Moskowitz v. Moskowitz
| Decision Date | 25 February 1991 |
| Docket Number | 1990,Nos. 413,441,s. 413 |
| Parties | Michael MOSKOWITZ, Respondent Below, Appellant, v. Beverly MOSKOWITZ, Petitioner Below, Appellee. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Family Court, New Castle County
APPEAL DISMISSED.
Before HORSEY, MOORE and HOLLAND, Justices.
This 4th day of March, 1991, it appearing that:
1) Appellee, Beverly Moskowitz, has moved to dismiss the appeal in Supreme Court No. 413, 1990 on the ground that the judgment from which this appeal has been taken is not final and the provisions of Supreme Court Rule 42, which provide the requirements that must be satisfied before this Court has jurisdiction to entertain an interlocutory appeal, have not been met.
2) On November 29, 1990, the Family Court issued a decision on a contempt petition that had been filed by appellee against her husband, appellant Michael Moskowitz. This decision held appellant in contempt of a previous court order regarding payment of alimony and alimony arrearages. In addition, the Family Court ordered appellee's counsel to submit an affidavit within ten days detailing the time expended on appellee's behalf in order to determine an attorney's fee award.
3) On December 7, 1990, appellant filed an appeal in this Court, challenging the Family Court's decision regarding the contempt petition. See Moskowitz v. Moskowitz, Del.Supr., No. 413 (1990).
4) On December 14, 1990, the Family Court issued an opinion regarding attorney's fees for a previous contempt proceeding in which the Family Court entered an opinion on August 3, 1990. See Moskowitz v. Moskowitz, Del.Fam., File No. CN87-1602, Conner, J. (December 14, 1990) (Letter Opinion). In this opinion, the Family Court stated that the November 29, 1990 decision was on appeal and delayed any ruling on attorney's fees for that decision. Thereafter, appellant filed an appeal concerning those decisions. See Moskowitz v. Moskowitz, Del.Supr., No. 441 (1990). 1
5) Appellee argues that the order of the Family Court dated November 29, 1990 was not a final order ripe for appeal to this Court because the issue of attorney's fees had not been decided. Therefore, since the Family Court's decision was not final and appellant did not comply with the interlocutory appeal procedures in Supreme Court Rule 42, his appeal must be dismissed.
Appellant contends that appellee's Motion to Dismiss was untimely and is therefore violative of Supreme Court Rule 30(d). 2 Further, appellant asks this Court to remand the case to the Family Court for a determination of attorney's fees, thereby preserving his appeal in this matter.
6) The test for whether an order is final and therefore ripe for appeal is whether the trial court has clearly declared its intention that the order be the court's "final act" in a case. J.I. Kislak Mortgage Corporation of Delaware v. William Matthews Builder, Inc., Del.Supr., 303 A.2d 648, 650 (1973) (quoting United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 678 (1958)). In this case, the Family Court's final act will be the determination of attorney's fees. Consequently, the November 29, 1990 decision was not final, and an appeal to this Court concerning that decision must meet the requirements for taking an interlocutory...
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