Painter v. Painter ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
SAMUEL PAINTER,1 §
§ No. 262, 2021
Petitioner Below, §
Appellant, § Court Below: Family Court
§ of the State of Delaware
v. §
§ File No. CN14-02909
LOUISE PAINTER, § Petition No. 20-13918
§
Respondent Below, Appellee. §
Submitted: October 1, 2021
Decided: October 6, 2021
Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.
ORDER
(1) The appellant (“Father”) filed a notice of appeal from a Family Court
order, dated July 19, 2021, that considered Father’s petition for modification of
visitation with the parties’ child. The Family Court’s decision ordered Father and
the child to begin engaging in family therapy in order to work toward increased
contact and provided that the court would hold a review hearing on December 9,
2021, to consider what progress had been made before taking further action.
(2) On August 27, 2021, the Clerk issued a notice directing Father 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. On September 17,
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2021, having received no response to the notice to show cause, the Court dismissed
the appeal in a single-Justice order under Supreme Court Rules 3(b) and 29(b).
(3) Father has filed a motion for reargument in which he states that he did
not receive the notice to show cause, asks the Court to consider the appeal, and
asserts various claims of error. We hereby grant the motion for reargument but
conclude that the appeal must be dismissed for failure to comply with Supreme Court
Rule 42.
(4) Absent compliance with Rule 42, the appellate jurisdiction of this Court
is limited to the review of final orders.2 An order is final, rather than interlocutory,
when it “leaves nothing for future determination or consideration.”3 The Family
Court’s order leaves a final determination of the petition for modification of
visitation until after a hearing that is scheduled for December 9, 2021. The order is
therefore interlocutory, and Father was required to comply with the procedures set
forth in Rule 42 in order to invoke this Court’s jurisdiction. Father does not assert
that he complied with Supreme Court Rule 42, and review of the Family Court
docket confirms that he did not.4
2
Hines v. Williams, 2018 WL 2435551 (Del. May 29, 2018).
3
Werb v. D’Alessandro, 606 A.2d 117, 119 (Del. 1992).
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/ Gary F. Traynor
Justice
3