M.B. v. E.B., CS06–03314.

• Decision Date: 19 July 2011
• Docket Number: No. CS06–03314.,CS06–03314.
• Citation: 28 A.3d 495
• Parties: M.B., Petitioner,v.E.B., Respondent.
• Court: Delaware Family Court

28 A.3d 495

M.B., Petitioner,

v.E.B., Respondent.

No. CS06–03314.

Family Court of Delaware, Sussex County.

Submitted: July 15, 2011.Decided: July 19, 2011.

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 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 $43,578.25 to $38,251.58. The Court also noted, because Husband certainly would have had sufficient time to collect and pay the previous specified amount of $43,578.25, that the amended amount of $38,251.15 was due immediately upon receipt of the Order.

Husband placed in the escrow account of his then attorney, Mr. Rogers, the sum of $43,578.25 on October 27, 2010. Mr. Rogers did not tender to Wife's attorney the eventual amended sum of $38,251.15 until January 12, 2011, which was certainly within a reasonable time after the January 6, 2011 mailing date of the Order containing the amended amount of $38,251.15.

It should be noted the Court's Order of January 03, 2011 Order, which amended the property division amount from $43,578.25 to $38,251.15 also ordered Husband to pay $10,860.00 in attorney's fees directly to Wife's attorney within 120 days of the January 03, 2011 Order. This required payment by Husband for Wife's attorney's fees was specifically related to Husband's failure to disclose several Morgan Stanley accounts in discovery leading up to and relevant to the property division case.

Wife, through her attorney, now seeks attorney's fees for the period from September 01, 2010, to March 16, 2011. Given that Husband was not required to make any payment to Wife of the $43,578.25 amount prior to October 31, 2010, the Court agrees with Husband's present position, advanced by his new attorney, Mr. Vanderslice, that Husband should not be responsible for any attorney's fees incurred by Wife prior to October 31, 2010. Although it certainly was good lawyering for Mr. Gay to have sent letters on his client's behalf to Husband's counsel to remind him of his upcoming obligation, the Court cannot justify awarding attorney's fees based upon time for correspondence mailed out in anticipation of and prior to the due date. For this reason, the Court deletes 0.9 hours from Mr. Gay's total of 5.7 hours sought in fees, thereby leaving 4.8 hours for consideration.

Husband's present counsel, Mr. Vanderslice, most likely because he was not involved in the bulk of the case, has incorrectly suggested that all applications for attorney's fees were resolved in the Court's Order of January 03, 2011. The January 03, 2011 Order, which directed Husband to pay attorney's fees of $10,860.00, was related to Husband's pre-trial failures to comply with discovery, and not to the present post-trial Petition for Rule to Show Cause in which Wife alleged Husband failed to make timely payment of his post-trial obligation.

Husband's present counsel also attempts to justify the lack of receipt of payment by Wife in that Husband made payment to his attorney in the amount of $43,578.25 on October 27, 2010. The Court's Order of January 03, 2011, however, required Husband make payment to Wife. Husband's obligation was therefore not satisfied simply by making payment of the amount to his attorney, unless of course his attorney then paid the money over to Wife. Husband was certainly responsible for the actions of his attorney in withholding payment and placing the same in escrow.

Suggestion by Husband's former attorney that the money would be paid over to Wife in exchange for her to sign a quit claim deed to the Oak Lane Property, which the Court has already noted had nothing to do with the property division, was clearly not a legitimate reason to withhold the payment.

The real issue in this case is whether Husband's non-payment to Wife before October 31, 2010, of the original ordered amount of $43,578.25 was justified because of the pending Motion for Reargument and/or to Correct Error and Motion for Stay. Stated another way, does the filing and pendency of a Motion for Reargument and/or to Correct Error and/or a Motion for Stay relieve a party from making a payment of a sum certain within a required date certain under a Family Court Property Division Decision and Order?

Rule 62 of the Family Court Rules of Civil Procedure controls the stay of a judgment by the trial court. Specifically, Rule 62 provides:

In its discretion and on such conditions for the security of the adverse party as are proper, the Court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59 or of a motion for relief from a judgment or order made pursuant to Rule 60.³

As noted in the Court's January 3, 2011 Order, Husband filed post-trial motions pursuant to Rules 59 and 60. However, the mere filing of a Rule 59 or Rule 60 motion does not automatically stay the execution of a court-ordered judgment. Subdivision (b) of Rule 60 specifically provides that “[a] motion under this subdivision does not affect the finality of a judgment or suspend its operation.” ⁴

Moreover, Husband's motion to stay the Property Division Order was not filed...