IN THE SUPREME COURT OF THE STATE OF DELAWARE
SAMUEL PAINTER,1 § No. 176, 2019
§
Petitioner Below, § Court Below—Family Court
Appellant, § of the State of Delaware
§
v. § File No. CN14-02909
§
LOUISE PAINTER, § Petition Nos. 18-33283
§ 18-35950
Respondent Below, § 19-06459
Appellee. §
§
Submitted: October 11, 2019
Decided: November 25, 2019
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
After consideration of the parties’ briefs and the record below, it appears to
the Court that:
(1) The appellant (“Father”) filed this appeal from protection from abuse
(“PFA”) orders dated March 25, 2019; the Family Court’s Supplementary Statement
of Findings on Cross Petitions for Protection from Abuse issued that same day; and
the Family Court’s order dated April 9, 2019, denying Father’s motion for
reargument.
1
The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).
(2) Father and the appellee (“Mother”) divorced in August 2015. They had
one child together (the “Child”). Since May 2014, the parties have filed numerous
PFA petitions against each other, as well as an array of other motions and filings in
the Family Court. On November 5, 2018, Mother filed a PFA petition (Petition No.
18-33283), on behalf of herself and the Child, in which she alleged, among other
things, that Father was harassing her by texting her excessively, including sending
demeaning and threatening messages. On December 4, 2018, Father filed a PFA
petition (Petition No. 18-35950), on behalf of himself and the Child, in which he
alleged that Mother sent him taunting text messages and tried to provoke him to
violate a previous PFA.
(3) The Family Court held a hearing on the petitions on March 25, 2019.
Father, Mother, Mother’s significant other, and Father’s mother testified at the
hearing. After considering the evidence, the Family Court found that on August 27,
2018, the Child’s first day of school, Mother invited Father, via text message, to the
Child’s bus stop, which was just outside Mother’s workplace. Father was subject to
a no-contact order with Mother at the time. Mother indicated that she was not there
and invited Father to take pictures of the Child. While Father was at the bus stop,
Mother exited her workplace and approached Father, resulting in a verbal altercation
among Mother, Father, and Mother’s significant other, who was in a car nearby.
Following this incident, Father texted Mother repeatedly for approximately seven
2
hours, expressing his beliefs that she was replacing him as the Child’s father, was
setting him up to violate court orders and get arrested, and had the Child baptized
without his knowledge, among other subjects that were not within the scope of
coparenting communications that were permissible under the existing no-contact
order. On September 14, 2018, Father again sent Mother a barrage of lengthy,
accusatory, and insulting text messages.
(4) Based on the evidence presented at the hearing, the Family Court found
that Father’s conduct was abusive and harassing and entered a two-year PFA order
against Father. Among other things, the order prohibited Father from contacting
Mother and required Father to remain at least 100 yards away from Mother, her
residence, her workplace, and the Child’s school. The court also awarded temporary
custody of the Child to Mother and, in a contemporaneous order, established
temporary visitation provisions, providing that Father would visit with the Child
every Sunday afternoon at the visitation center. The court found that Mother’s
conduct did “not rise to the same level as Father’s repeated harassment,” but also
determined that “Mother knowingly put Father in a position where he was in
apprehension of being arrested on August 27, 2019 and which was likely to and did
provoke a disorderly response.” The court therefore entered a PFA order against
Mother, which prohibited Mother from having any adverse contact with Father for
six months. Father sought reargument, which the Family Court denied, holding that
3
Father’s motion sought to relitigate issues that had already been addressed or related
to matters from years earlier. Father has appealed to this Court.
(5) In an appeal from a Family Court order, this Court reviews the facts and
the law as well as the inferences and deductions made by the judge.2 If the issues
on appeal implicate rulings of fact, we conduct a limited review of the factual
findings to assure that they are sufficiently supported by the record and are not
clearly wrong.3
(6) In order to grant a protective order after a PFA hearing, the Family
Court must find by a preponderance of the evidence that domestic violence has
occurred.4 A person commits domestic violence against a former spouse if the
person “[e]ngag[es] in a course of alarming or distressing conduct in a manner which
is likely to cause fear or emotional distress or to provoke a violent or disorderly
response.”5
(7) After careful consideration of Father’s arguments and the record on
appeal, we conclude that the judgment of the Family Court should be affirmed.
Father asserts that the Family Court made erroneous factual findings and contends
that Mother has made false accusations in order to gain custody of the Child. We
2
Stuart v. Stuart, 2017 WL 1090543, at *1 (Del. Mar. 22, 2017).
3
Id.
4
10 Del. C. § 1044(b).
5
10 Del. C. § 1041(1)(d), (2)(b).
4
conclude that the Family Court’s findings were not clearly erroneous. The court
reviewed the parties’ text messages and could appropriately determine that Father
“[e]ngag[ed] in a course of alarming or distressing conduct in a manner which was
likely to cause fear or emotional distress or to provoke a violent or disorderly
response.”6 Moreover, to the extent that the court’s determination of facts turned on
the credibility of the witnesses at the hearing, we will not substitute our opinion for
that of the Family Court.7 At the hearing and in in filings in Family Court and this
Court, Father repeatedly focuses on issues that have been addressed in past rulings
of the Family Court and this Court; the Family Court appropriately limited the
factual issues to be addressed at the hearing to the more recent issues that formed
the basis of the petitions before the court.
(8) Father also contends that the Family Court erroneously altered the
parties’ custody and visitation arrangements as a result of the PFA hearing. The
PFA statute provides that, after consideration of a petition for a protective order, the
Family Court may “[g]rant temporary custody of the children of the parties to the
petitioner . . . . [and] may provide for visitation by separate interim visitation order
pursuant to Title 13, which order shall be binding upon and enforceable against both
parties. Such interim visitation order may include third-party supervision of any
6
Id.
7
Shimel v. Shimel, 2019 WL 2142066, at *2 (Del. May 14, 2019).
5
visitation, if necessary.”8 We find no error in the court’s entry of temporary custody
and vitiation provisions and note that the order “strongly urged” the parties “to file
an appropriate petition for a full determination on the merits” concerning custody
and visitation.
(9) Finally, Father argues that the same few judicial officers continue to
consider the parties’ disputes, resulting in “a pre-existing bias that impairs” the
judicial officers’ ability to be “unbiased arbiters of the truth.” This argument also
fails to establish a basis for reversal. Family Court judges frequently preside over
multiple disputes by the same parties, and the “fact that a judge has ruled adversely
to a party does not establish bias against that party.”9 Moreover, the Family Court
has made rulings adverse to both Father and Mother in this case, including in the
orders that are presently on appeal. The Family Court’s determination that the
gravity of Father’s conduct exceeded that of Mother’s does not demonstrate bias.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura
Justice
8
10 Del. C. § 1045(a)(5).
9
Layton v. Layton, 2019 W 2078346, at *3 (Del. May 10, 2019).
6