Opinion
CN19-05971
05-02-2023
T. P., 23 A. C. E., .21921 Petitioner v. A. P., 2445 -. E. D. W., . 19808 Respondent
ORDER
JENNIFER B. RANJI FAMILY COURT JUDGE
Before the HONORABLE JENNIFER B. RANJI, JUDGE of the Family Court of the State of Delaware:
Pending before the Court is a Motion for Reargument filed by T---- P---- (“Father”) against A----- P---- (“Mother”), regarding the Court's denial of Father's Motion to Dismiss Mother's pending Rule to Show Cause (“RTSC”). Mother's RTSC related to a Separation Agreement executed by the parties on July 2, 2018, which was ultimately incorporated into the parties' divorce decree issued on March 26, 2020. The Separation Agreement includes custody provisions regarding the parties' children, S------- P---- (born August 29, 2005) and A----- P---- (born May 12, 2008).
PROCEDURAL BACKGROUND
On December 6, 2022 Mother, pro se, filed a Rule to Show Cause Petition alleging the following circumstances:
• Father removed A----- from school for the week of 12/6-12/10 with no notification to Mother regarding school absences or travel plans with the child.
• Father took A----- out of State with no knowledge of travel plans, sleeping accommodations, or who will be caring for the child while Father is working.
• Father refuses to peacefully co-parent. On October 12, 2022, when asked to have A---- enrolled in therapy, Father's response was, "It will have to work around his schedule, I do not agree, nor does he." Father has allowed A----- to turn off the Life360 App while the child is in his care.
Mother requested that the Court hold Father in contempt for violating their separation agreement and require that A----- be enrolled in therapy and that the parties communicate through the Talking Parents App.
On February 6, 2023, Father, by and through his attorney, Jennifer Ellsworth-Aults, Esquire, filed a Motion to Dismiss Mother's RTSC. Father alleged that Mother's Petition asserted violations of a February 5, 2020 Order, when in fact the only order entered on that date pertained to scheduling. Father therefore requested the Court dismiss Mother's RTSC Petition for failure to state a claim and failure to identify any provision of any enforceable Court Order or Separation Agreement that Father has allegedly violated.
On February 21, 2023, the Court denied Father's Motion to Dismiss, noting that the parties had in fact included custody provisions in the Separation Agreement. As such, it was clear the Separation Agreement was the order Mother intended to reference in her RTSC.
On February 24, 2023, Father filed a Motion for Reargument of that Order. Father restated his previous allegations from his Motion to Dismiss and argued that if the Court interprets Mother's Petition to allege violations of the Separation Agreement, his Motion to Dismiss should be granted because (1) Mother should have filed a Petition for Specific Performance rather than a RTSC, and (2) Mother's allegations fail to allege a violation of any of the custody provisions outlined in the Separation Agreement.
Father asserted that because Separation Agreements are contracts, they often include terms that fall outside of the Court's jurisdiction or go beyond remedies and provisions that may be imposed by Family Court. He further argued that longstanding family court practice has been that "enforcement of a Separation Agreement, especially terms related to the children, are addressed through Petitions for Specific Performance rather than through a Petition Rule to Show Cause."
Father's Motion for Reargument, Petition No. 23-00293 at *2.
Father renewed his request, asking the Court to dismiss Mother's Petition for failure to state a claim, failure to identify any provision of any enforceable Court Order or Separation Agreement which Father has allegedly violated, and failure to file the correct type of Petition. In the alternative, Father requests the Court require that Mother amend her pleading to a Petition for Specific Performance, provided Mother can identify a specific provision of the Separation Agreement that Father has violated.
On February 24, 2023, Vernon Vassallo, Esquire, entered his appearance on behalf of Mother.
On March 1, 2023, the Court held a Case Management Hearing for which Father appeared represented by Ms. Ellsworth-Aults and Mother appeared represented by Mr. Vassallo. During the hearing, the Court stated that it would allow Mother to file a Response to Father's Motion for Reargument and subsequently rule on that issue. The Court scheduled a hearing for the Rule to Show Cause for August 1, 2023, pending a ruling on the Motion for Reargument.
On March 6, 2023, Mother, by and through her attorney, filed a Response to Father's Motion for Reargument. Mother asserted that she alleged with enough particularity for Father to be on notice of the specific provisions that he violated. Additionally, Mother asserted that although she mistakenly put the wrong date for the underlying order on her RTSC Petition when she was proceeding pro se, counsel had since identified Mother's error, informed Father's counsel, and requested to stipulate to amend the petition in order to avoid unnecessary motion practice, which Father's counsel ignored.
Mother further asserted that a Rule to Show Cause Petition is the proper petition for alleged violations of a custody provision in a separation agreement. As such, Mother requests the Court deny the pending Motion for Reargument.
ANALYSES and HOLDING
Order Reference and Specificity
As to Father's claims that Mother's Petition fails to reference an enforceable court order and lacks sufficient specificity to put him on notice of the provisions violated, as was stated during the Case Management Hearing, the Court finds both claims without merit. While Mother's Petition clearly referenced the incorrect date for the Order she alleges was violated, it is equally clear that the Order at issue is the Separation Agreement entered by the parties, as that is the only Order entered by the Court that references custody of the children. And to the extent that is not clear, the Court clarified the issue on the record during the Case Management Hearing, in addition to Mr. Vassallo apparently informing Ms. Ellsworth-Aults and offering to file an amended petition prior to Father's Motion to Dismiss being filed.
Similarly, Father's claim that Mother's Petition does not include sufficient detail is denied. Delaware is a notice pleading state and petitions need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Further, pleadings are to be construed by the Court "to secure the just, speedy and inexpensive determination of every proceeding."
Fam.Ct.Civ.R. 8. ("Pleading has been streamlined and restricted to the limited scope of notice-giving." Tilley v. Tilley, 1994 WL 811738, at *3 (Del. Fam. Ct. Jan. 14, 1994), citing Delaware Valley Drug Co. v. Kline, Del.Supr., 144 A.2d 403 (1958)).
Fam.Ct.Civ.R.1.
Mother's Petition asserts specific acts by Father, including dates, that are more than sufficient to provide Father with notice of her claims. Whether Father agrees that those claims are a violation of the Separation Agreement is a different issue and does not give rise to dismissal for failure to provide sufficient notice.
RTSC v. Specific Performance
Father's final claim is that Mother did not file the proper petition to address a violation of a Separation Agreement, asserting that since Rockwell, the Court has applied contract law to violations of Separation Agreements. Father therefore asserts that Mother should have filed a Petition for Specific Performance and that her remedy for any alleged violation of the Separation Agreement would be found within the four-corners of that Agreement.
Rockwell v. Rockwell, 681 A.2d 1017 (Del. Jul. 31, 1996).
Mother disagrees, asserting that a RTSC action is the appropriate mechanism for enforcing custody provisions in a separation agreement made an Order of the Court.
While Rockwell and later cases have held that certain requirements in separation agreements must be modified and enforced pursuant to contract law, cases decided both before and since Rockwell have distinguished language contained in separation agreements regarding children, finding such provisions subject to statutory standards for court-ordered relief.
Prior to Rockwell, the Delaware Supreme Court held in Solis v. Tea that a parent's contractual obligation for child support may only be modified if it is in the child's best interest.The Court reasoned that since the child's best interest controls custody and support matters, the Court must consider the child's best interest when modifying contractual child support obligations.
Solis v. Tea, 468 A.2d 1276 (Del. Oct. 27, 1983).
Id.
The Supreme Court decided Rockwell some 13 years later, holding that alimony provisions in the parties' separation agreement were modifiable based on contract principles rather than the statutory basis for alimony modification. Later cases, however, continued to apply statutory law to agreements regarding children, thereby ensuring that the legal framework established to guide the Court in addressing issues regarding custody, visitation, and child support was not discarded by agreement of the parties.
Id. at 1018.
In Belote v. Belote, decided approximately two years after Rockwell, the Family Court considered the application of Rockwell to a separation agreement containing custody and visitation provisions. The Court found Mother in contempt for violating the agreement, and Father requested counsel fees. Mother claimed Rockwell prohibited the Court from modifying the contractual terms of the separation agreement to allow an award of counsel fees. The Family Court found Rockwell distinguishable, however, holding that contract law will not dictate the Court's actions as it relates to the parent/child relationship. In doing so, the Court recognized the special nature of cases involving custody of a child, noting, "It has long been recognized that the parent/child relationship is unique and sacred." The Court further stated:
Belote v. Belote, CS95-03102, 1998 WL 684975 (Del. Fam. Ct. May 7, 1998).
Id. at *1.
When issues involving children are contained in agreements between parents, traditional principles of contract law have not applied.... In those cases where the parent/child relationship was at issue, our courts have been guided by the best interests of the child standard when resolving disputes between parents and parents and third parties.
Id at *1.
The Supreme Court later addressed the application of Rockwell's holding to child-related provisions contained in a separation agreement in Morrisey v. Morrisey. In that case, the Court considered whether a motion to modify a custody and visitation agreement that was made an order of the Court should be reviewed based on the contractual analysis set forth in Rockwell or by the statutory best interest of the child analysis. The Court held:
Morrisey v. Morrisey, 45 A.3d 102 (Del. 2012).
Rockwell's contractual analysis applies to, and only resolves, modification requests for certain types of alimony agreements...Rockwell is not applicable to custody and visitation agreements. Our holding of Rockwell is limited to agreements made by the parties regarding alimony.
Id at 106-07.
The Court held that if a party to a custody or visitation agreement can show that the current agreement is not in the child's best interest "a Family Court judge must modify the visitation agreement to satisfy the best interest of the child test as set forth in 13 Del. C. § 722."
Id. at 104.
In L.M.H. v. D.S.H., the Family Court considered whether contract law principles or the child's best interest govern separation agreements regarding adult children's college expenses.The Court specifically distinguished LMH from other rulings addressing child-related provisions in separation agreements, finding that since the "child" at issue was an adult, the statutory best interest analysis did not apply. Instead, the adult child was effectively a third-party beneficiary of the parties' separation agreement and contract principles applied.
L.M.H. v. D.S.H., 2005 WL 3662348.
Here, the Rule to Show Cause Petition seeks remedies related to child custody provisions in the Separation Agreement. Section 728 of Title 13 provides remedies for violations of child custody orders, including extra visitation with the child and a temporary transfer of custody.Father argues, however, that the Court may only look to contract law in crafting a remedy for a violation of the custody provisions, and specifically asserts that specific performance would be the appropriate remedy. The Court disagrees.
While Father asserts that "longstanding practice" applies specific performance as the remedy in such cases, he cites no case law to support that notion. To the contrary, case precedent has held that child-related provisions of contractual agreements - whether regarding child support, child custody, or visitation - are governed by statutory law, and with good reason. Delaware's statutory framework rests upon the underlying principle that this Court's actions regarding children will be guided by what is in their best interest. As stated by the Supreme Court in Friant when considering Delaware's custody statutes, "It is clear from the language in the overall statutory revision ... that the General Assembly intended the paramount considerations in custody and visitation determinations to be 'the welfare and best interests of the child, to the end that the child has a decent and respectable home.'"
Father's Motion for Reargument, Petition No. 23-00293 at *2.
See Friant v. Friant, 553 A.2d 1186 (1989); See also State in Int. of Connelly, 659 A.2d 228 (Del. 1995) ("Child custody law in Delaware is predicated on a policy that considers the paramount concern to be the best interest of the child.")
Id. at 1187-88.
The statutory scheme found in Chapter 7 of Title 13 builds a cohesive framework to support that focus on the child's best interest. The remedies specified in Section 728 for violation of custody orders, for example, provide for time-limited changes to custody/visitation provisions as a sanction, but do not provide for wholesale modifications of custody/visitation orders. Rather, such modifications can only be addressed after consideration of the impact on the child pursuant to Section 729. By structuring the statutes in this way, Delaware law balances sanctioning contemptuous parental behaviors with the need to consider the impact of those sanctions on the child.
Father's position would eliminate such carefully considered balances when the underlying order was entered by Separation Agreement, and he would instead have the Court apply contract law remedies that offer no ability to consider the impact on the child at issue. Traditional contractual remedies such as specific performance are wholly unsatisfactory as a means of addressing the potential harm to a child or to the child's relationship with a parent that may result from a violation of custody provisions.
Requiring the Court to modify and enforce child-related provisions in Separation Agreements using only contract law would put the Court in the position of utilizing contractual remedies that are blind to any impact on a child and that may in fact, depending on the sanctions included in the contract, result in child harm. The Court cannot find that such an approach to custody-related provisions is appropriate or required.
CONCLUSION
Father's Motion for Reargument is hereby DENIED.
IT IS SO ORDERED.