Eberly v. Eberly

• Decision Date: 04 June 1984
• Citation: 489 A.2d 433
• Parties: James C. EBERLY, Petitioner Below, Appellant, v. Alice P. EBERLY, Respondent Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 433

489 A.2d 433

James C. EBERLY, Petitioner Below, Appellant, v. Alice P. EBERLY, Respondent Below, Appellee.

Supreme Court of Delaware.

Submitted: June 4, 1984.

Decided: Jan. 25, 1985.

Upon appeal from the Family Court of the State of Delaware in and for New Castle County. Reversed and Remanded.

Marie C. Bifferato, Howard M. Berg & Associates, P.A., Wilmington, for appellant.

David Clayton Carrad, Wilmington, for appellee.

Before HERRMANN, C.J., HORSEY and MOORE, JJ.

HERRMANN, Chief Justice:

The husband appeals from certain orders of the Family Court related to the parties' divorce, including awards of interim and final alimony; a division of property; an award of attorney's fees; and an order permitting the intervention of a third-party creditor in the proceedings. Moreover, we address certain tactics used by the wife's counsel in this case.

We conclude that it was an abuse of discretion and a denial of the husband's due process rights to have awarded extended interim alimony to the wife without any evidentiary hearing; and, that in several substantial respects, the findings of the Family Court regarding post divorce ancillary matters were neither supported by the record, nor the product of an orderly and logical deductive process.

We reverse and remand for further proceedings consistent herewith, and direct that the matter be reassigned to a different Trial Judge. We also direct the imposition of certain sanctions against the wife's counsel, and refer certain other matters to the Board on Professional Responsibility for investigation and such further action as may be appropriate.

I.

In view of their significance, we set forth the facts in considerable detail: The parties were married July 5, 1962 and separated in July of 1981. On August 8, 1981, the wife filed a sworn petition for divorce in the Family Court of the State of Delaware in and for Sussex County, alleging inter alia that the marriage was irretrievably broken because of incompatibility. ¹ At that time she was represented by other counsel. On August 20, 1981, the husband answered under oath admitting incompatibility, and counterclaimed for divorce on the same ground. Thereafter, the wife retained her present counsel and, on October 1, 1981, she filed a motion for emergency interim relief, requesting inter alia that the husband pay interim alimony, her attorney's fees and expert witness fees. The wife also requested that the case be transferred from Sussex County to New Castle County.

The wife's affidavit filed in support of her motion estimated that her husband's available monthly income from his law practice as a sole practitioner in Sussex County was between $5,400 and $6,400. This conjectural statement was based upon an assertion in Altman & Weil, How to Manage Your Law Office, §§ 11, 12 at 11-12 (1981 ed.), that "the average [law] office spends 40% of its gross income on overhead." There was no factual statement regarding the husband's actual overhead. ² The wife claimed to require $4,500 alimony per month, leaving only $1,500 per month for the husband's living expenses. In arriving at her estimate of the husband's income, the wife did not take into account the husband's medical condition, including ulcerative colitis, for which he was hospitalized at the time.

In response to the wife's motion and affidavit, the husband's lawyer wrote to the Family Court Judge in Sussex County, to whom the wife had sent a copy of her motion for interim relief, explaining that her client was seriously ill and was presently in the hospital. The husband's counsel requested an extension of time in which to answer the motion; and contending that there was no legitimate emergency facing the wife, she opposed consideration of the motion for interim relief.

On October 13, less than two weeks after the wife had filed her motion for emergency interim relief, her lawyer again wrote to the Sussex County Judge requesting that the Court move more quickly on the matter. The wife's lawyer sent a copy of the letter to a certain Family Court Judge in New Castle County. The husband's lawyer responded by writing to the New Castle County Judge to clarify some of the charges which the wife's counsel was making.

On October 26, 1981, the New Castle County Family Court Judge (hereinafter "Trial Judge") had the case transferred to New Castle County, and ruled upon the wife's motion for interim relief. This action was taken without any hearing, notice to the husband's counsel, or explanation. Relying solely on the wife's affidavit and a "teleconference" with both lawyers, the wife was awarded $2,500 per month as "interim alimony" until further order of the Court, as well as $1,000 toward her counsel fees, costs and expert witnesses. The Order also directed the husband to keep current certain insurance policies, and granted the wife an extension of time in which to answer the husband's counterclaim. No evidentiary hearing of any kind preceded the Order.

The October 26 Order instructed the husband to make his first $2,500 interim alimony payment on November 1. He failed to do so; the next day, the wife's lawyer sought to have the husband held in contempt. On November 6, 1981, the husband sent his wife a check for $600 explaining that because of his recent hospitalization this amount was all that he had available. The husband also listed over $1,482 of expenses, that had appeared in his wife's affidavit requesting interim alimony, which he had already paid for the month of November. As a sole practitioner, the husband's cash flow problems eventually improved, and he paid the monthly alimony in full, but not before the wife's attorney filed a second motion for contempt in the latter half of November. Later, when the February 1, 1982 alimony payment was late, the wife's lawyer again moved on February 5, to have the husband held in contempt. He renewed this motion with a demand for an "emergency" finding of contempt three days later. The husband marshalled enough resources to make the payment on February 18, but the wife's counsel still demanded that the husband be held in contempt.

Meanwhile, the husband's efforts to obtain a hearing concerning the amount of interim alimony yielded nothing. Three days after the October 26, 1981 Order, the husband's counsel moved to stay that Order and obtain an evidentiary hearing. By the time the Trial Judge considered the Motion to Stay, the wife's first Motion for Contempt was also before the Court. Oral argument on both motions and other matters was held on November 19. No evidence was admitted; and the Court denied the husband's motion for a stay as well as his motion for an evidentiary hearing to determine proper interim relief. The Court formalized this denial in a letter on December 1.

In the meantime, on November 13, 1981, despite her sworn petition for divorce alleging incompatibility, the wife answered the husband's counterclaim for divorce on the same ground by denying any incompatibility. The wife swore to this allegation under oath, and her lawyer signed the response both as counsel and as a notary to the oath. Having failed to obtain an alimony hearing, the husband then tried to move toward a final resolution of the entire matter by informing the Trial Judge on December 1 that he would be ready for trial on the petition for divorce at the Court's earliest convenience. This request was met with inaction for about six weeks, even though it was renewed on December 18 with the request that, if the Court would not hear the wife's petition for an uncontested divorce, then alternatively, that it hear the husband's counterclaim. In early December, 1981, the husband again filed a motion to modify the October 26, 1981 Order. The Trial Judge responded by letter on December 16, saying:

I have before me the latest motion filed in the above case. Petitioner [husband] seeks relief from the interim order entered herein [sic.] on October 26, 1981. The motion is denied.

In the interest [sic.] of both parties I would suggest, as I have suggested before, that this action not be characterized by a continuing parade of motions for interim relief. I have already ruled on the matters which are covered by the latest motion. I do not intent [sic.] to rule again.

As of December 16, 1981, the only motions relating to interim relief which the Court heard were the wife's initial motion, which was granted on October 26, 1981, and the husband's motion for a stay or for a hearing which was summarily denied on November 19, 1981.

The husband, still seeking a day in court over the open-ended $2,500 per month alimony order, sought leave of the Trial Judge to appeal the issue to this Court. In an Order of December 23, 1981, the Trial Judge refused to certify the appeal, and it was subsequently denied.

In mid-January 1982, the case was scheduled for hearing as an uncontested divorce, at which point the wife's contradictory sworn pleadings became significant. Her sworn petition for divorce, filed on August 8, 1981, alleged in pertinent part:

"6. The marriage of Petitioner and Respondent is irretrievably broken in that it is characterized by incompatibility. Reconciliation is improbable."

The husband's sworn answer of August 20, 1981, admitted this allegation, and his counterclaim also alleged:

"8. That the marriage is irretrievably broken because of incompatibility of the parties and reconciliation is improbable."

However, even though no circumstances had changed in the parties' relationship, by sworn affidavit of November 13, 1981, signed also by her present counsel, the wife responded to the husband's counterclaim, saying that she:

"8. Denied each and every allegation of paragraph 8 of the counterclaim."

The wife sought neither to amend nor dismiss her own sworn petition for divorce, which directly contradicted her later sworn reply to the counterclaim. Instead, her lawyer, ignoring both his own client's petition and the husband's answer,...