Opinion
CN21-03554
11-23-2022
J---- J. H------, Jr. Petitioner v. A----- H------ Respondent.
J---- J. H------, Jr., Pro Se Judy M. Jones, Esquire, for Respondent
Date of Order: 10/25/2022
Transcript Received: 1/9/2023
Order Entered: 2/1/2023
Pet. No. 22-16525
J---- J. H------, Jr., Pro Se
Judy M. Jones, Esquire, for Respondent
REVIEW OF COMMISSIONER'S ORDER
FELICE GLENNON KERR, JUDGE
Pending before the Court is a Request for Review of a Commissioner's Order ("ROCO") filed by J---- J. H------, Jr. ("Father"). Father is seeking a review of the Order entered by Commissioner Para Wolcott on October 25, 2022 regarding an award of attorneys' fees to A----- H------ ("Mother") following the dismissal of a Protection from Abuse (PFA). The Court held a hearing on Father's PFA petition on September 21, 2022. Father testified in his case in chief and then called Mother to testify. Mother's testimony had not concluded when Father requested that he be able to dismiss his petition. Mother did not oppose the request to dismiss but requested that she still be permitted to request an award of attorneys' fees and costs. The Court requested that Mother's counsel put the request in writing as a Motion and that Father respond to it. The Court seemed concerned that there was significant tension between the parties and wanted the arguments to be completed in writing when emotions were not as highly charged. Mother alleged in Court that Father's petition was frivolous and that Father as an attorney should have known that the Petition had no merit. The Court entered an Order Granting Mother's request for fees "for the reasons set forth by Petitioner."
Father cites a number of objections to the Commissioner's Order though a number of them are irrelevant and are difficult to understand or follow. There was no decision made by the Court on the PFA Petition itself, only on the request for attorneys' fees. The two arguments made in the ROCO that the Court could possibly consider are that neither the Petition nor the Order cite any legal authority and that the award of attorneys' fees was an abuse of discretion. The Court cannot consider whether the entire hearing was an abuse of discretion as the Petition was withdrawn. The ROCO does not cite any specific evidentiary rulings which were improper and were related to the award of attorneys' fees. Only one exhibit was entered for the Court to consider if there were to be a ruling which were two pages of text messages.
There is nothing in the Commissioner's Order that suggests she gave improper notice that the Newark PD or JP Court is corrupt. There was no earlier PFA Order to violate and there is nothing in the record regarding the police needing clarification. The police frequently tell people to file PFA's but they are not lawyers or judges.
STANDARD OF REVIEW
A party may seek a review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1), which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by the rules of Court, within 30 days from the date of the Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject, or modify in whole or in part the Order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
Because this was a Commissioner's final order, the Court reviews the Order de novo. According to Black's Law Dictionary a de novo review is "[a]n appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings." Pursuant to Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must "set forth with particularity the basis for each objection." Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order. A judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party.
Id.
Black's Law Dictionary (10th ed. 2014).
FAM. CT. CIV. P. R. 53.1(b).
10 Del. C. § 915(d)(1); see also FAM. CT. CIV. P. R. 53.1(e).
C.M. v. L.A., 2007 WL 4793042, at *1 (Del. Fam. Ct. Dec. 27, 2007).
PROCEDURAL BACKGROUND
The Court will not list all the pleadings in the parties' file, just those relevant to this ROCO. On May 25, 2022 the Court entered a Stipulation on Custody and Visitation. On July 14, 2022, the Court entered a final order on Ancillary Matters to the Divorce. On August 8, 2022, Father filed a PFA and emergency motion for ex parte relief. The request for ex parte relief was denied and the Court held case review with a mediator on September 6, 2022. The parties were not able to resolve the PFA at that time and Mother's attorney alleges that she advised Father she would seek attorneys' fees if the case went to trial. The trial was held on September 21, 2022. After approximately an hour of testimony from Father and Mother, Father dismissed his Petition and Mother agreed to the dismissal but requested attorneys' fees. The Commissioner requested that the request be done by written Motion. Mother's counsel filed a written motion and Father filed a Response. The Court entered an Order on October 25, 2022 granting the request for fees in the amount of $1,640.00. Father filed this ROCO from that Order.
ARGUMENTS RAISED
The Court has reviewed the transcript of the proceedings along with the evidence which was contained in the Court's file. As indicated above, some of the arguments make no legal or factual sense. The two arguments which appear viable are that the Commissioner did not cite any authority for the award and that the fee award was an abuse of discretion.
ANALYSIS
The Commissioner's Order is not clear as to why the Motion for Attorney's fees was granted other than "for the reasons set forth in the Motion." The Court presumes based upon a review of the transcript and the evidence entered by Father, that the Court found the Petition to be frivolous. Based upon what had been entered into evidence as of the time when Father voluntarily dismissed his petition, the Court would concur that the evidence was not sufficient to make a finding of abuse as defined by 10 Del.C. §1041. However, that alone would not be the basis for departing from the American Rule which provides that each party is generally expected to pay its own attorneys' fees regardless of the outcome of the litigation. There are exceptions to the American Rule, including the bad faith exception, which applies in extraordinary cases. Courts have found bad faith where parties have unnecessarily prolonged litigation or knowingly asserted frivolous claims. The purpose of this exception is to "deter abusive litigation in the future, thereby avoiding harassment and protecting the integrity of the judicial process."
Shaw v. Elting, 157 A. 3d 142 (Del. 2017)
Alyeska Pipeline Ser. Co. v. Wilderness Society, 421 U.S. 240, 258, 259 (1975).
PFA litigation is not prolonged so the question is essentially whether Father knowingly filed a frivolous petition. Fees have been awarded by this Court where a PFA Petitioner has been found to be excessively litigious by repetitively filing petitions with vague allegations and containing issues which have already been litigated and dismissed. Likewise, in Gordon v. Collins, the Supreme Court upheld an award of attorneys' fees where the Family Court found that the Petitioner in a PFA case had a "pattern of vexatious filings."
L.T. v. E.T., 2014 WL 4203444, *4, Del. Fam., Jan. 15, 2014.
.Gordon v. Collins, 867 A.2d 901 (Del. 2004)
The Court would concur that the evidence presented by Father as of the time when he requested a dismissal of the case was not sufficient to make a finding of abuse, as defined by the statute. At best, it indicated that Mother charged an Airbnb on his credit card but corrected this action. Whether this was intentional or accidental, and the testimony supports a finding that it was accidental, this is not abuse under the statute. Further, the text messages that were entered into evidence are not abusive. Mother's messages to Father are about the kids' schedules and transportation. While Father is telling her to go away and leave him alone, his responses appear to be out of proportion to the texts sent by Mother. Parents generally need to communicate whether married, separated or divorced. Similarly, the PFA Petition and ROCO suggest Father is having emotional problems, as a result of the aftermath of the divorce.
However, Father did not complete his case. Before concluding his examination of Mother, Father requested that his case be dismissed and Mother agreed to the dismissal. The Court did not therefore make a finding regarding whether there was abuse or not as the evidence was not completed. Mother had the option of opposing the dismissal and requesting fees if the ruling went in her favor. While this specific issue was not articulated in the ROCO, this is an issue of subject matter jurisdiction and can be raised by the Court sua sponte. Without the case being completed, the Court does not know whether or not Father's case was so frivolous that it would constitute bad faith. The Court notes that the Mother in the L.T. v. E. T. case had filed three PFA Petitions within 5 months which were all denied. Father in this case had one PFA which the parties agreed to dismiss during the trial. While Father is an attorney and this case should serve as an example of why representing oneself in an emotional case is a bad idea, the Court cannot find that Father acted in bad faith since the case was voluntarily dismissed without opposition. Father should be aware however that attorneys' fees can be awarded in the future should there be a finding that he has demonstrated a pattern of filing frivolous or vexatious petitions.
L. T. v. E.T. at *4.
CONCLUSION
For the foregoing reasons, the Court finds that the Commissioner's Order is REVERSED and the fee award is vacated.
IT IS SO ORDERED.