28 A.3d 495 (Del.Fam.Ct. 2011), CS06-03314, M.B. v. E.B.

Docket Nº:CS06-03314.
Citation:28 A.3d 495
Opinion Judge:HENRIKSEN, J.
Party Name:M.B., Petitioner, v. E.B., Respondent.
Attorney:Thomas E. Gay, Esquire, Stumpf Vickers and Sandy, P.A., Georgetown, DE, Attorney for Monica M. Brock. Patrick E. Vanderslice, Esquire, Moore and Rutt, P.A., Georgetown, DE, Attorney for Earl W. Brock.
Case Date:July 19, 2011
Court:Family Court of Delaware
 
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Page 495

28 A.3d 495 (Del.Fam.Ct. 2011)

M.B., Petitioner,

v.

E.B., Respondent.

No. CS06-03314.

Family Court of Delaware, Sussex County.

July 19, 2011

Submitted: July 15, 2011.

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[Copyrighted Material Omitted]

Page 497

Thomas E. Gay, Esquire, Stumpf Vickers and Sandy, P.A., Georgetown, DE, Attorney for Monica M. Brock.

Patrick E. Vanderslice, Esquire, Moore and Rutt, P.A., Georgetown, DE, Attorney for Earl W. Brock.

OPINION 1

HENRIKSEN, J.

By way of a certain amount of initial history, the Court entered a Marital Property Division Order on June 01, 2010. Pursuant to that Order, the Court ordered " Husband to pay Wife" the sum of $43,578.25 within 150 days of the mailing date of the Order.2 The Order was mailed June 04, 2010. It appears from undisputed calculations of the parties, the 150 day period in which Husband was required to pay Wife the sum of $43,578.25 would have run out October 31, 2010.

The other part of the Court's Marital Property Division Order of June 01, 2010, was the Court's determination that the land and improvements known as the Oak Lane Property were not subject to the jurisdiction of the Family Court. The required payment by Husband to Wife of $43,578.25 was not tied in or related to the eventual determination between the parties of their respective interest in the Oak Lane Property. The Oak Lane Property would need to be addressed by the parties in a different court.

Following the entry of the Court's Property Division Order on June 01, 2010, Husband, through his then attorney, Bruce A. Rogers, Esquire, filed a Motion for Reargument and/or to Correct Clerical Error. On June 14, 2010, Wife, through her attorney, Mr. Gay, also filed a Motion to Reargue/Reconsider which included a request for extension of time to submit an application for attorney's fees and costs.

On August 10, 2010, Husband's then attorney, Bruce A. Rogers, Esquire, filed a second motion in which Husband was seeking to correct a newly noted error in the Court's Property Division Order of June 01, 2010. This newly noted error involved a clerical mistake in identifying the ownership of two Carpenter's Saving Plans. Wife filed an answer to this August 10th Motion to Correct Error, admitting that the ownership of the two Carpenter's Savings Plans was incorrect in the Court's Property Division Order.

Next, nearly five months following the Court's Property Division Order, and three days after the day Husband's payment of $43,578.25 to Wife was due, Husband, by and through his then counsel, Bruce A. Rogers, Esquire, filed a Motion to Stay. Husband averred that his motion to stay his responsibility to make payment to Wife of the $43,578.25 was legitimate and appropriate based upon the pendency of the post Property Division Decision Motions for

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Reargument and/or to Correct Clerical Error.

This brings us to the present petition under consideration, that being Wife's request for attorney's fees for a Petition for Rule to Show Cause filed by Wife on December 06, 2010. The Court notes that Wife's Application and Affidavit for Attorney's Fees filed on June 3, 2011, was deficient because the accompanying affidavit was not properly executed, as it was not dated or notarized. Upon acknowledging this deficiency, Wife submitted a Motion for Leave to File an Amended Pleading on July 15, 2011, with a properly executed affidavit attached. To the extent Wife's Motion for Leave to File an Amended Pleading seeks additional relief other than the mere filing of a properly executed affidavit, Wife's motion is denied. However, the Court will grant Wife's Motion for Leave to File an Amended Pleading with regard to the filing of a properly executed affidavit. Wife requests that Husband be found in contempt of the Court's Property Division Order of June 01, 2010, because of his failure to pay her the sum of $43,578.25 on or before October 31, 2010, as ordered by the Court.

The Court eventually resolved all of the post Property Division Motions for Reargument and Clerical Error by Decision and Order dated January 03, 2011, and mailed to the parties on January 06, 2011. The January 03, 2011 Order denied the pending Motions for Reargument and Stay, but granted the clerical error regarding the Carpenter's Savings Plans, which had been agreed upon by the parties, and which reduced the amount of Husband's required ancillary payment to Wife from...

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