Hamilton v. Davis

• Court: Supreme Court of Delaware
• Decided: October 8, 2021
• Docket: 291, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

FRANKLIN HAMILTON,1 § § No. 291, 2021 Petitioner Below, § Appellant, § Court Below - Family Court § of the State of Delaware v. § § File No. CN21-04354 MEGAN DAVIS, § Petition No. 21-19959 § Respondent Below, § Appellee. §

Submitted: October 4, 2021 Decided: October 8, 2021

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

ORDER

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

it appears to the Court that:

(1) On August 27, 2021, the appellant (“Hamilton”) filed a petition for

custody of a minor child in the Family Court, and on August 30, 2021, he filed a

motion for an emergency ex parte order awarding him temporary full custody of the

child. The Family Court denied the motion, stating that the “underlying action will

proceed in the normal course of business.” Hamilton filed a notice of appeal to this

Court.

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). (2) The Senior Court Clerk issued a notice directing Hamilton to show

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

Court Rule 42 in taking an appeal from an interlocutory order. In response, Hamilton

filed a letter stating that he is unable to respond because he “has a pending Subpoena

Duces Tecum Motion before Family Court” through which he is seeking “records

that would allow appellant to comply with Supreme Court Rule 42.” He does not

assert that he complied with Rule 42.

(3) An order constitutes a final judgment when it “leaves nothing for future

determination or consideration.”2 The Family Court’s order denying the motion for

an emergency ex parte order is interlocutory because the proceedings before the

Family Court are ongoing, as Hamilton admits by stating that he has a pending

discovery request. Absent compliance with Supreme Court Rule 42, the appellate

jurisdiction of this Court is limited to the review of final orders.3 Hamilton’s failure

to comply with Supreme Court Rule 42 leaves this Court without jurisdiction to hear

this interlocutory appeal. Moreover, awaiting resolution of the pending discovery

motion before considering whether this matter should be dismissed would be futile,

as the time for complying with Rule 42 has passed.4

2 Werb v. D’Alessandro, 606 A.2d 117, 119 (Del. 1992). 3 Hines v. Williams, 2018 WL 2435551 (Del. May 29, 2018). 4 See, e.g., Del. Supr. Ct. R. 42(c) (providing that “[a]n application for certification of an interlocutory appeal shall be made in the first instance to the trial court”); id. R. 42(c)(i) (requiring that an application for certification of an interlocutory appeal be served and filed with the trial court within ten days of the entry of the order from which the appeal is sought). 2 NOW, THEREFORE, IT IS ORDERED that this appeal is hereby

DISMISSED.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves Justice