Opinion
File No. CN19-05876 Case No. 20-10864
10-08-2020
A M , Petitioner v. J D. T , Respondent
ORDER ON PETITION RULE TO SHOW CAUSE
Date Submitted: October 8, 2020 A M , J D. T , ARRINGTON, Judge.
On October 8, 2020, the Court conducted a hearing on the Petition Rule to Show Cause filed by A M ("Father") alleging contempt by J D. T ("Mother") of the Custody Order dated January 15, 2020.
Based on the testimony presented, the Court resolves the petition and motion as set forth below.
PROCEDURAL HISTORY
On November 22, 2019, Mother filed a Petition for Custody. On November 27, 2019, the Court entered an Interim Order Pending Final Custody Hearing. On January 15, 2020, the final Custody Order was issued granting the parties Joint Custody and awarding Mother Primary Residential Placement. On June 26, 2020, Father filed a Petition Rule to Show Cause alleging that Mother refused to have the Child available for the visitation period granted to Father. On September 19, 2020, Mother was served with the Petition. On October 8, 2020, the Court conducted the hearing on the Petition Rule to Show Cause.
STATEMENT OF FACTS
On January 15, 2020, the Court issued the initial Custody Order after a hearing on the merits. The Order awarded Mother and Father joint legal custody of Child, and awarded Primary Residential Placement to Mother. The Order granted Father custodial time with Child from the Saturday before Father's Day until the Saturday of the first full week on August. Additionally, Mother was awarded Thanksgiving in even-numbered years and Christmas in odd-numbered years. Father was awarded seven days of time that includes Christmas in even-numbered years and Thanksgiving weekend in odd-numbered years.
Dkt. 9.
Father's Case
Under the current Order, Father was supposed to have custodial time with Child from June 19, 2020 until August 8, 2020. The Order provided that the parties were to agree on the date and time to exchange Child for Father's custodial time with exchange to occur in Richmond, Virginia. As Father's Day approached, Father and Mother had written correspondence concerning the exchange time as required by the Court. Mother was pregnant and Father offered to drive to Mother's home to relieve her of the obligation to meet halfway.
Father's Exhibit 8; Mother's Exhibit 1.
Father drove from Charlotte, North Carolina to Delaware on June 19, 2020 but could not locate Mother. Prior to traveling, Father called Mother multiple times but Mother did not answer. Father followed up the call with a written message to Mother on June 19, 2020, that he would get Child on the following Wednesday. Father called Mother again on June 20. 2020. On June 21, 2020, Father sent three messages asking Mother to respond. On June 21, 2020, Father attempted a video call with Mother. On June 22, 2020, Father wrote to Mother, "I need to know where I'm coming [sic]. The court orders are in place for June 19. It is now up to you to do the right thing." On June 23, 2020, Father wrote to Mother, "Hey just sent you a message on Facebook regarding our visitation schedule. You have not respond[ed]!!!! Did you get it?" On June 24, 2020, Father wrote to Mother, "I'm here to pick up [Child]".
Petition, 3rd sentence.
Father's Exhibit 5.
Id.
Id.
Id.
Id.
Father's Exhibit 4.
Id.
Father testified that he asked multiple times about getting Child for the Court Ordered visitation. On July 6, 2020, Father wrote to Mother, "My son[sic] birthday is in Two Days and I haven't heard from you. Are you alive?" Father asked Mother what was planned for the Child's birthday. Mother did not respond at first but eventually told Father that "And jersey called the splash" but would not provide Father with the address.
Mother's Exhibit 1
Id.
Id.
On July 28, 2020, Mother contacted Father four times with text messages, "Hey can I still meet you for [Child];" [11:22 a.m.] "okay meeting you tmrw! Richmond VA;" [1:49 p.m.] "I'm leaving earl AM!! Early 11am latest 11;" [4:37 P.M.] and "Nvm!" [8:21 p.m.]. Mother had no objections to admission of Father's exhibits.
Father's Exhibit 1.
Father seeks compensatory time for the lost visitation. Additionally, Father paid $90.00 in filing fees for the Petition Rule to Show Cause.
Mother's Case
Mother testified that the Court Order states that the Child was to be exchanged in Richmond, Virginia. Mother stated that she presently is eight months pregnant. Mother's position is that Father has lied in his presentation to the Court.
Mother concedes that the current Order is a valid court order and that Mother has a copy of the Order. Mother made other comments related to non-payment of child support.
The Court notes no child support petition has been filed in this case.
Mother called Maternal Grandmother as a witness on Mother's behalf. Maternal Grandmother's testimony was limited as Mother was not able to ask any non-leading questions despite that Court's explanation to Mother that the questions should not suggest an answer.
Maternal Grandmother's testimony showed that she cares greatly both for Mother and Child but had little to offer related to the basis of this petition.
Father had no objections to Mother's exhibit which was entered into evidence.
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.
ANALYSIS
The January 15, 2020 Custody Order issued by the Court is a valid Order. Mother had the ability to comply with the Order which granted Father approximately seven weeks of visitation with Child. Mother's testimony confirmed that she knew of the valid Custody Order and had the ability to comply with it. The first two required prongs for contempt are met by Mother's consent.
Mother's own exhibits support Father's allegations and testimony that Father had sought to get Child for the visitation. Mother's exhibits also acknowledge that Father was willing to come to Delaware to get Child in light of Mother's pregnancy. Notwithstanding the requests and offer, Mother did not allow the visitation to occur. Father made additional requests over the three weeks following Father's Day but was equally rebuffed.
Simply disputing testimony does not prevent a finding of contempt. The Court must look to the credibility of the witnesses and consider the totality of the circumstances to determine what had happened and why it happened. In this case, the evidence is clear and convincing that Mother disagreed with the Court Order and was not going to comply with its clear requirements. Mother's intentional conduct prevented Father from enjoying Court Ordered time with Child for the entire period in the summer of 2020. Under the totality of the circumstances, the Court finds that Mother is in contempt of the August 19, 2020 Order.
The Court has the authority to issue orders against a party found to be in contempt by clear and convincing evidence. The purpose of the remedy is not punitive (as in a criminal case), but rather coercive (as in a civil case) to comply with the order. Fashioning a remedy in this case has practical challenges. Child is seven years old and is enrolled in second grade. Simply giving Father compensatory time immediately may interfere with Child's education. Therefore, Father will receive the time that was missed but that time will need to be spread across a period of time that does not interfere with Child's education. Additionally, Mother shall be ordered to reimburse Father the costs incurred in filing this action. These sanctions will eventually make Father whole and, hopefully, will coerce Mother's compliance with the Court Order in this case.
ORDER
IT IS HEREBY ORDERED THAT:
1. Mother is found in CONTEMPT of the Order issued on January 15, 2020.
Dkt. #9. --------
2. Father shall have Child for the entire Christmas break in 2020, Child's birthday in 2021, and the entire summer of 2021 from the day after school ends until the day before school resumes in late-August/early-September 2021 as compensatory time for the time missed.
3. Mother shall reimburse Father the filing fees of $90.00 within sixty days of the date of this Order.
IT IS SO ORDERED this 8th day of October 2020.
/s/Michael W. Arrington
MICHAEL W. ARRINGTON
Judge Date E-mailed: October 8, 2020