IN TI-IE SUPREME COURT OF TI-[E STATE OF DELAWARE

SAMUEL PAINTER,' §
§
Petitioner Below- § No. 348, 2016
Appellant, §
§
v. § Court Below_Family Court

§ of the State of Delaware
DIVISION OF CI-IILD SUPPORT §
SERVICES/LOUISE PAINTER, § File No. CNl4-02909
§ Petition No. 15-28782
Respondents Below- §
Appellees. §

Submitted: February 24, 2017
Decided: Apri127, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
O R D E R

This 27"1 day of April 2017, upon consideration of the parties’ briefs and the
record on appeal, it appears to the Court that:

(1) The appellant, Samuel Painter (“Father”), filed this appeal from a
Family Court order dated June 9, 2016. The order affirmed a commissioner’s
decision, dated March 16, 2016, denying Father’s motion to reopen the
commissioner’s child support order dated January 22, 2016. We find no abuse of
the Family Court’s discretion in refusing to reopen the child support order.

Accordingly, We affirm the Family Court’sjudgment.

 

' 'l`he Court assigned pseudonyms to the parties in accordance with Supreme Court Rule 7(d).

(2) The parties are the parents of` one son, born October 3, 2012. The
Division of Child Support Services (“DCSS”) filed a motion for child support on
behalf of Louise Painter (“Mother”) on August 24, 2015. A Family Court
commissioner held a hearing on the petition on January 20, 2016. Mother and
Father both appeared and participated in the hearing. After considering the
evidence presented at the hearing, the commissioner entered an order dated
January 22, 2016, which among other things, ordered Father to pay $628 per
month in child support for the period from May 15, 2015 to October 31, 2015 and
$432 per month from November l, 2015 and continuing forward.

(3) Father did not file a motion for reargument2 or file a petition
requesting de novo review by a Family Court judge of the commissioner’s child
support order.3 Instead, on February 5, 2016, Father filed a motion to reopen the
child support judgment under Family Court Civil Rule 60(b).4 Father argued that
the commissioner mistakenly attributed him with full-time income for periods
when he was unemployed and failed to give him credit for child care payments he

previously made and failed to credit him With expenses he incurred while using his

 

2 Under Family Court Civil Rule 59(e), a motion for reargument of the January 22, 2016 child
support order would have been due on or before February l, 2016.

310 Del. C. § 915(d)(l).

" Ru|e 60(b) allows the Family Court to relieve a party from a final judgment for the following
reasons: (l) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence; (3) fraud, misrepresentation or misconduct; (4) the judgment is void; (5) satisfaction,
release, or discharge of the judgment; or (6) any other reasonjustifying relief.

car for work purposes Father attached additional documentation to his motion that
he had not presented at the child support hearing.

(4) The commissioner denied Father’s motion to reopen on March 16,
2016. The commissioner noted that, even though Father had not been working
full-time during the entire period for which support was ordered, he was properly
attributed with income based on his earning capacity. The commissioner also
noted that Father was given credit for all child care payments that he had proven
and that he Was not entitled to any deductions related to his car for purposes of the
child support calculation.

(5) On April 6, 2016, Father filed a petition for de novo review by a
Family Court judge of the commissioner’s order denying his motion to reopen.
Father asserted that the commissioner erred in awarding retroactive support before
August 2015 when the parties’ divorce was final and Mother filed her child support
petition. Father also argued that the commissioner erred in attributing him with
income that he had not made.

(6) Upon de novo review, the Family Court judge affirmed the
commissioner’s denial of` Father’s motion to reopen. The judge concluded that
Father was actually seeking to reargue the original issues that he had had a full and
fair opportunity to present at the child support hearing. His motion to reopen did

not state any basis for relief under Rule 60(b). This appeal followed.

(7) Relief under Rule 60(b) is an extraordinary remedy and requires a
showing of “extraordinary circumstances.”5 A motion to reopen a judgment under
Rule 60(b) is addressed to the sound discretion of the trial court and will be
reviewed by this Court on appeal for an abuse of discretion.6

(8) As the Family Court noted, Father’s motion to reopen did not state
any basis under Rule 60(b) for reopening the child support judgment His motion
merely sought to reargue the merits of the commissioner’s child support ruling.
But, Father never filed a petition for review de novo of the commissioner’s child
support order. Under the circumstances, he could not use a Rule 60(b) motion as a
substitute for a timely petition for review de novo.7 We find no error or abuse in
the Family Court’s denial of his Rule 60(b) motion.

NOW, TI-[EREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.

BY TI-[E COURT:

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Justice

 

5 Dixon v. Delaware Olds, !nc., 405 A.2d 117, 119 (Del. 1979).
6 Reynolds' v. Reynolds, 595 A.2d 385, 389 (Del. 1991).
7 Gardner v. Delaware Div. Soc. Servs., 2016 WL 5899239 (Del. Oct. 10, 201 6).

