Opinion
CN22-01715
11-17-2022
A. J., Petitioner, v. T. M., Respondent.
Trial Date: September 27, 2022
CPI NO.: 22-05000
ORDER OF DISMISSAL
ROBERT BURTON COONIN, JUDGE
Before the Court is a Petition for custody filed by A. J. (hereinafter "Petitioner"), against T. M. (hereinafter "Respondent"), in the interest of minor children ------- -----, born ----- --, ----, and ----- -----, born ---- --, ---- (collectively "Children").
Respondent contends he resides at the marital residence at --- -------- -----, ----------,-- ----- . Counsel for the Petitioner says otherwise. An Evidentiary Hearing was held on September 27, 2022, via Zoom.
Procedural History
Petitioner filed a Petition for Custody on March 14, 2022. On March 2, 2022, Petitioner filed a Petition for Order of Protection from Abuse. Respondent then filed a Petition for Order of Protection from Abuse on March 11, 2022. The Court granted Respondent a Temporary Ex Parte Order of Protection from Abuse, and as a result Petitioner was temporarily prohibited from entering the marital residence. Petitioner then filed a Petition for Emergency Ex Parte Order of Protection from Abuse on March 14, 2022, and the Petition was granted on March 14, 2022. On March 14, 2022, Petitioner filed a Motion for an Emergency Ex Parte Order for the Petition for Custody. On March 15, 2022, the Court denied Petitioner's Motion for Emergency Ex Parte Order as the Court cannot grant custody while the parties reside together. Respondent filed an answer to Petitioner's Petition for Emergency Ex Parte Order of Protection from Abuse on March 16, 2022. On April 13, 2022, an Order of Dismissal was entered for the Petition for Protection from Abuse as both parties failed to prove abuse by a preponderance of the evidence. Petitioner returned to the marital residence on April 13, 2022. At the time of all filings, Petitioner and Respondent address in all Court filings were listed as the same.
On April 14, 2022, Petitioner filed a Motion for an Emergency Ex Parte Order for the Petition for Custody. Both the Emergency Ex Parte Request and Petition for Protection from Abuse were dismissed. Both Petitioner and Respondent have completed the required Parenting Education Classes.
A Case Management Conference was held on September 14, 2022, and an Evidentiary Hearing was scheduled for September 27, 2022. Respondent filed a Motion for Continuance on September 19, 2022. An Evidentiary hearing was held on September 27, 2022, and the Court heard testimony from both Petitioner and Respondent along with their witnesses. The Court reserved judgment on the matter.
On October 4, 2022, Petitioner filed a Petition for Emergency Ex Parte Order of Protection from Abuse. On October 5, 2022, the Court granted a Temporary Ex Parte Order of Protection from Abuse and Respondent was ordered to stay away from the marital residence. A case review was held on October 13, 2022, and the Court granted a Temporary Ex Parte Order of Protection from Abuse and Respondent was again ordered to stay away from the marital residence. On October 21, 2022, that Petition for Order of Protection from Abuse was dismissed with prejudice at the request of Petitioner.
Discussion
The present issue in the case relates to Respondent's residence, as the pleadings indicate Respondent and Petitioner reside in the same residence and if so, custody cannot be granted.
Pursuant to 13 Del C. § 1701, "Any person of the age of 21 years, being a citizen of this or any other state of the United States, and who has lived for 2 successive years in this State, and, for the purpose of determining domicile in any county of the State, has lived for 1 year in such county, and who has, during that time, maintained oneself and one's family, shall be held to have acquired a legal domicile therein." Pursuant to 13 Del. C. § 1503(1) The term "actually resided" is defined as "was domiciled."
Petitioner denies Respondent resides at the marital residence, claiming he now lives elsewhere. The burden of proof lies with the moving party and "further, the burden of proving domicile is cast upon the person whose right to relief is dependent on establishing domicile at a given place." Petitioner contends she saw Respondent at the marital residence when she returned on April 13, 2022, and he left later that day. Petitioner also contends Respondent only visits the Children on Wednesdays and Sundays when he comes to the marital home to do laundry. Petitioner also testified to a conversation with Respondent on September 14, 2022, in which Respondent said he would be moving back to the residence. Petitioner contends Respondent only slept at the residence on September 14-23, 2022, and the last time she saw him was September 27, 2022. Petitioner's adult daughter, -------- -----, testified Respondent only spends one night per week at home and has only started coming to the residence during the last two weeks. Maternal Grandmother, ----- -----, testified she has not seen Respondent or
Fucella v. Fucella, No. 95-08998, 1995 WL 788158, at *1 (Del. Fam. Ct. June 21, 1995, (quoting Gahn v. Gahn, Del. Supr., 116 A.2d 902 (1955)).
Respondent's vehicle at the residence whenever she comes to take the Children to school. Petitioner has failed to provide the Court with evidence of an alternative residence for Respondent. "There must be an actual abandonment of the first domicile coupled with an intention not to return to it, and the acquisition of a new domicile by actual residence in another place with the intention of making that place a permanent home." The burden of proof lies with Petitioner to establish Respondent has set up residence at a location other than the marital residence. However, Petitioner has alleged no facts which indicate Respondent has abandoned his domicile in Delaware.
Wife (J. F. V.), v. Husband (O. W. V., Jr.), 402 A.2d 1202 (Del. 1979).
Respondent contends he currently resides at the marital residence. "Creation and abandonment of a domicile are measured by both declarations of intentions and unequivocal acts and conduct that are demonstrative of intent. Since this case rests on the abandonment of a domicile, the facts will be examined in that light." Respondent contends he has moved his personal belongings into the basement of the marital residence and has been staying there since April 2022. Additionally, Respondent testified he works at ------- ------ ------ five days per week from 6am to 2pm and 6am to 10pm for double shifts. Respondent contends he returns to the marital residence after work except when he works a double shift and either stays at the home of a friend or at a hotel. Respondent also contends when he is off on weekends, his time is spent at the marital residence looking after his kids.
Fucella v. Fucella, No. 95-08998, 1995 WL 788158 (Del. Fam. Ct. June 21, 1995).
Paternal Grandmother, ----- ----- ------, testified Respondent lives at the marital residence. Additionally, she testified when Respondent works overtime, he stays at the home of a friend. Paternal Grandmother also testified she has no knowledge of a different address for her son, nor has he given her a new address for himself. Respondent has established an affirmative intent to remain in the marital residence and alleged facts that establish Delaware as his domicile.
"Under Delaware law one retains his or her domicile until it is abandoned, and a new domicile is established." Petitioner's relief is dependent on the establishment of Respondent's abandonment of his Delaware domicile. Petitioner alleged no facts that support Respondent had intent to abandon the marital residence and establish a domicile at another location. "There must be a concurrence of fact and intent. The absence of either precludes the change." Petitioner has failed to satisfy her burden of proof and as such the Court determined Respondent resides at the marital residence and orders the Petition for Custody be dismissed.
Fucella v. Fucella, No. 95-08998, 1995 WL 788158, at *1 (Del. Fam. Ct. June 21, 1995 (quoting Wife J.F.V. v. Husband O.W.V., Del. Supr., 402 A.2d 1202 (1979)).
State v. Frest, 4 Del. 558 (Del. O. & T. 1844).
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
The Petition for Custody dated March 14, 2022, is hereby, DISMISSED.
IT IS SO ORDERED.