Hamilton v. Davis ( 2021 )

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
3