(a) An interim or final order of a commissioner may be appealed to a judge of the Court by any party, except a party in default of appearance before such commissioner.(b) An appeal of a commissioner’s order shall be accomplished by filing with the Court within 10 days from the date of the commissioner’s order written objections to the commissioner’s order which set forth with particularity the basis for each objection. A copy of the written objections shall be served on the other party, or the other party’s attorney, if the other party is represented.(c) The party filing written objections to a commissioner’s order shall cause to be prepared a transcript of the proceeding before the commissioner, either in whole or in pertinent part, unless all parties agree to a statement of facts. The party filing objections shall file at the same time a notice to the Clerk of the Court that a transcript is to be prepared. The party filing objections will be informed by the Court of the cost of the transcript and will be required to pay such cost prior to the preparation of the transcript. The Court, upon request, may agree to accept an electronic recording of the proceedings, in lieu of a transcript, in cases where the objecting party is proceeding in forma pauperis.(d) The other party shall have 10 days to file and serve a written response to the written objections. Once the period for filing a response has ended, the judge assigned to hear the appeal shall promptly decide the appeal, or if one is to be held, promptly schedule a hearing in the matter.(e) From an appeal of a commissioner’s final order, the Court shall make a de novo determination of the matter (that is, the matter shall be decided anew by a judge), based on the record below. Prior to determination of the matter, a party may request in writing that additional evidence be permitted to be offered. The Court shall only accept such additional evidence if it finds:
1) that it is newly discovered evidence which by due diligence could not have been discovered in time to offer it before issuance of the commissioner’s order or 2) if the circumstances are such as would justify reopening the record in the interest of justice. If the Court determines that the additional evidence should be considered, it may remand the matter to the commissioner to hear additional evidence or the Court may hear and consider the additional evidence or the Court may conduct a de novo hearing. (f) From an appeal of a commissioner’s interim order, the Court maya accept, reject or modify, in whole or in part, the commissioner’s order or recommit the matter to the commissioner with instruction, where it is shown that the order is based upon findings of fact that are clearly erroneous, contrary to law or an abuse of discretion.(g) A judge deciding an appeal from a commissioner’s order may accept, reject or modify in whole or in part the commissioner’s order. The judge may also recommit the matter to the commissioner with instruction.(h) No appeal of a commissioner’s order shall stay execution of the order unless such stay shall be specifically ordered by a judge of the Court.(i) A party appealing an order of a commissioner who fails to comply with the provisions of this rule or with the direction of the Court as to the appeal shall be subject to dismissal of said appeal.
Del. Fam. Ct. R. Civ. P. 53.1
Amended June 14, 2020, effective September 1, 2020.
