            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    AMY LOUISE SIMPSON,1               §
                                       § No. 601, 2018
        Petitioner Below,              §
        Appellant,                     § Court Below—Family Court
                                       § of the State of Delaware
        v.                             §
                                       § File No. CN15-02666 (S)
    CALVIN G. SIMPSON,                 §
                                       § Petition Nos. 17-30245,
        Respondent Below,              § 18-00722
        Appellee.                      §
                                       §
                          Submitted: May 31, 2019
                          Decided: August 8, 2019

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

                                           ORDER

         After consideration of the parties’ briefs and the record below, it appears to

the Court that:

         (1)    The petitioner below-appellant, Amy Louise Simpson (“the Wife”), has

filed this appeal from the Family Court’s order, dated November 9, 2018, denying

her motions for relief under Family Court Civil Rules 60(b), new trial under 59(a),

and reargument under 59(e). After careful consideration, this Court concludes that

the Family Court’s judgment should be affirmed.




1
    The Court previously assigned pseudonyms the parties under Supreme Court Rule 7(d).
         (2)     The Wife and the respondent below-appellee, Calvin G. Simpson (“the

Husband”), were married on March 20, 1993 and divorced on August 14, 2015.

After an ancillary hearing, the Family Court entered an order on property division

and alimony on September 19, 2016. The Family Court ordered the parties to divide

all household goods (except for furniture that the Husband documented as purchased

before the marriage) 50/50 by agreement or by the two-list method.2

         (3)     On September 27, 2017, the Wife filed a petition for a rule to show

cause, alleging that the Husband had refused to honor her list of requested household

goods and had failed to provide two lists of household goods. The Wife also alleged

that the Husband had failed to sign a release for funds the Wife received in

connection with a car accident. In response, the Husband stated that he had emailed

the required lists to the Wife’s counsel on December 28, 2016. The Husband also

stated that he had returned the signed release to the Wife’s counsel.




2
    This Court has described the two list method as follows:

         The “two-list method” is a means of dividing marital household furnishings and
         miscellaneous tangible personal property where one spouse prepares two separate
         lists of the property subject to division. The other spouse then gets to select the list
         of personal property that he or she wishes to retain, while the other list of property
         is retained by the party who prepared the lists. The idea is that, because the other
         spouse has the choice between the two lists, the list-preparing spouse will prepare
         balanced lists, and the division will be fair.

Schmidt v. Schmidt, 2018 WL 4031049, at *1 n.2 (Del. Aug. 23, 2018) (citations omitted).
                                                    2
      (4)    At the November 8, 2017 hearing on the rule to show cause, the Wife’s

counsel admitted that after he received the Husband’s response to the Rule to Show

Cause petition, he had reviewed his email files and had found the Husband’s email

with the two lists. He informed the Family Court that the Wife requested the items

on List A. The Wife’s counsel stated that he never received an original copy of the

signed release. The Family Court resolved the release issue by having the Husband

sign the release and notarizing the release. The Family Court entered a written order

holding that the Wife would receive the List A items and that the Husband would

receive the List B items. The order required the parties to cooperate in transferring

the property on the lists. The order also established the schedule for the Wife’s

intended application for attorneys’ fees.

      (5)    In addition to filing a motion for attorneys’ fees, the Wife filed a motion

for a new trial. The motion alleged that the Husband failed to include all of the

household items acquired by the parties during the marriage on the lists but the Wife

had selected List A to resolve the matter, the Husband had failed to release the items

on List A, and the Husband and had failed to comply with the Family Court’s orders.

Through newly retained counsel, the Husband opposed both motions. The Husband

argued that he was not found in contempt so there was no basis for an award of

attorneys’ fees, he had responded to inquiries regarding the retrieval of the List A

items, and there was no basis for a new trial. The Family Court denied both motions.


                                            3
       (6)     On January 9, 2018, the Wife filed a motion for relief from the

November 8, 2017 order under Rule 60(b). The Wife argued that the Husband had

failed to comply with the ordered two-list method because List B contained more

than forty items that also appeared on List A. The Wife also filed another petition

for a rule to show cause, alleging that the Husband had failed to comply with the

November 8, 2017 order. The Husband opposed both motions, arguing that the

Husband did not have counsel at the time he prepared the lists and did not know how

to comply with the two-list method. The Husband also argued that the Wife or her

counsel should have discovered the mistake with the lists sooner and that the Wife

was seeking items he acquired after their separation or that she had already collected

from him.

       (7)     On February 13, 2018, the Family Court granted in part and denied in

part the motion for relief under Rule 60(b). The Family Court held that the Wife

was not entitled to relief under Rule 60(b), but that the Family Court could exercise

its equitable powers under 10 Del. C. § 925 to grant relief.3 The Family Court found

that both parties had acted with unclean hands because they both had ample

opportunity to discover the Husband’s error and correct it at the November 8, 2017

hearing. The Family Court ordered the Husband to divide the items on List A into


3
 10 Del. C. § 925(15) (“In any civil action where jurisdiction is otherwise conferred upon the
Family Court, it may enter such orders against any party to the action as the principles of equity
appear to require.”).
                                                4
two lists and the Wife to pick one of the lists. The Family Court reminded the Wife

that she was not entitled to items the Husband purchased after the separation and

that she could not request items that she had already collected. The Family Court

dismissed the Wife’s rule to show cause petition as moot.

      (8)     On February 23, 2018, the Wife filed a motion for reargument, arguing

that the Husband had acted wrongly by preparing lists that did not contain all of the

household goods and that the Wife should receive all of the items on List A or have

the opportunity to prepare two lists of all the relevant household goods. The

Husband opposed the motion. On March 21, 2018, the Wife filed a motion for

enlargement of time and an objection to the two lists prepared by Husband. The

Wife argued that the lists prepared by the Husband did not include many of the items

on List A and that the Husband failed to show he purchased the omitted items after

separation.

      (9)     The Family Court granted the Wife’s motion for reargument so that the

parties could offer evidence and testimony at a rule to show cause hearing. The

Family Court would then determine how to divide the parties’ property. The hearing

was scheduled for May 24, 2018 from 2:00 p.m. to 4:30 p.m. By the time the hearing

concluded on May 24th, only the Husband had testified. The Family Court scheduled

another hearing on June 26, 2018 from 2:00 p.m. until 4:30 p.m. so that the parties

could conclude their cases.


                                         5
      (10) The June 26, 2018 hearing began at 2:05 p.m. and concluded at 2:06

p.m. The Wife’s counsel was seen entering the courthouse, but was not present for

the hearing. The Husband’s counsel asked for dismissal of the matter with prejudice.

When the Family Court asked for the Wife’s position on the motion to dismiss, the

Wife asked that the motion not be granted. She stated that she did not know why

her counsel was not present. The Family Court held that the Wife’s counsel was late

and dismissed the matter with prejudice. On June 28, 2018, the Family Court entered

a written order dismissing the case. In the written order, the Family Court found that

dismissal with prejudice was necessary because:

      The parties have litigated property division of personal property since
      2016, have been unable to come to a resolution, and as is discussed in
      its February 2018 Order, the Court believes Wife and Wife’s counsel,
      like Husband, acted negligent and careless in not correcting or
      discovering Husband’s error in copying the first forty-four items in list
      “A” to list “B.” While it may seem unfair, the Court may impose upon
      a party the consequences of her chosen attorney’s course of conduct.
      Following Wife’s counsel disregard to timely appear at the Court’s
      scheduled hearing, the Court finds that dismissal with prejudice is
      appropriate, and Husband shall not be held in contempt.4

      (11) The Wife’s counsel filed motions under Rule 59(a), 59(e), and 60(b).

In addition to arguing again that the Husband had failed to comply with the Family

Court’s orders regarding the lists of household items, the Wife’s counsel stated that

he was late for the June 26, 2018 hearing because he became ill and lightheaded as


4
  File No. CN15-002666, Petition No. 18-00722, Order at 2 (Del. Fam. Ct. June 28, 2018)
(hereinafter referred to as “Order at __”).
                                          6
he walked to the courthouse. The parties were still in the courtroom when he arrived.

Counsel submitted paperwork showing that he went to the medical aid unit that night

for lightheadedness and high blood pressure. The Husband opposed the motions,

arguing that the Wife’s counsel appeared fine when he was walking to the

courthouse, the Wife’s counsel had failed to respond to the Family Court’s telephone

calls, and the Wife’s counsel did not inform court staff or the Husband’s counsel that

he had suffered a health-related emergency when he arrived late to the hearing. The

Husband also noted that the Wife’s counsel did not seek medical attention until six

hours after the hearing and did not receive any treatment at that time other than being

advised to see his primary physician if his conditions worsened.

         (12) On November 9, 2018, the Family Court denied all of the Wife’s

motions. The Family Court expressed sympathy if the Wife’s counsel had indeed

fallen ill on the way to courthouse, but noted that counsel failed to notify the Family

Court of this illness, waited six hours to seek medical attention, and offered no

evidence to substantiate the seriousness of his illness. This appeal followed.

         (13) This Court reviews the Family Court’s factual and legal determinations

as well as its inferences and deductions.5 We will not disturb the Family Court’s

rulings on appeal if the court’s findings of fact are supported by the record and its

explanations, deductions, and inferences are the product of an orderly and logical


5
    Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).
                                                 7
reasoning process.6 We review legal rulings de novo.7 If the Family Court correctly

applied the law, then our standard of review is abuse of discretion.8

       (14) The Wife’s arguments on appeal may be summarized as follows: (i) the

parties reached a settlement at the November 8, 2017 hearing and the Family Court

erred by failing to enforce its November 8, 2017 order that the Wife receive the items

on List A; and (ii) the Family Court erred in depriving the Wife of the opportunity

to present her case at the June 26, 2018 hearing and in denying her motion for relief

under Rule 60(b).9

       (15) As to the Wife’s first argument, the record supports the Family Court’s

implicit rejection of the Wife’s claim that the parties reached an enforceable

settlement at the November 8, 2017 hearing. The Family Court determined that the

Husband, who was pro se at the time he prepared the lists, incorrectly, but not

fraudulently, prepared two lists containing many of the same items. The Wife’s

contention that the Husband represented in his answer to her first petition that she

would receive the household items on her list is not convincing because the Husband

was simply quoting language in the Wife’s petition and then providing a response.


6
  In re Heller, 669 A.2d 25, 29 (Del. 1995).
7
  Id.
8
  CASA v. Dep’t of Servs. for Children, Youth and Their Families, 834 A.2d 63, 66 (Del. 2003).
9
  The Wife does not challenge the Family Court’s denial of her motions for reargument and for a
new trial and has therefore waived those claims. Supreme Court Rule 14(b)(vi)(A)(3) (“The merits
of any argument that is not raised in the body of the opening brief shall be deemed waived and
will not be considered by the Court on appeal.”).

                                               8
Given the overlapping nature of the lists, it is unclear what the Husband was offering

for the Wife to collect (other than unspecified personal belongings) in his response

to her petition.

       (16) At the November 8, 2017 hearing no one said anything about the lists

containing many of the same items, the Husband preparing the lists incorrectly, or a

mutual agreement that the parties had agreed to deviate from the two-list method

with the Wife receiving household goods that appeared on both List A and List B.

The Family Court’s written order that the Wife receive the items on List A as she

requested and that the Husband receive the items on List B reflects the standard

application of the two-list method. In issuing this order, the Family Court was

unaware that the lists contained many of same items, making it unclear who was to

receive items that appeared on both lists.

       (17) The Wife’s counsel did not inform the Family Court until the January

2018 motion for relief under Rule 60(b) that the lists contained many of the same

items. In deciding this motion, the Family Court found that both the Wife and the

Husband had acted with unclean hands and exercised its equitable powers to order

the Husband to divide the List A items into two lists and for the Wife to select one

of the lists. After the parties were still unable to agree on what should appear on the

lists, the Family Court scheduled a new rule to show cause hearing so the parties

could offer evidence and testimony and the Family Court could decide how to divide


                                             9
the household goods.         Given the confusing circumstances and both sides’

contribution to that confusion, the Family Court was well within its discretion in

deciding to resolve how the household items should be divided after a new hearing.

       (18) The Wife next argues that the Family Court abused its discretion in

dismissing her petition with prejudice and in denying her motion for relief under

Rule 60(b). “[T]he grant or denial of a Rule 60(b) motion is generally reviewed for

an abuse of discretion. A claim that the trial court employed an incorrect legal

standard, however, raises a question of law that this Court reviews de novo.”10 A

final judgment may be reopened under Rule 60(b) for a variety of reasons, including

mistake, inadvertence, and excusable neglect under Rule 60(b)(1) and “any other

reason justifying relief” under Rule 60(b)(6). Excusable neglect is “neglect which

might have been the act of a reasonable prudent person under the circumstances.”11

Rule 60(b)(6) requires a showing of “extraordinary circumstances.”12 Rule 60(b) is

liberally construed in light of the underlying policy in favor of a trial on the merits,

but the movant bears the burden of establishing a basis for relief.13

       (19) In reviewing the Wife’s Rule 60(b) motion, Family Court correctly

examined whether: (i) the Wife established a basis for relief under Rule 60(b); (ii)




10
   MCA, Inc. v. Matsushita Elec. Indus. Co., 785 A.2d 625, 638 (Del .2001).
11
   Christiana Mall, LLC v. Emory Hill and Co., 90 A.3d 1087, 1091 (Del. 2014).
12
   Jewell v. Div. of Soc. Servs., 401 A.2d 88, 90 (Del. 1979).
13
   Battaglia v. Wilmington Sav. Fund Soc’y, 379 A.2d 1132, 1135 (Del. 1977).
                                             10
the outcome of the case would be different if the requested relief was granted; and

(iii) whether the nonmoving party will suffer substantial prejudice if the judgment is

reopened.14 The Family Court also considered whether the Wife was entitled to relief

under Rule 60(b)(6). As the Family Court recognized, the Wife did not identify

which provision or provisions of Rule 60(b) that she relied upon in her motion. In

her briefs on appeal, the Wife makes one reference to Rule 60(b)(1), but primarily

relies upon Rule 60(b)(6). We have considered both provisions.

      (20)     Although the Family Court did not explicitly address whether the Wife

had shown excusable neglect for her counsel’s late appearance at the June 26, 2018

hearing, the Family Court did in substance consider this factor. The Family Court

expressed doubts concerning counsel’s explanation for his late arrival.15 As the

Family Court found, the Wife’s counsel failed to notify the court of his illness,

waited six hours to receive medical attention, and did not submit evidence

substantiating the severity of his illness. There is no indication in the record that

when the Wife’s counsel arrived late for the hearing that he informed anyone,

including his client, that he had fallen ill on the way to the courthouse. Under these




14
   Tsipouras v. Tsipouras, 677 A.2d 493, 495 (Del. 1996) (listing factors this Court will consider
in deciding whether there was abuse of discretion).
15
   Order at 8 (“The Court is sympathetic to Wife’s counsel if he suffered an illness on his way to
Court….”) (emphasis added).
                                               11
circumstances, we cannot second-guess the Family Court’s implicit finding that the

Wife’s counsel had not demonstrated excusable neglect.

     (21)    Likewise, we cannot find that the Family Court erred in holding that the

Wife failed to show the likelihood of a different outcome on her petition for a rule

to show cause. The property division order was issued in September 2016, but the

Wife’s counsel did not contact the Husband until December 2016 and did not file

the petition for a rule to show cause until September 2017. That petition incorrectly

stated that Husband had not provided two lists, but as the Wife’s counsel admitted

at the November 8, 2017 hearing the Husband had emailed him lists in December

2017. Instead of promptly informing the Husband and the Family Court that the lists

contained many of the same items and were not in accordance with the two-list

method, the Wife pursued an argument—found to be unsupported by the record by

the Family Court as discussed above—that the parties had agreed for the Wife to

receive items that appeared on both lists.    After the Family Court exercised its

equitable powers to try and resolve the dispute, the Wife’s counsel failed to appear

on time for the hearing and then offered a questionable explanation for this failure.

Given these facts, the Family Court’s determination that the Wife would not succeed

in her petition to hold the Husband in contempt is supported by the record.

     (22)    The Family Court also had a sufficient basis in the record to find that

the Husband would be substantially prejudiced if the judgment was reopened. The


                                         12
property division dispute involves household goods.           The parties have been

separated for years and have set up separate households. There is no indication that

the disputed household goods are particularly valuable. These factors support the

Family Court’s determination that forcing the Husband to continue litigating the

Wife’s rule to show cause petition at this point would substantially prejudice him.

     (23)    Finally, the Family Court’s finding the Wife failed to establish

extraordinary circumstances to justify relief under Rule 60(b) is also supported by

the record. Contrary to the Wife’s position, this was not a situation where the Family

Court hastily dismissed a meritorious case after counsel for one party was late for a

hearing after suddenly falling ill. As the Family Court found, the Wife pursued her

rule to show cause petition over the division of household goods in a dilatory and

confusing manner and her counsel’s explanation for his untimely appearance was

questionable.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

                                              BY THE COURT:
                                              /s/ Leo E. Strine, Jr.
                                              Chief Justice




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