HOUSE BILL NO. 334
AS AMENDED BY HOUSE AMENDMENTS NO. 1 AND 2
AND SENATE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 5, CHAPTER 7 AND CHAPTER 13, TITLE 13 OF THE DELAWARE CODE ESTABLISHING CIVIL AND CRIMINAL ACTIONS CONCERNING DESERTION AND SUPPORT AND CONFERRING EXCLUSIVE ORIGINAL JURISDICTION OVER ALL SUCH ACTIONS UPON THE FAMILY COURT OF THE STATE OF DELAWARE, CONFERRING CERTAIN RIGHTS OF APPEAL, AND REPEALING CERTAIN OTHER STATUTES.
WHEREAS, the Court of Chancery has jurisdiction over civil enforcement of the duty of support and the Family Court of the State of Delaware has jurisdiction over criminal enforcement of the duty of support; and
WHEREAS, persons seeking support occasionally institute actions in both courts simultaneously or seek support first in one court and then, if dissatisfied, in the other; and
WHEREAS, to obviate the resulting confusion and duplication of effort it would be desirable to establish a uniform procedure in support actions with original jurisdiction in a single court, and the Family Court is best suited to exercise that jurisdiction.
Be it enacted by the General Assembly of the State of Delaware (Two-thirds of all members elected to each House thereon concurring therein):
Section 1. Amend Chapter 5, Title 13 of the Delaware Code, by striking said Chapter in its entirety, and substituting in lieu thereof a new Chapter 5, which shall read as follows:
CHAPTER 5. DESERTION AND SUPPORT
SUBCHAPTER 1. DUTY TO SUPPORT
§501. Duty to support minor child
(a) The duty to support a child under the age of 18 years, whether born in or out of wedlock, rests primarily upon his parents.
(b) Where the parents are unable to provide a minor child's minimum needs a step-parent or a person who cohabits in the relationship of husband and wife with the parent of a minor child shall be under a duty to provide those needs. Such duty shall exist only while the child makes his residence with such step-parent or person and the marriage or cohabitation continues.
(c) The duty to support a child under 18 years of age, whether born in or out of wedlock, shall rest equally upon both parents.
§502. Duty to support spouse
The duty to support a spouse rests upon the other spouse.
§503. Duty to support a poor person
Except as expressly provided in §501 and §502 of this Chapter, the duty to support a poor person unable to support himself rests upon his spouse, parents, or children, in that order, subject to the provisions of §504 as to expenses described therein. If the relation prior in order shall not be able, the next in order shall be liable, and several relations of the same order shall, if able, contribute according to their means.
§501. Duty to support woman with child conceived out of wedlock
The duty to support a woman pregnant with child conceived out of wedlock rests first upon the person by whom she became pregnant. Such support may include her necessary prenatal and post-natal medical, hospital, and lying-in expenses incident to the pregnancy and to the birth of the child, and such other relief as to the Court shall seem reasonable.
§505. Priority among dependents
(a) The duties of support specified in §501 and §504 of this Chapter shall be performed according to the following order of priority:
(1) the duty to support one's own minor child;
(2) the duty to support a spouse;
(3) the duty to support a woman pregnant with child conceived out of wedlock;
(4) the duty to support a step-child or the child of a person with whom the obligor cohabits in the relationship of husband and wife;
(5) the duty to support a poor person.
(b) Where a support obligor is unable to provide support adequate to the needs of two or more dependents of the same order of priority, he shall apportion the amount available for support ad equally as possible between or among said dependents according to their respective needs.
(c) The provisions of this section shall not repeal the rights of the parties as established by §1537 of this Title.
§506. Failure to support for just cause
No person shall be required to support another while he has just cause for failing or refusing to do so.
§507. Jurisdiction in Family Court; termination of Chancery Jurisdiction
(a) The Family Court of the State of Delaware shall have exclusive original jurisdiction over all actions arising under this Chapter. The Court shall have and exercise all other jurisdiction and powers relating to support and separate maintenance actions heretofor possessed by the Chancellor or the Court of Chancery of the State of Delaware.
(b) The jurisdiction of the Court of Chancery in civil actions for separate maintenance is hereby terminated, except for such actions for separate maintenance as have been commenced in the Court of Chancery prior to the effective date hereof. The Court of Chancery shall retain exclusive jurisdiction over such latter actions.
SUBCHAPTER II. CIVIL ENFORCEMENT
§511. Commencement of actions
Proceedings may be instituted in accordance with rules adopted by the Court, or upon a petition in which the petitioner alleges that defendant owes petitioner a duty of support and has refused or failed to provide such support.
§512. Interim Order
At any time before trial upon petition of the complainant and upon notice to the defendant, the Court shall conduct a hearing and thereafter may enter such interim order, pending final judgment, as seems just, for the support of any dependent for whom support is sought.
§513. Judgment, Order of support, other terms
Where the duty of support has been determined to exist, the Court may:
(1) Order the defendant to pay a certain sum periodically into the Court or directly to a dependent, his guardian, custodian, or trustee, for his support for so long as the obligation of support shall exist.
(2) Order the defendant to pay a specific total amount into the Court or directly to a dependent, his guardian, custodian or trustee, in a lump sum or in such stated periodic amounts as the Court deems proper.
(3) Order the defendant to pay directly to the obligee the cost of prenatal and post-natal medical, hospital, and other lying-in expenses incident to the birth of a child.
(4) Order the defendant to pay the expenses of litigation including reasonable counsel fees incurred by a petitioner.
(5) Enforce its order by attachment of the defendant or by sequestration of property.
(6) Enter such other orders as the Court of Chancery heretofor possessed the power to enter, and as the interests of the parties may require, including but not limited to orders of custody, and visitation.
§514. Determination of amount of support
In determining the amount of support due to one to whom the duty of support has been found to be owing, the Court, among other things, shall consider:
(1) The health, relative economic condition, financial circumstance, income, including the wages, and earning capacity of the parties, including the children.
(2) The manner of living to which the parties have been accustomed when they were living under the same roof.
(3) The general equities inherent in the situation.
§515. Procedural rights of parties
(a) All parties to a civil action brought pursuant to this Chapter shall possess all procedural rights which such parties would have heretofore possessed in an action for support or separate maintenance in the Court of Chancery of the State of Delaware, including but not limited to the following:
(1) the right to institute and retain complete control of the suit;
(2) the right to select counsel;
(3) the right to appeal to the Supreme Court of the State of Delaware, on the record, from interlocutory or final orders or judgments. Such appeal shall be in the form and manner provided by the rules of the Supreme Court.
(b) For purposes of this section, a child born out of wedlock shall possess the same procedural rights as a child born in wedlock and the mother of a child born out of wedlock shall possess the same procedural rights as the mother of a child born in wedlock.
(c) A complete record shall be made of all proceedings in which testimony is taken under the provisions of this section, by court stenographer, tape recorder, or other device, the method to be at the discretion of the Court.
§516. Violation of support order for spouse or child; proceedings, contempt; assignment of wages employer's duties
(a) If the Court, after notice to defendant and a hearing on a rule to show cause, concludes that the defendant has violated the terms of an order of support for a spouse or child, it may punish such defendant for contempt and may attach the defendant's wages.
(b) An attachment made pursuant to this section shall not be subject to the exemptions or limitations contained in §4931, Title 10 of the Delaware Code.
(c) Upon receipt of a certified copy of the wage assignment from the Court, the defendant's employer shall periodically deduct the sum specified therein from the "net" or "take-home" wages or salary due the defendant-employee, and periodically mail or otherwise deliver the said deduction to the Court, and shall continue to do so for so long as the defendant remains in his employ or until the Court orders otherwise. In every case the remittance to the Court shall be by check or money order payable to "The Family Court of the State of Delaware" and shall bear the defendant's name.
() Any employer who dismisses, terminates, or causes the termination of a defendant's employment as a result of an attachment under this statute shall be fined for the first offense not more than $1,000.00 or imprisoned not more than 90 days, or both; and for each subsequent offense shall be fined not more than $5,000.00 or imprisoned not more than one year, or both.
SUBCHAPTER III. CRIMINAL ENFORCEMENT
§521. Desertion or failure to support spouse or child; penalty
Any person who, without just cause, deserts or willfully neglects or refuses to provide for the support of a spouse in destitute or necessitous circumstances, or a parent who, without just cause, deserts or willfully neglects or refuses to provide for the support of a child under the age of 18 years and in destitute or necessitous circumstances, whether such child was born in or out of wedlock, shall be fined not more than $500.00 nor imprisoned not more than six months, or both.
§522. Probation; Terms
In lieu of the penalties provided in §521 of this Chapter, the Court may place the defendant on probation and as conditions thereof impose orders as provided in §512 and §513 of this Chapter.
Proceedings under this Subchapter may be instituted upon complaint made under oath or affirmation by the spouse, child or by any other person against any person where there is probable cause to believe such person has committed an offense under this Subchapter. Proceedings shall be by information.
524. Appeal; stay of order of support
(a) The defendant in any criminal action under this Chapter may appeal to the Superior Court of the County in which proceedings were instituted as provided by law in other cases.
(b) An appeal or writ of certiorari shall not stay any order entered as a condition of probation.
Section 2. Amend §702, Chapter 7, Title 13 of the Delaware Code, by striking said section in its entirety.
Section 3. Amend §1321 through §1335 inclusive, Chapter 13, Title 13 of the Delaware Code, by striking said sections, each section in its entirety.
Section 4. If a court of competent jurisdiction shall adjudge to be invalid or unconstitutional any clause, sentence, paragraph, section or part of this Act, such judgment or decree shall not affect, impair, invalidate or nullify the remainder of this Act, but the effect thereof shall be confined to the clause, sentence, paragraph, section or part of this Act so adjudged to be invalid or unconstitutional.
Section 5. This Act shall become effective three months after signature by the Governor.
Approved July 29, 1974.