Opinion
File No. CK08-02959 Petition No. 08-35029
11-20-2018
M--- H--------, Petitioner, v. J------- H--------, Respondent.
JAMES G. MCGIFFIN, JR. JUDGE
ORDER Amended Motion to Reopen Divorce Agreement
Before the HONORABLE JAMES G. MCGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
The Court has before it an Amended Motion to Reopen Divorce Agreement filed by M--- H-------- (Husband) against J------- H-------- (Wife) on August 21, 2018. Husband is represented by Judy Jones, Esquire. Wife is pro se. For the reasons stated below, Husband's Amended Motion to Reopen Divorce Agreement is DENIED.
PROCEDURAL HISTORY
Husband filed a Motion to Reopen Divorce Agreement on August 8, 2018. Wife filed an Answer to Husband's Motion on August 20, 2018. Husband filed an Amended Motion to Reopen Divorce Agreement (Amended Motion) on August 21, 2018. Wife filed an Answer to Husband's Amended Motion on September 4, 2018.
The only amendment made to Husband's Motion was a change to Ms. Jones's address in the signature box.
The matter was initially assigned to the Honorable Judge Vari, but Judge Vari recused herself and the matter was reassigned to the Honorable Judge McGiffin.
BACKGROUND
Husband and Wife were divorced by decree of this Court on October 6, 2009. Husband and Wife entered a Stipulation and Consent Order (Consent Order) dividing the marital assets on January 13, 2012. Paragraph 5 of the Consent Order addresses the division of Husband's Russell Investments-United Airlines Pilot Directed Account Plan (UA Account). At the time of entry of the Consent Order, Husband was no longer employed with United Airlines. The Consent Order provided the value of the UA Account as $62,765.34 as of September 30, 2009. The Consent Order states that the UA Account "shall be distributed equally between the parties on a 50/50 basis. Value of the [UA Account] shall be determined as of the date of distribution." Regarding who is responsible for distribution of the UA Account, the Consent Order provides: "[t]he parties shall each cooperate with the other to the extent necessary to effect a distribution of said account including the execution of any Qualified Domestic Relations Order or other document." At the time of entry of the Consent Order, Wife was represented by counsel and Husband was pro se.
The Parties entered a Stipulated Qualified Domestic Relations Order for the United Airlines Pilots Directed Account Plan (QDRO) on August 23, 2017. Section 3 of the QDRO provides that "the alternate payee [Wife] shall receive an amount equal to 50% of the plan balance as of date of distribution." The date of distribution of the UA Account was September 5, 2017. Husband and Wife were each represented by counsel at the time of entry of the QDRO.
At some time between entry of the Consent Order and entry of the QDRO, Husband was re-employed by United Airlines and began contributing to the UA Account again. The amount in the UA Account at the date of distribution was substantially larger than $62,765.34, the value of the UA Account as of September 2009. On September 5, 2017, Wife received a distribution of approximately $156,746.50. Husband alleges that had distribution occurred earlier, Wife would have received $66,350.39, a difference of approximately $90,400.00 from what Wife actually received. Husband's only explanation for how he reached the amount of $66,350.39 is that it is based "upon information and belief." Husband does not provide the Court any further explanation as to how he made this calculation.
Husband does not provide the Court with a specific time frame as to when the distribution should have occurred.
Husband alleges that he attempted to resolve the matter with Wife. Husband claims that he reached out to Wife "upon learning of the excess distribution to Wife." According to Husband, "Wife initially indicated to Husband she would discuss the matter, but over several months of communication to Wife (including through counsel), Wife failed to discuss and/or to resolve the matter with Husband." Wife acknowledges that Husband reached out to her. Neither party provides the Court with further description of the substance of the communications.
Husband is requesting this Court reopen the Consent Order so as to change the amount Wife receives from distribution of the UA Account. Husband alleges that he is entitled to relief under Family Court Civil Rule 60(b)(1) and (6). Husband argues "it was a mistake and/or inadvertence that the property division language would ultimately cause a distribution to Wife of moneys that were contributed to Husband's [UA Account] post-divorce." Husband contends that there was "an excessive time between the finalization of the divorce and Wife's completion of the QDRO." Husband also claims that it is "grossly inequitable" that Wife received "a substantial windfall of funds . . . in an amount of over $90,000 . . ." Based on his arguments, Husband argues the Court should grant him the relief he is requesting.
Specifically, Husband requests four forms of relief from the Court: (1) the Court reopen the Stipulation and Consent Order and property division matters to exclude from distribution any post-divorce contribution Ex-Husband made to his UA Account; (2) the Court enter an order requiring Ex-Wife to repay and/or reimburse Husband the excess funds she received from the UA Account and interest at the legal rate; (3) the Court enter an order requiring Ex-Wife to pay Ex-Husband's attorney fees and costs related to this Motion; and (4)the Court grant any other relief the Court deems just and proper.
ANALYSIS
I. Husband's Amended Motion is DENIED under Family Court Rules of Civil Procedure Rule 12(b)(6) because Husband fails to state a claim upon which this Court can grant him relief.
Upon a reading of Husband's pleadings and after drawing all reasonable inferences from the facts alleged by Husband, the Court finds that Husband fails to state a claim upon which the Court can grant him relief. Although Husband does state the grounds upon which he seeks relief in his Amended Motion, Husband fails to provide the Court with facts upon which it can make a determination under Family Court Rules of Civil Procedure Rule 60(b). Even drawing all reasonable inferences from the few facts Husband alleges, Husband has failed to show he is entitled to relief under Rule 60(b). Therefore, Husband's Motion to Reopen Divorce Agreement is DENIED.
Family Court Rules of Civil Procedure Rule 8(a) requires that "a pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief." Family Court Rules of Civil Procedure Rule 12(b)(6) enables the Court to deny a motion when the petitioner "fail[s] to state a claim upon which relief can be granted."
Del. Fam. Ct. Civ. R. 8(a).
Del. Fam. Ct. Civ. R. 12(b)(6).
To dismiss a motion under Rule 12(b)(6), the Court must follow several steps in its analysis of the motion. Although the Court's dismissal under Rule 12(b)(6) is raised sua sponte, the Court must follow the same analysis of Husband's Amended Motion as it would had Wife moved the Court for dismissal under Rule 12(b)(6). First, the Court is required to accept "all well-pleaded allegations of fact as true." When the Court analyzes a motion, "[t]he complaint ordinarily defines the universe of facts from which the trial court may draw in ruling." The facts alleged in the pleadings are the facts "from which the Court is to determine, upon a motion to dismiss under Rule 12(b)(6), whether there is a 'reasonably conceivable' basis for recovery." "[C]onsidering facts not before the court . . . on a motion to dismiss is inappropriate." Thus, the Court is limited to relying on only the facts Husband alleges in his pleadings when performing a Rule 12(b)(6) analysis.
J.D. v. A.D., 2013 WL 8290631, at *1 (Del. Fam. Ct. Feb. 4, 2013) (citations and internal quotations omitted).
Malpiede v. Townson, 780 A.2d 1075, 1082 (Del. 2001).
In re Gardner Denver, Inc., 2014 WL 715705, at *2 (Del. Ch. 2014).
Gantler v. Stephens, 965 A.2d 695, 712 (Del. 2009).
Second, the Court must determine whether the petitioner could recover under any possible interpretation of the facts presented in the petitioner's pleadings. The Court may only dismiss a motion under Rule 12(b)(6) when "it appears with a reasonable certainty that a plaintiff would not be entitled to the relief sought under any set of facts which could be proven to support the action." The Court is required to "accept[] the non-conclusory allegations of the complaint as true and draw[] all reasonable inferences in the [petitioner's] favor." Additionally, "the [petitioner] is entitled to all reasonable inferences that logically flow from the face of the complaint." While the Court must take this approach in a Rule 12(b)(6) analysis, "the trial court is not required to accept every strained interpretation of the allegations proposed by the plaintiff." The Court follows this two-step approach in its analysis of Husband's Rule 60(b) Amended Motion.
J.D., 2013 WL 8290631, at *1 (internal quotations omitted).
In re Gardner Denver, Inc., 2014 WL 715705, at *2.
Malpiede, 780 A.2d at 1083.
Id.
Husband has presented the Court with a Rule 60(b) Amended Motion to Reopen Divorce Agreement. Rule 60(b) states: "the Court may relieve a party . . . from a final . . . order . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (6) any other reason justifying relief from the operation of the judgment." A Rule 60(b) motion requires the petitioner, Husband, to establish four factors. The factors are:
Del. Fam. Ct. Civ. R. 60(b)(1) and (6).
(1) Whether the moving party has established one of the enumerated grounds for relief under Rule 60(b);
(2) Whether the moving party has established they did not unreasonably delay in filing the motion;
(3) Whether the outcome of the case would be different if the requested relief is granted; and
(4) Whether the moving party has shown that the opposing party will not suffer substantial prejudice if the motion is granted.
K. H. v. M. F., 2018 WL 4181531, at *2 (Del. Fam. Ct. Aug. 14, 2018). See also S.M.S. v. J.C.S., 2010 WL 5657049, at *1 (Del. Fam. Ct. Dec. 15, 2010); M.C.D. v. R.C., 2003 WL 22476207, at *5 (Del. Fam. Ct. July 7, 2003).
Under the first factor, Husband alleges that there was a "mistake and/or inadvertence" under Rule 60(b)(1). Husband also alleges he is also entitled to relief under Rule 60(b)(6) because excessive time passed between the entry of the Consent Order and Wife's completion of the QDRO and that it would be grossly inequitable for Wife to retain the amount she was distributed from the UA Account. Other than his mere assertion that he is entitled to relief under Rule 60(b)(1) and (6), Husband does not allege with any specificity facts which would enable the Court to analyze his Rule 60(b)(1) and (6) claims. Furthermore, Husband neither addresses nor mentions the other three factors Husband is required to establish to prevail on a Rule 60(b) Motion.
Husband's Amended Motion is generally devoid of facts that are necessary for the Court to apply the required analysis for Rule 60(b) Motions. The majority of Husband's facts are dates of entries of orders, what those orders stated, and the amount he believes should have been distributed to Wife. Although Husband does provide some other relevant facts, the facts in Husband's Amended Motion are insufficient for the Court in performing a Rule 60(b) analysis. Without sufficient facts, the Court would be forced to speculate, which the Court is not permitted to do. The Court finds that, taking all facts alleged in Husband's Amended Motion as true and drawing all reasonable inferences from those facts in Husband's favor, Husband has failed to state a claim upon which the Court may grant Husband relief under his Amended Motion. Thus, Husband's Amended Motion to Reopen Divorce Agreement is DENIED.
Husband does not explain how he made this calculation; instead, he merely states that his calculation is based upon "information and belief."
Husband does state that he was reemployed at United Airlines; however, he does not state when he was reemployed. Husband also describes his attempt to communicate with Wife regarding the distribution of the UA Account after entry of the QDRO.
II. Husband's Amended Motion to Reopen Divorce Agreement is DENIED because Husband unreasonably delayed in filing his Amended Motion.
Even assuming arguendo that Husband's Amended Motion stated sufficient grounds upon which the Court could perform a Rule 60(b) analysis, Husband has unreasonably delayed in filing his Amended Motion. Approximately eleven months have passed between entry of the QDRO and distribution of the UA Account and when Husband filed his Amended Motion. Husband has not provided the Court with any explanation for why he has delayed for such a period of time when Husband was aware of his potential claim for approximately eleven months. Therefore, Husband's Amended Motion to Reopen Divorce Agreement is DENIED.
The second factor of a Rule 60(b) motion requires Husband establish he "did not unreasonably delay in filing the motion." Generally, "there is no limitations period for filing a motion to reopen under Rule 60(b)." The Delaware Supreme Court, however, has held that "[a] party seeking relief from a judgment is obligated to act without unreasonable delay." Rule 60(b) does not define "unreasonable delay." While there is no definition for unreasonable delay, "Delaware Courts have generally held that a petitioner seeking relief under Rule 60(b) should file a Motion as soon as possible after discovering the need for such a filing."
K. H., 2018 WL 4181531, at *2; S.M.S., 2010 WL 5657049, at *1; M.C.D., 2003 WL 22476207, at *5.
O'Conner v. O'Conner, 98 A.3d 130, 134 (Del. 2014).
Crowley v. Tedesco, 1996 WL 470718, at *2 (Del. 1996) (citing Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979)).
S.M.S., 2010 WL 5657049, at *2.
E.A.R. v. D.M.R., 2018 WL 2714787, at *2 (Del. Fam. Ct. May 22, 2018) (citing Lisa W. v. Timothy D., 2000 WL 1279509, at *1 (Del. Fam. Ct. June 12, 2000)).
This Court has previously held that a petitioner unreasonably delays when the petitioner does not take immediate action when the petitioner reasonably should have known of the potential claim. In J.T.E. v. D.K., the Court held that the petitioner did not unreasonably delay even though a period of ten years elapsed because the petitioner was unaware of their claim until ten years had passed. The Court distinguished J. T.E. from earlier Rule 60(b) cases:
J.T.E. v. D.K., 2008 WL 4698483, at *7 (Del. Fam. Ct. June 13, 2008).
This Court recognizes that it has denied motions under Rule 60(b) on various other occasions based on unreasonable delays of less than ten years. In these cases, the delays were unreasonable because the petitioners sat on their rights when they reasonably should have known that a claim existed, and no exigent circumstances existed to justify the delays.J.T.E. held that because the petitioner had only become aware of their claim after ten years, the petitioner's delay was not unreasonable.
Id. The Court discussed several cases and noted: "[s]imilarly, in Opher v. Opher, Thompson v. Thompson, and P.M. v. K.M., this Court denied motions to reopen where the petitioners substantially delayed filing despite having knowledge of their claim and failed to establish extraordinary circumstances." Id.
Id.
Similarly, the Court in E.A.R. v. D.M.R. discussed the issue of whether a petitioner was aware of their rights but waited to file. In E.A.R., the petitioner delayed eight years to file her Rule 60(b) motion. The Court held that wife unreasonably delayed in filing her motion. "Wife did not immediately file her Motion upon realizing her claim and alleged no facts that she sought help from a lawyer upon learning Husband closed their joint bank account in 2017." Thus, based on J.T.E. and E.A.R., a petitioner unreasonably delays when they fail to immediately file a rule 60(b) motion when they reasonably should have known of their claim.
2018 WL 2714787 (Del. Fam. Ct. May 22, 2018).
Id. at *3 (emphasis in original).
In several cases, this Court has held that delays of as little as seven, eleven, and fourteen months constitute unreasonable delays. For example, in Opher v. Opher, the petitioner filed a Rule 60(b) motion requesting that the Family Court grant her relief from a dismissal of ancillary matters. The petitioner and respondent failed to abide by court-set deadlines for filing of financial reporting documents in their ancillary matter and, eventually, the Court dismissed the matter in April 1986. In March 1987, the petitioner filed her Rule 60(b) motion. The Court stated that the petitioner had inappropriately procrastinated in filing her motion and that her delay of eleven months was unreasonable. "To allow relief in such egregious circumstances would encourage parties to disregard the procedures and time limits imposed elsewhere in the Court Rules." The Court denied Petitioner's motion because of unreasonable delay.
S.M.S., 2010 WL 5657049, at *2 (citing Thompson v. Thompson, 1998 WL 1034942 (Del.Fam.Ct.)).
531 A.2d 1228, 1229 (Del. Fam. Ct. May 19, 1987).
Opher, 531 A.2d at 1230.
Id.
Id. at 1234.
Id.
Id.
Similarly, in S.M.S. v. J.C.S., this Court held that the petitioner's motion was unreasonably delayed when the petitioner delayed fourteen months in filing. In S.M.S., the parties were divorced by court decree in September 2009. The petitioner filed a motion to reopen the divorce decree and requested that the Court retain jurisdiction over alimony in November 2010. The Court held that the elapsed period of 14 months was an unreasonable delay, even though the parties were pro se. Thus, the Court denied the petitioner's Rule 60(b) motion because of unreasonable delay.
2010 WL 5657049, at *2.
Id. at *1.
Id.
S.M.S., 2010 WL 5657049, at *2.
Id.
As in Opher and S.M.S., Husband has unreasonably delayed in filing his Amended Motion. Similar to Opher and S.M.S., a relatively short period of time has elapsed between when Husband filed his original Motion and entry of the QDRO and distribution of the UA Account. The Court entered the QDRO on August 23, 2017 and the UA Account was distributed on September 5, 2017. Husband filed his original Motion on August 8, 2018. Approximately eleven and a half months elapsed between entry of the QDRO and when Husband filed his motion and eleven months and seven days elapsed between distribution of the UA Account and when Husband filed his motion. Based on S.M.S. and Opher, eleven months is a long enough period of time to constitute an unreasonable delay.
Additionally, similar to Opher, the parties here have procrastinated in distributing the remainder of the marital assets as awarded in the Consent Order. A period of approximately five and a half years elapsed between entry of the Consent Order on January 13, 2012 and entry of the QDRO on August 23, 2017. Neither party in their respective motion and answer explains why there was such a delay, though each party is eager to place the blame on the other. It is also unclear why there was such a delay in completion of the QDRO given that Husband was reemployed at some point during that five-and-a-half-year period and Husband was aware that the UA Account to which he resumed contributing was subject to distribution under the Consent Order. As in Opher, the Court cannot excuse Husband's delays as "allow[ing] relief in such egregious circumstances would encourage parties to disregard the procedures and time limits imposed elsewhere in the Court Rules."
The Court notes that the Consent Order requires both parties work together to complete distribution of the UA Account.
Opher, 531 A.2d at 1234.
Furthermore, Husband was aware of his potential claim, either upon entry of the QDRO or distribution of the UA Account, as "[u]pon learning of the excess distribution to Wife, Husband contacted the Plan Administrator and Wife in order to try to resolve the matter." Additionally, Husband had the benefit of counsel throughout entry of the QDRO, distribution of the UA Account, and filing of Husband's Amended Motion. Husband was aware that Wife would be distributed approximately $156,746.50 as early as August 23, 2017 or as late as September 7, 2017, yet he waited eleven months to file his Amended Motion. This Court has held in J.T.E. and E.A.R. that an unreasonable delay occurs when the petitioner reasonably should have known their potential claim and fails to immediately seek relief. Thus, Husband's admitted awareness of his potential claim and failure to act immediately upon that claim amounts to an unreasonable delay.
Even when a party has delayed a substantial period of time in filing their Rule 60(b) motion, the Court may determine there is no unreasonable delay if the petitioner establishes the existence of extraordinary circumstances which justify the delay. For instance, this Court in J.T.E. v. D.K., held that the petitioner's delay of ten years was justified because "Husband actively induced Wife's inaction and belief that her pension interest had been secured ten years ago." In contrast to J.T.E., in M.T.H. v. H.B., III., this Court held that the petitioner's delay of five years was not justified on the grounds that she was under "constant and overwhelming stress from caring for her aging parents and losing employment."
2008 WL 4698483, at *6.
2006 WL 1389876, at *1 (Del. Fam. Ct. Feb. 6, 2006). The Court noted: "the Delaware Supreme Court has held that persons in Wife's circumstances are obligated to act without unreasonable delay." Id.
Additionally, this Court has held that delays in filing are not justified because the parties were engaged in communication regarding the dispute. In P.M. v. K.M., "Wife argues in her Motion to Reopen that the seven-month delay in filing this Motion occurred because she was actively trying to settle with Husband and hoping for reconciliation." According to the wife, the husband initially promised to pay the wife alimony then changed his position during the seven-month period. The Court was unpersuaded by the wife's argument and held that she unreasonably delayed in filing her Rule 60(b).
2006 WL 4043740, at *2 (Del. Fam. Ct. July 24, 2006).
Id.
Id.
In the present matter, as in M.T.H. and P.M., Husband has not presented the Court with any justification for the eleven-month delay between when the QDRO was entered and the UA Account was distributed and when Husband filed the present Amended Motion. Similar to P.M., Husband alleges in his Amended Motion that he reached out to Wife as soon as he was aware of the amount Wife would receive from the UA Account distribution. Although Husband alleges that Wife initially indicated a willingness to discuss the matter but then failed to discuss the matter, this does not create a justification for the delay. Additionally, in contrast to J.T.E., there is no evidence that Wife attempted to induce Husband to delay his filing. As in P.M., the mere fact that the parties were engaged in some communication regarding the dispute is not a sufficient justification for a delay in filing a Rule 60(b) motion. This is even more so applicable given that Husband was aware of his potential claim during the eleven-month period that elapsed before he filed his Amended Motion. Thus, Husband has unreasonably delayed in filing his Amended Motion.
Husband has unreasonably delayed in filing his Amended Motion. Husband waited eleven months to file his Amended Motion after the entry of the QDRO and distribution of the UA Account. Husband himself indicated his awareness of his potential claim when he chose to reach out to Wife upon learning of the amount she would receive from the UA Account distribution. Husband has not presented the Court with any extraordinary circumstance that would justify Husband's delay. Husband has, instead, sat on his potential claim, even with the benefit of counsel, for almost a year and now requests the Court grant him relief despite his procrastination. Therefore, the Court finds that Husband unreasonably delayed in filing his Amended Motion and the Court DENIES Husband's Amended Motion to Reopen Divorce Agreement.
CONCLUSION
Husband's Amended Motion to Reopen Divorce Agreement is DENIED. The Court finds that Husband has failed to state a claim upon which the Court can grant Husband relief, under Family Court Civil Procedure Rule 12(b)(6). Additionally, the Court finds that Husband unreasonably delayed in filing his Amended Motion. For those reasons, Husband's Amended Motion is DENIED.
The Court does not grant Husband a hearing on his Amended Motion. "It is within the discretion of the Family Court to determine whether to hold an evidentiary hearing." Crowley, 1996 WL 470718, at *2. See Del. Fam. Ct. Civ. R. 7(b)(3). --------
IT IS HEREBY ORDERED that Husband's Amended Motion to Reopen Divorce Agreement is DENIED.
IT IS SO ORDERED this day of NOVEMBER, A.D. 2018.
/s/ _________
JAMES G. MCGIFFIN, JR., JUDGE JGM/ksw cc: Judith Jones
J------- H-------- Date Mailed: