Opinion
No. 06C-03-089WLW.
Submitted: August 3, 2006.
Decided: November 20, 2006.
Upon Defendants' Motion to Dismiss in Lieu of an Answer to the Complaint. Denied.
Kevin W. Gibson, Esquire of Gibson Perkins, P.C., Wilmington, Delaware; attorneys for the Plaintiff.
Jos. Scott Shannon, Esquire of Marshall Dennehey Warner Coleman Goggin, Wilmington, Delaware; attorneys for the Defendants.
ORDER
Defendants filed a Motion to Dismiss in Lieu of an Answer to the Complaint of Plaintiff Denise M. Husfelt ("Ms. Husfelt"), pursuant to Superior Court Civil Rule 12(b)(6). Defendants argue that the Plaintiff cannot state a claim for legal malpractice, and, therefore, cannot state a claim upon which relief may be granted.
Defendants in this action are Francine R. Solomon, Ferrara Haley Bevis Solomon, Ferrara Haley Bevis, Louis B. Ferrara, Esquire, James J. Haley, Jr., Esquire and Antonia S. Bevis, Esquire.
Ms. Husfelt argues that Defendant Solomon deviated from the applicable standard of care expected of a matrimonial lawyer when she failed to include a request for alimony in connection with the Plaintiff's default judgment motion before the Family Court. The Plaintiff also argues that Defendant Solomon breached a contractual duty owed to Ms. Husfelt by failing to request an award of alimony. Further, the Plaintiff claims that the Defendants, other than Ms. Solomon, are liable on a theory of Respondeat Superior.
Defendants filed a Motion to Dismiss, in lieu of filing an Answer, arguing that Ms. Husfelt was not dependent under 13 Del. C. § 1512, because Plaintiff's monthly Net Income was $2,662, while her total monthly expenses equaled $2,402. Defendants claim that Ms. Husfelt could not have been awarded alimony in the Family Court Proceeding as a result of having more monthly Net Income than monthly expenses. Therefore, Defendants argue that they did not neglect a reasonable duty in failing to ask for alimony nor did such negligence result in or proximately cause Ms. Husfelt's loss. Consequently, Defendants feel that Ms. Husfelt cannot state a claim for which relief may be granted, and the Complaint should be dismissed.
The Plaintiff's Net Income was $1,362, and the Ex-husband was required to pay $1,330 to Plaintiff in child support, equaling a monthly net income of $2,662.
It appears that Defendant Solomon did not discuss this information with Ms. Husfelt during the Family Court Proceeding.
In response to Defendants' Motion to Dismiss, Ms. Husfelt reiterates her claim concerning alimony. Ms. Husfelt's response further alleges that her Motion for Default could have included an amended list of expenses that included the children's expenses. The Plaintiff also claims in her response that the Motion for Default should have included expenses for a vehicle, gas, insurance, etc., because the expenses would have been reasonable to ask for in light of the fact that Ms. Husfelt was responsible for three children.
The salient facts are as follows: Defendant Solomon represented the Plaintiff in connection with a divorce proceeding from her former husband Christopher L. Husfelt ("Mr. Husfelt"). Mr. Husfelt was required by Rule and Order of the Family Court to file a Rule 16(c) Financial Report disclosing his assets and liabilities so that the Court could make a determination as to how to divide the Husfelts' marital assets. On January 7, 2004, the Family Court invited Defendant Solomon to file a Motion for Default Judgment, if Mr. Husfelt failed to file the Financial Report on or before January 22, 2004. Mr. Husfelt failed to file the Financial Report, and Defendant Solomon filed for a Default Judgment. Ms. Husfelt's Motion for Default Judgment did not request an award for alimony. On February 24, 2004, the Family Court issued a Default Judgment which awarded Ms. Husfelt the marital residence, an automobile and 70% of Mr. Husfelt's pension, but the Order did not include an award of alimony.
The marital residence had a market value of $95,000 and a mortgage of $90,000. Thus, there was $5,000 equity in the home. The vehicle the Plaintiff received had a value of $500.
Defendant Solomon filed a Motion to Strike the Default Judgment so that a new Default Judgment could be entered, but the Motion was denied by the Family Court. On or about April 19, 2005, Ms. Husfelt obtained a new attorney, Susan C. Over, to file a Motion to Re-Open the Plaintiff's divorce hearing. The Motion was also denied by the Family Court. Plaintiff claims that Mr. Husfelt earned approximately $70,000 annually, Ms. Husfelt was a homemaker during her marriage and became employed as a telemarketer engaged in debt collection earning an annual salary of approximately $13,000 subsequent to her divorce.
For the reasons set forth below, Defendants' Motion to Dismiss in Lieu of an Answer is denied.
Standard of Review
Delaware has clear standards for granting a Rule 12(b)(6) Motion to Dismiss. The Court must accept all well-pled allegations as true. The Court must then apply a broad sufficiency test: whether a plaintiff may recover under any conceivable set of circumstances susceptible of proof under the complaint. Dismissal will not be granted if the complaint gives general notice as to the nature of the claim asserted against the Defendant. Further, a complaint will not be dismissed unless it is clearly without merit, which may be either matter of law or fact. Vagueness or lack of detail, standing alone, is insufficient to dismiss a claim. . If there is a basis upon which the Plaintiff may recover, the motion is denied.
Lesh v. Appriva Medical, Inc. 2006 WL 2788183, *3 (Del.Super.).
Id.
Id. citing to Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
Id.
Id. citing to Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52, 58 (Del. 1970).
Id.
Id.
Discussion
Defendants' Motion to Dismiss is premature at this juncture, and Defendants are required to file an Answer. It appears as though Ms. Husfelt's monthly Net Income is above her monthly expenses. The Family Court has determined, in other matters, that when net monthly net income is greater than monthly expenses, a person is not dependent within the meaning of 13 Del. C. § 1512(b), and the Family Court has, therefore, denied alimony in those matters. Ms. Husfelt proffers a letter, in the case sub judice, from Theresa M. Hayes, Esquire in support of her position on alimony. Ms. Hayes opines that alimony should have been asked for and would have been given at the rate of $1,800 per month for the maximum statutory period of five years and five months. Ms. Hayes further opines that Defendant Solomon deviated from the applicable standard of care and committed a culpable act of legal malpractice by failing to assert an alimony component into the default judgment order. If Ms. Hayes is correct in her expert opinion, there is a conceivable set of circumstances set forth in the Complaint under which Ms. Husfelt may recover. Therefore, dismissal is inappropriate at this time.Ms. Husfelt made allegations in her Response to Defendants' Motion to Dismiss which were not set forth in the Complaint. The Complaint alleged that alimony should have been asked for in the Family Court Proceeding. The Complaint did not further allege that Ms. Solomon wrongfully failed to request other expenses relating to the children during the original proceeding, as the Response pointed out. Therefore, those claims cannot be addressed by the Court at this time.
Based on the foregoing, Defendants' Motion to Dismiss in lieu of an Answer is denied. IT IS SO ORDERED.