Opinion
File No. CN16-05622 Case No. 17-37296 (Contempt) Case No. 20-08476 (RTSC)
06-02-2020
J N , Petitioner v. E W , Respondent
J N , self-represented E W , self-represented
ORDER ON PETITION RULE TO SHOW CAUSE & MOTION FOR CONTEMPT J N , self-represented E W , self-represented ARRINGTON, Judge.
On May 28, 2020, the Court conducted a consolidated hearing on the Motion for Contempt of a Custody Order and the Petition Rule to Show Cause of J N (herein "Mother") alleging contempt by E W (herein "Father") of the Custody Order dated , 2018. Participating in the hearing was Mother, self-represented. Father was properly served on April 19, 2020. Despite proper notice, Father failed to participate in the hearing. The Court attempted to make contact with Father during the hearing but the efforts were unsuccessful. Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
The Court entered an Order on a Petition for Custody Modification on June 12, 2018. Mother filed a Motion for Reconsideration on June 19, 2018. Father filed an Answer contesting the Motion on June 28, 2018. The Court entered an Order denying Mother's Motion for Reconsideration on July 5, 2018.
Mother filed a Petition for Custody Modification on August 12, 2019. Mother sought an emergency ex parte order, alleging that Father was engaging in alarming behavior. The Court denied the ex parte request on August 20, 2019 based on Mother's failure to state of claim for which the ex parte order was necessary.
Mother filed a Motion for Contempt of a Custody Order on April 9, 2020. In the Motion, Mother alleged that Father was in contempt of the Custody Order by failing to send the children to Mother for their scheduled visitation. On the same day, Mother filed a Petition Rule to Show Cause against Father. In the Petition, Mother made the same allegations as in the Motion for Contempt. Mother further alleged that Custody Orders were to be enforced during the COVID-19 pandemic and therefore Father was in contempt of the Order. Mother sought that the Court grant Mother additional parenting time as the children are attending school remotely for the remainder of the school year. The Court conducted the final hearing on the consolidated Motion for Contempt and Petition Rule to Show Cause on May 28, 2020.
Dkt. #48.
FACTUAL ALLEGATIONS
The Order on Custody was entered on July 5, 2018. The Order provided that Mother shall have parenting time with the children during summer breaks from school. Mother testified that the parties agreed that the children would visit her in April due to their engagement in remote learning for the remainder of the school year. Mother testified that she had purchased airfare tickets on March 13, 2020 for the children to fly to Florida on April 10, 2020 and return to Delaware on April 18, 2020.
In light of the COVID-19 pandemic, Father did not feel comfortable allowing the children to fly to Florida during such dangerous times. Mother testified that she discussed the State of Emergency with Father who said that he would review the documents that she sent him and would get back to her. Father did not inform her that he would not be sending the children to Florida until April 9, 2020. Mother testified that she spent approximately $396.00 on the airfare, all of which was credited for her future use by the children.
After negotiations between the parties, Father ultimately drove the children to the agreed upon meeting spot in South Carolina. Mother testified that she received her make-up parenting time and has recently seen the children.
LEGAL STANDARD
The purpose of a civil contempt is to coerce compliance with a court order and to remediate damages caused by the failure to comply. In order to bring the coercive power to bear on a respondent, three criteria must be met: (1) a valid order must be in existence; (2) the alleged contemnor must have had the ability to abide by the order; and (3) the alleged contemnor must have disobeyed the order. The burden of proof in applying these criteria originates with the petitioner showing by clear and convincing evidence that a violation of a court order has occurred.
See Delaware State Bar Ass'n v. Alexander, 386 A.2d 652, 665 (Del. 1978).
Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. Ct. 1999).
Id.
The July 5, 2018 Order of Custody issued by Judge Barbara Crowell is a valid Order of the Court. Father had the ability to comply with the Order to ensure that Mother has parenting time with the children. However, the Court finds that Father did not violate the Order as he took the appropriate steps to ensure the children's safety in light of the COVID-19 pandemic. Father did not refuse to send the children. Rather, in light of the COVID-19 restrictions, Father decided that having the children fly in an airplane with hundreds of people for nearly three hours to Florida where the infections continued to increase was not in the children's best interest. Father was willing to have the children travel by car as the parties have done in the past. After negotiations with Mother, Father ultimately drove the children to the agreed upon exchange location in South Carolina and provided Mother with the full parenting time. Under these circumstances, the Court cannot find that Father is in contempt of the July 5, 2017 Order on Custody.
Mother's testimony that Father and the children did not wear masks during the car ride is not persuasive. Masks are not required under those circumstances. --------
CONCLUSION
While Father is not in contempt of the Order on Custody, the Court is concerned with Father's lack of attention to this matter. Despite proper notice, Father failed to participate in the hearing on May 28, 2020. The Court attempted to contact Father during the hearing and he failed to answer. Further, through the testimony provided, it is clear that Father is not attentive to making timely arrangements for the children's transition to Mother's home for the upcoming Summer parenting time ordered by Judge Crowell in 2018.
For purposes of clarity, Father shall send the children to Mother not later than June 13, 2020. The children may travel by air or by car. If the children fly, Father will pay ½ of the airfare costs. If the parties cannot agree on a means of transportation, travel will be by automobile.
Future fillings shall be filed in the county where the children reside. In this case, any future court filings shall be filed in Kent County (Dover), as the children will have resided there for at least six months and no party resides in New Castle County.
IT IS HEREBY ORDERED THAT:
1. Petition 17-37296 is DISMISSED for failure to prove contempt by clear and convincing evidence.
2. Petition 20-08476 is DISMISSED for failure to prove contempt by clear and convincing evidence.
3. Father shall send the children to Mother not later than June 13, 2020. Parties shall discuss the means of transportation. If the children are to
fly to Florida, Father shall pay ½ of transportation costs. If the parties cannot agree on the means of transportation, the children shall be driven.
IT IS SO ORDERED this 2nd day of June 2020.
/s/Michael W . Arrington
Honorable Michael W. Arrington
Judge Date of Written Order: June 2, 2020
Date Mailed: June 2, 2020