Division of Child Support Services v. Shaw

• Court: Supreme Court of Delaware
• Decided: December 22, 2020
• Docket: 93, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DIVISION OF CHILD SUPPORT § SERVICES, § No. 93, 2020 § Petitioner Below, § Court Below: Family Court Appellant, § of the State of Delaware § v. § File No. CN14-03290 § Pet. No. 19-15313 KEVIN SHAW,1 § § Respondent Below, § Appellee. §

Submitted: November 13, 2020 Decided: December 22, 2020

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

After consideration of the notice to show cause and the appellant’s response,

it appears to the Court that:

(1) The appellant, the Delaware Division of Child Support Services (the

“Division”), filed this appeal from two decisions of the Family Court: (i) a decision

dated November 14, 2019, which granted the request of the appellee (“Father”) for

review of a Commissioner’s order, and (ii) a decision dated February 4 2020, which

denied the Division’s motion for reargument or relief from judgment with respect to

1 The Court previously assigned pseudonyms pursuant to Supreme Court Rule 7(d). the November 14, 2019 order. The effect of the Family Court’s decisions was to

reopen a default child support order that had been entered against Father, to allow

him to present evidence that he contended would affect the calculation of the child

support award.

(2) On November 4, 2020, the Clerk issued a notice to the Division to show

cause why the appeal should not be dismissed for failure to comply with Supreme

Court Rule 42 when appealing an apparent interlocutory order. In response to the

notice to show cause, the Division admits that it did not comply with Supreme Court

Rule 42 and states that it “inadvertently filed pursuant to 10 Del. C. § 1053(a)(2)

believing it was an independent basis upon which to request this appeal.” The

Division does not assert that the orders from which it appeals are final, and not

interlocutory, in nature, but argues that the orders warrant interlocutory review.

(3) Title 10, Section 1053(a)(2) provides that, under certain circumstances

and in the discretion of the appellate court, the “State may apply to an appellate court

to permit an appeal to determine a substantial question of law or procedure, . . . but

in no event shall the decision or result of the appeal affect the rights of the appellee.”2

It is not entirely clear that Section 1053(a)(2) applies to appeals in child support

cases. We need not decide that issue, however, because even if that provision might

2 10 Del. C. § 1053(a)(2).

2 apply in certain child support appeals, the result of this appeal would “affect the

rights of the appellee.” Section 1053(a)(2) therefore does not authorize this appeal.

Moreover, Section 1053(a)(2) does not excuse compliance with Supreme Court Rule

42; absent compliance with that rule, the appellate jurisdiction of this Court is limited

to the review of final orders.3

NOW, THEREFORE, IT IS ORDERED that this appeal is hereby

DISMISSED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice

3 Hines v. Williams, 2018 WL 2435551 (Del. May 29, 2018) (citing Julian v. State, 440 A.2d 990, 991 (Del. 1982)).