Opinion
Case No. 15-25680
06-15-2016
In Re the Matter Of: M.C.V., Petitioner, v. A.V.G. & D.C.M. Respondents.
Petition No.
ORDER
MOTION TO REOPEN In the Interests of: A.C.V. DOB:
ORDER
Currently before the Court is a Motion to Reopen ("Motion") filed by M.C.V. ("Petitioner") on March 22, 2016. Neither A.V.G. ("Mother") nor D.C.M. ("Father") (collectively "Respondents") submitted a response.
BACKGROUND
On August, 19, 2015, Petitioner filed a Petition for Guardianship of a Minor ("Petition") concerning his younger brother, A.C.V. Accompanying the Petition was an Affidavit of Consent whereby A.C.V. consents to his brother acting as his guardian.
On March 8, 2016, the Court held a hearing on the Petition. During the hearing, A.C.V. testified that he began residing in the State of Delaware sometime in March 2015; however, Petitioner testified that A.C.V. arrived in Delaware on April 4, 2015. Prior to arriving in Delaware, A.C.V. spent twenty-five days in a shelter in Miami, Florida. At all times before he entered the U.S., A.C.V. was residing in Guatemala with his parents. Although A.C.V. asserted that he stopped attending school after the sixth grade because his parents could not afford to send him, both Petitioner and A.C.V. testified that their parents have the means to care for A.C.V. There was no discussion of the method by which A.C.V. traveled to the United States.
On March 14, 2016, the Court issued an Order denying the Petition due to a lack of subject matter jurisdiction.
On March 22, 2016, Petitioner filed the pending Motion arguing that this Court may exercise subject matter jurisdiction over the Petition pursuant to 13 Del. C. § 1920(a)(2). In support of this argument, Petitioner cites In re J.C.S., No. CS15-03272, Millman, J. (Del. Fam. Ct. Feb. 16, 2016) for the proposition that this State may be considered A.C.V.'s "home state" even though he did not reside in Delaware for a period of six months immediately preceding the filing of the Petition, and that a State may lose "home state" status if the child at issue did not reside in that State for at least six months and all relevant information concerning the child is located in Delaware.
DISCUSSION
A motion for relief from judgment or order, also referred to as a motion to reopen, is governed by Family Court Rule of Civil Procedure 60(b), as follows:
[o]n 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.
Fam. Ct. Civ. R. 60(b).
A motion to reopen a judgment under Rule 60(b) is addressed to the sound discretion of the trial court. Rule 60(b) motions are only granted for good cause as shown by clear and convincing evidence.
O'Connor v. O'Connor, 98 A.3d 130, 134 (Del. 2014).
Stevens v. Stevens, No. 140, 1997 WL 619117, at *2 (Del. Supr. Oct. 1, 1997).
In this case, Petitioner argues that his Petition should be reopened pursuant to Rule 60(b)(6) due to the existence of case law which is contrary to the Court's March 14, 2016 finding that this Court lacks subject matter jurisdiction over the Petition.
As discussed in the March 14, 2016 Order, there are two primary statutes which permit this Court to exercise subject matter jurisdiction over the Petition. First, according to 13 Del. C. § 1920, a Court of the State of Delaware has jurisdiction to make an initial custody determination if:
(1) This State is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 1926 or § 1927 of this title; and
a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;
Alternatively, this Court may exercise temporary emergency jurisdiction if "the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse."
(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 1926 or § 1927 of this title; or
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3) of this subsection.
In his Motion, Petitioner admits that Section 1920(1) does not apply in this case. Instead, Petitioner appears to argue that A.C.V.'s absence from Guatemala for a period of 180 days preceding the filing of the Petition divests Guatemala of its "home state" status, and that, in the absence of a home state, Delaware may assume subject matter jurisdiction because both Petitioner and A.C.V. have significant connections to Delaware. In support of these arguments, Petitioner cites In re J.C.S., No. CS15-03272, Millman, J. (Del. Fam. Ct. Feb. 16, 2016).
In In re J.C.S., the Honorable Judge Millman determined that Guatemala lost its "home state" status because the child at issue had not resided there for a period of six months prior to the filing of the petition for guardianship. While Judge Millman discussed the fact that substantial evidence concerning the child was present in Delaware, he did not explicitly find that Delaware was the child's "home state." Rather, Judge Millman simply stated that he was "satisfied that the requirements of Section 1920(a)(2) [had] been met . . ." Based upon this language, it appears that Judge Millman was asserting that Delaware may exercise subject matter jurisdiction because no other State had jurisdiction and there was substantial evidence concerning the child in Delaware. Such an interpretation is consistent with the language of Section 1920(a)(2)a.-b., which does not require the State seeking subject matter jurisdiction to be the child's "home state" at the time a petition is filed.
See In re J.C.S., No. CS15-03272, at 3 (Del. Fam. Ct. Feb. 16, 2016).
Id. at 4.
Id.
See 13 Del. C. § 1920(a)(2)a.-b. (2016). --------
Contrary to Petitioner's contention, A.C.V. was not absent from Guatemala for a period of six months preceding the filing of the Petition. As stated in the March 14, 2016 Order, Petitioner testified that A.C.V. did not arrive in Delaware until April 4, 2015. Prior to that time, A.C.V. spent twenty-five days in a shelter in Miami; and, before entering the U.S., A.C.V. resided in Guatemala with his parents. The Petition was filed on August 19, 2015. Thus, Guatemala did not lose its status as A.C.V.'s "home state" because he was not absent from Guatemala for six months prior to the filing of the Petition.
CONCLUSION
Since the authority cited by Petitioner does not contradict the Court's prior ruling, and no other grounds for relief have been asserted, the Motion to Reopen is DENIED. Nothing in this Order shall inhibit Petitioner's ability to re-file his Petition.
IT IS SO ORDERED this day of June 15, 2016.
/s/_________
PETER B. JONES, JUDGE PBJ