. C.A.H., 2010 WL 2696094, at *3 (Del. Fam. Ct. May 3, 2010), aff'd sub nom. Adams-Hall v. Adams, 3 A.3d 1096 (Del. 2010).
Power-Booth, 962 A.2d 257 (Del. 2008).
Husband also asserts that this ground is met because "he did not have the benefit of legal counsel because he was pro se when he signed the Separation Agreement". The Court cannot find that just because Husband was not represented at the time he signed the agreement that he has proven extraordinary circumstances that justify setting aside the Agreement. Many people represent themselves in legal matters for a variety of reasons.
Husband's Motion, 6.
Husband also argues that because the Agreement was signed while the parties were still married, Wife owed Husband a "fiduciary duty". Husband alleged that "Wife abused her fiduciary position as Husband's spouse by having him sign a one-sided and oppressive Agreement in his state at that time." Husband asserted that Wife always handled the finances during their marriage and that Wife was aware that Husband had been suffering from depression. Husband's argument does not persuade the Court that Wife "abused" any duty owed to Husband. Simply because one party handled the finances during the marriage and the other party may have been depressed does not mean that Wife abused her fiduciary duty to Husband. Husband's argument is without merit.
Id.
Id.
Furthermore, Husband alleged that he did not understand the agreement and specifically did not understand his alimony obligation. He also argued that it was not "fair" that the agreement provided that he could not deduct the alimony for tax purposes as is customary.
Before signing the Agreement, Husband could have sought the advice of an attorney to explain to him what was in the agreement if he did not understand the terms. Husband signed the Agreement at Wife's former counsel's office. He could have asked Wife's former counsel for clarification on the terms. Husband had the opportunity to act in a way that would have helped him understand the Agreement, but he failed to do so. This Court has held that just "[b]ecause a person merely makes a bad deal and/or the Court would otherwise decide the case differently does not render a basis for the Court to set aside the Agreement." As such, the Court does not find that simply because Husband now believes that the agreement was not fair is a sufficient reason to set it aside.
S.D. v. G.D., 2009 WL 2424189, at *6 (Del. Fam. Ct. Apr. 8, 2009). --------
All of Husband's arguments with respect to extraordinary circumstances are without merit.
CONCLUSION
As Husband has failed to articulate grounds that would justify reopening the divorce according to Fam. Ct. Civ. R 60(b), the Court must deny his Motion.
WHEREFORE, the Motion to Reopen Divorce and Set Aside Separation Agreement is hereby DENIED.
IT IS SO ORDERED this 14th day of Aug , 2018.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File