English v. English

• Court: Supreme Court of Delaware
• Decided: May 3, 2022
• Docket: 86, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MAXX ENGLISH,1 § § No. 86, 2022 Respondent Below, § Appellant, § § Court Below–Family Court v. § of the State of Delaware § EVERLY ENGLISH, § § File No. CS19-01677 Petitioner Below, § Petition No. 19-24747 Appellee. §

Submitted: April 25, 2022 Decided: May 3, 2022

Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES, Justices.

ORDER

After careful consideration of the notice to show cause and the parties’

responses, it appears to the Court that:

(1) On March 11, 2022, the appellant, Maxx English, filed a notice of

appeal from a May 28, 2021 Family Court order deciding matters ancillary to

English’s divorce from the appellee and a January 4, 2022 Family Court order

granting the appellee’s motion to reopen and modifying the May 28, 2021 order.

Under Supreme Court Rule 6, a timely notice of appeal was due on or before

1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). February 3, 2022. The Senior Court Clerk issued a notice to English to show cause

why his appeal should not be dismissed as untimely filed.

(2) In his response to the notice to show cause, English, who was

represented by counsel in the ancillary matters proceeding but responded pro se to

the appellee’s motion to reopen, states that he learned about the orders during a case-

management conference held in a related custody proceeding in the Family Court on

March 11, 2022, and immediately filed a notice of appeal. In support of his position,

English has attached a letter from the Family Court dated March 16, 2022. The

Family Court (i) acknowledged that English had advised the court that he had not

received the May 28, 2021 order or the January 4, 2022 order; (ii) advised English

that the court record reflects that copies of the orders had been sent to his attorney;

and (iii) enclosed copies of the orders for English’s records.

(3) At the request of the Court, English’s counsel addressed English’s

response to the notice to show cause. Counsel advises the Court that he received the

Family Court’s May 28, 2021 order on June 1, 2021, and that his standard practice

upon receiving a court order is to review it and have staff mail a copy to the client

for his review and information. Counsel has no specific recollection of mailing the

Family Court’s May 28, 2021 order to English. Counsel also advises the Court that

he received the Family Court’s January 4, 2022 order by email and, because he was

no longer representing English, took no further action.

2 (4) The Court also asked the appellee to address English’s response to the

notice to show cause. The appellee notes that English must have been aware of the

Family Court’s May 28, 2021 order because he stated in his pro se response to the

appellee’s motion to reopen that he received the Family Court’s May 28, 2021 order

on August 31, 2021. The appellee also argues that if English had not received the

Family Court’s order until August 31, 2021, then he was on notice that he was not

receiving mail in a timely fashion and that it was incumbent upon him to take

reasonable steps to ensure that future information from the court reached him.

(5) The circumstances presented here are unique. Assuming that English

received the Family Court’s May 28, 2021 order and had filed a timely notice of

appeal, the Court would have issued a notice to English to show cause why his appeal

should not be dismissed as an apparent interlocutory order in light of the pending

motion to reopen filed by the appellee on June 9, 2021. Given the ambiguity of the

record as to whether English received the Family Court’s January 4, 2022 order—

the final order in this case—we conclude that the best course of action is to remand

this matter to the Family Court. Upon remand, the Family Court should vacate its

January 4, 2022 order and reissue it in order to permit English the opportunity to file

a timely notice of appeal.

3 NOW, THEREFORE, IT IS HEREBY ORDERED that the matter is

REMANDED to the Family Court for further action in accordance with this order.

Jurisdiction is not retained.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice