Opinion
No. 484, 2000.
July 30, 2001.
Appeal from the Family Court of the State of Delaware in and for New Castle County, CN98-09458.
REVERSED AND REMANDED.
Unpublished Opinion is below.
RUTH L. FIGLER, Respondent Below-Appellant, v. DENNIS L. FILGER, Petitioner Below-Appellee. No. 484, 2000. Supreme Court of Delaware. Submitted: March 20, 2001 Decided: July 30, 2001
Court Below: Family Court of the State of Delaware in and for New Castle County, CN98-09458.
Before WALSH, HOLLAND and STEELE, Justices.
ORDER
This 30th day of July 2001, it appears to the Court that:
1. Dennis L. Filger and Ruth L. Filger married in 1970 and were divorced by the Family Court of the State of Delaware on October 22, 1998, ending a marriage of over twenty-eight years. The Family Court rendered an Opinion and Order resolving property division and alimony matters on August 27, 1999. Husband filed a Motion for Reargument and Clarification on September 3, 1999 and the Family Court issued an Order denying the motion on September 28, 1999.
2. Six weeks later on November 12, 1999 Husband filed a Petition to Terminate Alimony. On February 9, 2000, Wife filed a Petition-Rule to Show Cause alleging that Husband stopped paying alimony. Husband filed a second Rule to Show Cause on April 18, 2000 alleging a refusal to comply with other portions of the ancillary decision.
3. On April 12, 2000, Wife's then attorney filed a Motion to Dismiss the Petition to Terminate Alimony alleging that the Family Court did not have personal jurisdiction over Wife as she lived out of the State of Delaware and that she had not been served under the Long Arm Statute.
4. Husband filed a response to the motion on April 24, 2000 and the Family Court signed an Order on June 7, 2000 denying the motion.
Although the Order is hand-dated "June 7, 2000," and signed by the Judge, there is a notation on the Order that it was not mailed by the Family Court clerk until June 21, 2000.
5. The Court then scheduled a hearing on the Petition to Terminate and on Wife's two Rules to Show Cause for Monday, July 17, 2000. Notices for the three petitions were issued on June 21, 2000. Husband acknowledged receipt of the notices on July 6, 2000. On Friday, July 14, 2000, Husband filed a Motion for Default Judgment. On Monday, July 17, with the parties and attorneys present in Family Court, and without hearing the merits of any cause, the trial judge granted the motion and signed the proposed order prepared by Husband's attorney. The Order terminated all alimony obligations of Husband (including past due, present or future alimony) to Wife and permitted Husband's attorney to file a claim for fees and costs within ten days of the order. Husband's counsel filed an Affidavit and request for $15,000 in attorney fees and costs. Wife's former attorney was served but Wife was not.
6. On July 27, 2000, Wife filed a Motion to Reopen the default judgment pursuant to Family Court Civil Rule 60(b).
7. Wife filed a response to the application for attorney fees and costs on August 9, 2000. On that same date the Family Court signed an order granting Husband's counsel's application in full and denied Wife's Motion to Reopen.
8. After a Motion for Reargument of the order of attorney fees and costs and the response to the motion were filed, the Family Court issued a final order denying the Motion for Reargument on September 5, 2000.
9. Wife appealed on October 3, 2000.
10. We review the Family Court's rulings under an abuse of discretion standard.
11. We conclude that a trial court abuses its discretion by entering a default judgment and by refusing to reopen pursuant to Family Court Civil Rule 60(b) when cross-petitions for relief are before it and a hearing is scheduled with all parties present and capable of presenting evidence on the merits.
12. The trial court here further committed error when it denied the Wife an opportunity to respond to the Motion for Default Judgment within the time prescribed by the Family Court Rules and abused its discretion by terminating Wife's alimony in toto and by awarding Husband attorney fees and costs without any hearing on the merits of the applications.
13. It has long been, and continues to be, the policy of the Courts of Delaware to favor litigating disputes between parties on the merits.
Battaglia v. WFSF, Del. Supr., 379 A.2d 1132 (1977).
14. In this case, Husband filed his Motion for a Default Judgment one business day before a previously scheduled hearing for which all parties appeared with counsel. Although Wife had opted to plead otherwise than by an answer to Husband's Petition to Terminate Alimony, a hearing had been scheduled on the same day that motion had been scheduled to be heard for Wife's Petitions for a Rule to Show Cause why Husband had not been complying with the alimony and property division provisions of the Family Court's earlier ancillary order. Husband filed no answer to these Petitions filed by Wife.
15. Both parties, despite their respective failures to file answers to the cross-Petitions, had prepared and were able to proceed on the merits on all Petitions on the scheduled hearing date of July 17. Witnesses had in fact appeared from out of state to testify on that day.
16. While we can understand the Family Court's frustration that neither party had filed answers to the other's Petition(s) and that Wife had interposed a procedural jurisdictional defense rather than taking a written position on the Husband's Petition on the merits, the Family Court should have forced all parties to trial on the merits that day rather than dispose of the pending issues in toto by entering a default judgment in favor of the Husband on all outstanding issues.
17. On the facts of this case, the Family Court further abused its discretion by denying Wife's Motion to Reopen, thereby reaffirming the improvidently granted default judgment and preventing the issues between the parties from being decided on their merits.
18. We conclude that the Family Court's judgments were arbitrary and must be reversed.
NOW, THEREFORE, IT IS ORDERED, the judgments of the Family Court are, therefore REVERSED and the case is REMANDED with instructions that it be reassigned to another judge of the Family Court.