Opinion
File No. CN15-04095 CPI No(s) 15-23939
11-15-2016
L - - - - -H- - -M- - - - - - - - - - - E- - - - - MD Petitioner v. E- - - - M- - - - - - - - - - - - N- - - - - , DE Respondent
Petitioner Attorney Pro Se Respondent Attorney Pro Se
CIVIL DISPOSITION
Nature of Proceeding
Motion to Reopen Divorce Petitioner Attorney
Pro Se Respondent Attorney
Pro Se [ ] Announced in Court [×] Decision Reserved ORDER Before the HONORABLE JENNIFER B. RANJI JUDGE of the Family Court of the State of Delaware:
PROCEDURAL HISTORY
Before the Court is a Motion to Reopen Divorce filed on April 8, 2016 by L - - - - -H- - -M- - - - - ("Wife") against E- - - - M- - - - - ("Husband"). Husband and Wife were married on December 31, 2009. Husband filed a Petition for Divorce against Wife on June 15, 2015. Wife did not file an Answer and the parties were divorced by Order issued on September 17, 2015, without retaining jurisdiction for any ancillary matters. Husband filed an Answer to the Motion to Reopen on April 25, 2016 opposing the Motion.
DISCUSSION
On April 8, 2016, Wife filed a Motion to Reopen Divorce. On August 25, 2016, the Court held a Trial on the Motion, for which both parties appeared pro se. At Trial on the Motion, the Court heard testimony from Wife, Husband, and the following witnesses: T- - - - P- - - - ("Ms. P - - - -); K- - - - D- - - ("Mr. D- - -"); R- - - - C- - - - ("Mr. C- - - -"); and J- - - - M - - - - ("Mrs. M- - - - ").
ANALYSIS
Wife asserts pursuant to Rule 60 (b) that she is entitled to relief from the Court's September 17, 2015 Divorce Decree. It appears that Wife is pursuing relief pursuant to Rule 60(b)(4), arguing that the Divorce Decree entered on September 17, 2015 is void. In addition, it appears that Wife makes an argument pursuant to Rule 60 (b)(3), arguing that Husband engaged in fraud, misrepresentation or misconduct on his Affidavit That a Party's Address is Unknown, which he attached to his Petition for Divorce.
FAM. CT. CIVIL R. 60 (b) states: Mistake; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or legal representative from a final judgment, order, or proceeding for the following reasons:
(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;
(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. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant any relief provided by statute, or to set aside a judgment for fraud upon the Court. The procedure for obtaining relief from judgments shall be by motion as prescribed in these Rules or by an independent action.
In reviewing a claim under Rule 60 (b), the Court must examine the following four factors: whether one of the six enumerated grounds for relief have been satisfied; whether the party has established that there has been no unreasonable delay filing the motion; whether the party has shown that the outcome of the case would be different if the requested relief is granted; and whether the moving party has shown that the opposing party would not suffer substantial prejudice if the motion is granted. The Court shall address the enumerated grounds for relief first. 60(b)(4) The Judgment is Void
Allen v. Granger, 2015 WL 1243410, *2 (Slip Copy) (Del. 2015).
DEL. FAM. CT. CIV. R. 60(b) (4).
For a Divorce Decree to be valid, the court issuing the decree must have jurisdiction over the matter. This Court requires that at least one party to a divorce action has actually resided in the State continuously for six or more months prior to filing a Petition for Divorce. The phrase "actually resided" in the statute is defined as the place where the person was domiciled. The determination of one's domiciliary turns on a totality of the circumstances test and the person is required "to actually abandon his previous residence with no intention of returning, coupled with the further intent of making Delaware a permanent home." A Divorce Decree entered by a court when one of the parties was not a domiciliary of Delaware for the required six month period prior to filing a Petition for Divorce is void for want of jurisdiction. Therefore, if the Court finds that Husband was not domiciled in Delaware for six continuous months prior to filing the June 15, 2015 Petition for Divorce, then the Divorce Decree entered on September 17, 2015 would be void. A void judgment is grounds for granting Wife's Motion to Reopen pursuant to Rule 60(b).
Bruce E. M. v. Dorothea A. M., 455 A.2d 866, 869 (Del. 1983).
See 13 Del. C. § 1504.
In Wife's Motion to Reopen Divorce, she asserts that she and Husband "lived together from 2007 to April 15, 2015." Wife testified that she and Husband lived in N- - - - - -, Delaware from 2006-2010 and that they lived in E - - - - -, Maryland , at - - - - - - - - -("Maryland Home") from 2010 to April 15, 2015. Wife stated that on April 15, 2015, Husband moved all of his belongings out of the home, but that he did not remove any items from the home before April 15th. It was Wife's testimony that she was completely shocked when she returned to the marital home on April 15th to find that Husband had removed furniture and all of his items.
In his Petition for Divorce, Husband stated that he has been a resident of Delaware since October 2014, thereby satisfying the jurisdictional requirement of residency in the State for six consecutive months prior to filing a Petition for Divorce. In his testimony regarding his residency from October 2014 to April 15, 2015, Husband maintained that he was no longer living in Maryland with Wife during that time period, although Husband agreed that he had not told Wife that he was no longer living with her. Husband testified that he moved small items out of the house so that Wife would not know that he was preparing to move out of the house. Husband testified that during the period from October 2014 to April 15, 2015, he slept in his commercial truck and in Delaware with his current wife, Mrs. M- - - - - . Husband stated that during this period he stopped by the house in Maryland two or three times per week. Husband claimed that he did not move large items, including music equipment, a television, and furniture, out of the Maryland home until April 15, 2015.
Id.
Wife argued that while Husband did not sleep in the marital home at times, she believed that was due to the fact that he was a truck driver and she agreed that he would often sleep on the truck. Wife shared numerous photographs with the Court of herself and Husband at various parties and events, some of which took place between October 2014 and April 2015. Those pictures support Wife's assertion that Husband continued to hold himself out as being together with Wife during that timeframe, and Husband agrees that he did in fact intend that portrayal, as to Wife and the rest of the world.
Husband informed the Court that he moved his items out of the Maryland home in this manner "as a precaution so [Wife] would not rip me off again." Husband continued to pay the bills associated with the marital residence during the period from October 2014 to April 2015, although it appears that at least some of these bills were paid in his current spouse's name. Husband agreed that he never informed Wife that he was moving until April 15, 2015, when he moved all of his belongings from the Maryland home. Despite Husband's testimony during this proceeding and statements in his Petition for Divorce that he moved to Delaware in October 2014, Husband actually stated in his Answer to Wife's Motion to Reopen Divorce that he "moved from the residence we occupied at - - - - - - - - E- - - - - , MD on April 15, 2015."
See Resp't Answer to Mot. to Reopen.
Most of the witness testimony presented to the Court was irrelevant regarding the question of Husband's residency during the October 2014 to April 2015 time period; however, the relevant testimony is summarized for the record. Wife's first witness was T- - - - P- - - - the parties' landlord for the Maryland home. Ms. P- - - - testified that Wife called her on April 15, 2015 and informed her that Wife came home and Husband had removed everything from their home. Ms. P- - - - stated that Husband sent her a letter dated April 17, 2015, informing her that he was moving out of the home. Ms. P- - - - testified that she did not know whether Husband was living in the house between October 2014 and April 2015 as she did not often see the parties, but she did know that he was on the lease for that entire time.
Wife's second witness was K- - - - D- - - -. Mr. D- - - - worked with Husband and Wife in the recording studio located in the Maryland home. Mr. D- - - - assisted Husband in producing music. Mr. D- - - - testified that he was in the Maryland home with Husband every weekend from 2007 to 2015 and that Husband lived there during that period. Mr. D- - - - stated that he stopped seeing Husband in the Maryland home by the summer of 2015. The Court did not find Mr. D- - - - 's testimony, however, to be credible. Husband testified that he and Mr. D- - - - had produced music together when he and Wife still lived in Delaware, but that they stopped doing so prior to Husband and Wife moving to Maryland, and that in fact Mr. D- - - - - had never been to the Maryland home. Mr. - - - - 's inability to describe the studio in the Maryland home on cross-examination, as well as his demeanor on the stand, lead the Court to conclude that his testimony should not be given any weight.
Husband called R- - - - C- - - - and J- - - - M- - - - as witnesses, both of whom testified that he was not living in the Maryland home in 2015 and that he moved to Delaware in October 2014. Mrs. M- - - - was married to Husband years ago, they divorced, and they have now remarried since Husband divorced Wife. Mrs. M- - - - testified that Husband stayed at her home in Delaware beginning in October or November 2014. Initially, she could not say how many nights per week he was there. When pressed further, Mrs. M- - - - testified that Husband was at her house in Delaware "three to four times per week" and that he "sometimes" spent the night but also spent nights in his truck. Mrs. M- - - - stated that Husband would go back to the Maryland home to check his mail and check on his equipment. Mr. C- - - - testified that Husband was working a lot of night hours and that he slept in his truck many times during the October 2014 to April 2015 time period. Husband referred to Mr. C- - - - as his "uncle" but clarified that the two are not related by blood.
After review of the pleadings and testimony, the Court finds that Husband did not establish residency in Delaware for six months prior to filing his Petition for Divorce. Husband's actions in the fall of 2014 through April 2015 do not evidence his intent to leave Maryland with no intention of returning, which is required by the statue. Husband remained on the lease on the Maryland home until April 2015. He continued to pay rent and other bills on the Maryland home. Husband did not sign a lease or move into a new home in Delaware. Furthermore, Husband repeatedly testified that he only moved small things out of the Maryland home so as not to draw his Wife's attention to his actions, using a truck to remove his items when he actually moved out of the home in April 2015. The Court does not find that Husband's actions prior to April 2015 are consistent with someone who has abandoned his previous home with no intention of returning. At best, it appears that Husband may have intended to leave Wife and to limit his time with her until he did so. Therefore, Husband began spending more time working, sleeping in his truck, and at Mrs. M- - - - 's home in Delaware. As the Court noted on the record, however, packing a few articles of clothing and some needed toiletries and staying a few nights per week in either your work vehicle in various states or with a friend in Delaware does not establish residency. Leaving the bulk of your belongings in the marital home, leaving your name on the lease, continuing to pay the bills, and continuing to lead your wife and her family to believe that you are still together as a married couple may well constitute a deceptive plan to move. It does not, however, constitute a move and the establishment of residency in another State.
See 13 Del. C. § 1504; Bruce E. M., 455 A.2d at 869.
The Court notes that, not surprisingly, the parties offered differing testimony regarding when they stopped having sexual relations. The Court does not need to make a finding as to that factor, however, as the question of residency does not depend on it and the Court is able to make its determination absent a finding on that issue.
Another factor in the totality of circumstances test when determining where a person is domiciled is whether that person has set down "roots" in a new home in addition to leaving his past home. Husband was not continuously living in Delaware during this period nor did he set down "roots" in Delaware evidencing his intention to remain there indefinitely. Rather, Husband spent his nights in many different places, including New York and Philadelphia while parked in his commercial truck and in his current spouse's home in Delaware.
Bruce E. M., 455 A.2d at 869.
The Court finds that the Divorce Decree entered on September 17, 2015 is void for lack of jurisdiction because Husband did not actually establish residency in Delaware for six continuous months prior to filing his Divorce Petition. Although Husband claimed on his Petition for Divorce to have been a Delaware resident beginning in October 2014, Husband's actions and even his own testimony do not support a finding that he was a resident of Delaware at that time. At most, the Court finds that Husband's Delaware residency began in April 2015 when he moved out of the Maryland home and informed his landlord that he had left. Husband filed his Petition for Divorce on June 15, 2015. Therefore, Husband did not satisfy the six month residency requirement and this Court did not have jurisdiction to grant his Petition for Divorce, making the Divorce Decree void. 60(b)(3) Fraud, misrepresentation or other misconduct of an adverse party;
A party is entitled to relief from a judgment or order when there is a showing by clear and convincing evidence of fraud or misrepresentation by an adverse party. Fraud "does not consist solely of overt misrepresentations made in order to cause damage to third parties, who act in reliance upon such statements, but may also occur through deliberate concealment of facts and silence in the face of a positive duty to speak." "Moreover, the very special and unique jurisdiction of the Family Court requires complete candor and fairness by parties to proceedings before it."
Allen v. Granger, 2015 WL 1243410, at *3 (Del. 2015).
Casson v. Hornberger, 587 A.2d 454 (Del. 1991).
Id.
During her testimony, Wife stated that she was completely unaware of the Petition for Divorce until after the divorce had been granted, as she was never served with the Petition. Wife testified that Husband knew Wife's address when he filed for divorce and therefore could have had her served with the Petition, rather than via publication. Husband, however, asserted in an Affidavit attached to his Petition for Divorce that he did not know Wife's address, thereby allowing the Court to proceed with the divorce based on publication. Wife testified that she moved to - - - - - - - in P- on May 28, 2015. Wife asserts that Husband knew she was living there because he visited her in P- home during the summer months in 2015. As previously stated, the Court did not have jurisdiction over Husband and Wife's divorce proceedings. Therefore, the Court need not make a finding as to whether Husband made a fraudulent statement or misrepresentation on his Petition for Divorce. Additional Factors
See Resp't Affidavit That A Party's Address is Unknown.
In addition to determining whether one of the Rule 60(b) grounds for relief has been satisfied, the Court usually considers the following three factors : (1) whether the party has established that there has been no unreasonable delay filing the motion; (2) whether the party has shown that the outcome of the case would be different if the requested relief is granted; and (3) whether the moving party has shown that the opposing party would not suffer substantial prejudice if the motion is granted. However, because the Divorce Decree entered on September 17, 2015 is void for lack of jurisdiction, these three factors are not applicable. Therefore, while these factors may apply as to other Rule 60(b) grounds for relief, they are not applicable in this case and the Court need not analyze them.
CONCLUSION
The Court finds that Husband was not actually a Delaware resident for the required six month period before filing his Petition for Divorce. As a result, this Court did not have jurisdiction to enter the Divorce Decree that was entered on September 17, 2015. The parties' Divorce Decree is void. Any subsequent marriages entered into by the parties are void as well. In order to obtain a valid divorce, the parties need to initiate divorce proceedings in the appropriate jurisdiction. Because the Court finds that the Divorce Decree is void, Wife has satisfied one of the grounds for relief under Rule 60(b). As to Wife's argument under Rule 60(b)(3) that Husband engaged in fraud or misrepresentation in his Petition for Divorce, the Court makes no finding in this regard.
13 Del. C. § 101, 1506. --------
While the Court recognizes that its ruling will likely have a significant impact on the parties, Husband brought this situation on entirely by his own doing. He attempted to essentially live a double life, in order to not have to face the unpleasantries of telling Wife that he was leaving her until after the moving van had left the home and he had begun a relationship elsewhere. Husband wanted to be convincing to Wife and others prior to his move out of the home in April, so that no one would suspect that he had actually left her and established residency in Delaware. His attempt succeeded, as to her and as to this Court. He must now live with that result.
Accordingly, Wife's Motion to Reopen Divorce is GRANTED.
IT IS SO ORDERED.
/s/ _________
JENNIFER B. RANJI, Judge JBR/jac
cc: Parties, File
Date mailed to parties: __________