Opinion
No. 386, 1998.
Submitted: December 7, 1999.
Decided: December 14, 1999.
Court Below: Family Court of the State of Delaware in and for New Castle County, C.A. No. 96-38608
AFFIRMED.
Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT, and BERGER, Justices, constituting the Court En Banc.
ORDER
This 14th day of December 1999, upon consideration of the briefs of the parties and oral argument it appears to the Court that:
(1) In this appeal from the Family Court, the appellant, Christopher Watson ("Watson"), claims error in that court's enforcement of a 1983 child support order entered at the behest of the appellee, Division of Child Support Enforcement ("DCSE"). Watson contends that the Family Court lacked jurisdiction at the time it entered the 1983 support order because he did not appear in the Family Court and any waiver of his right to appear was constitutionally defective.
(2) DCSE concedes, for purposes of this appeal, that the 1983 proceeding was initiated through a consent agreement executed by Watson. It also acknowledges that this agreement was the basis for the entry of a support order, without appearance by Watson, in the Family Court. This procedure has been held not to comply with Family Court rules and procedures then in effect. See Smallwood v. Bureau of Child Support Enforcement, Del. Super., C.A. No. 82A-DE-3, Bifferato, J. (Nov. 19, 1984), Letter Op. at 2. DCSE argues, however, that any procedural deficiency was remedied by later Family Court proceedings that formed the basis for this appeal. Specifically, in 1998, when DCSE sought enforcement of the 1983 order, Watson appeared in the Family Court in opposition. After an evidentiary hearing, the Family Court concluded that Watson had consented to the entry of the order and waived his right to appear.
(3) We conclude that the Family Court's factual determination of waiver is not clearly erroneous. We further conclude that the 1998 proceedings provided Watson with the opportunity, prior to enforcement of the 1983 consent order, to contest the effect of his previously acknowledged agreement to support his child. The 1998 Family Court hearing is deemed to have remedied any procedural due process deficiency that arose by reason of Watson's original non-appearance in the Family Court. Cf. Osmond v. Spence, D. Del., 359 F.2d 124 (1972).
(4) Accordingly, we conclude that the Family Court did not lack jurisdiction to enter its 1998 decision enforcing Watson's agreement of support as reflected in the 1983 agreement.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court be, and the same hereby is,
AFFIRMED.