Opinion
File No. CK19-01010 Petition No. 19-04329
04-04-2019
A---- B------ Petitioner, v. D----- J. B------, JR. Respondent.
Request for Review of Commissioner's Order
(In Forma Pauperis Order re: Divorce) Before HONORABLE LOUANN VARI, JUDGE of the Family Court of the State of Delaware:
On February 22, 2019, a Commissioner of the Court denied a request filed by A---- B------ ("Wife") to proceed without paying court costs in an action for divorce Wife filed on February 12, 2019. Wife has now filed a timely Request for Review of the Commissioner's Order ("ROCO"). In the meantime, Respondent D----- B------ ("Husband") has filed an Answer to Wife's Petition for Divorce and a Counterclaim for Divorce. The Court resolves the ROCO by rejecting the Commissioner's Order and granting in part Wife's request to proceed without paying court costs.
BACKGROUND
Wife provided an Affidavit in support of her Application to Proceed In Forma Pauperis ("IFP"). In it, she identified some $1,060 of monthly debts and expenses; provided documentation that her current income, net of taxes, is $622 semimonthly ($1,245 per month, or about $14,935 per year); and swore her only assets and other resources were about $108 in her checking account. Wife's Affidavit also asserts she has one dependent, J----, who is two-years-old. A review of the Court's records confirms that J---- is Wife and Husband's son, and that they share his care on a "2-2-3" biweekly schedule pursuant to cross Orders of Protection from Abuse ("PFA") entered on January 15, 2019 with Wife and Husband's consent.
B------ v B------, Jr., Del. Fam., C.A. No. CK19-01010, 19-00051 & 19-00289, Gilchrist, C. (January 15, 2019).
Wife identified no housing expense on her IFP Affidavit, and the Court notes the PFA Orders grants Wife temporary possession of the residence where she and Husband previously lived, [address redacted]. Finally, Wife's Petition for Divorce requests relief ancillary to the marriage, including property division and alimony. The Commissioner's Order denied Wife's IFP application in its entirety, explaining her "[d]ocumentation does not establish inability to pay."
Id., 19-04329, Farley, C. (February 22, 2019).
LEGAL STANDARD
The Commissioner's Order does not permanently resolve the Petition for Divorce: it is an interim order which effectively requires Wife to pay court costs to permit her divorce action to move forward. A party may appeal an interim order entered by a Commissioner as follows:
Any party, except a party in default of appearance before a Commissioner, may appeal an interim order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by rules of Court, within 30 days from the date of a Commissioner's order. A judge of the Court may reconsider any interim order of a Commissioner, where it is shown that the Commissioner's order is based upon findings of fact that are clearly erroneous, contrary to law, or an abuse of discretion.
DEL. CODE ANN. TIT. 10, § 915(d)(2)(2013).
Family Court Civil Procedure Rule 53.1 reiterates the statutory requirements found in Section 915, including that any party may appeal an interim order of a commissioner "except a party in default of appearance before such commissioner." Rule 53.1(b) also requires that the "written objections to the commissioner's order...set forth with particularity the basis for each objection." The reviewing Court then "shall make a de novo determination of the matter (that is, the matter shall be decided anew by a judge), based on the record below." It may "accept, reject or modify in whole or in part the commissioner's order," or recommit it to the commissioner with further instructions.
Rule 53.1(c) also requires that a party objecting to a Commissioner's order cause a transcript to be prepared of the proceedings before the Commissioner. Here, of course, no transcript has been prepared because no hearing was held—or required: Family Court Civil Rule 7(b) permits the Court to decide a motion without oral argument or an evidentiary hearing under most circumstances.
Fam.Ct.Civ.Pro.R. 53.1(e).
Fam.Ct.Civ.Pro.R. 53.1(g).
DISCUSSION
Family Court Civil Procedure Rule 112 provides that:
"Upon application of the party claiming to be indigent, the Court may authorize the commencement, prosecution or defense of any civil action or civil appeal without prepayment of fees and/or deposit for cost or security therefore, by a person who makes affidavit of inability to pay such cost or give security therefor. Such affidavit shall state the nature of the action or defense and affiant's belief that the affiant is entitled to redress, and shall state sufficient facts from which the Court can make an objective determination of the petitioner's alleged indigency. The Court may in its discretion conduct a hearing on the question of indigency."
Wife has not filed a separate IFP application for the ROCO, and has not paid the requisite filing fee for the ROCO. Given the Court's conclusion that Wife is unable to pay the cost of the Petition for Divorce, it would be incongruous to find that she is able to pay the cost of reviewing the Court's error in denying her IFP application in the first place. For this reason and in these unique circumstances, the Court waives any court cost or filing fee related to Wife's ROCO.
The Court is satisfied that the Commissioner erred factually in concluding Wife's documentation does not demonstrate she is indigent and unable to pay the Court costs related to her Petition for Divorce. "Indigency" is not defined in Rule 112, but is commonly understood as the state of being needy or poor. Federal poverty guidelines established by the United States Department of Health and Human Services are used by the State of Delaware to determine eligibility for basic human services (food and housing assistance and medical care, for example). They also provide a reasonable starting place to determine a litigant's ability to pay court costs: a person unable to meet their most basic needs is also likely unable to afford more discretionary spending, including court filing fees.
Black's Law Dictionary defines "indigency" as "[t]he quality, state, or condition of a person who lacks the means of subsistence; extreme hardship or neediness; poverty." Indigency, BLACK'S LAW DICTIONARY (10th ed. 2014).
Wife's income, corroborated by pay stubs issued by her employer, is about 12% less than the federal poverty level ("FPL") for her two-person household. Wife's Affidavit also asserts she has no other resources from which to pay court costs. Nor is Wife profligate: the expenses identified in her IFP application are reasonable and quite modest. After they are met, Wife has about $185 per month of "excess income" for any and all other expenses she might have—including the payment of fees related to her divorce action. The Commissioner's Order did not identify or address the amount of those fees. Wife asserts, and the Court's schedule of costs confirm, that the Clerk of the Court required $355 to process Wife's divorce action. If Wife used all of her excess income, she still would not be able to proceed with her divorce action for nearly two months.
"Federal poverty level (FPL) means the Federal poverty level updated periodically in the Federal Register by the Secretary of Health and Human Services under the authority of 42 U.S.C. 9902(2), as in effect for the applicable budget period used to determine an individual's eligibility" for Medicaid. 42 C.F.R. § 435.4.
The 2019 FPL is $16,910 for two-person households. See 84 FR 1167-02, 2019 WL 399312(F.R.).
Wife identified the following expenses: car insurance, credit cards, food, gas for car, electric, daycare, cable/cell. Missing from Wife's identified expenses are other items often incurred by working parents—clothing and car maintenance and repairs, for example. Wife did identify a credit card payment, and the Court infers Wife might be financing these types of expenses and other incidentals—making them even more expensive to her and providing further evidence of her claimed indigency.
A filing fee of $165, a Court security assessment of $10, and $90 for each form of ancillary relief requested—here, property division and alimony.
The unrefuted information in Wife's IFP application thus establishes Wife is unable to pay court costs necessary for her Petition to proceed. The Commissioner erred in finding to the contrary, particularly without providing Wife an opportunity to explain any deficiencies in her IFP application or explaining the conclusion that Wife "did not establish inability to pay." Given Wife's demonstrated current inability to pay court costs, the Commissioner also abused their discretion by denying Wife's IFP Motion in its entirety, without considering more limited relief—for example, waiving prepayment of filing fees, but reserving the Court's ability to assess costs against Wife or Husband during the divorce proceedings, or at their conclusion.
See, e.g., D.D. v. J.W., File No. CK03-07367, 2003 WL 23269509 (Del. Fam. Ct. Dec. 17, 2003) (Nicholas, J.). --------
ORDER
For these reasons, and based on its de novo consideration of Wife's Affidavit in Support of Application to Proceed In Forma Pauperis, the Commissioner's February 22, 2019 Order denying Wife's Motion to waive court fees and costs is RESCINDED. The IFP Application is GRANTED IN PART. Prepayment of fees and court costs is waived, subject to assessment of fees and costs during proceedings on Wife's Petition for Divorce, or at their conclusion.
IT IS SO ORDERED, this 4th day of April, 2019.
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//s// Judge Louann Vari LV:mg
cc: Date distributed: __________