H. C. M. v. E. W. M.
| Decision Date | 10 March 1980 |
| Citation | 413 A.2d 1271 |
| Parties | H. C. M., Petitioner, v. E. W. M., Respondent. B. E. M., Petitioner, v. D. A. M., Respondent. |
| Court | Delaware Family Court |
Gerald Z. Berkowitz, Knecht, Greenstein, Schagrin & Berkowitz, Wilmington, for petitioner in first case.
H. Alfred Tarrant, Jr., Cooch & Taylor, Wilmington, for respondent in first case.
David Clayton Carrad, Wilmington, for petitioner in second case.
Charles K. Keil, Bayard, Brill & Handelman, Wilmington, for respondent in second case.
Separate divorce actions before two judges of this Court require a determination as to whether the respective petitioners are entitled to an order of voluntary dismissal without prejudice over the objection of the respondents.
Petitioner husband H.C.M. filed a divorce action in December 1978 on the grounds of voluntary separation and incompatibility, subsequently indicating that he did not plan to pursue the voluntary separation ground. Petitioner husband B.E.M. filed a petition for divorce on March 22, 1979, on the ground of incompatibility.
Both respondents, E.W.M. and D.A.M., timely filed responsive pleadings which, inter alia, contested the jurisdiction of this Court, denied the grounds alleged in the petition, and requested interim and permanent alimony under 13 Del.C. § 1512, if the divorce was granted. Further, both filed affidavits of dependency in accordance with the statutory requirement.
The H.C.M.-E.W.M. contested divorce action was scheduled for a hearing on August 21, 1979, and the B.E.M.-D.A.M. action was scheduled to be heard on August 1, 1979.
At the time these actions were initiated, 13 Del.C. § 1512 authorized permanent alimony for respondents in incompatibility cases if they met the other statutory test of dependency set forth in 13 Del.C. 1502(5) and 1512(a). However, on July 13, 1979, the Governor signed into law an amendment to § 1512 which limited alimony to a maximum of two years for respondents in incompatibility actions where, as in both cases at bar, the marriage between the parties had lasted less than twenty years. This new statute, H.B. 477, with an effective date of thirty days after the Governor's signature, or August 13, 1979, provides in Section 4:
"Actions commenced prior to the effective date of this Act shall be governed by the provisions of Chapter 13, Title 13 operative prior to such effective date and those provisions shall remain effective as to those actions as if this Act were not in effect."
Petitioner B.E.M. filed a motion to dismiss or withdraw his divorce petition on July 27, 1979. On August 16, 1979, he filed a second petition for divorce, alleging the same facts as his first petition except for a separation since March 23, 1979, the day after the filing of the first action. Respondent D.A.M., although served with the second petition, has not answered to date.
At the August 1, 1979 hearing, the Court considered both the separate civil support petition of Respondent D.A.M., as well as her motion in the divorce action for temporary alimony, both filed on July 3, 1979. Over petitioner's objection, the Court entered orders in the divorce action and the civil support proceeding, without prejudice to the position of either party on petitioner's motion to dismiss or withdraw his divorce action. By letter, Petitioner B.E.M. consented to the entry of any order already made in the first divorce action in the second, nunc pro tunc.
On August 1, 1979, Petitioner H.C.M. filed a similar motion to dismiss his petition without prejudice in the aforementioned contested divorce, but he has taken no further action in this divorce proceeding nor filed a second divorce petition.
Both motions to dismiss or withdraw the divorce petitions are made pursuant to Superior Court Civil Rule 41(a) 1 and the Court must determine whether a voluntary dismissal will lie and upon what terms such order would be made. Following extensive briefing, two judges of the Court sat en banc to hear oral argument from the attorneys representing all parties to the above divorces.
The question presented to this Court is one of first impression and is clearly addressed to the sound discretion of the Court, to be determined "after attempting to secure substantial justice to both parties." Lunn v. United Aircraft Corporation, 26 F.R.D. 12 (D.Del., 1960).
Petitioners first argue that respondents are estopped from opposing the motions to dismiss by virtue of their prior pleadings, alleging that there is no incompatibility and no jurisdiction in Family Court of Delaware and, thus, asking for a dismissal of the divorce petition. However, by requesting the alternative relief of alimony should the Court find both jurisdiction and incompatibility, respondents have plead in the alternative and the doctrine of estoppel "does not preclude a party from seeking inconsistent and alternative relief in the same action." 31 C.J.S. Estoppel § 118 at page 629 (footnotes omitted).
Petitioner next argues that the loss to respondents of a possible maximum lifetime eligibility for alimony rather than just two years, is not a "peculiar right" to a respondent sufficient to justify the denial of the motion to dismiss in derogation of the general rule that civil actions are ordinarily discontinued upon request of petitioner at any time prior to final verdict.
In Husband M. v. Wife M., Del.Super., 293 A.2d 589 (1972), the Superior Court held that as a result of the granting of a decree nisi in a husband's suit for divorce on the ground of incompatibility, and an award of alimony to the wife, the wife obtained a substantial right; and to grant the husband's petition to vacate the decree and dismiss his action would be in derogation of an established public interest and the substantial legal rights of the respondent. The Court, in M. v. M., supra, distinguished its prior holding in Vinyard v. Vinyard, Del.Super., 48 A.2d 497 (1946), in light of the changes in the public policy toward divorce as reflected by Delaware's changed divorce laws and the establishment of alimony in connection with the granting of divorce on the ground of incompatibility.
Although neither Vinyard nor M. v. M., supra, deal with a prehearing motion for dismissal, both cases recognize that "Undoubtedly there may be some situations where some public interest or some advantage gained by the petitioner might bar his or her right to discontinue prior to final judgment." Vinyard, 48 A.2d at 501.
Petitioners have cited cases from a number of jurisdictions which support the argument that prior to the judicial determination of respondents' entitlement to alimony under Delaware law (i. e., at the ancillary hearing), the mere possibility of obtaining alimony for life is neither a "vested" nor a "substantial" right of sufficient dignity that a dismissal would work any legal prejudice to respondent. See, e. g., RYAN V. RYAN, FLA.SUPR., 277 SO.2D 266 (1973)2. See also KNOPF V. KNOPF, S.C.SUPR., 247 S.C. 378, 147 S.E.2D 638 (1966)3. However, the issue here is not whether alimony itself is either a "substantial" or "vested" right at this point in the divorce action. Rather, in order to meet the guidelines established under M. v. M. and Lunn, supra, the Court must examine the respondents' interests to determine whether allowing the petitioners a dismissal of these proceedings pursuant to Rule 41(a) would so advantage petitioners as to work an injustice to the respondents.
The Court concludes that, by their responsive pleadings and the filing of an affidavit of dependency, respondents have taken every legal step necessary to preserve their right to a determination of the entitlement to alimony. 4 This right to an alimony determination would be substantially and unjustly impaired should the Court grant petitioners' motions. To deprive respondents of the opportunity to have their alimony claims heard, as requested in accordance with and under the terms of existing law, would not only be prejudicial to their rights, 5 but also would contravene public policy. 6
For the reasons herein stated, petitioners' motions to dismiss or withdraw are hereby denied. In addition, although all the parties have a right to file a petition for divorce as each new cause of action accrues, this Court will stay all subsequently filed actions until a final adjudication has been made on the petitions now before the Court. 7 However, should either petitioner or respondent fail to apply for a hearing within one year from the date of this decision, the petitions shall be dismissed for want of prosecution, in accordance with Family Court Rule 466. 8
IT IS SO ORDERED.
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...public policy. We affirmed that decision. Husband (B.E.M.) v. Wife (D.A.M.), Del.Supr., 428 A.2d 1148 (1981), aff'g, H.C.M. v. E.W.M., Del.Fam., 413 A.2d 1271 (1980). The trial court noted in H.C.M. that if either party failed to apply for a hearing within one year of its decision, the husb......
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Hartley v. Hartley
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