IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK J. ALLEN1§ No. 62, 2014

§

Respondent Below, § Court Below:

Appellant, §

§ Family Court of the

v. § State of Delaware, in and for

§ New Castle County

DENISE M. GRANGER, §

§ File No. CN08-05008

Petitioner Below, § Petition Nos.: 08-39172

Appellee. § 13-36227

Submitted: February 18, 2015

Decided: March 18, 2015

Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.

O R D E R

This 18th day of March 2015, upon consideration of the parties’ briefs and

the record in this case, it appears to the Court that:

(1) Respondent-below Mark J. Allen (“Allen”) raises two arguments on 

appeal. First, he argues that the Family Court abused its discretion in denying his 

Rule 60(b) motion to reopen the alimony proceeding. Second, he argues that the 

Family Court erred by allowing his former spouse Denise M. Granger (“Granger”) 

to claim living expenses that exceeded her income, and attributed expenses to 

Granger that lacked proper documentation. We disagree and affirm the judgment 

of the Family Court.

 

1

The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2

(2) Allen and Granger were legally separated on September 26, 2008. 

Granger filed a petition for divorce on November 21, 2008. The Family Court 

issued the decree of divorce on March 13, 2012. A financial asset report pursuant 

to Family Court Rule 16(c) was completed after Granger requested retention of 

jurisdiction for property division and alimony.

(3) On February 28, 2013, Granger filed a motion for interim alimony. 

On April 1, 2013, the Family Court found that Granger had $2,929 per month in 

expenses. Granger had already been receiving $1,066 per month for child 

support.2 The Family Court noted that Granger had a monthly shortfall of $1,853 

even after receiving child support from Allen, whereas Allen had a budget surplus 

of $2,374. The Family Court ordered Allen to pay Granger interim alimony of 

$1,895 per month.

(4) On October 28, 2013, the parties appeared in Family Court and 

reached an agreement on property division.3 On November 19, 2013, the Family 

Court held a hearing on alimony and issued a written order on December 4, 2013. 

The Family Court ordered Allen to pay $769 per month for child support and $105 

 

2 Allen was ordered to pay $1016 per month in child support and was also paying an additional 

$50 per month towards his arrears.

3

This agreement was finalized once the Family Court confirmed that it would accept the parties’ 

stipulation that alimony be calculated at the next hearing via the “equalizing the cash under 

budget” methodology. 
3

per month in alimony.4 In response to the Family Court’s order, both parties filed 

motions for reargument. Allen argued that Granger’s expenses could not be 

$5,390 per month as she claimed because her only income had been $2,961 per 

month from Allen for child support and interim alimony payments. Allen also 

argued that Granger failed to produce any evidence that accounted for $2,270 of 

expenses, especially considering the fact that the same expenses for Allen totaled 

$592.5

(5) On January 10, 2014, the Family Court entered an order on the 

reargument motions. Granger’s expenses were reduced to $3,436 per month, and 

Allen was ordered to pay alimony of $1,638 per month.6 Combined with Allen’s 

obligation to pay child support of $769 per month, Allen was left with $1,249 per 

month and Granger was left with $2,286 per month.

(6) Both parties also suffered from medical issues during this time. 

Granger was involved in two car accidents -- on January 3, 2011, and on March 4, 

 

4

The Family Court noted that Allen had been earning approximately $8,425 per month when the 

interim alimony was ordered. Thereafter, Allen suffered a stroke on April 6, 2013, that left him 

disabled. His long-term disability income from his previous employer totaled $4,318 per month, 

approximately half of his pre-disability income. Thus, after taking into account Allen’s 

expenses, the Family Court found that Allen had a monthly surplus of $105, whereas previously, 

Allen had a monthly surplus of $2,374.

5

These expenses included household maintenance, food, clothing, laundry and dry cleaning, toys 

and presents, cosmetics and toiletries, hobbies, hairdresser, vacation, entertainment, and 

miscellaneous.

6

To calculate these payments, the Family Court utilized the “equalizing the shortfall” method of 

determining alimony pursuant to an agreement by the parties.
4

2011. Allen suffered a series of serious strokes on April 6, 2013, that left him 

totally disabled.

(7) After Granger’s car accidents, she filed a lawsuit in the Superior Court 

on October 5, 2012 for damages she sustained from those accidents, including 

allegations of severe bodily injury, pain and suffering, medical expenses, loss of 

earnings and permanent loss of earning capacity. She also filed a lawsuit in the 

Court of Common Pleas on December 31, 2013 for breach of contract against her 

automobile insurance company, alleging that she was entitled to personal injury 

protection benefits for medical expenses and loss of wages. 

(8) On February 7, 2014, Allen filed a motion pursuant to Rule 60(b) in 

the Family Court alleging that Granger had failed to disclose that she was a 

plaintiff in two lawsuits stemming from the two car accidents. Allen requested that 

alimony payments to Granger be withdrawn and all payments returned to him. In 

the alternative, Allen requested that a lien in his favor be placed on any recovery 

that Granger would receive from the lawsuits to reimburse him for alimony 

payments. The Family Court denied Allen’s Rule 60(b) motion.

(9) This Court reviews the Family Court’s denial of a Rule 60(b) motion 

only for an abuse of discretion.7 Judicial discretion is “the exercise of judgment 

 

7

Bailey v. Bailey, 2014 WL 1004033, at *1 (Del. Mar. 13, 2014) (citing Johnston v. Johnston, 

2013 WL 1619408, at *1 (Del. Apr. 16, 2013); Hoffman v. Hoffman, 616 A.2d 294, 297 (Del. 

1992); Wife B. v. Husband B., 395 A.2d 358, 359 (Del. 1978)).
5

directed by conscience and reason, as opposed to capricious or arbitrary action.”8 

“[W]here a court has not exceeded the bounds of reason in view of the 

circumstances, and has not so ignored recognized rules of law or practice, so as to 

produce injustice, its legal discretion has not been abused.”9 The question is not 

whether this Court agrees with the lower court, “but rather whether it believes that 

the judicial mind in view of the relevant rules of law and upon due consideration of 

the facts of the case could reasonably have reached the conclusion of which 

complaint is made.”10

(10) In his Rule 60(b) motion, Allen argued that Granger failed to explain

the nondisclosure of her pending lawsuits, and that the nondisclosure was an 

egregious error that was overlooked by the Family Court. In the alternative, Allen 

argued that he should receive an equitable lien on Granger’s recovery from her 

lawsuits because she received alimony payments based on her lack of assets and 

insufficient income. Allen contended that if such relief were not granted to him, 

Granger would be unjustly enriched.

(11) In reviewing the Rule 60(b) motion, the Family Court examined four 

factors, namely, whether the moving party has established one of the six 

 

8

Pitts v. White, 109 A.2d 786, 788 (Del. 1954). 

9

Id.

10 Id. (citations omitted). 
6

enumerated grounds for relief stated in Rule 60(b);

11 whether the party has

established that there has been no unreasonable delay filing the motion; whether 

the party has shown that the outcome of the case would be different if the 

requested relief is granted; and whether the moving party has shown that the 

opposing party would not suffer substantial prejudice if the motion is granted.12 A

Rule 60(b) motion should only be granted upon good cause, and if each of the four 

factors is shown by clear and convincing evidence.13

(12) With respect to the first factor, the Family Court noted that Allen did 

not specifically enumerate the subsections of Rule 60(b) under which he was 

seeking relief. However, it assumed that Allen was requesting relief under 

subsections (3) and (6) of Rule 60(b). Subsection (3) provides that the Family 

Court may grant relief if the moving party demonstrates “fraud . . . 

misrepresentation or other misconduct of an adverse party.”14 Subsection (6) 

provides that “any other reason justifying relief from the operation of the 

 

11 See B.L.W. v. L.W.W., 2007 WL 4793898, at *2 (Del. Fam. Oct. 26, 2007). These grounds are: 

“(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which 

by due diligence could not have been discovered in time to move for a new trial under Rule 

59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or 

other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been 

satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the judgment should have prospective 

application; or (6) any other reason justifying relief from the operation of the judgment.” Del. 

Fam. Ct. Civ. R. 60(b).

12 See B.L.W., 2007 WL 4793898, at *2.

13 Stevens v. Stevens, 1997 WL 619117, at *2 (Del. Oct. 1, 1997). 

14 Del. Fam. Ct. Civ. R. 60(b)(3).
7

judgment” may be a sufficient basis for relief.15 On appeal, Allen does not clarify 

the grounds under Rule 60(b) he was relying upon as the basis of his motion.

(13) The Family Court held that Allen had not established that Granger’s 

lack of disclosure was fraudulent. The Family Court, relying upon this Court’s 

discussion of fraud under Rule 60(b)(3) in Casson v. Hornberger, stated that:

Fraud in Delaware does not consist solely of overt misrepresentations 

made in order to cause damage to third parties, who act in reliance 

upon such statements, but may also occur through deliberate 

concealment of facts and silence in the face of a positive duty to 

speak. . . . Moreover, the very special and unique jurisdiction of the 

Family Court requires complete candor and fairness by parties to 

proceedings before it.16

(14) The Family Court concluded that there was no evidence that Granger 

tried to conceal her potential recovery from her pending lawsuits. Granger had 

attached to her Rule 16(c) Financial Report a letter from her doctor that stated, 

“[d]ue to injuries [Granger] suffered from motor vehicle accidents (dated January 

3, 2011 and March 4, 2011) along with orthopedic and medical problems, she is 

currently unable to work.” Based on this letter, the Family Court held that Allen 

was “on notice that [Granger] sustained injuries and may have, therefore, filed a 

lawsuit seeking to recover damages at some point in the future.” The Family Court 

further noted that even with this knowledge, Allen had failed to file a Request for 

Production seeking information pertaining to any possible lawsuit that Granger 

 

15 Del. Fam. Ct. Civ. R. 60(b)(6).

16 Casson v. Hornberger, 1991 WL 22364, at *2 (Del. Jan. 28, 1991). 
8

may have filed. In essence, the Family Court held that Allen had turned a blind 

eye to the personal injuries Granger suffered and any potential recovery, but when 

faced with an adverse ruling, Allen filed a motion for relief based on the 

nondisclosure of Granger’s potential recovery.

(15) The Family Court held that Granger was not required to disclose her 

potential recovery. Upon filing for a divorce, both parties are forbidden from 

concealing assets.17 Family Court Rule 16(c) requires that both parties disclose all 

of their assets in a Financial Report.18 The Family Court concluded that Granger’s 

potential recovery was not an asset because she had not received any funds from 

the lawsuits. As a result, Granger had no obligation to update or disclose 

additional information on her Financial Report. The court ordered that “[i]n the 

event that [Granger] receives a settlement or proceeds from her pending personal 

injury claims, [she] shall promptly notify [Allen] of such a receipt.”

 

17 13 Del. C. § 1509 (“Upon the filing of a petition for divorce or annulment, a preliminary 

injunction shall be issued against both parties to the action, enjoining them from: (1)

Transferring, encumbering, concealing or in any way disposing of any property except in the 

usual course of business or for the necessities of life, and requiring the parties to notify the other 

of any proposed extraordinary expenditures and to account to the Court for all extraordinary 

expenditures after the preliminary injunction becomes effective. . . .”). 

18 See Del. Fam. Ct. Civ. R. 16(c)(1) (“After the entry of a divorce decree, a petitioner requesting 

ancillary relief shall complete a written report in the form approved by the Court known as a 

Rule 16(c) Financial Report. . . .”). The Financial Report form provides, “IF ANY PARTY 

DELIBERATELY FAILS TO DISCLOSE INFORMATION REQUIRED IN THIS REPORT 

OR DELIBERATELY MISREPRESENTS INFORMATION IN RESPONSE TO QUESTIONS 

IN THIS REPORT, THE COURT MAY IMPOSE SANCTIONS. . . .” See Rule 16(c) Financial 

Report (Form 465), available at http://courts.delaware.gov/help/divorce/forms.stm.
9

(16) The Family Court also held that Allen had failed to establish any other 

reason justifying relief from the operation of the judgment. To satisfy this ground 

for relief, the Family Court properly noted that the movant must meet the 

“extraordinary circumstances” test.19 “The ‘extraordinary circumstances’ standard 

defines the words, ‘any other reason justifying relief,’ in Rule 60(b)(6) as 

‘vest[ing] power in courts adequate to enable them to vacate judgments whenever 

such action is appropriate to accomplish justice.’”20 “Because of the significant 

interest in preserving the finality of judgments, Rule 60(b) motions are not to be 

taken lightly or easily granted.”21 The Family Court concluded that Allen had 

failed to demonstrate extraordinary circumstances meriting relief under Rule 

60(b)(6) for the reasons discussed above. Accordingly, the Family Court held that

Allen had failed to establish any of the enumerated grounds in the Rule for relief 

under Rule 60(b).

(17) With respect to the second factor, namely, whether there had been any 

unreasonable delay in filing the motion, the Family Court held that there was no 

indication that Allen unreasonably delayed filing his motion. As a result, the 

 

19 Jewell v. Division of Social Services, 401 A.2d 88, 90 (Del. 1979).

20 Senu-Oke v. Broomall Condominium, Inc., 2013 WL 5232192, at *2 (Del. Sept. 16, 2013) 

(citing Jewell, 401 A.2d at 90; Klapprott v. United States, 335 U.S. 601, 615 (1949)).

21 Senu-Oke, 2013 WL 5232192, at *1 (quoting Wilson v. Montague, 2011 WL 1661561, at *2 

(Del. May 3, 2011); MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 634 (Del. 

2001)).
10

Family Court concluded that Allen’s claim was not deficient as it pertains to this 

factor. Allen does not contest the Family Court’s ruling on this factor.

(18) With respect to the third factor, the Family Court held that Allen 

failed to show that the outcome of the case would be different if the requested 

relief had been granted. As noted above, Granger has yet to recover anything from 

the personal injuries that she sustained. Thus, even if Granger disclosed that she 

may have a potential recovery in the future, the Family Court noted that it would 

still have been faced with the same financial situation for Granger. Namely, 

Granger would still have been financially dependent on Allen, and thus, she would 

be entitled to alimony. Therefore, the Family Court concluded that Allen had 

failed to establish the third factor required to grant relief under Rule 60(b).

(19) With respect to the fourth factor, the Family Court noted that if 

Allen’s motion were granted, Granger would have no money with which to support 

herself now and for the foreseeable future. Thus, granting Allen’s motion “would 

certainly result in substantial prejudice” to Granger, especially since she has not 

yet received, and may never receive, any proceeds from her pending lawsuits.

(20) Based upon our review of this matter, we agree with the Family 

Court’s analysis of the Rule 60(b) motion and conclude that it did not abuse its 

discretion. The Family Court appropriately noted that if Granger is awarded 

damages in the future, then she must disclose them. At that point, Allen can seek 
11

to modify his alimony and child support payments. Allen is not foreclosed of a 

future remedy if Granger recovers damages from her lawsuits. Accordingly, it was 

not an abuse of discretion for the Family Court to find that Allen has not shown 

extraordinary circumstances meriting relief under Rule 60(b).22

(21) Finally, the Family Court referred to Allen’s alternative argument to 

place a lien on any recovery Granger receives from the pending lawsuits, but did 

not explicitly rule on it. Instead, it rejected the argument implicitly through its 

discussion of the factors necessary to grant relief under Rule 60(b). We find no 

abuse of discretion in this regard.

(22) Allen also argues on appeal that it was not logical for the Family 

Court to determine that Granger’s expenses exceeded her income. Thus, Allen 

contends that the Family Court should have recalculated his alimony payments to 

Granger. 

(23) To the extent the Family Court’s decision implicates rulings of law, 

this Court reviews them de novo.

23

 “Findings of fact will not be disturbed, unless 

they are found to be clearly erroneous and justice requires they be overturned.”

24

 

 

22 See Shoreham v. Shoreham, 2009 WL 1205832, at *4 (Del. Fam. 2009) (“A finding of 

extraordinary circumstances is left to the trier of fact. Extraordinary circumstances exist in 

situations where the moving party has otherwise been foreclosed of a remedy.” (quoting 

Hemphill v. Hemphill, 1994 WL 874412, at *6 (Del. Fam. Nov. 7, 1994))).

23 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006) (citing In re Heller, 669 A.2d 25, 29 (Del. 

1995)). 

24 Id. (citing Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983)).
12

Further, a Family Court’s decision “will not be disturbed on appeal if: (1) its 

findings of fact are supported by the record; (2) its decision reflects due 

consideration of the statutory factors found in 13 Del. C. § 1512; and (3) its 

explanations, deductions and inferences are the product of a logical and deductive 

reasoning process.”

25

(24) Under Delaware law, a party may only be awarded alimony “if he or 

she is found to be dependent upon the other party after consideration of all relevant 

factors.”

26

 To be dependent, the party must show that he or she: “(1) is dependent 

upon the other party for support; (2) lacks sufficient property to provide for his or 

 

25 Castle v. Castle, 2013 WL 2722185, at *2 (Del. Jun. 11, 2013).

26 13 Del. C. § 1512(b). The factors that the Family Court will consider are contained in 13 Del. 

C. § 1512(c): 

(1) The financial resources of the party seeking alimony, including the marital or separate 

property apportioned to him or her, and his or her ability to meet all or part of his or her 

reasonable needs independently;

(2) The time necessary and expense required to acquire sufficient education or training to 

enable the party seeking alimony to find appropriate employment;

(3) The standard of living established during the marriage;

(4) The duration of the marriage;

(5) The age, physical and emotional condition of both parties;

(6) Any financial or other contribution made by either party to the education, training, 

vocational skills, career or earning capacity of the other party;

(7) The ability of the other party to meet his or her needs while paying alimony;

(8) Tax consequences;

(9) Whether either party has foregone or postponed economic, education or other 

employment opportunities during the course of the marriage; and

(10) Any other factor which the Court expressly finds is just and appropriate to consider.
13

her reasonable needs; and (3) is unable to support himself or herself through 

appropriate employment.”

27

(25) Allen relies on Castle v. Castle in arguing that the Family Court erred 

when it calculated Granger’s alimony payments based on her expenses exceeding 

her income. Allen’s reliance on Castle is misplaced. In Castle, we found 

reversible error because the “[t]he Family Court accepted, en toto, Husband’s list 

of claimed expenses, which were not supported by any evidence and, in some 

instances, were flatly contradicted by Husband’s own testimony.”

28

 Here, the 

Family Court did not simply rely on Granger’s testimony, but relied on the 

complete record before it. The Family Court considered that Granger had been 

disabled since June 2010, her monthly gross income was $0, and her sole source of 

income was the alimony and child support payments from Allen. Additionally, the 

Family Court went through each of Granger’s listed expenses and compared the 

allocated amount with her testimony. Thus, the Family Court relied on the record 

provided to it in making its determination regarding the alimony payments. There 

is no evidence before us that suggests that the Family Court’s determination was 

not the result of a logical and deductive reasoning process. Lastly, the Family 

Court explicitly relied on the factors outlined in 13 Del. C. § 1512 in calculating 

 

27 Castle, 2013 WL 2722185, at *2.

28 Id. at *3.
14

the award. We hold that the Family Court did not err in calculating the alimony 

payments to Granger.

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

Family Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura

Justice