Wife M v. Husband M

• Decision Date: 03 October 1975
• Citation: 346 A.2d 521
• Court: United States State Supreme Court of Delaware
• Parties: WIFE M, Defendant below, Appellant, v. HUSBAND M, Plaintiff below, Appellee.

Page 521

346 A.2d 521

WIFE M, Defendant below, Appellant, v. HUSBAND M, Plaintiff below, Appellee.

Supreme Court of Delaware.

Argued Sept. 10, 1975.

Decided Oct. 3, 1975.

Upon plaintiff's motion to dismiss appeal. Granted.

John T. Gallagher, Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant below, appellant.

Carl A. Agostini, Roeberg & Agostini, Wilmington, for plaintiff below, appellee.

Before HERRMANN, C.J., and DUFFY and McNEILLY, JJ.

DUFFY, Justice:

In this divorce action defendant appeals from a Superior Court order denying her motion to dismiss the complaint. The motion was based on the ground that the Court had not acquired jurisdiction over defendant under 13 Del.C. § 1508 because the residence requirements for jurisdiction, 13 Del.C. § 1504(a), had not been met. ¹ Plaintiff has moved to dismiss the appeal, arguing that the order below was interlocutory and not appealable. We agree.

Under Article IV, § 11(1)(a) of the Delaware Constitution this Court has jurisdiction 'to determine finally all matters of appeal in the interlocutory . . . judgments' of the Superior Court in civil causes; but, under settled case law, that jurisdiction may be invoked only when that Court has determined a substantial issue in the cause and established legal rights between the parties. We emphasize that the requirements for jurisdiction are stated in the conjunctive; both are essential, neither standing alone is sufficient to support an appeal. Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, Del.Supr., 261 A.2d 520 (1969); Nadler v. Bohen, Del.Supr., 238 A.2d 836 (1968).

Here, the Superior Court agreed with defendant's argument that the statutory phrase, 'actually resided,' in § 1504(a) means 'domiciled' and there is no challenge to that determination. But the Court declined to decide the fact question as to whether plaintiff is domiciled in Delaware, saying that is an issue which 'will be resolved by the Court at trial.'

In construing the divorce statute the Superior Court did determine a substantial issue in the cause and thus one of the twin jurisdictional requirements for review has been met. But the Court did not establish legal rights between the parties under the statute. Simply stated, the Court declined to consider the facts until trial, a practice permitted under Superior Court Rule 12(d) and which is essential to control of its calendar and the processing of a specified case. ² In view of that post-ponement, legal rights between the parties were not established.

Defendant mistakenly relies upon Du Pont v. Du Pont, 7 Terry 280, Del.Supr., 82 A.2d 376 (1951), the landmark case which determined that the Court of Chancery had jurisdiction to award separate maintenance. In Du Pont the Trial Court held that it had such jurisdiction and thus, between the parties, it determined both a substantial issue (jurisdiction of the Court) and established legal rights (the power of the Court to order the husband to pay maintenance to the wife). ³ Here, however, defendant's appeal is based not on what the Trial Court decided but on what it declined to decide at the time defendant sought a decision.

In sum, defendant had no right to a dispositive decision on the jurisdictional issue at the time she wanted it and she has no right of appeal from the interlocutory...