Los v. Los, 444,1989

• Decision Date: 01 November 1989
• Docket Number: No. 444,1989,444,1989
• Citation: 568 A.2d 1072
• Parties: Simon G. LOS, Petitioner Below, Appellant, v. Catherine L. LOS, Respondent Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1072

568 A.2d 1072

Simon G. LOS, Petitioner Below, Appellant, v. Catherine L. LOS, Respondent Below, Appellee.

No. 444,1989.

Supreme Court of Delaware.

Submitted: Nov. 1, 1989.

Decided: Nov. 21, 1989.

Family Court, New Castle County.

DISMISSED.

Before CHRISTIE, Chief Justice, and MOORE and WALSH, Justices.

ORDER

MOORE, Justice.

This 21st day of November, 1989, it appearing that:

1) Appellee, Catherine L. Los, has moved to dismiss this appeal on the ground that the judgment from which this appeal has been taken is not final and the requirements 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 October 13, 1989 the Family Court issued a decision upon the parties' cross-petitions for custody of the parties' two children.

3) On October 23, 1989, appellee filed a motion in the Family Court entitled "Motion for Clarification or Reargument and Request for Attorney's Fees."

4) Appellee's motion in the Family Court essentially requests that court to do two things. First, appellee "requests that the decision of October 13, 1989 be clarified to read that visitation will take place during the week 'of the children's spring vacation' rather than 'following the children's spring vacation.' " Second, appellee asks the Family Court to compel the appellant to pay "at least a portion of her attorney's fees and expenses relating to ... custody and visitation."

5) It is well settled law that an appeal to this Court may not be taken while a motion for reargument or to alter a judgment is pending in the trial court. D.P. v. J.P., Del.Supr., 493 A.2d 968, 969 (1985). See also Hessler, Inc. v. Farrell, Del.Supr., 260 A.2d 701, 702 (1969) (motion for reargument, new trial or to alter or amend a judgment toll the time requirements for taking an appeal to this Court); Trowell v. Diamond Supply Co., Del.Supr., 91 A.2d 797, 800 (1952) (trial court's judgment not final, for purposes of appeal, if motion for a new trial has been filed); Long v. Lee, Del.Super., 168 A.2d 536, 538 (1960) (judgment not final if motion to alter or amend is pending in the trial court; an appeal taken before that motion is disposed of would be premature). A judgment must be final, absent compliance with Supreme Court Rule 42, before an appeal to this Court is proper. D.P. v. J.P., 493 A.2d at 969 (citing McClelland v. Gen. Motors Corp., Del.Supr., 214 A.2d 847 (1965)).

6) Appellant argues that the motion pending in the Family Court is in reality a motion to correct a clerical error pursuant to Family Court Rule 60(a) and that no reargument is sought.

7) However, the appellee's motion in Family Court clearly seeks to alter the judgment pursuant to Family Court Civil Rule 59(d) and the time requirement for filing a motion under that rule has been satisfied. As long as that motion is pending, the Family Court retains jurisdiction in this case and for purposes of appeal, therefore, the judgment below is not final. Long, 168 A.2d at 538-39.

8) Additionally,...