Opinion
File No.: CN17-05622
05-24-2018
RE: M----- F----- v. N---- R----
Bernard V. Pepukayi, Sr., Esq.
11 N. State Street
Dover, DE 19901 Michelle R. Skoranski, Esq.
3411 Silverside Road, Concord Plaza
Springer Building, Ste. 203
Wilmington, DE 19810 Pet. Nos.: 17-30388 18-09635 Motion for Reargument , Motion to Dismiss, and Rule to Show Cause Petition
This is the Court's decision regarding a Motion for Reargument ("Motion for Reargument") and a Motion to Dismiss ("Motion to Dismiss") filed on April 2, 2018, by N---- R---- ("Mother"), represented by Michelle Skoranski, Esq., against M----- F----- ("Mr. F-----"), represented by Bernard V. Pepukayi, Esq., in regards to an Interim Visitation Order ("Interim Order") entered on March 20, 2018, wherein the Court awarded Mr. F----- visitation with ----- ----- ("the Child"), born September 10, 2013. This Order will also address the Rule to Show Cause Petition ("RTSC Petition") filed by Mr. F-----against Mother on April 4, 2018. For the reasons set forth below, the Mother's Motion for Reargument and Motion to Dismiss is GRANTED, and Mr. F----s' RTSC Petition is DISMISSED as it is moot.
Mot. for Reargument, D.I. 13
Mot. to Dismiss, D.I. 14.
Interim Order, dated Mar. 20. 2018, D.I. 11.
Id.
Pet. for Rule to Show Cause, D.I. 15.
PROCEDURAL HISTORY
The Court will summarize the events leading up to the Mother's Motion for Reargument and Motion to Dismiss and Mr. F----s' RTSC Petition. On September 28, 2017, Mr. F-----filed a Petition for Parental Visitation ("Parental Visitation Petition"), requesting visitation with the Child on Mondays, Thursdays, and Sundays of each week, as well as an order permitting him to communicate with the Child and attend all of her school and extracurricular activities. According to Mr. F-----, he had performed an at-home DNA test, which determined he was the biological father of the Child. He also asserts that he had an ongoing and consistent relationship with the Child since birth; however, Mother had recently refused to allow him to see the Child. Finally, Mr. F-----explains Mother was married to J-- R---- ("Father") at the time the Child was conceived and argues the Child will be confused having two (2) fathers since Mother and Father are still married. Mother filed an Answer to Mr. F----s' Parental Visitation Petition ("Answer") on October 24, 2017. Mother questions the credibility of the DNA test Mr. F-----allegedly took. Mother alleges Mr. F----- was permitted time to visit with the Child after he divorced his wife and while the Child was one (1) years old; however, he spent the time trying to talk to Mother. She also argues Mr. F----- had an opportunity to be the Child's legal father but did not want to assume the financial responsibility. Instead, Father, who was married to Mother at the time of the Child's birth, assumed the responsibility of parentage and financially provides for the Child. Finally, Mother is afraid Mr. F----- will attempt to take the Child away, and she claimed his legal residency status is unresolved.
Pet. for Parental Visitation, D.I. 1.
Id.
Id.
Id.
Id.
Id.
Answ. to Visitation Pet, D.I. 4.
Id. at ¶ 1.
See Id. at ¶ 2.
Id. at ¶ 3.
Id.
Id.
On December 14, 2017, the parties appeared for Mediation, and on December 20, 2017, the Court entered a Genetic Test Order. Then, on March 18, 2018, the Court entered a Parentage Decree in favor of Mr. F-----, after it received Notice of the Genetic Test Results, which determined he was the Child's biological father. In response to the Parentage Decree, Mr. F----- filed a Motion for Interim Order ("Motion for Interim Order"), requesting visitation with the Child on alternating weekends from Sunday morning until Monday morning, as well as Tuesday or Thursday dinner visits. Mother failed a file a response to Father's Motion for Interim Order, and on March 20, 2018, the Court entered the Interim Order awarding Father visitation on alternating weekends from Sunday at 9:00 a.m. until Monday morning, and visitation on Tuesday from 5:00 p.m. until 7:00 p.m.
Genetic Test Order, Dec. 20, 2017, D.I. 7. Respondent requested genetic testing to establish paternity.
Notice of Genetic Test Results and Parentage Decree, D.I. 9.
Id.
Id.
Mot. for Interim Order, D.I. 10.
Interim Order, dated Mar. 20, 2018, D.I. 11.
Id.
On April 2, 2018, Mother, through newly hired counsel, filed her Motion for Reargument. According to Mother, she is a Spanish speaker who requires a translator. Mother, previously self-represented, contends she did not understand she was able to dispute Mr. F----s' Motion for Interim Order, due to her lack of legal knowledge, and limited ability to understand the English language. Mother argues Mr. F----- lacks standing to request parental visitation since he is not the Child's legal parent. Mother also claims Mr. F----- violated Father's due process rights since Mr. F----- failed to include him as a respondent on the Parental Visitation Petition and Motion for Interim Order. Furthermore, Mother is concerned for the Child's safety, the Child's relationship with Mr. F-----, and Mr. F----s' residency status and current living arrangement. "Mother requests the opportunity to object to the Interim Order in the interest of justice pursuant to Family Court Civil Procedure Rule 59(e) [sic], as it would be detrimental to [the] Child . . ." Finally, Mother also requests relief under Rule 60(b) due to mistake, inadvertence, and excusable neglect, since she was self-represented with a limited ability to understand the English language.
Mot. for Reargument, D.I. 13.
Id. at ¶ 4.
Id. at ¶ 5.
Mother also argues Mr. F----s' lack of standing also cause the Court to lack jurisdiction over this matter. Id. at ¶ 8.
Id. at ¶ 9.
According to Mother, Mr. F-----has never had the Child overnight at his home, the Child has never spent the night away from Mother and Father, and would be fearful to do so. See Id. ¶¶ at 11-12.
The Child apparently does not know Mr. F-----as a family member. Id. at ¶ 12.
"Furthermore, Petitioner is an illegal immigrant who could be arrested for his illegal status while having the Child in his care if he were granted visitation at this time." Id. at ¶ 15.
Mother contends Mr. F-----rents a basement and does not have proper accommodations for the Child. Id. at ¶ 13.
The Court corrected Rule 59(a) to 59(e). Id. at ¶ 16.
Id. at ¶ 17.
Mother simultaneously filed her Motion to Dismiss. Mother admits she had an extramarital affair with Mr. F----- around the time the Child was conceived and during her marriage with Father. Mother asserts Mr. F----- was aware of Mother's pregnancy, and the possibility the Child was his, yet he chose not to be held out as the Child's biological father. Instead, the Child was born into the marriage of Mother and Father, and Father executed an acknowledgment of paternity at the hospital. Mother argues Father is the presumed Father of the Child under Delaware law, and since the Child is now four (4) years old, the matter should be dismissed in accordance to 13 Del. C. § 8-607, which prescribes a two (2) year time limit to rebut a presumption of paternity. Mother moves for the Court to dismiss the matter and requests the Court to order Mr. F----- to provide her counsel fees and costs for what she believes to be "improper litigation."
Mot. to Dismiss, D.I. 14.
Id. at ¶ 2.
Id. at ¶ 3.
Id. at ¶ 5. This also resulted in Father being listed as the Child's legal father on her birth certificate, attached as Ex. "A."
Pursuant to 13 Del. C. § 8-204. Id. at ¶ 7.
As such, Mother contends Father lacks standing, as he is not a parent, which also causes the Court to lack jurisdiction. Mother also reasserts the due process claim she made in her Motion for Reargument. See Id. at ¶¶ 8-11.
Id. at ¶ 11.
Id. at ¶ 12.
On April 12, 2018, Mr. F----- filed his Response to Mother's Motion for Reargument ("Response to Motion for Reargument"). Mr. F----- believes Mother's Motion for Reargument is untimely and unnecessary, and he argues Mother would not suffer substantial prejudice since it is not a final order on the merits. Mr. F----- also argues Mother should not be excused due to her language barrier, contending she was fully aware of the action. Mr. F----- denies the allegations Mother made against him regarding his relationship with the Child and his living arrangements, and referred to his residency status as "immaterial to his human right to parent his child." In addition to fact-based denials, Mr. F----- argues he does have standing, the Court does have jurisdiction over the matter, and Mother lacks standing to assert the due process rights of another. Finally, aside from failing to respond to his Motion for Interim Order, Mr. F----- alleges, Mother ignored the Interim Order, and he believes "[Mother]'s failure to respond to the Motion [for Interim Order], and her intentional disregard of this Court's [Interim] Order should not be rewarded under the disguise of excusable neglect."
Resp. to Mot. for Reargument, D.I. 18.
Id. at ¶ 16.
Id. at ¶ 17.
"Any burden to seek further clarification was solely on [Mother]" Id. at ¶ 5.
According to Mr. F-----, he spent consistent time with the Child, with the exception being when Mother denied access, and he believes he and the Child have a good relationship with the Child. Mr. F-----also asserts he resided with Mother, Father, and the Child for several months. Id. at ¶¶ 10, 14.
Id. at ¶ 12.
Id. at ¶ 15.
Id. at ¶ 8.
Id.
Id. at ¶ 9.
"[Mother], in turn, simply chose to ignore the [Interim Order] and prohibit Mr. F----- from seeing [the Child] because the [Interim Order] is an inconvenience on her marriage." Id. at ¶ 10.
Id. at ¶ 17.
On the same day, Mr. F----- filed his Response to Mother's Motion to Dismiss ("Response to Motion to Dismiss"). Mr. F----- admits the Child was born during the marriage between Mother and Father; however, contends any acknowledgment of paternity was falsely executed and "should be subjected to the penalty of perjury. Thus it is void or voidable." Mr. F----- asserts all the parties involved "definitively" knew he was the biological father of the Child within two (2) to three (3) months, and he was very involved in the Child's life until Mother began asking for greater financial contributions. As to Mother's argument regarding 13 Del. C. § 8-607, Mr. F----- contends the statute is not applicable to third-party fathers. If the Court were to find credibility in Mother's argument, Mr. F----- requests the Court to use its equitable jurisdiction and authority to consider his Petition for Parental Visitation as a petition for third-party visitation. Mr. F----- argues he was not required to name Father in the litigation, and Father could have filed a motion to intervene. Mr. F----- also claims a person who is not a "legal parent" has standing to file a petition in the Family Court to determine parentage or visitation. Finally, aside from denying the Mother's Motion to Dismiss, Mr. F----- requests Mother be ordered to pay counsel fees associated with the Motion to dismiss, and argues Mother has unclean hands due to her relationship with him and Father. Mr. F----- also filed his RTSC Petition on April 4, 2018, and Mother filed an Answer (Answer to RTSC Petition") on May 1, 2018. Mr. F----- contends Mother denied visitation, despite the Interim Order, on three (3) occasions; however, Mother denied the allegations.
Resp. to Mot. to Dismiss, D.I. 17.
Id. at ¶ 5.
Id.
Id. at ¶ 8.
Id.
Id. at ¶ 10.
Id. at ¶ 11.
Id. at ¶ 13.
Id. at ¶ 12.
Pet. for Rule to Show Cause, D.I. 15.
Answ. to Pet. for Rule to Show Cause, D.I. 20.
Pet. for Rule to Show Cause at ¶¶ 7-9, D.I. 15.
Answ. to Pet. for Rule to Show Cause, D.I. 20.
STANDARD OF REVIEW
A motion for reargument must be made within 10 days of the filing of the Court's decision and must state the grounds therefore. The opposing party may file an answer to the grounds asserted in the motion within 10 days after service of such motion. The Court shall determine from the motion and answer whether reargument will be granted or denied. "A motion for reargument is the proper device for seeking reconsideration by the Trial Court of its findings of fact, conclusions of law, or judgment." Unless the Court misapprehended the law or facts, or overlooked legal precedent or principles in a way that would affect the outcome of the case, reargument will usually be denied. The purpose of a motion for reargument is not to rehash arguments already decided by the Court, but to allow the Court the opportunity to correct errors prior to appeal. A party may not use a motion for reargument simply because they are unhappy with the Court's ruling, nor can a party use a motion for reargument to introduce new evidence or new arguments which could have been, but were not submitted at trial.
See Fam. Ct. Civ. R. 59(e).
Id.
Id.
Ramon v. Ramon, 963 A.2d 128, 136 (Del. 2008) (citations omitted).
Id.
Id.
Martin v. Martin, 857 A.2d 1037, 1039 (Del. Fam. 2004).
DISCUSSION
The Court will consider Mother's Motion for Reargument and Motion to Dismiss simultaneously. The Court will first have to grant Mother's Motion for Reargument before it dismisses the matter. In narrowing the issues, the Court will first have to determine whether genetic testing was appropriate, whether Mr. F-----lacks standing to request parental visitation and whether the Court lacks jurisdiction over the matter. Once the Court makes this determination, it next must address whether Mother is entitled to relief under Fam. Ct. Civ. R. 59(a) or 60(b) and whether Dismissal is appropriate. An examination of Delaware's Uniform Parentage Act ("UPA") and relevant case law is necessary.
A. Analysis of UPA — 13 Del. C. §§ 8-204 and 6-607 and Whether Mr. F-----was Entitled to a Genetic Test Order to Determine Parentage:
UPA applies to determinations of parentage within the State. 13 Del C. § 8-201(b) sets out the various ways to establish a father-child relationship. One such way is by an unrebutted presumption of the man's paternity of the child under 13 Del. C. § 8-204. Two (2) relevant ways in which a man can establish an unrebutted presumption of paternity are: (1) if a man and the mother of the child are married to each other and the Child is born during the marriage; or (2) for the first two (2) years of the child's life, a man resided in the same household with the child and openly held out the child as his own. Once established, the presumption may be rebutted only by an adjudication under subchapter VI of UPA. Crucial to the Court's analysis is the limitation of adjudicating the presumption of paternity once it is established. 13 Del. C. § 8-607(a) unambiguously provides that "a proceeding brought by presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than two (2) years after the birth of the child."
Id. §§ 8-201(b)(1)-(6).
Id. 8-201(b)(1).
Id. § 8-204 (a)(5).
Id. § 8-204 (b).
(emphasis added). The statute also provides an exception under 13 Del. C. § 8-607(b); however, this exception is not applicable, as it is only for cases in which presumptive Father seeks to have paternity adjudicated.
In the present matter, the facts indicate Father established a presumption of paternity, as he has satisfied two (2) requirements under § 8-204. First, the Child was born during Mother and Father's marriage, despite Mother's extramarital affair with Mr. F-----. Further, for more than two (2) years, Father, and the Child have resided in the same household and he has openly held out the Child as his own. Mother asserts Father executed an acknowledgment of paternity at the hospital, is listed as the legal father on the Child's birth certificate, Father pays for the Child's medical and schooling costs, and that the Child has never spent a night away from Mother and Father. Given these facts, and the fact that Mother and Father were married at the time of the Child's birth, Father is the Child's presumed father. Even assuming arguendo the Court were to consider Mr. F----s' argument regarding Father falsely executing an acknowledgment of paternity, it would not matter since Father is considered the presumed father of the Child.
Mr. F----- admits this fact several times in the filings.
To rebut the presumption, Mr. F----- was required to commence an action to adjudicate parentage of the Child no later than two (2) years after the Child's birth. Adjudication may be by filing for genetic testing or filing a petition for visitation or custody, as was the case here. When Mr. F----- initiated his action for parental visitation, and the Court entered the Genetic Test Order, the Child was four (4). Therefore, Mr. F----- was not entitled to such an order, nor does he have the requisite standing to have the Petition for Parental Visitation considered. The Court is unpersuaded with Mr. F----s' illogical and uncited proposition that 13 Del. C. § 8-607(a) is not designed to apply in the context of a third-party father. To the contrary, this Court, using the fundamental premise of statutory construction, held the opposite: "[t]he Court does not see that 'another individual' is an ambiguous phrase. After the mother and presumed father have been afforded the right to bring a paternity action, the natural and logical 'another individual' to be afforded the right of paternity action is a third-party father." §8-607(a) very much applies to the present situation, and though it may seem unfair to Mr. F-----, the rationale behind the two (2) year rule is to protect the family unit. Additionally, disruption of the relationship between Father and the Child, which has lasted sufficiently long could potentially harm the Child. Mr. F-----had ample opportunity to acknowledge paternity or challenge Father's paternity, especially, as he alleges, he knew he was "definitively" the biological father of the Child within two (2) to three (3) months after birth. But this window closed, and the Court erred by ordering genetic testing in the first place.
Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982).
R.E.H. v. J.M.H., 2009, WL 6340108, at *4 (Del. Fam. Ct. Oct. 23, 2009).
Id. at *10.
B. Whether Mr. F-----had Standing to File his Parental Visitation Petition:
Since Mr. F----- is unable to rebut the presumption that Father was the Child's father, he lacked standing to file his Parental Visitation Petition. In a similar case, the Supreme Court of Delaware ('Supreme Court") affirmed this Court's and the Superior Court's decision that putative father lacked standing to file a petition for custody or visitation rights. Addressing whether the legislature intended to include "putative father" within the word "parent" under 13 Del. C. §§ 721 and 727, the Supreme Court held:
Petitioner F. v. Respondent R., 430 A.2d 1075 (1981).
[T]he word "parent" as used in §721 and §727, means a person standing in the legal relationship of the child, i.e. one who is charged with the legal duties and responsibilities of parenthood and who is entitled to all the rights thereof. In the case of a married woman, who bears a child, her husband is the legal father and parent, under the presumption of legitimacy, carrying the duties and responsibilities and entitled rights of parenthood. . . . The General Assembly has demonstrated throughout the Statutes governing parents and children its distinction between a "parent" in the ordinary sense of the word, and a "natural father," a status which required an explicit definition.Likewise, the Court is unable to find that Mr. F----- is a parent of the Child, and therefore he lacks standing and the Court lacks jurisdiction to hear the matter.
Id. at 1079.
Like §§ 721 and 727, §728 uses the word "parent," and since Father is the presumptive legal parent, entrusted with all legal duties and responsibilities, the Court is unable to find Mr. F----- qualifies under this statute.
C. Whether Wife is Entitled to Relief Under Fam. Ct. Civ. R. 59(e) or 60(b)
Having found Mr. F----- was unable to contest paternity and lacks standing, the Court easily finds Mother is entitled to relief under Fam. Ct. Civ. R. 59(e). Despite Mr. F----s' argument that it should be denied as untimely, the Court finds Mother timely filed her Motion for Reargument on April 2, 2018. Pursuant to Fam. Ct. Civ. R. 59(e), a motion for reargument shall be served within ten (10) days after the filing of the Court's opinion or decision. The Court entered its Interim Order on March 20, 2018. Mother would have had to file her Motion for Reargument on Friday, March 30, 2018, for it to be timely; however, since that day was a legal holiday, the designated period for filing was extended to Monday, April 2, 2018.
"In computing any period of time prescribed or allowed by these Rules . . . the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday." Fam. Ct. Civ. R. 6(a). The last day of the period in the present matter was Good Friday.
Additionally, the instant matter is the exact situation where the Court must grant a motion for reargument. The purpose of a motion for reargument is not to rehash arguments already decided by the Court, but to allow the Court the opportunity to correct errors prior to appeal. Unless the Court misapprehended the law or facts, or overlooked legal precedent or principles in a way that would affect the outcome of the case, reargument will usually be denied. The Court misapprehended the law and facts and overlooked legal principles in the present matte when it did not consider Father's status as a presumptive father, and the two (2) year limit under 13 Del. C. § 8-607(a). Therefore, Mother should be allowed to reargue the matter, and having found this, the Court finds it should be dismissed due to Mr. F----s' lack of standing.
Ramon, 963 A.2d at 136.
Id. --------
Though it need to reach a decision based on Fam. Ct. Civ. R. 60(b), the Court nonetheless notes this is likely a matter the Court would reopen. Mother was a pro se litigant, with a language barrier, and she did not unduly delay in filing the Motion to Reopen. Furthermore, she likely meets her burden of proving, by clear and convincing evidence, that the outcome would be different and Mr. F----- would not suffer substantial prejudice, given the little time that passed and his ability to file a petition for third-party visitation.
CONCLUSION
The Court finds granting Mother's Motion for Reargument is appropriate in the instant matter. Additionally, since he was not able to rebut Father's presumption of paternity, and since he lacks standing, the Court vacates the Interim Order and dismisses Mr. F----s' Parental Visitation Petition. Mr. F----s' RTSC Petition is also now moot since he should have never been award visitation under the Interim Order.
While Mr. F----- is correct in stating the Court has equitable jurisdiction, it will not consider his Parental Visitation Petition as a petition for third-party visitation at this time. A petition for third-party visitation presents various important constitutional issues. As such, if he so chooses, Mr. F----- should file a new petition, so Mother has notice and opportunity to respond. Neither party will be ordered to pay attorney fees or costs.
THEREFORE, for the aforementioned reasons, the Mother's Motion for Reargument and Motion to Dismiss are GRANTED and Mr. F----s' RTSC Petition is DISMISSED.
IT IS SO ORDERED
/s/ _________
Mark. D. Buckworth, Judge MDB/mac 5/24/186/5/18
cc: Bernard V. Pepukayi, Sr., Esq.
Michelle R. Skoranski, Esq.
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