Opinion
No. 146, 2002.
Submitted: April 7, 2003.
Decided: April 29, 2003.
Court Below-Family Court of the State of Delaware, in and for New Castle County File No. CN00-06767
Before WALSH, HOLLAND and BERGER, Justices
Appeal dismissed.
Unpublished opinion is below.
TAYO F. OMOWUNMI, Respondent Below-Appellant, v. NICOLE P. DRAPER, Petitioner Below-Appellee. No. 146, 2002. Supreme Court of Delaware. Submitted: April 7, 2003. Decided: April 29, 2003.
ORDER
This 29th day of April 2003, it appears to the Court that:
(1) The respondent-appellant, Tayo F. Omowunmi ("Father"), filed an appeal from the Family Court's February 19, 2002 order granting the petition of petitioner-appellee, Nicole P. Draper ("Mother"), for sole custody of the parties' minor daughter. In the order, the Family Court noted that Father was notified of the custody hearing, but did not appear and did not contact the Family Court "with any indication that he would be unable to attend due to his incarceration, or requesting any other relief."
(2) In his appeal, Father claimed that the Family Court hearing should not have proceeded in his absence because he requested a continuance on the ground that he was incarcerated at Fort Dix. In support of that contention, Father submitted a copy of a motion for a continuance dated February 9, 2002, but no other evidence showing that the motion was mailed to the Family Court. This Court remanded the matter so that Father could present any such evidence to the Family Court in the first instance.
Omowunmi v. Draper, Del. Supr., No. 146, 2002, Holland, J. (Nov. 17, 2002).
(3) On remand, the Family Court requested written submissions and supporting documentation from the parties, using Father's Fort Dix address as well as another address in New Castle, Delaware, which had been provided by Father. In the absence of any response by Father to the Family Court's request, the Family Court issued its report, which found that Father had failed to sustain his burden of proof that he had requested a continuance of the custody hearing in a timely manner.
(4) Following receipt of the Family Court's report following remand, the Clerk of this Court sent a letter dated February 4, 2003 to the parties, which included a briefing schedule for supplemental memoranda.
Father's opening supplemental memorandum was due on or before February 18, 2003.
(5) On March 6, 2003, the Clerk issued a notice to show cause why the case should not be dismissed for Father's failure to diligently prosecute the appeal by not filing his opening supplemental memorandum. Father was directed to respond in writing within 10 days of receipt of the notice to show cause or dismissal of the appeal would be deemed to be unopposed.
SUPR.CT.R. 29(b).
The Supreme Court docket reflects that the Clerk's Office sent the notice to the addresses provided by Father.
(6) The appellant has failed to respond to the notice to show cause within the required 10-day period. Therefore, dismissal of this action is deemed to be unopposed.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rules 3(b) and 29(b), the within appeal is DISMISSED.