IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL NEWMAN,1 §
§ No. 119, 2016
Petitioner Below- §
Appellant, §
§ Court Below—Family Court
v. § of the State of Delaware
§
SARAH NEWMAN, § File No. CN10-01567
§ Petition No. 14-23105
Respondent Below- §
Appellee. §
Submitted: October 7, 2016
Decided: November 29, 2016
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 29th day of November 2016, upon consideration of the parties’
briefs and the record on appeal, it appears to the Court that:
(1) The appellant, Michael Newman (“the Father”), filed this
appeal from the Family Court’s order dated February 15, 2016, denying his
petition for modification of a prior custody order. After careful
consideration, we find no merit to the appeal. Thus, we affirm the Family
Court’s judgment.
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule
7(d).
(2) The record reflects that the parties are the parents of a son, born
June 28, 2001, and a daughter, born November 19, 2004 (collectively, “the
Children”). The parties were married in 2001 and were divorced on
September 2, 2010. On January 26, 2011, the parties signed a stipulation
agreeing to joint legal custody of the Children with shared residential
placement. The Family Court entered the parties’ stipulation as an order of
the court.
(3) In January 2012, the Father filed a petition to modify custody,
which the parties again resolved by stipulated order dated August 7, 2012,
agreeing to continue joint legal custody of the Children with shared
residential placement. The Father then filed another petition to modify
custody in October 2012. After a full hearing, the Family Court entered an
order on March 20, 2013, denying the Father’s petition and ordering the
parties to continue joint legal custody with shared residential placement. On
August 27, 2014, the Father filed a petition to modify the 2013 custody
order. After a hearing, the Family Court denied that petition on February 15,
2016. This appeal followed.
(4) Although it is not entirely clear, the Father appears to argue in
his opening brief on appeal that the Family Court erred by failing to enforce
a provision of the 2012 stipulated order, which provided that the Father
2
would be given primary residential custody of the Children if the Mother
failed to move back to Delaware before the start of the Children’s 2012-
2013 school year. The Father implies that the Mother failed to comply with
the 2012 custody order and, as a result, he was entitled to primary custody of
the Children.
(5) Any issues related to the 2012 custody order are moot,
however, because the 2012 judgment was superseded by the 2013 order and
the 2016 order, which is currently before the Court on appeal.2 With respect
to the 2016 custody order, the Father appears to argue that the Family Court
did not accept his evidence that the Mother previously had been evicted
from several properties, that she frequently had her utilities cut-off, that she
was causing stress for the Children by continuing to make false allegations
in the custody proceedings, and that the Children’s grades were “declining.”
The Father requests “retroactive” custody, as well as child support.3
(6) In reviewing a motion for modification of custody that is filed
within two years of the Family Court’s most recent custody order entered
after a full hearing, the Family Court “shall not modify its prior order unless
it finds, after a hearing, that continuing enforcement of the prior order may
2
Randall v. Randall, 2012 WL 4377844 (Del. Sept. 25, 2012).
3
The issue of child support was not a matter that was raised to or decided by the Family
Court in response to the Father’s petition to modify custody. Accordingly, we do not
reach the issue of child support in this appeal. See Del. Supr. Ct. R. 8.
3
endanger the child’s physical health or significantly impair his or her
emotional development.”4 In this case, the Family Court concluded, after
considering all of the evidence, that the Father had not sustained his burden
of showing that the March 2013 order granting the parties joint custody with
shared residential placement endangered the Children’s physical health or
threatened their emotional development.
(7) Our standard of review of a decision of the Family Court
extends to a review of the facts and law, as well as inferences and deductions
made by the trial judge.5 We have the duty to review the sufficiency of the
evidence and to test the propriety of the findings.6 Findings of fact will not
be disturbed on appeal unless the findings are clearly erroneous.7 We will
not substitute our opinion for the inferences and deductions of the trial judge
if those inferences are supported by the record.8
(8) In this case, the Family Court held a hearing on the Father’s
petition to modify custody on November 25, 2015. The transcript of that
hearing reflects that both parties appeared, without counsel, and were the
only two witnesses to testify. At the parties’ request, the Family Court
conducted an interview of both children on January 20, 2016. On February
4
13 Del. C. 729(c)(1) (2009).
5
Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
6
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
7
Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
8
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d at 1204.
4
15, 2016, the Family Court issued a twenty-six page opinion setting forth its
findings and conclusions. The court reviewed all of the parties’ testimony
and evidence and concluded that the Father had failed to sustain his burden
of showing that joint custody with shared residential placement was
endangering the physical health or significantly impairing the emotional
development of the Children.
(9) Among other things, the Family Court found that, although the
Mother had moved several times in a short period, she had never been
homeless or subjected the Children to inappropriate housing arrangements.
The court noted that, while both parties cared for the Children, their joint
conduct contributed to the Children’s feelings of anxiety and their
fluctuating grades. In ordering the parties to maintain joint custody with
shared residential placement, the Family Court gave great weight to the
Children’s expressed wishes to continue the existing custody arrangement so
that they could spend equal time with both of their parents.
(10) After careful review of the record and the parties’ contentions
on appeal, we hold that the Family Court’s factual findings are amply
supported by the record, and we find no basis to disturb those findings on
appeal. The Family Court properly applied the law to the facts in
concluding that Father failed to sustain his burden of proving that continued
5
enforcement of the March 2013 order awarding joint custody of the Children
with shared residential placement endangered the Children’s physical health
or significantly threatened their emotional development. We find no basis to
overturn the Family Court’s judgment.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
6