Opinion
FILE NO.: CN 15-02394 CPI NO.: 18-00685
07-11-2018
Q------ C----- Petitioner, v. K----- W----- Respondent.
ORDER REGARDING REVIEW OF COMMISSIONER'S ORDER
Before the Court is a Request for Review of a Commissioner's Order ("ROCO") filed April 25, 2018 by Q------ C----- ("Father") objecting to the Commissioner's Support Order of March 20, 2018 that set his total monthly payment to K----- W----- ("Mother") at $928.00. Mother did not file a Response to Father's ROCO. In his ROCO, Father argues, among others, that he should have been credited with a parenting time adjustment, and that the Commissioner should not have attributed his former income to him because he did not voluntarily leave his former job. However, under Fam. Ct. Civ. R. 53.1(b), "[a]n appeal of a commissioner's order shall be accomplished by filing with the Court within 30 days from the date of the commissioner's order." Therefore, the Court is prohibited from considering the substance of Father's arguments because he did not file his ROCO within 30 days from the date of the Commissioner's Support Order.
See also 10 Del. C. § 915(d) in relevant part that an appeal of a Commissioner's order must be filed "within 30 days from the date of a Commissioner's order."
The Commissioner signed and issued the Permanent New Support Order on March 16, 2018, and the Order was docketed on March 20, 2018 beginning the 30-day timeline within which Father had to file. Under Fam. Ct. Civ. R. 6(a), the day that the Order was docketed shall not be included in the computation. Therefore, thirty days from March 21 would make the deadline for filing his ROCO Friday, April 20, 2018. Although service of process of the Support Order was by mail, Fam. Ct. Civ. R. 6(d) does not apply here as that rule "relates to service of papers upon one party by another party, not to the statutory time limitation governing a request for review of a Commissioner's order." Father did not file his ROCO until April 25, 2018 and therefore his ROCO was untimely. According to Delaware Supreme Court precedent, filing a ROCO even one day outside the 30-day window may be sufficient basis for dismissing a ROCO.
See S.E.V. v. S.D.V., 2013 WL 1749525, at *2 (Del. Fam. Mar. 28, 2013) (noting that the thirty-day clock begins from the docket date of the Commissioner's order and not the issuance date).
Vincent v. Div. of Child Support Enf't, 2015 WL 894717, at *3 (Del. Mar. 2, 2015).
Id.
Father alleges that he did not timely file his ROCO because he never received his copy of the Support Order by mail after it was docketed, despite giving the Court two addresses, and that it was not until April 5, 2018 when he visited the Court to inquire about the Order that he received it. However, pursuant to Delaware Supreme Court precedent "filing deadlines do not wait to begin until the appellant actually receives the order." That said, if Father can show that his failure to file a timely notice of appeal is "attributable to court-related personnel," then an untimely appeal may be considered. Father implies that his untimely filing was due to the error of court-related personnel that caused him not to receive a copy of the Support Order until April 5, 2018, but he does not provide supporting evidence of any error by the Court. He only states that he attempted to identify from court personnel to what address the Order was sent but the personnel could not provide him with an answer.
Id., at *2 (citing Graham v. State, 2004 WL 2154298, at *1 (Del. Sept. 23, 2004)).
Graham, at *1 (citing Bey v. State, 402 A.2d 362, 363 (Del. Apr. 17, 1979)).
For the purpose of the Court's analysis, the Court will assume without deciding that Father did not receive his copy of the Support Order by mail. In order to determine whether this could be attributable to error by court-related personnel or Father, a detailed background of the Court's records as to Father's addresses in the life of these support proceedings and the Court's attempts to serve Father at those addresses is necessary. In Mother's initial Petition for Child Support filed on August 8, 2017, Mother listed Father's address as 514 Interchange Blvd, Newark, DE 19711 which is the business address of Chimes, Metro Inc., Father's former employer. Service of the Petition was attempted over Father at both the Chimes business address and - F------ Rd, Apt --, Newark, DE 19711. On September 8, 2017, a special process server filed Proof of Non-Service of Father at both of those addresses due to "NO CONTACT" as to the - F------ Rd location and due to "NO LONGER EMPLOYED" as to the Chimes address. As a result, the Court dismissed Mother's initial Petition on September 12, 2017 for failure to serve Father. On November 16, 2017, Mother filed a Request for Reinstatement of her August 2017 Support Petition and listed Father's address as ---- C------ M------, Bear, DE 19701, which prompted the Court to issue another civil summons on November 22, 2017 regarding the August Petition. However, on December 2, 2017, a special process server also failed to serve Father at ---- C--------- M------ and noted that Father does not live there per an unnamed tenant. As a result, Mother's August 2017 Petition was again dismissed for failure to serve Father. Despite the failure to serve Father at this address in December, Mother filed a renewed Petition for Support on January 10, 2018 again listing Father's address as ---- C--------- M------, Bear, DE 19701. On January 19, 2018, Father was personally served at the Courthouse with the renewed January 2018 Petition for Support.
On January 26, 2018, a special process server also filed a Proof of Non-Service of Father regarding Mother's Petition for Modification of Custody Order regarding an attempt on serve Father at the ---- C--------- M------ address on January 21, 2018 that resulted in non-service because Father does not live there per an unnamed tenant. --------
At the conclusion of the February 26, 2018 Support hearing with the Commissioner, the parties disputed what Father's current official address should be in the Court's records. First, on page 57 line 2-5 of the official transcript, Father accused Mother of filing pleadings with the Court listing an address for Father of -- Fairway Rd, Apt -- despite her "knowing that [he] wasn't living there." Father also went on to state, on page 57 line 7-9, that ---- C--------- M------ is the only address that he uses and "[i]f you send mail here [he's] definitely going to get it." In response, Mother testified, on page 57 line 12-22, that ---- C--------- M------ is the address of Father's ex-girlfriend and that he does not live there any longer. Father countered, on page 58 line 1-5 and page 59 line 21-22, that ---- C--------- M------ is still his "permanent address" as reflected on his vehicle registration and driver's license, and is where he previously lived and paid rent for twelve years. On page 58 line 17 through page 59 line 5, Father also provided the Commissioner with an address of ---- J--- Drive, Phoenixville, PA in response to the Commissioner's request for his "Pennsylvania address." Father did not provide the Court with the zip code because he testified, on page 59 line 6-12, that he didn't know the zip code because "I don't get mail or anything there. That's my girlfriend's place." After Father stated that he did not understand why the Court needed an address other than ---- C--------- M------, the Commissioner informed Father, on page 60 line 18-22, that in January 2018, that a "process server went to that address at ---- C--------- M------ and tried to serve you with a notice. And the person that lived there said you don't live there." To which, Father responded "[w]ell, I don't know who said that." Despite the Commissioner's clear disapproval of Father continuing to call ---- C--------- M------ his "permanent address," Father listed that location as his address on his ROCO in addition to P.O. Box ----, Newark, DE 19714.
On March 12, 2018, prior to issuing the Support Order, the Commissioner updated Father's official address in the Court's records to ---- J--- Drive and changed ---- C--------- M------ to his previous address. In addition, the Commissioner listed ---- J--- Drive as Father's address on the Support Order. As a result, although as Father learned on April 5, 2018, the Court cannot confirm which address(es) the Support Order was sent to, it is Court policy that a copy goes to at least the official address on record. Therefore, at least one copy should have been sent to ---- J--- Drive, the address that Father provided the Court as where he was living at the time of the February 26, 2018 support hearing. Although Father alleges in this ROCO that he did not receive a copy of the Support Order in the mail despite providing the Court with two addresses, Father has provided no evidence of affidavits from either his ex-girlfriend who resides at ---- C--------- M------ nor from his current girlfriend who resides at ---- J--- Drive that they did not receive a mailed copy of the Commissioner's Support Order docketed on March 20, 2018.
Therefore, on the basis of Father's allegations in his ROCO alone, the Court cannot conclude that Father's untimely filing of his ROCO should be attributed to error by Court-related personnel such that Father should be permitted an extension on the ROCO filing deadline. Additionally, the Court is concerned that Father continued to testify that ---- C--------- M------ is his permanent address despite the fact that in December 2017 and January 2018 Father was non-served at that address after an unnamed tenant informed the process server on both occasions that Father "DOES NOT LIVE AT ---- C--------- M------, BEAR, DE 19701." ACCORDINGLY, IT IS HEREBY ORDERED THAT:
Father Q------ C-----'s ROCO filed on April 25, 2018 regarding child support is DENIED. IT IS SO ORDERED this 11th day of July, 2018
/s/ _________
ROBERT BURTON COONIN, Judge Cc: Commissioner
Parties via mail
Date mailed: __________
RBC/plr