Quentin W.K. v. Debbie L.K.

Decision Date08 December 1987
Docket NumberNo. 285,1987,285,1987
Citation538 A.2d 1113
PartiesQUENTIN W.K., Defendant Below, Appellant, v. DEBBIE L.K., Plaintiff Below, Appellee. . Submitted:
CourtUnited States State Supreme Court of Delaware

Family Court, New Castle County.

DISMISSED.

Before HORSEY, MOORE and WALSH, Justices.

ORDER

MOORE, Justice.

This 5th day of February, 1988, it appearing that:

1) This appeal is from an order of the Family Court regarding custody of a minor. Accordingly, the provisions of 10 Del.C. § 961, including the posting of bond with surety, control this appeal.

2) The father filed this appeal on September 3, 1987 and contemporaneously moved for a bond pursuant to 10 Del.C. § 961(c). By order dated September 9, 1987 the Family Court set bond in the amount of $500 with surety as approved by the Family Court.

3) To date no appeal bond with surety has been filed by the appellant, who contends that such a bond is unavailable. He has offered to deposit the sum of $500 cash in lieu of a bond. The appellee has moved to dismiss the appeal.

4) Once again this Court confronts the plain and unequivocal language of a bond statute versus the equities of the case. Unlike 10 Del.C. § 960(d), relating to other appeals from the Family Court, and permitting bond with or without surety, 10 Del.C. § 961 specifically relates to appeals from custody orders. By the terms of § 961(d) a surety is required.

5) Under Delaware law a surety is one who is bound "for the payment of a sum of money, or for the performance of something else for another, who is already bound for the same". W.T. Rawleigh Co. v. Warrington, Del.Super., 199 A. 666, 667-68 (1938). Thus, where a statutory requirement of a bond with surety exists, no substitute therefor is permitted. Williams v. West, Del.Supr., 479 A.2d 1253, 1254 (1984); S & S Builders v. Eagle Truck Transport, Inc., Del.Super., 130 A.2d 558 (1957).

6) Since the appellant has failed to comply with the unambiguous requirements of 10 Del.C. § 961(c), there is no recourse but to dismiss the appeal. The defect is jurisdictional. Williams v. West, supra.

NOW, THEREFORE, IT IS ORDERED pursuant to 10 Del.C. § 961 and Supreme Court Rule 29(b) that the within appeal be, and the same hereby is,

DISMISSED.

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  • Wiland v. Wiland
    • United States
    • United States State Supreme Court of Delaware
    • September 15, 1988
    ...v. West, Del.Supr., 479 A.2d 1253, 1254 (1984); thus, there is no recourse but to dismiss the appeal. See, e.g., Quentin W.K. v. Debbie L.K., Del.Supr., 538 A.2d 1113, Moore, J. (1988) (ORDER); Armstrong v. Roberts, Del.Supr., 533 A.2d 1254, Christie, C.J. (1987) NOW, THEREFORE, IT IS ORDER......

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