Petition for Writ of Certiorari — Osei-Afriyie v. Ampofoh

Supreme Court, U.S,

gee &.

971609 mar 30 19%

OFFIC OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

March Term, 1998

Francis osei-Afriyie,

Petitioner,

¥.

Grace Ampofoh,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

PETITION FOR WRIT OF CERTIORARI

Francis Osei-Afriyie

P.O.Box 185

Dover, DE 19903-0185

(302) 678-5733

SOME I SS.

QUESTIONS PRESENTED

1. WHETHER BY ISSUING AN ORDER THAT A

NON-MARITAL PROPERTY (OVER WHICH THE

FAMILY COURT ADMITTED Ry HAD NO

JURISDICTION) BE SOLD AND PROCEEDS USED

TO PAY PETITIONER IN A PROPERTY DIVISION

PROCEEDING FOLLOWING A DIVORCE WITHOUT

NOTICE AND OPPORTUNITY TO BE HEARD,

DELAWARE COURTS DENIED PETITIONER HIS DUE

PROCESS RIGHTS UNDER’ THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION?

2. WHETHER BY FAILING TO APPLY MANDATORY

PROVISIONS UNDER DELAWARE DIVORCE CODE IN

A PROPERTY DIVISION FOLLOWING A DIVORCE,

DELAWARE COURTS DENIED PETITIONER EQUAL

PROTECTION OF THE LAWS UNDER THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION?

a. WHETHER BY DENYING PETITIONER

PERMISSION TO CALL AND EXAMINE HIS

WITNESS (ES), DELAWARE COURTS DENIED HIM A

FULL AND FAIR OPPORTUNITY TO LITIGATE AN

ISSUE RELATED TO A PROPERTY IN GHANA?

LIST OF PARTIES TO THE PROCEEDINGS BELOW

1. Francis Osei-Afriyie

P.O.Box 185

Dover, DE 19903-0185

(302) 678-5733

2. Grace A. Ampofoh

153 Royal Grant Way

Dover, DE 19901

(302) 697-0549

ii

TABLE OF CONTENTS

page

CAG: DURE REES cs Ce Seca wee ebesewoceeen » 4

St Ce Rd 6 eh OSD eae ee ee ee eee oe oS

po lk Pe ee Sg tt FA ee a ee eae Vv

ORDERS AND DECISION BELOW........cccccee 1

i es owe ed bab bie eek eee Cheers 2

CONSTITUTIONAL AND STATUTORY

PUP e SAPAGOED ARE UGIAIVIID sc 6) hee cece eee ee ees 2

ERR a ae ee aaa ae 6

A.Proceedings in the Family Court...... 10

NOE ove ctw erect an eeseneiscess 12

B. Proceedings in the Supreme Court

ee SN a ek is bie eww wlan a a Oe eee at

REASONS FOR GRANTING THE WRIT....10,14,18

1. DUE PROCESS CF LAW

fi * a. os i a aoe aa a ae ae 9,43

2. EQUAL PROTECTION OF THE LAWS

2 8” wo +> Ee a a eee 9,13,14,18

3. A FULL AND FAIR OPPORTUNITY TO

LITIGATE PROPERTY IN GHANA, AFRICA,

ERIE cs cece ee wae escenwens 19,22,23

L233

TABLE OF CONTENTS, continued

page

CRRAMARM cho ce ev eceeeieensweeeeeenayen 29

APPENDIZ

TABLE OF CITATIONS

Cases Page

Abel G.S. v. Badrban,

453 A. 26 94, Dei. Supe. (1982)... 006% 28

A.I.D. V. P.N.D.,

408 A.2d 940, Del. Supr. (1979)....... 17

Blonder-Tongue v. University Foundation,

COe Woks. SAP ek 4 088.6066 a be OOS 8S KARO eee 19

Commercial Cable Co. v. Burleson,

See Wels BOO CREE hs hk eA wee eRe ees 24

County of Los Angeles v. Davis,

S40 Ui. CES. SARTO bb ches Civ kc aenee ks 24

Diamond National Corp. v. State Equal.

BOGre, S28 Vik. Pes 6 e664 shai ei Keeee 14

Eberly v. Eberly,

469 A.2¢ 433, Dei... BUST. (2905) 2.2 cca 18

BifesGs We: Bsa Gs

457 A.2d 688, Del. Supr. (1983)....16,18

E.C.8%. Vi B.A,

419 A.2d 934, Del. Supr. (1980)....... 13

Frank G.W. v. Carol M.V.,

487 A. 24 735, Del. Supe. (1963) ....+. 13

Gregg v. Gregg,

$10 A. 2a O74, Des. BOE. <ERRS co ss 13

Cases, Continued

Page

Halsey v. Charlotte,

419 A. 2d 962, Del. Fam. Ct. (1980)....14

Husband R.T.G. v. Wife G.K.G.,

410 A. 2d 155, Del. Supr. (1979) .13,27,28

J.0.7. VW. F.Jdk.,

399 A.2d 207, Del. Supr. (1979)........ 13

Lynn v. Gallagher,

526 A.2d 878, Del. Supr. (1987)..... 13,14

Ohio v. Roberts, 448 U.S. 56 (1980)....20

Pointer v. Texas, 380 U.S. 400 (1965)..20

Sanders v. Sanders,

$70 A.2d 1189, Deli. Super. (1990) .. se. 23

Southern Pacific Co. v. ICC,

ae Anca Se, Rah 6c e046 ke he Ue wee 25

Studeingesellschaft, mbl v. USX Corp.,

C75 FP. Gi. LBA (1987) wccascviecccvevcs 19

United States v. Aluminium Co.

of America, 148 F.2d 416, C.A. 2 (1945)25

United States v. Weber,

Sse ee ee PS 5 ie sh Me ea eek a heen s 20

United States v. W.T. Grant Co.

345 U.S. ae eS de a a ke oe ee ae aera 25

Ee PE TOR OO TO Ren OT

Cases, Continued

Page

United States v. Young,

736 F.2d 565, 10th Circuit (1983)..... 22

U.S. v. Paxton,

861 F.2d 730, D.¢. Cireuse {i968} ..<.ta

Wright v. Wright,

469 A.2d 803, Del. Fam. Ct. (1983)....14

Constitutions, Statutes and Rules

By eS: 2, ee oi re 20,23

oe D+ ee a, See Pe we

Delaware CONST. ARTICLE 1......... helsaw

ye et ee Sy Ee eee eae 3

eh ee a Oa. ea 3,15,18

he RO > ee 4,18,19

13 Del. Code Sec. 1513 (DB) ........06. 5,12

7. Des. Cee Bee. 2B SS IG 6a ce ha he <8 ee

16 Del. Code, Chapter 93, Sec.9311....27

62 Del. Bewe, CR. BPA vccvecsvewsvenens 26

vil

Constitutions,

66 Del. Laws,

68 Del. Laws,

69 Del. Laws,

70 Del. Laws,

Delaware Rule

Statutes and Rules

Page

Gs. BO i scdbicne tes eees eo 26

Ci Bes tank eee wens eresen 26

a > errs se eee a 26

OM. GEG. ee iscewd ce eeas 26

of Evidence 804(a)(5)...20

viii

IN THE SUPREME COURT OF THE UNITED STATES

MARCH Term, 1998

FRANCIS OSEI-AFRIYIE,

PETITIONER,

V.

GRACE A. AMPOFOH,

eee<cesepee@esseeoee@eseeseneeees#4eceseeeaoe@eeeses6¢:@ @2 eee 6 6 ee 6s

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

“a6 2 8&6 2 4 2. OR 8 8 6.8.2 424A ee OS OS Oe B'S 6.6 S19 8 Oa 2 Oo Oe 2 2 9

PETITION FOR WRIT OF CERTIORARI

Francis Osei-Afriyie petitions for

issuance of a writ of certiorari to

review the Delaware Supreme Court’s

affirmance of the decision and order of

the Family Court of the State of

Delaware, in and for Kent County.

OPINIONS BELOW

The Orders. of the Supreme Court of

Delaware (App.16a and 17a) are unreported.

The decision of the Family Court of the

State of Delaware In and For Ker. County

(la) is also unrenorted.

JURISDICTION

The Order of the Supreme Court of

Delaware was entered on January 7, 1998.

Petitioner’s timely motion for reargument

(18a) was denied on January 26, 1998. The

jurisdiction of this Court is invoked

under U.S.C. Section 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Sixth Amendment to the United States

Constitution provides in pertinent part:

In all criminal prosecutions, the

accused shall enjoy the right...to

be confronted with the witnesses

against him...

The Fourteenth Amendment to the United

States Constitution provides in pertinent

part:

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal

protection of the laws.

The due process provisions of the

Delaware Constitution provide in

pertinent part:

Axvticie I, Bec. 7.

2

In all criminal prosecutions, the

accused has_ the right to be

heard...nor shall he be deprived of

life, liberty or property, unless by

the judgement of his peers or by the

law of the land.

Article I, Sec. 9.

28 U.

part:

All courts shall be open; and every

man for an injury done him in his

reputation, person movable or

immovable possessions, shall have

remedy by the due course of law; and

justice administered according to

the very right of the cause and the

law of the land, without sale,

denial, or unreasonable delay or

expense. Suits may be brought

against the State, according to such

regulations as shall be made by law.

S.C. Sec. i257 provides in pertinent

Final judgements or decrees rendered

by the highest court of a state in

which a decision could be had, may

be reviewed by the Supreme Court as

follows:

(3) By writ of certiorari, ... where

any title, right, privilege or

immunity is specially set up or

claimed under the Constitution,

treaties or statutes oe or

commission held or authority

exercised under, the United States.

Title 13 Del.C. Sec. 1509 provides in

pertinent part:

(a) 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) Transfering, 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...

Title 13 Del.C. Sec. 1513 states, in

pertinent part:

~“(a) In a proceeding for divorce or

annulment, the Court shall, upon

request of either party, equitably

divide, distribute and assign the

marital property between the parties

without regard to misconduct, in

such proportions as the Court deems

just after considering all relevant

factors including:

(6) The contribution or dissipation

of each party, preservation,

depreciation or appreciation of the

Marital property, including the

contribution of a party as homemaker

or husband.

(b) For purposes of this chapter

only, ~“marital property’’ means all

property acquired by either party

subsequent to the marriage except:

(1) Property acquired by an

individual spouse by bequest,devise

or decent or by gift...;

(2) Property acquired in exchange

for property acquired prior to the

marriage;

(3) Property excluded by valid

agreement of the parties; and

(4) The increase in value of

property acquired prior to. the

marriage.

(c) All property acquired by either

party subsequent to the marriage is

presumed to be marital property

regardless of whether title is held

individually in common or tenancy by

the entirety. The presumption of

marital property is overcome by a

showing that the property was

acquired by a method listed in

paragraphs (1) through (4) of

subsection (b) of this section.

Oe

STATEMENT

Petitioner was respondent’s boy-friend

from 1967 until he left Ghana for

overseas in 1973. In 1980, he returned to

Ghana to teach and married respondent.

He returned to Canada for further studies

in 1980. Respondent joined him in 1981.

But petitioner had to buy her the airline

ticket since she did not have the

financial resources to purchase one.

Upon arrival in Canada, respondent

informed petitioner that the parties had

a daughter in 1973 (23a) and the daughter

was being raised by the maternal

grandparents. The parties provided for

the ~daughter’. In early 1990s,

petitioner found out that the parties did

not have a daughter in Ghana (58a).

Indeed, the so-called ‘daughter’ was

respondent’s sister and it was a scheme

designed by respondent to constantly

siphon off money to her parents

(30a, 44a,49a,51a,54a-61a; brief, pp.3-4},

and to later petition the Immigration and

Naturalization Service (INS) to bring her

sister into the U.S. under a

classification for which the sister would

not qualify under normal circumstances.

In August 1996, respondent filed a

petition with the INS to bring the sister

into the U.S. as her daughter. Brief,

pp.3-4.

During the marriage, the parties had

joint and separate accounts from which

they acquired their assets and maintained

their livelihood. Respondent paid

$2,541.04 more than petitioner from her

separate account to acquire the marital

home. Petitioner also bought the funiture

in the marital home from his separate

account. He also paid over $3,000 more

than respondent to acquire the 25 and 17

Spruance Road properties from his

separate account. In addition, he spent

money from his account to maintain and

repair all the properties (24a-26a). He

also was solely responsible for the

family’s medical and dental expenses

throughout the parties’ stay in CANADA

(From April 1981-April 1985). From April

1981 until August 1982, when the parties

lived on the campus of Simon Frazer

University petitioner was responsible for

all expenses. Indeed, in her answering

brief, p.3, she stated:

~““Initially Appellant contributed

more towards these expenses but

throughout most, and especially, the

latter half of the marriage,

Appellee contributed equally to not

only the monthly living expenses

but also debts created to finance

the acquisition of capital assets.’ ’

Petitioner walked 3 1/2 miles (one- way)

down a steep hill with respondent for her

to catch the bus at 6:30 a.m. (5 days a

week) at the nearest bus stop to go to

work. The hill was so steep that after

walking petitioner became tired (26a)

and somtimes missed his 8:00a.m. classes

that jeopardized his Ph.D. program.

Lastly,when respondent became unemployed

in 1984 in Canada for about 7

months(69a), petitioner was primarily

responsible for all expenses until the

parties moved to the U.S. in April 1985.

Over the years, respondent sent money

to Ghana to take care of a daughter who

turned out not to be our daughter. She

sometimes collected the rent on the

parties’ rental properties and deposited

it into her separate account. Respondent

also withdrew over $4,800 from a joint

account and deposited it into her

individual account (41a-49a). The 17

Spruance property was purchased on

September 23, 1992. By September 28, 1992

respondent had told petitioner that she

was not interested in that property,

demanded her contribution of $1,260 and

had it refunded to her. Petitioner’s

contribution towards the downpayment was

$6,723.95. Brief, pp.9-10; From the time

she had her contribution refunded to her

until she again changed her mind and

became interested in that property,

petitioner was solely responsible for the

mortgage payments, maintenance and

repairs on it.

The Decision and Order appealed from

purported to ‘equitably’ divide the

marital asset. In his appeal, petitioner

argued that, in many instances, the

Family Court’s Decision and Order

violated his rights to due process and

equal protection of the laws under the

14th Amendment to the U.S. Constitution.

Some aspects of the Family cCourt’s

decision and order and rulings require

emphasis. For instance, the court issued

an order oon a non-marital property over

which it had no jurisdiction (4a-5a,15a)

without giving petitioner notice and

opportunity to be heard. Also, the Court

failed to give petitioner equal

protection of the laws by not placing

upon respondent the burden of showing why

an asset acquired during marriage was to

be excluded from division contrary to the

mandatory statute (13a-14a,p.5). Lastly,

the court ruled that it would consider in

the property division, contributions

respondent had made towards the

construction of a property in Ghana (52a-

6la) as well as some expenses petitioner

had incurred (68a-69a). But the court

failed to mention those, let alone

consider them in the property division

(13a-15a).

On the first issue, respondent argued

that the issue was moot because on the

day her brief was due (November 17,1997),

she wrote a check for $26,024 to be given

to petitioner. Petitioner responded that

the issue was not moot. He refused to

accept the check arguing, among other

things, that the $26,024 was being

disputed and it was left to the Delaware

Supreme to decide whether the Order on a

non-marital property without a hearing

violated petitioner’s constitutional

rights. She did not respond to the second

issue. On the third issue, she responded

that the trial court did not forget’

about the ruling but she could not show

how those sums of money were distributed.

Upon review, Delaware Supreme Court

affirmed the Family Court’s Decision and

Order without citing any authority.

Petitioner made a motion for reargument

(18a-22a) but it was denied (17a).

This Court should grant a writ of

certiorari to correct these egregious

constitutional violations, and to resolve

two issues of continuing importance- (1)

under what circumstances may courts issue

orders on properties over which they have

no jurisdiction without a hearing?, and

whether courts may decline to give

citizens equal protection of the laws?

A. Proceedings in the Family Court

In August 1995, the Family Court

exercised jurisdiction over ancillary

matters following a divorce. The parties

engaged in discovery. Respondent

requested materials from petitioner on

two occasions and they were turned over

to her. Petitioner, in turn, requested

similar materials from respondent but she

refused to produce them. As a result,

petitioner had to file two motions for

production of documents and the court

10

granted the motions and issued two orders

(July 13 and November 15). Respondent

complied with the lst court order but she

failed to fully comply with the 2nd

order. Specifically, she refused a

produce bank statements from Wilmington

Trust on account #2704-5987 (26a-28a).

Petitioner sent correspondence on non-

compliance of the court order to the

court but judging from the _ court’s

decision, (13a-15a), that court did

nothing.

During the hearing, the court made

some important rulings which petitioner

relied upon (34a, 54a-55a; brief, pp.32-

33). But the court failed to follow. or

comply with its own rulings in its

Decision and Order. This was a complete

surprise to petitioner that could not

have been anticipated based on Eberly v.

Eberly, 489 A.2d 433, 443(1985). Also,

respondent withdrew her request for

attorney’s fees at the conclusion of the

hearing (68a) and petitioner requested

the award of attorney’s fees from

respondent (68a) for (1) rejecting an

appraisal submitted by his attorney from

Mr. Owens and respondent accepting the

appraisal when Mr. Owens appeared in

court to testify and (2) for being

unreasonable and uncooperative throughout

the litigation. But the court issued an

order (14a), on respondent’s request

which had been withdrawn and ignored

petitioner’s request (29a,33a-41la). Such

11

a conduct is grossly unfair and against

13 Del.C. Sec. 1513(a), p.4.

ARGUMENT

It is well settled under the Delaware

Divorce and Annulment Act, 13 Del. C.,

Chapter 15, and repeated in numerous

cases that: all property acquired by

either spouse during the marriage,

regardless of how such property be

titled, is ~"presumed’’ to be marital

property, subject to division by the

Family Court upon divorce. 13 Del.C. Sec.

1513(c), p.4. Section 1513(b), however,

provides - that the marital property

presumption is subject to four

exceptions. Those exceptions are:

(1) Property acquired by an individual

spouse by bequest,devise or decent or by

2% 4 eee

(2) Property acquired in exchange for

property acquired prior to the marriage;

(3) Property excluded by valid agreement

of the parties; and

(4) The increase in value of property

acquired prior to the marriage.

The burden of overcoming this statutory

presumption and proving that the property

sought to be excluded falls within one of

the four statutory exceptions is placed

upon the party seeking to exclude the

property from division between’ the

parties. For consistency in the

12 |

application of this mandatory statute,

see Lynn v. Gallagher, 526 A.2d 878, at

882 (Del. Supr.1987); Gregg v. Gregg, 510

A.2d 474, 478 (Del. Supr. 1986); Frank

G.W. wv. Carol 4.YV., 457 A.2a 715, 722

(Del. Supr. 1983); E.C.W. v. M.A.W., 419

A.2d 934, 937, (Del. Supr. 1980); Husband

R.T.G. v. Wife G.K.G, 410 A.2d 155, 159

(Del. Supr. 1979); J.D.P. v. F.J.H., 399

A.2d 207, 211 (Del. Supr. 1979).

But the Family Court failed to require

respondent to carry the burden of showing

that assets she requested be excluded

from division fell under any of the four

statutory exclusions. Instead, that court

stated the following in its decision:

Although individual bank accounts and

pension plans are considered marital

property, in this case, in light of the

fact each party managed their separate

accounts and finances for the duration

of the marriage, it would be inequitable

to now attempt to split the accounts and

equalize the balances to the detriment

of the more frugal party.Therefore, each

party shall maintain their individual

accounts titled in their names... Each

party shall retain 100% their own

pension and deferred compensation

plans... (13a-14a).

On appeal petitioner argued that the

above rationale deprived him of equal

protection of the laws guaranteed under

the 14th Amendment to the Constitution

and of a fair share of the marital asset.

13

He argued that under Delaware law, the

fact that an individual spouse may have

control over marital property, and

determine its placement into either a

joint or separate account, or into other

property, is not dispositive of the legal

issue of chracterization for the purposes

of property division, brief pp.11-15. See

Halsey v. Charlotte, 419 A.2d 962, 965(

Del. Fam. Ct. 1980). This case has

been OVERRULED. Hence, marital assets in

Delaware are awarded not on the basis of

who controls or manages them and courts

have consistently considered personal

accounts, stocks, cars etc. as marital

asset subject to division. Wright v.

Wright, 469 A2d 803, 806 (Del. Fam. Ct.

1983); Lynn v. Gallagher, supra.). Brief,

pp.14-15, Reply brief, pp. 2-3. See

Diamond National Corp. Vv. State

Equalization Board, 425 U.S. 268, 268-270

(1976) where a consistent construction

and application of California statute was

given weight by this Court. But without

Statutory authority from the General

Assembly, the Family Court had

manufactured an additional property

division statute based on ~“control’’ and

~“management’’ applied only in this case

despite consistent application of

existing statute by Delaware courts.

This departure from applying the existing

statute was discrimatory and deserves

this Court’s attention.

14

Le a a en Oe oe i tness

Second, respondent admitted at trial

that in March 1996 she unilaterally

withdrew over $4,800 from the parties

joint account (41a-49a) (IN VIOLATION OF

13 Del C. Sec. 1509, p.4) and collected

the rent on all the four. rental

properties from April 1996 to June 1996

(3la-32a) and deposited the sum into her

individual account. She also testified

that petitioner did repairs on the

properties and installed a fence on 13

and 15 Spruance properties (25a-26a).

Again, she admitted in open court that

she periodically sent money from her

individual account to her parents for

their upkeep, contributed to buy a parcel

of land in GHANA and contributed at least

another $5,000 to construct a building on

that land. Lastly, respondent initially

denied that the parties had joint

accounts until they opened one in 1991.

But upon cross-examination and after

production of evidence she was

unwillingly forced to admit that the

parties had 3 accounts at least since

1988 and before 1991. Finally, § she

testified that petitioner paid the rent,

utilities, medical and dental expenses

when she first arrived in CANADA and the

parties lived on the university campus

until they left and rented an apartment

downtown (60a-61a). Respondent arrived in

Canada in April 1981 and the parties

moved downtown in August 1982.

Petitioner again argued on appeal that

the sums of money in individual accounts

and contributions respondent sent to

Ghana should have been subject to

division by the Family court.

13 Del. C. Sec. 1513(a) imposes on the

Family Court the duty to “equitably

divide’’ all marital property after

considering "ee relevant factors

including’’ Sec. 1513(a) (6), p.4. Since

the term dissipation’ is not defined by

statute, reference must be made to its

commonly accepted meaning, considering

the context in which the word is used in

our statute.

In the context of Sec. 1513(a) (6),

~“dissipation’’ is used as an antonym for

the contribution...of each party in the

acquisition, preservation... of the

marital property... and one party’s

~“dissipation’’ must be weighed against

the other party’s ““contribution’’ and

then related to the allocation of

Marital property. E.E.C., id. 457 A.2d

688, 695 (Del. Supr. 1983). Petitioner

spent the money in his individual account

on the rental properties, the marital

home and on the family.

; Dissipation n.l.a. The act of scattering. b.

The condition of being scattered; dispersion. 2.

Wasteful consumption or expenditure. 3. Dissolute

indulgence in pleasure; intemperance. 4. An

amusement; a diversion.

The American Heritage Dictionary of the English

Language.

Clearly then, evidence of a party’s

“dissipation’ or ~“diversion’’of marital

income or other marital property is a

statutory factor to be considered in

arriving at an equitable division of the

marital property. In A.I.D. V. P.M.D.,

408 A.2d 940, 943 (Del.Supr. 1979), that

court recognized Sec. 1513(a)(6) as

a~ legislative mandate to consider

dissipated property when an equitable

division of property is to be made...’

Indeed, after the Family Court had

ruled that the Ghana house was ~‘non-

marital’’ (a ruling which was objected to

and which petitioner will shortly

discuss), and without explicit reference

to 13 Del. C. 1513(a) (6), it ruled that

it would consider as factors to be

weighed in effecting an equitable

division of property between the

parties, respondent’s $5,000 contribution

plus any additional contribution adduced

at trial which she might have made to

that house (54a). The court also ruled

that it would consider the circumstances

under which Mr. Owens appeared in Court

in its distribution (68a-69a). But, there

in nothing in the Court’s decision and

order that it did so. Surely, the Court

should have considered the portion of

marital property that respondent

contributed to the Ghana house,the fee

petitioner paid Mr. Owens to go to court

as well as petitioner’s expenses that

went to preserving the marital property.

17

See Eberly v. Eberly, 489 A.2d 433,

443(1985). But again, the Family court

did not do that.

Notwithstanding all the above, the

Family Court distributed the marital

estate as found at 13a-15a. Viewing the

court’s decision and order in the context

of the record, petitioner argued that the

Family Court’s decision was inequitable

since it denied him equal protection of

the laws by failing to consider all

mandatory and pertinent statutory

factors set out in 13 Del. C. Secs. 1509

and 1513. This is similar to E.E.C., id.

457 A. 2d 688, at 699. Therein, that

court reversed a Family court’s property

division since it was made without due

regard for all pertinent ' = statutory

factors set out in 13 Del. Cc. Sec.

1513(a)1 through (11). But the Delaware

Supreme Court affirmed the lower court’s

decision and order. However, this case -

in which petitioner prays for a writ to

review such affirmance s0 seriously

infringes constitutional and statutory

rights, where they raise on their face a

substantial question of whether the

Family court acted within its statutory

and constitutional mandates - is a

proper occasion for this Court to make

clear that courts do have and must act

within the confines of the law.

18

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Petitioner was denied a full and fair

hearing at the Family Court.

This Court has set forth some factors

which a court might examine to determine

whether a party had been afforded a~~full

and fair opportunity’’ to litigate a

particular issue. Among them _ are: (1)

whether the court purported to apply the

applicable legal standards and two(2)

whether without fault of his own the

party was deprived of crucial evidence or

witnesses in the prior litigation.

Blonder-Tongue v. University Foundation,

$62 U.8. 332, 332-333, 31% 8.Ct. 31434, 28

L.Ed 788(1971); Studeingesellschaft, mbl

Vv. USX Corp., 675 F. Supp. 182

(D.Del.1987).

The record shows that the Family Court

failed to apply all the pertinent

statutory factors embodied in 13 Del. C.

Sec.1513. The record also shows that

petitioner was denied a request to call

and examine his witnesses who were in

Ghana about the ownership and value of a

property in Ghana.

The facts are the following:

On July 3, 1996 at a hearing on Motion

to Withdraw as Counsel and Motion for

Production of Document, the Family Court

stated that because the among in

controversy on the Ghana property was

small, it would not be prudent to bring

witnesses from Ghana into the U.S. to

testify. Following the hearing,

19

respondent's previous counsel sent a

letter to petitioner in which she stated:

~*I think it makes a great deal of sense

to having any witnesses from Ghana

testify by phone.’’ app. to petitioner’s

brief, p.188. Petitioner agreed with her

in his response, app.to brief,p. 191.

Petitioner stated in his 52D submission

that he would call his witnesses from

Ghana to testify by phone. The court was

again contacted by phone and petitioner

was informed that he would be responsible

for the phone bill. He agreed to pay the

phone bill the court would incur.

However, at trial counsel opposed

calling the witnesses to testify by phone

on the grounds of relevancy and violation

of respondent’s rights under the 6th

Amendment to the Constitution. The court

then denied petitioner’s request. (47a-

48a,54a). Petitioner immediately objected

to the court’s ruling, arguing that there

are exceptions to rules of evidence and

the 6th Amendment Confrontation Clause.

See D.R.E 804 (a)(5); United States v.

Naber, <@37 . a2 327, 339; Gaso v.

Roberts, 448 U.S. 56 (1980); Pointer v.

Texas, 380 U.S. 400, 407 (1965).

Again on appeal, petitioner argued

that he was denied a “full and fair

opportunity’’ to trial on the Ghana

property citing exceptions to rules of

evidence and the 6th Amendment

Confrontation Clause. Respondent also

advanced the same argument as was done at

20

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age «tivated

hee STowiicat.

trial. The Delaware Supreme accepted

respondent’s argument by its affirmance

of the trial court’s decision and order.

It is important to note that the Family

court mentioned the Ghana property,

let alone respondent’s contribution to it

in its decision and order. The court

totally ignored it as if petitioner had

not requested that it be included in the

property division and as if that court

had not ruled on it as_ previously

indicated, (54a);p.17. That was a serious

omission and a miscarriage of justice.

It is again important to mention that

petitioner testified that respondent had

told him that she was building a house in

Ghana. The record also shows that on

June 11, 1993, approximately two years

before the parties’ divorce, respondent

had written a letter to Mr. Sarfo

soliciting his help te complete her house

in Ghana (69a-70a). Respondent testified

that in November 1993, while in Ghana,

she had a conversation with Dr. Michael

Owusu-Akyaw about the house in Ghana and

asked him to supervise its completion in

her absence. She gave money to Dr. Owusu-

Akyaw to pay the workers upon its

satisfactory completion. In June 1994,

while on an assignment in the U.S., Dr.

Owusu-Akyaw wrote to the parties stating:

~~... Am UT) Uipeieated in wy tetter, i:

supervised and paid the workers who

worked on your wife’s building; the job

was well done.’’

21

Respondent sent Dr. Owusu-Akyaw $50 as

appreciation for honoring his promise.

Copies of respondent’s letter to Mr.

Sarfo and Mr. Sarfo’s response as well

as Dr. Owusu-Akyaw’s letter were on

record at time of trial, app. to brief,

pp. 180-184. Petitioner believes he was

entitled, in the interest of a fair

trial, to call at least Dr. Owusu-Akyaw

to question him and ascertain the nature

of his conversation with respondent and

on what basis he stated ~“your wife’s

building’’ as indicated above. That

content of the conversation between

respondent and Dr. Owusu-Akyaw would have

been relevant to establish ownership of

that property. Also, it would have

corroborated respondent’s statement in

her letter to Mr. Sarfo stating:

eae, I have been strongly advised by

Osei-Yaw to contact you for assisting

me to complete my house in Nyinahin. I

shall be sending you money if you offer

this important help in my life...''

In fact, the D.C. Circuit in J.&. v.

Paxton, 861 F. 2d 730, 734 (1988), ruled

that a statement by a party’s agent or

servant concerning a matter within the

scope of agency or employment, made

during the existence of the relationship

is admissible under Fed. R.Evid.

801(d)(2) (quoting the 10th Circuit and

this Court). See United States v. Young,

736 F.2d S565, 567(10th Cir. 1983), 470

U.S. 1. Consequently, the denial by the

22

Family court of the request to call

witnesses under the protection of the 6th

Amendment Simultaneously _ deprived

petitioner of his rights to a fair and

full trial. This Court should examine

whether petitioner had a fair opportunity

procedurally, substantively and

evidentially to pursue his claim the

first time.

THE DENIAL OF DUE PROCESS OF LAW ON THE

HANCOCK PROPERTY

The Family court had stated in open

court that it had no jurisdiction over

the non-marital Hancock property . Also,

see decision and order (4a-5a). But in

its Order (15a), the court stated that

to equalize payment, respondent was to

pay petitioner $26,024 two months after

the sale of the non-marital property and

distribution of proceeds. The order gave

respondent unlimited duration of time to

pay petitioner which was a violation of

his constitutional rights. See Eberly,

id. 442. Nevertheless, when a_ statute

limits the jurisdiction of a court, it

must be strictly interpreted. Emphasis

added. See Sanders v. Sanders, 570 A.2d

1189, 1193( Del. Supr.1990), quoting

Theisen v. Hoey, 51 A.2d 61 (Del. Ch.,

1947). The court issued the order without

a hearing despite the substantial amount

of liquid assets awarded respondent and

despite the fact that she possessed no

23

interest legal or otherwise in that

property as of June 4, 1997. On that

date, petitioner bought respondent out of

the property by securing a loan of

$45,000 to pay her. Therefore, the Family

court’s order should not be treated

lightly by this Court. The consequence of

not following the statute (13 Del.Cc.

Sec.1513) was to violate petitioner’s

rights.

In response to petitioner’s argument,

respondent argued that the merit of

petitioner’s claim was moot because on

the day her answering brief was

due (November 17, 1997), she wrote a check

for $26,024 to be given to petitioner.

Petitioner did not accept the _ check.

Instead, he argued in his reply brief

that the Family court’s property division

was inequitable and the Delaware Supreme

Court should determine whether the trial

court’s order on the non-marital property

violated his constitutional rights. Why

did respondent delay from June 1977 until

November 1997 to attempt to pay

petitioner when the latter paid

exorbitant interest on the loan while the

former earned interest on the $45,000?

Cases may become moot because of a

change in the law, or in the status of

the parties, or because of some act of

one of the parties which dissolves the

controversy. Commercial Cable Co. v.

Burleson, 250 U.S. 360 (1919); County of

Los Angeles v. Davis, 440 U.S. °625(1979).

But this Court has developed several

exceptions which operate to prevent many

of the cases in which mootness is alleged

from being in law moot. Among them is the

““voluntary cessation’’ doctrine which

focuses on whether challenged conduct

which has lapsed is likely to recur.

Southern Pacific Co. v. ICC, 219 U.S.

433, 452(1911). Thus, cessation of the

Challenged activity by the voluntary

choice of the person engaging in it,

especially if he contends that he was

properly engaging in it, will moot the

case if it can be said with

assurance “that “there is no reasonable

expectation that the wrong will be

repeated.’ ’’ United States v. W.T. Grant

co., 345 U.S. 629, 633(1953) (quoting

United States v. Aluminium Co. of

America, 148 F.2d 416, 448(C.A.2 1945).

Otherwise, ~“the defendant is free to

return to his old ways’’ and this fact

would be enough to prevent mootness

because of the ~“public interest in

having the legality of the practices

settled.’’ United States v. W.T. Grant

Co. id., 632. Emphasis added.

In the instant case, the Family court’s

conduct has been sanctioned by the

Delaware Supreme Court and there is no

assurance that that court would not issue

an order to affect petitioner’s or

another party’s property interest over

which that court has no jurisdiction.’

Consequently, the order is not moot.

This order was issued without a hearing

and denied petitioner opportunity to be

heard in defense of his interest. Hence,

the Family court acted outside the

framework of applicable law and totally

disregarded petitioner’s due process

rights under the 14th Amendment.

Finally, petitioner argued on appeal

that the Family court’s conclusions were

against the weight of the evidence and

unsupported by the law. Pages 25-32 of

brief. For instance, the court stated

that the Delaware Health Resources Board

has been subject to several sunset dates

that have previously been amended by the

General Assembly...’’ (8a). That statement

was totally unfounded. One only needs to

examine the history of Chapter 93 of

Title 16. The 134th General Assembly

amended the original 1978 statute(61 Del.

Laws ch. 393) in 1987 with 66 Del. Laws

ch.90. The 136th General Assembly revised

some provisions of ch. 93 in 1991. See 68

Del. Laws ch.29. In 1994, the 137th

General Assembly gave shape to. the

current Chapter 93 of Title 16 with 69

Dei. fam ah. 263. 2: és .4n this

enactment that the sunset provisions,

2 A court order becomes the law of the case. See,

Joseph(B.P.) v. Kathleen(M.P.), 469 A.2d 800, 802

(1983). This law should not be allowed to stand.

26

a ee

ch.93, sectiom 9311, first appear.

Section 9311 states:

The Board and all provisions of this

chapter shall sunset June 30, 1996.

Prior to this date, the Delaware Health

Care Commission or its successor agency

shall have completed a review of the

effectiveness of Certificate of Need.

The General Assembly first amended

Section 9311 in June 1996. See 70 Del.

Laws, ch.446. That amendment implements

the Commission’ s recommendations in

response to a directive of the 137th

General Assembly and sunsets the Board.

The Family court also concluded that wife

was ~ always employed during the entire

length of the marriage’’ (8a). That fact

was totally incorrect. In fact,

respondent testified that she did not

work for 7 months in 1984(69a).

B. Proceedings in Delaware Supreme Court

On appeal, as previously stated,

petitioner argued that the Family court

acted outside the confines of its

legislative mandate, divided the marital

estate without due regard for all

pertinent statutory factors set out in 13

Del. C. Sec. 1513, failed to comply with

the Supreme Court’s own procedural

guidelines for property division set cut

in Husband R.T.G. v. Wife G.K.G., 410

A.2d 155(1979) and denied petitioner due

process of law and equal protection of

27

the laws under both the 14th Amendment to

the U.S. Constitution and the State of

Delaware Constitution, Article I, Secs.

7&9. Surprisingly, however, the Supreme

Court affirmed the Family court’s denial

of petitioner’s Constitutional rights

and, thereby, renounced its power to

protect petitioner's rights and

privileges secured by the 14th Amendment

and the Delaware Constitution.

Petitioner’s motion for reargument (18a-

22a) was equally denied (17a). The

affirmance of the Family court’s decision

and order is totally inconsistent with

that court’s own cases cited in this

petition.

For instance, in Abel G.S. v. Badrban,

453 A.2d 94, 97 (Del. Supr. 1982), that

Court gave the following warning to the

Family Court:

The Court and its power are solel, -he

result of statute, and when proceeding

on what is perceived to be an

equitable basis, the trial judge could

not do so in disregard of the law or

in violation of the rights of the

litigants.

Also, in R.T.G., 410 A.2d 153, 158, id.

the same court stated:

It is, therefore, essential in the

public interest that Judges of the

court who exercise its statutory

power apply the same basic approach

in the administration of Sec. 1513.

If a Family Court Judge failed to do the

above, that Court continued,

~*,.. We cannot avoid our responsibility

for consistency in the administration

of the law.’’

Conclusion

For reasons expressed and the

authorities cited herein, a case has,

therefore, been made that the Delaware

Supreme Court sanctioned a lower court’s

violation of petitioner’s 14th Amendment

constitutional rights and avoided its

responsibility to oversee consistency in

the administration of the law. This Court

must grant a writ of certiorari and

exercise its supervisory power to give

back to petitioner his rights denied him

by Delaware courts. For, there is nothing

more fundamental or basic than one’s

constitutional rights to due process of

law and equal protection of the laws.

They are the essence of our legal system

and the cornerstone of the public’s trust

and respect for that system. They must be

protected and protected by this Court.”

> Petitioner contacted respondent’s attorney to

file a joint appendix but he declined. He

indicated respondent would file her own appendix.

Petitioner accepted a check for $26,024 on 3/9/98

from respondent.

29

March 1998

L¢0

Francis Osei-Afriyie

P.O. Box 185

Dover, DE, 19903-0185

Pro-se Petitioner

Non-attorney

(302) 678-5733

30