Opinion
File No. CN11-01303 Pet. No. 16-31304
05-22-2018
RE: E------ A. R--------- v. D--- M. R---------
Joseph A. Wahl, Esq.
2005 Concord Pike, Ste. 203
Wilmington, DE 19803 Rachelle R. Cutrona, Esq.
2710 Centerville Road, Ste. 101
Wilmington, DE 19808 Motion to Reopen Pursuant to Rule 60(b)
LETTER AND ORDER
Dear Counsel:
This is the Court's decision regarding the Motion to Reopen ("Motion"), pursuant to Family Court Civ. R. P. Rule 60(b)(1) and (6), filed on April 12, 2018, by D--- M. R--------- ("Wife"), represented by Rachelle R, Curtona , Esq., against E------ A. R--------- ("Husband"), represented by Joseph A. Wahl, Esq.. Husband filed Response to Wife's Motion ("Response") thereto on April 18, 2018. For the reasons set forth below, Wife's Motion is DENIED.
Mot. to Reopen, D.I. 21.
Resp. to Mot. D.I. 23.
PROCEDURAL HISTORY
The parties were married on February 9, 2005, separated on September 1, 2010, and divorced by final decree of this Court on December 6, 2016. Husband filed his Petition for Divorce on October 5, 2016, and did not request the Court retain jurisdiction over ancillary matters. According to Wife, on or about October 21, 2016, Husband asked Wife, who was unrepresented, to meet him so she could execute an Affidavit of Appearance and Waiver ("Affidavit and Waiver"), which Wife did. Husband did not deny the occurrence of this event; however, he asserted Wife wished to expedite the parties' divorce. Wife also failed to retain jurisdiction over ancillary matters before the parties' divorce became final.
Petition for Divorce, D.I. 1.
Divorce Decree, D.I. 10.
Mot. to Reopen at ¶ 2, D.I. 21. Husband filed the executed Affidavit and Waiver on October 28, 2016. Aff. of Appearance and Waiver of Time to Contest Divorce Hr'g, D.I. 16.
Resp. to Mot. to Reopen at ¶2.
Mot. to Reopen at ¶ 3, D.I. 21.
On April 12, 2018, Wife filed her Motion alleging that "[a]s a pro se litigant, [she] did not know it was necessary to retain jurisdiction over ancillary matters if the parties had agreed to amicably divide the property and Husband had agreed to provide financial assistance." Wife claims the parties' property has yet to be divided, and Husband has stopped providing Wife the financial assistance he allegedly agreed to. Specifically, Wife asserts, Husband continued to pay half (1/2) of the monthly mortgage payment, the utility expenses, and Wife's car insurance upon moving out of the parties' home in 2011. Husband accomplished this by depositing funds into the parties' joint bank account, but according to Wife, in February 2017, more than a year before filing her Motion, Husband "abruptly stopped depositing funds into the joint bank account," and closed the account on March 1, 2017. Wife now seeks to reopen the matter, believing the outcome of her divorce would be different following an ancillary hearing. Due to her present financial situation, Wife contends she is dependent upon Husband to meet her monthly expenses. Presently, the only support the Husband appears to give Wife is child support for their minor child, ------- ---------- ("the Child"), born February 27, 2005. According to Husband, he provides Wife with $500.00 per month in support and $506.00 per month for the Child's tuition; however, there is no written agreement for this support. Wife believes she meets the clear and convincing burden under Rule 60(b), citing to cases in which Delaware Courts granted motion's to reopen filed by pro se litigants who are unfamiliar with the Court's rules regarding the retention of ancillary jurisdiction, despite unreasonable delays. Finally, Wife argues "Husband will not suffer substantial prejudice" if the Court grants this Motion . . . as not enough time has passed to impair Husband's ability to present his case."
Id.
Id. at ¶ 9. Husband claims the parties separated September 1, 2010, and the Petition for Divorce also indicates this date.
Id.
Id. at ¶ 10.
Wife suffers from Severe Malabsorption Syndrome which has resulted in numerous surgeries and hospitalizations. Due to this, Wife is disabled and her Social Security Income of $1,335.00 per month is her sole source of income. Additionally, Wife is unable to pay the mortgage on the ---- ---------- ---- property, which the parties lived in during marriage, but Wife purchased in her sole name during their engagement. She also had to secure a loan modification. Finally, Wife has no retirement assets. Id. at ¶¶ 6, 11-12.
Id. at ¶ 13.
Id. at ¶ 8.
Resp. to Mot. to Reopen at ¶ 8, D.I. 23. Wife only provides Husband pays $500.00 for support. Mot. to Reopen, at ¶ 8, D.I. 21.
Resp. to Mot. to Reopen at ¶ 8, D.I. 23.
Id. ¶ 15 (citing to Lambert v. Lambert, 734 A.2d 159 (Del. 1999); S.P. v. K.P., 2007 WL 3202357 (Del. Fam. Ct. July 24, 2006)).
Id. at ¶ 16 (citing to J.T.E. v. D.K., 2008 WL 4698483 (Del. Fam. Ct., June 13, 2008)).
Id. at 17.
Husband filed his Response on April 18, 2018. Husband denies the existence of any agreement between the parties; however, he voluntarily chooses to pay child support and the cost of the Child's tuition. He further contends Wife's delay of sixteen (16) months to file her Motion, "is inexplicable if there was an agreement which was being breached. . . ." Husband has been employed as a bartender at ------'- ----- for twenty (20) years and is now engaged and expecting a child. He argues he relied upon the closure of the parties' litigation, and being required to contest it now would lead to him suffering real prejudice. Husband claims the parties have no valuable property that can be divided, and his retirement assets are worth less than $1000.00. Husband also argues Wife has failed to state the terms of the alleged agreement that she relied on, and why she waited until now to consider enforcing it. Finally, he believes Wife has failed to: (1) make a prima facie showing that she would be entitled to relief if the matter were reopened; (2) prove one of the enumerated grounds under Rule 60(b); and (3) establish that she did not unreasonably delay filing her Motion.
Resp. to Mot. to Reopen, D.I. 23.
Id. at ¶ 3.
Id.
Id. at ¶ 4.
Id. at ¶¶ 6, 9. Husband and his fiancee also recently purchased a home together in ------- ------, ------------.
Husband claims he became engaged, purchased a house, and has another baby on the way, all in reliance upon the closure of the parties divorce litigation, and his understanding that all potential matters were resolved. Furthermore, he argues he should not be expected to incur the time, expense, and uncertainty of litigating the matter. Id. at ¶¶ 15-17.
See Id. at ¶ 5.
Id. at ¶ 12.
Id. at ¶¶ 15-16.
Id.
Id.
MOTIONS PURSUANT TO RULE 60(b)
The Court must consider four factors in granting relief from final judgment pursuant to Family Court Rule of Civil Procedure 60(b). First, the party seeking relief must establish one of the following bases for relief:
B.L.W. v. L.W.W. 2007 WL 4793898, *2 (Del. Fam. Ct.).
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment is void;Second, the party "must establish that they did not unreasonably delay filing the motion." Third, the party must establish that the outcome of the case would be different if the requested relief is granted. And, fourth, that the non-moving party will not suffer substantial prejudice if the relief is granted. Additionally, a Rule 60(b) motion is granted only for good cause as shown by clear and convincing evidence.
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Fam. Ct. Civ. R. 60(b).
B.L.W., 2007 WL 4793898, at *2.
Id.
Id.
Stevens v. Stevens, 702 A.2d 927, at *2 (Del. 1997) (TABLE).
I. Wife is Unable to Overcome the Unreasonable Delay in Filing the Motion:
"Relief pursuant to Rule 60(b) must be requested 'without unreasonable delay.' The term 'unreasonable delay' is not defined by the statute; however, case law in this area has shown that periods of seven (7) months and eleven (11) months constituted 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 filing. Wife cites to the Delaware Supreme Court case Lambert v. Lambert, which tempered the Court's exercise of discretion in deciding whether to reopen a matter when the movant was a pro se litigant:
S.M.S. v. J.C.S., 2010 WL 5657049, at *2 (Del. Fam. Ct. Dec. 15, 2010) (citing Thompson v. Thompson, 1998 WL 1034942, at *1 (Del. Fam. Ct. July 6, 1998) (citations omitted)).
Lisa W. v. Timothy D., 2000 WL 1279509, at *1 (Del. Fam. Ct. June 12, 2000) (citing Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979)).
734 A.2d 159 (Del. 1999).
Rules of procedure are designed to achieve fairness as well as efficiency. The Family Court, in particular, should be sensitive to the risks encountered by unrepresented parties who are involved in litigation involving fundamental rights
under emotional circumstances. Rule 60(b) was designed, in part, to accommodate the legitimate expectations of inexperienced pro se litigants and to provide a remedy not otherwise authorized under the usual Family Court Procedure.
Id.
The Court is mindful of the plight of the unrepresented litigant and under normal circumstances would be understanding of mistakes or excusable neglect; however, in the present matter, the Court is not able to find that Wife filed her Motion without reasonable delay. As discussed, the Court issued the final divorce decree on December 6, 2016, while the parties separated in 2010. According to Wife, Husband ceased depositing funds into the Wells Fargo joint account in February 2017, and on March 1, 2017, he closed the account. Wife did not file her Motion until April 12, 2018, over one (1) year after she became aware that Husband ceased depositing funds. Thus, the majority of Wife's delay in filing her Motion occurred after she became aware of Husband's intent to no longer provide support for the mortgage, utilities, and car insurance.
Wife claims the parties separated in 2011; however, the Court will take judicial notice of the Petition for Divorce, which indicates the parties separated on September 1, 2010. D.I. 12.
In support of her argument, Wife cites to a case from this Court, decided after Lambert, in which the Court granted petitioner-wife's motion to reopen ten (10) years following the divorce due to her reliance on respondent-husband's promise, and because of her pro se status. In J.T.E. v. D.K., petitioner-wife did not wish to contest respondent-husband's divorce petition, filed on July 1, 1997. Petitioner-wife indicated she would only hire an attorney in order to obtain her share of respondent-husband's pension, to which he advised against, stating she would "'get her share of the pension.'" Petitioner-wife alleged the parties entered into a verbal agreement to divide the equity in the marital residence and to divide the marital portion of respondent-husband's pension equally, with petitioner-wife receiving her "full spousal share." Respondent-husband repeatedly assured petitioner-wife that he would "take care" of the pension issue, and even had his attorney reach out to wife-petitioner regarding the preparation of a Qualified Domestic Relations Order. It was not until November 26, 2007, when petitioner-wife learned respondent-husband failed to make arrangements for her to receive his pension. Petitioner-wife then filed her motion to reopen on December 13, 2007. The Court, considering petitioner-wife's status as a pro se litigant, found her belief that marital share of respondent-husband's pension had been preserved was partially induced by his actions, and her reliance was not unreasonable. Furthermore, the Court dismissed respondent-husband's laches argument, explaining that "[l]engthy delays prior to filing a motion to reopen are not per se unreasonable," and found that petitioner-wife "petitioned to reopen immediately upon realizing her claim."
J.T.E. v. D.K., 2008 WL 4698483 (Del. Fam. Ct. June 13, 2008).
Id. at *1.
Id.
Id.
Id. at *1-2.
Id. at *3.
Id.
Id. at *8
Id. at *7.
Id. (emphasis added).
While Wife notes the few similarities between the present matter and J. T.E., the Court believes this case is far more distinguishable. As the Court discussed, 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. Had Wife sought counsel close to the time she became aware of Husband's decision to close their joint bank account and cease his support, the Court's decision may have been different. Furthermore, the Court agrees with Husband and finds Wife has offered little explanation or detail of the alleged agreement, other than that both agreed to divide the property amicably and Husband agreed to provide financial support to Wife. Without more, the Court is unable to determine what the parties allegedly agreed to or whether Husband induced Wife to rely on any promises. Contrasting with J.T.E, petitioner-wife was specifically promised half of respondent-husband's pension, and he continued to assure her he was taking care of it. Husband-respondent acted to induce wife-petitioner to reasonably rely on a promise and not obtain an attorney; however, the same cannot be said for Husband in the present matter.
In the present matter, Wife was unrepresented at the time of the divorce, she did not contest divorce or retain jurisdiction for the ancillary matters allegedly due to Husband's agreement to provide her with financial support, and because she felt the parties amicably agreed to divide the marital property.
In several cases decided by this Court since Lambert, the movant has either filed a motion to reopen days following a final decree or order or within days of an event triggering awareness. ( E.g. J.T.E., 2008 WL 4698483, at *7 (petitioner-wife filed less than one (1) month after she became aware that respondent-husband failed to complete the QDRO, entitling her to half of his pension) (citing Moser v. Moser, 287 A.2d 398 (Del. 1972)) (the Supreme Court declared movant's wait was no unreasonable because she previously had been unaware that the shares were issued in the respondent's name); G.C. v. M.C., 2008 WL 2898678 at *1 (Del. Fam. Ct. Apr. 17, 2008) (movant filed the motion to reopen the day following a final judgment for divorce was entered); S.P. v. K.P., 2007 WL 3202357, at *1 (Del. Fam. Ct. Oct. 30, 2007)(movant filed motion to reopen twelve (12) days following the final decree)).
2008 WL 4698483, at *1.
Id. at *2.
II. Whether a Timely filed Motion to Reopen Should Be Granted:
Even assuming arguendo that it was filed timely filed, this Court remains unconvinced that Wife's Motion should be granted. Wife seeks relief under 60(b)(1), "mistake, inadvertence, and/or excusable neglect, and 60(b)(6), "any other reason justifying relief from the operation of the judgment."
a. Rule 60(b)(1) - Mistake, inadvertence, surprise, or excusable neglect.
Granting relief on the basis of mistake or excusable neglect under Rule 60(b)(1) requires examination of the individual considerations of the case at bar and a determination of whether the conduct of the moving party was that of reasonably prudent person. Where the conduct is deemed to be reasonable, the moving party must then establish the possibility of a meritorious claim, and that there will be no substantial prejudice to the non-moving party.
Hemphill v. Hemphill, 1994 WL 874412 (Del. Fam. Ct. 1994).
Id.
In the present matter, the Court does not believe Wife acted reasonably, as she waited one (1) year to file her Motion. Assuming time was not at issue, and the Court afforded her deference under Lambert, she would still have the burden of establishing the possibility of a meritorious claim and that there would be no substantial injustice to the non-moving party. Wife would be entitled to alimony for five-and-a-half (5.5) years, as the parties' were only married for eleven (11) years. Both parties agree Husband provided support since they separated, thus, Husband paid Wife support one (1)-and-a-half years more than he would have had to if the Court entered an alimony order. Additionally, Wife offered no substantiation as to marital assets that are divisible, and Husband claims his retirement assets are worth $1000.00. Finally Wife resides in a home that was solely in her name, with an adult son. Given the credit Husband is entitled to, the assets available to each, and the individuals who reside with Wife, the Court finds that a claim for alimony would not likely be meritorious. Furthermore, even if Wife proved her alimony claim is meritorious, she would also need to show there was no substantial prejudice to Husband. As discussed, Husband asserts, with the understanding all potential matters were resolved, he has become engaged, purchased a house jointly with his fiancee, and has another child on the way. Again, the Court's conclusion may have been different had Wife timely filed her motion. However, under the circumstances, the Court believes Husband would suffer substantial prejudice since he has, in essence, made important decisions with the belief the matters related to the parties divorce have been resolved for over one (1) year. The Court agrees he should not be expected to incur time, expense, and uncertainty in litigating the matter.
b. Rule 60(b)(6) - Any other reason justifying relief from the operation of the judgment.
Subsection (6) of Rule 60(b) "is an independent ground for relief, with a different standard to be applied than under its other subdivisions" and requires the moving party to satisfy the extraordinary circumstances test. This test was adopted from the standards set forth in Rule 60(b) of the Federal Rules of Civil Procedure. Under the extraordinary circumstances test, the words "any other reason justifying relief" of 60(b)(6) "...vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Extraordinary circumstances exist where the moving party has otherwise been foreclosed of a remedy.
Jewell v. Division of Social Services, 401 A.2d 88, 90 (Del. 1979).
Id. see also Shoreham v. Shoreham, 2009 WL 1205832, *2 (Del. Fam. Ct. 2009) ("Delaware has adopted the federal standard for analyzing motions filed pursuant to . . . subsection (6) of Rule 60(b).").
Jewell, at 90.
Shoreham v. Shoreham, 2009 WL 1205832, *4 (Del. Fam. Ct. 2009).
In order for Wife's Motion to be granted under subsection (6) of Rule 60(b), she must prove by clear and convincing evidence that extraordinary circumstances exist such that he has "otherwise been foreclosed of a remedy." The Court is not inclined to find extraordinary circumstances exist where Wife delayed filing for as long as she did after becoming aware of Husband's decision to close the joint bank account.
Shoreham v. Shoreham, 2009 WL 1205832, *4 (Del. Fam. Ct. 2009). --------
CONCLUSION
This Court finds that Wife's Motion was untimely filed, as she waited more than one (1) year after becoming aware of Husband's decision to close their joint bank account thus stopping his support to her. Even if her Motion was timely, the Court still believes Wife failed to meet her burden of proving a basis for relief by clear and convincing evidence under either subsection (1) or subsection (6) of Rule 60(b).
WHEREFORE, Wife's Motion to Reopen is DENIED.
IT IS SO ORDERED.
/s/ _________
Mark D. Buckworth, Judge Date:__________ MDB/mac
cc: Joseph A. Wahl, Esq.
Rachelle R. Cutrona, Esq.
File