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R. Z. v. R. W.

Family Court of Delaware
Sep 20, 2022
CN19-03432, (Del. Fam. Sep. 20, 2022)

Opinion

CN19-03432, Petition 22-08521

09-20-2022

R. Z. v. R. W.

Jennifer Ellsworth-Aults, Esquire 2710 Centerville Road, Suite 101 Wilmington, DE 19808 Attorney for Petitioner


Jennifer Ellsworth-Aults, Esquire 2710 Centerville Road, Suite 101 Wilmington, DE 19808 Attorney for Petitioner

LETTER DECISION AND ORDER

MARY S. MUCH, JUDGE

Dear Parties and Counsel, On September 16, 2022, Petitioner, R--- Z--- (hereinafter "Mother"), her attorney, Jennifer Ellsworth-Aults, Esquire, and Respondent, R ------ W---- J-. (hereinafter "Father") appeared for hearing on the above-referenced Petition for Specific Performance of the Mediation Agreement dated January 9, 2020 (hereinafter "Agreement"), which outlined the parties' agreement concerning custody of, and child support for their two (2) minor children. Specifically, Mother alleged Father failed to comply with the Child Support provisions in the Agreement requiring both parties to be equally (50/50) responsible for the children's expenses described therein and subsequently failed to make Mother whole from his share of the net proceeds from the parties' sale of their jointly owned property (hereinafter "D -------- L---"), as required by the Agreement. Mother seeks Father's repayment of his portion of the children's expenses, as well as payment of Mother's portion of the cost of mediation and reasonable attorney's fees/costs for breaching the Agreement as outlined therein. Father disputes he owes Mother approximately $4,000.00 for his share of G---'s 2021/2022 T ------ tuition ("2021/2022 Tuition"), and contests Mother's request for reimbursement of costs and fees.

Mother testified Father owes her $19,547.56, which represents Father's 50% portion of the children's expenses, including tuition, for the calendar years 2019, 2020, 2021, and through September 15, 2022. Father does not dispute Mother's figures outlined in this document. In addition, Father does not dispute responsibility for half of any of the expenses outlined in this document, except a portion of 2021/2022 Tuition; Father testified he advised Mother he could pay $6,000.00 toward 2021/2022 Tuition and disputes responsibility for the remainder of 2021/2022 Tuition.

Petitioner's Exhibit 5.

Mother further testified the net proceeds from the sale of D -------- L--- were approximately $300,000.00. Pursuant to a December 23, 2021 email copied to Father, Mother advised the parties' D -------- L--- settlement attorney of the provisions of the Agreement providing that if either party owed the other party funds at the time of the D -------- L--- settlement, the party owed would be made whole from the other party's sale proceeds; Mother asserted Father owed her $14,800.00 with another $194.00 to be included prior to settlement. By email dated January 24, 2022 sent to the settlement attorney and copied to Mother, Father advised he "expected to receive 50% of the proceeds minus the fridge and washer/dryer cost." By email dated January 25, 2022, Father advised he would not "attend nor sign documents if [Mother] is awarded any additional monies outside the agreed 50% minus the amount for appliances." In addition and by email dated January 28, 2022, Father reiterated he "will not sign any documents, [and] wont [sic] attend settlement" unless he was going to receive 50% of the proceeds minus appliances and argued any additional amounts were "not part of this real estate transaction." Ultimately, $15,000.00 was placed in escrow from the sale proceeds of D -------- L---; these proceeds are being held in escrow by Mother's counsel.

Petitioner's Exhibit 6

Id.

Id.

Id.

The Agreement requires the parties engage in mediation of any disputes regarding the terms therein prior to filing for relief with the Court. The parties mediated the disagreement in March 2022 without success. Mother testified she actively participated in mediation; she "came prepared" with documents supporting her position regarding Father's debt to her. Mother further testified Father left the mediation thirty (30) minutes early. Father did not refute Mother's testimony. Father argues he advised Mother he could pay $6,000.00 toward 2021/2022 Tuition. Mother confirmed Father told her he could only pay $6,000.00 "at this time;" Mother did not agree to accept only $6,000.00 as Father's total responsibility for 2021/2022 Tuition. Father provided no evidence that the parties agreed to modify the terms of the Agreement and permit Father to pay only $6,000.00 for 2021/2022 Tuition.

To obtain the remedy of specific performance, a party must show by clear and convincing evidence that a valid and enforceable contract exists between the parties; that the party seeking specific performance was ready, willing, and able to perform under the terms of the contract; and that the balance of the equities favors an order of specific performance. Mother seeks repayment by Father of his 50% share of the children's expenses and reimbursement for the costs and fees required to enforce the Agreement. Father believed Mother agreed to accept $6,000.00 for the 2021/2022 Tuition) and he argues he should not be required to pay Mother's costs and fees associated with the instant action because he "offered to make [Mother] whole," less $4,000.00.

Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1162 (Del. 3/25/2010).

Neither party argues that the Agreement is not an enforceable contract. Mother performed her obligation under the Agreement; she paid the children's expenses, provided documentation of the expenses to Father, and requested his portion thereof. As to the general equities, Father testified Mother "he had a lot on his plate," upon which he did not elaborate at the hearing, which caused him to offer to pay only $6,000.00 toward his share of 2021/2022 Tuition. In the meantime, D---- ---- L--- settled, which netted proceeds exceeding $300,000.00. The Court has no evidence that Father was unable to perform his obligation under the Agreement, nor that it would be inequitable to require his performance.

Based on the foregoing, IT IS SO ORDERED this day of September:

1. Father is in breach of the Agreement; Father failed to reimburse Mother for his share of the children's expenses, and he refused to allow Mother to be made whole from the D -------- L--- settlement funds at the time of settlement.
2. Father owes Mother $19,547.56 for his 50% share of the children's expenses through September 15, 2022.
3. The $15,000.00 being held in escrow shall be immediately released to Mother.
4. Within thirty (30) days of the date of this Order, Father shall pay over to Mother $4,547.56 (or the remainder of the difference between the escrowed funds and $19,547.56, whichever is higher).
5. Within fifteen (15) days of the date of this Order, Counsel for Mother may file a Motion for Attorney's Fees and Costs, and Affidavit therefor, associated with this proceeding.

This is a Final Order.


Summaries of

R. Z. v. R. W.

Family Court of Delaware
Sep 20, 2022
CN19-03432, (Del. Fam. Sep. 20, 2022)
Case details for

R. Z. v. R. W.

Case Details

Full title:R. Z. v. R. W.

Court:Family Court of Delaware

Date published: Sep 20, 2022

Citations

CN19-03432, (Del. Fam. Sep. 20, 2022)