C.G.O. v. R.A.O.

801 A.2d 938, 2002 Del. Fam. Ct. LEXIS 4, 2002 WL 1333595
CourtDelaware Family Court
DecidedApril 9, 2002
DocketNo. CN00-10822
StatusPublished
Cited by2 cases

This text of 801 A.2d 938 (C.G.O. v. R.A.O.) is published on Counsel Stack Legal Research, covering Delaware Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.G.O. v. R.A.O., 801 A.2d 938, 2002 Del. Fam. Ct. LEXIS 4, 2002 WL 1333595 (Del. Super. Ct. 2002).

Opinion

UPON A MOTION TO DISMISS PETITION FOR CUSTODY

WASERSTEIN, J.

Before the Court are a Motion to Dismiss filed by R.A.O. (hereinafter “Mother”) and the Response thereto. At issue is whether this Court should dismiss the Petition for Custody filed by C.G.O. (hereinafter “Father”), regarding the parties’ son, C.W.O. (d.o.b. 1/1/97), due to a lack of jurisdiction pursuant to the Uniform Child [940]*940Custody Jurisdiction Act (hereinafter “UC-CJA”) codified at 13 Del. C., § 1901 et seq. On January 7, 2002, a hearing was held in order to determine whether Delaware has jurisdiction over this case. In accordance with the UCCJA, which is in force both in Delaware and Pennsylvania, the Court determines that it does not have jurisdiction.

SUMMARY OF FACTS

The parties are the biological parents of C.W.O., born on January 1, 1997. The parties agree that, from the time that C.W.O. was born until he was eighteen months old, they lived in Delaware. During part of this time, they lived on their own and, for the last few months in Delaware, they lived with Father’s parents. Thereafter, in June of 1998, the parties relocated to 118 Fitzgerald Street, Philadelphia, Pennsylvania. Over a year later, and after signing a second one year lease for their apartment in Philadelphia, the parties separated in August of 1999. C.W.O. also has an older sister, K. G., who is the biological child of Mother, but not Father. C.W.O. considers K. his sister and she often goes with him on visitations with Father.

Mother has worked in Philadelphia for seven years. She commuted to and from her job in Philadelphia when she lived in Delaware. Mother testified that she considers her time of residence in Delaware as only temporary, and has always considered herself a Pennsylvania resident as her family lives there and she works in Philadelphia. Her parents live fifteen minutes away from her, in the state of New Jersey. Mother testified that she votes in Pennsylvania, even though she received a voter registration notice at Father’s parent’s address for November 7, 2000. She testified that she never saw this notification, until Father presented it at trial. Mother admitted that she likes the child’s Delaware pediatrician and has brought the child to see him. Otherwise, she stated, that she comes to Delaware for “court” purposes only.

Although Mother maintains her bank account in Delaware, she testified that she uses a Philadelphia branch to conduct her financial business. Mother has a Pennsylvania driver’s license. Her vehicle is registered at her parent’s home in New Jersey because her parents bought her the vehicle. The parties were married in Ocean County, New Jersey.

The parties’ taxes were filed jointly in 1999 and 2000. Mother admits that she signed the 2000 tax forms, but she states that she never signed the 1999 Delaware tax return.1 While Father received the tax refund in 1999; Mother received one half of the 2000 refund and none of the 1999 refund.

Father works in Chester, Pennsylvania. Conversely, he alleges that he lives in Delaware with his parents now and that he considered his time in Philadelphia as a temporary sojourn. Father still receives mail at the address in Philadelphia, which he shared with Mother previous to then-separation. His current girlfriend apparently has lived at another Philadelphia address at least since December 2000, and lives there now.

Father acknowledged in a verified pleading before the Court of Common Pleas, Philadelphia County, that he “is an adult residing at 714 South 18th Street, Philadelphia, Pennsylvania, 19147.” While Father indicated that he did not realize the legal significance of signing this form and that he was relying on his Pennsylvania attorney’s advice, the fact is that he signed a legal document stating that he was living [941]*941in Pennsylvania when he filed the Motion to Dismiss Complaint for Custody in the Philadelphia County, Court of Common Pleas. The copy of this document which has been provided to the Court is not dated. However, Mother’s counsel in her Motion to Dismiss Petition for Custody dated March 7, 2001, paragraph 10, states that this was signed, “at least as of December 2000” and Father did not rebut this. Thus, Father listed the 18th Street, Philadelphia address more than a year ago. As a result, his current denial of his Pennsylvania residence in a sworn pleading and his belated assertion that he has been living, with his parents, in Delaware are not convincing.

Under an Interim Stipulation & Order from the Delaware Family Court, dated December 2000, the parties have shared custody of their child “nearly”2 equally. It is undisputed that Father had the child a fraction more than Mother since Father has picked up C.W.O. each Thursday evening, despite the fact that his work schedule will not allow him to visit with C.W.O. then. C.W.O., who is already five years old, misses school each Friday and Father uses childcare for C.W.O. while he is at work. Thus, it appears that C.W.O. is often in the care of others during the few extra hours that he is with Father.

FAMILY COURT CIVIL RULE 12

Father argues that, under Family Court Civil Rule 12(a), the opposing party must respond to a petition within twenty days.3 He states that under Rule 12(b): “every defense, in law or fact, to a claim for relief in any pleading... shall be asserted in the responsive pleading thereto if one is required, except that [certain defenses] may... be made by motion...” Significantly, the defenses that may be made by motion include both subject matter and in personam jurisdiction. According to Father, Mother has waived any in personam objection to this Court’s jurisdiction, including any objection under the UCCJA. The Court concurs with Father in this regard.

Under Rule 12(h), however, only one of these two, the “defense of lack of jurisdiction over the person... is waived.. .if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course” (emphasis supplied). Thus, although subject matter jurisdiction is listed at subsection (b), it is not listed at subsection 12(h). In short, unlike in personam jurisdiction, subject matter jurisdiction is not waived if not asserted at the outset of the litigation.

Through her previous attorney, Mother argues that the Delaware Family Court was involved on December 7, 2000, but it issued an Interim Contact Order and not a permanent order. As noted in Mother’s motion, dated March 7, 2001, paragraph 7, “On December 8, 2000, the parties were scheduled to be heard on Father’s Motion for Interim Visitation [in Delaware]. Instead of appearing before the Court, the parties entered into a Stipulation and Order regarding visitation which became an Order of the Court on December 7, 2000. Since the Stipulation and Order did not address Custody, counsel for Mother signed the agreement for temporary visitation. Counsel then received a copy of Father’s Motion to Dismiss in which he acknowledged he resides in Pennsylvania.” 4 Thus, Mother argues that she con[942]*942sented to a temporary visitation order, but she did not consent to jurisdiction over custody.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gayanich v. Gayanich
66 V.I. 205 (Superior Court of The Virgin Islands, 2017)
Adoption House, Inc. v. A.R.
820 A.2d 402 (Delaware Family Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
801 A.2d 938, 2002 Del. Fam. Ct. LEXIS 4, 2002 WL 1333595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cgo-v-rao-delfamct-2002.