Opinion
File No. CN00-08560 CPI No(s) 16-38191
09-01-2017
D---- L-- -- ------------ ----- --- ------- -- ----- Petitioner v. A------ H--- (--------)/ D------- O- C---- S------ S------- --- -- ------ ------- - -- ----- ----------- -- ----- Respondent
Petitioner Attorney Susan Over, Esquire Respondent Attorney Constance A. Dorsney, Esquire
Nature of Proceeding
Review of Commissioner's Order Date Mailed: 9/1/17
Date Emailed to Counsel: 9/1/17 Petitioner Attorney
Susan Over, Esquire Respondent Attorney
Constance A. Dorsney, Esquire ORDER - REVIEW OF COMMISSIONER'S ORDER
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Request for Review of a Commissioner's Order (herein "ROCO"), filed on January 26, 2017, by D---- L-- (herein "Father"), now represented by Susan Over, Esquire, against A------ H--- (herein "Mother"), deceased, and the D------- o- C---- S------ S------- (herein "DCSS"), represented by Constance A. Dorsney, Esquire. DCSS filed a Response on February 7, 2017. The Court scheduled a hearing pursuant to Family Court Civil Rule 53.1(e), to hear evidence as to why it was in the children's best interest for the arrears to be set at $0. A hearing was scheduled for June 5, 2017. The court heard testimony from the parties and S----- C------- (the administratrix of Mother's estate).
Family Court Civil Rule 53.1(e) provides: From an appeal of a commissioner's final order, the Court 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. Prior to determination of the matter, a party may request in writing that additional evidence be permitted to be offered. The Court shall only accept such additional evidence if it finds: 1) that it is newly discovered evidence which by due diligence could not have been discovered in time to offer it before issuance of the commissioner's order or 2) if the circumstances are such as would justify reopening the record in the interest of justice. If the Court determines that the additional evidence should be considered, it may remand the matter to the commissioner to hear additional evidence or the Court may hear and consider the additional evidence or the Court may conduct a de novo hearing.
STANDARD OF REVIEW
A party may seek review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1) which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by rules of the Court, within 30 days from the date of a Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject or modify in whole or in part the order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
10 Del. C. § 951(d)(1).
In reviewing the matter the "judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party." The Commissioner has the opportunity to make the findings of fact and determining the credibility of the witnesses. As such, "the Court will give weight to the fact findings of the Commissioner, especially in regards to the credibility of witnesses, even though the Court is not bound by them." In this case, there was no record related to the Commissioner's decision because there was no hearing and a decision was made on the pleadings. However, the Court scheduled a hearing pursuant to Family Court Civil Rule 53.1(e) and heard testimony. Therefore, the Court will consider the Commissioner's decision in conjunction with the evidence obtained at the hearing.
Y.H. v. T.H., 2015 WL 6442087, at *2 (Del. Fam. Ct. July 10, 2015).
D.K.B. v. State, 2003 WL 23269499, at *1 (Del. Fam. Ct. Dec. 18, 2003).
Id.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have two (2) children: A------ L--, born ---- -, ----, and A----- L--, born -------- --, ----, (herein "minor children"). Mother has a third child, A------, who is not related to Father. Mother filed a Petition for Support against Father on August 31, 2001. A Permanent Support Order was issued on January 30, 2002, ordering Father to pay Mother $l,005/month. There have been numerous modifications to Father's support obligation since the issuance of the original Permanent Support Order. The most recent Support Order was entered on March 1, 2016. Father was ordered to pay $l,346/month; $1,168 in current support and $178 in arrears. Father was behind in his support obligation and owed $50,701.55 in arrears as of February 23, 2016.
$955/month in current support and $50/month in arrears/retroactive support.
On December 13, 2016, Father filed a Motion to Revoke Child Support wherein he requested "his current child support terminate and his arrears be set to zero." He indicated that the children had moved to his home and no longer resided with Mother as she was "injured in the line of duty in house fire" and died on December 1, 2016, as a result of those injuries. Father asserted "it is in the children's best interests that his arrears should be set to zero as failure to do so would divert necessary resources from his household needlessly and would constitute manifest injustice to the children."
Motion to Revoke Child Support.
Id.
Id.
DCSS filed an Answer to Father's Motion on December 22, 2016. DCSS did not oppose "revocation of current support order effective September 25, 2016, the date Mother was admitted to Crozer-Chester Medical Center as a result of injuries sustained in a fire on September 24, 2016." However, DCSS opposed Father's request to set the arrears balance to zero and argued, "Mother's estate is entitled to child support arrears and may seek reimbursement. Mother's estate can pursue the arrears as a debt owed to the estate, and at such time a payment on the arrears can be established." Pursuant to an account statement from DCSS, Father owes $51,268.88 in arrears.
Answer to Motion to Revoke Child Support, p.1.
Id. at p. 2.
The account statement is presumptively accurate pursuant to 13 Del. C. § 513(c)(4).
On December 27, 2016, the Commissioner entered an Order granting Father's request to revoke the current support effective September 25, 2016, and canceling the wage attachment. However, his request to have the arrears balance set to zero was denied. Father timely filed the instant ROCO on January 26, 2017.
DISCUSSION AND CONCLUSION
Father raises one (1) objection in his ROCO: (1) "The commissioner erred by denying the request to reset the arrears to zero." DCSS filed a Response to Father's ROCO on February 7, 2017. DCSS asserts Father does not have a "basis to request that the arrears be set to zero." Furthermore, DCSS argues the arrears belong to Mother's estate and Mother's death does not terminate Father's obligation to pay the child support arrears.
ROCO, p.1.
Answer to ROCO, p.2.
Id. p.2-3.
This case appears to be one of first impression in Delaware. However, other Courts have addressed this issue. In Dembitzer v. Rindenow, a New York Court held that, "death of the custodial parent following entry of a judgment awarding child support arrears has no bearing on the obligated parent's responsibility for payment of accrued arrears, since the obligation to pay child support survives the death of the custodial parent." Delaware law provides that "each and every child support installment or payment becomes absolute and vested upon coming due with the full force, effect and attributes of a judgment of the Family Court of the State. In Roop v. Buchanan, the Indiana Court of Appeals found that, "[ ...] the child support arrearage is typically considered a debt owed to the custodial parent for the amounts advanced to make up the non-custodial parent's financial shortfall in raising the children." And that, "[s]hould the custodial parent decease prior to the satisfaction of this debt, the representative of the estate is entitled to collect the arrearage." Based on the foregoing, this Court agrees that there is no legal basis to set Father's arrears to zero.
Dembitzer v. Rindenow, 35 A.D.3d 791, 793 (2006).
Roop v. Buchanan, 999 N. E.2d 457, 462 (Ind. Ct. App. 2013).
Id.
Notwithstanding Father's legal obligation to pay the arrears, the Court will consider Father's argument that it is not in the children's best interest to require him to pay the arrears to Mother's estate as it would, "divert necessary resources from his household needlessly and would constitute a manifest injustice to the children." To further support his position that the arrears should be set to zero Father argues that, "[a]s the sole surviving parent and natural legal guardian, Movant will continue to have sole responsibility for the care and custody of the children and will be solely responsible for the day to day costs and expenses associated with their upbringing going forward."
Motion to Revoke Child Support.
Id.
DCSS argues that it is not appropriate for the arrears to be set at zero despite Father's argument. Testimony was presented that proved that Father's income is not the only source of support these children have. Father now has additional resources coming into his home on a monthly in the amount of $3,770 because these two (2) children, who are now in his care, receive significant benefits as the minor survivors of Mother who died in the line of duty as a firewoman. In addition to this monthly income, it appears there is a significant trust fund for these children and Father may request distributions from this trust for appropriate expenses for the children. Therefore, the Court finds Father's argument that he is the sole provider for these children to be without merit.
The children receive $1,010/month in Social Security benefits and $1,380/two (2) weeks or $2,760/month in Workmen's Compensation benefits as a result of their Mother's death.
S----- C------, the administratrix of Mother's estate, testified that Senior Partner is the trustee of said Trust. She believes the Trust contains approximately $700,000 and the girls will each receive distributions of $ 10,000 each year for five (5) years. She further testified that Mother's third child, who is not a minor, will inherit from Mother but will not receive all of the same benefits these two (2) girls are receiving because she is not a minor. Father testified that he has no knowledge of the trust distributions. --------
Another significant factor in this case, is that Mother has three (3) children. Two (2) are the subject of the instant matter and the third is an older child who was the product of Mother's relationship with a different man. This third child is not a minor and, therefore, is not receiving the same benefits the minor children are receiving on a monthly basis. However, all three (3) children are entitled to equal shares of Mother's estate. Similar to the Court in Roop, this Court will assume that Mother had to expend additional funds to make up for Father's shortfall that she could have otherwise invested or saved thereby increasing her estate that will be divided by all three (3) children. It would be inequitable to set the arrears to zero and eliminate this $51,268.88 debt owed to the estate as Mother's third child would not receive any benefit from Father's debt being forgiven and would actually be harmed by the debt being forgiven as her inheritance would be decreased.
Finally, Father's support obligation was $l,346/month while Mother was living. Mother is now providing $3,770/month in support for the children via her death benefits. Therefore, Mother is providing more support for the children after her death than Father was ordered to pay, and failed to pay, when Mother was living. It is unreasonable for Father to argue that he cannot afford to pay this debt when he now has an extra $3,770/month coming into his home to support these children. The children's benefits are more than enough to support them while Father continues to meet his obligation to repay the debt to the estate. Therefore, for all of the foregoing reasons, there is no basis in law or fact that would support a basis for the Court to find that Father's arrears should be set at zero.
WHEREFORE, the Commissioner's Order dated December 27, 2016, is AFFIRMED.
IT IS SO ORDERED this 1st day of Sept , 2017.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File