Opinion
File No. CN17-01480 Case No. 20-18104
09-08-2020
A K , Petitioner v. A K , Respondent
Thomas D. Shellenberger, Esquire, 1601 Milltown Road, Suite 10, Wilmington, DE 19808, Attorney for Father Patricia M. Weir, Esquire, 2 Mill Road, Suite 105, Wilmington, DE, 19806, Attorney for Mother
ORDER ON PETITION RULE TO SHOW CAUSE Thomas D. Shellenberger, Esquire, 1601 Milltown Road, Suite 10, Wilmington, DE 19808, Attorney for Father Patricia M. Weir, Esquire, 2 Mill Road, Suite 105, Wilmington, DE, 19806, Attorney for Mother ARRINGTON, Judge.
On September 2, 2020, the Court conducted a hearing on the Motion for Contempt of a Custody Order and the Petition Rule to Show Cause of A K ("Father") alleging contempt by A K ("Mother") of the Custody Order dated August 19, 2020. Mother and K (the "16 year old daughter") currently reside in Delaware. Father and the three other daughters, K ("14 year old daughter"), K ("12 year old daughter") and K ("6 year old daughter") reside in New Jersey. Mother, her counsel, Father, and Father's counsel were present for the hearing. Father presented one additional witness. Based on the testimony presented, the Court resolves the petition and motion as set forth below.
PROCEDURAL HISTORY
On August 2, 2019, Father filed a Petition for Custody. On August 19, 2020, the initial Custody Order was issued. On August 27, 2020, Father filed a Petition Rule to Show Cause and Motion for Emergency Ex Parte Order. On August 27, 2020, an Ex Parte Order was granted suspending Mother's visitation and contact with the children until after a hearing. On September 2, 2020, the Court conducted the required ten-day hearing.
STATEMENT OF FACTS
On August 19, 2020, the Court issued the initial Custody Order. The Order awarded Mother and Father joint legal custody of the children with Father having the final decision making authority after consulting with Mother. The Order further granted Father primary residential placement of the 14 year old daughter, the 12 year old daughter, and the 6 year old daughter. Mother was granted primary residential placement of the 16 year old daughter.
The Order allowed unlimited phone contact at reasonable times. Mother was ordered to provide Father with all information necessary for the younger children to be registered in school in New Jersey.
Father's Case
M K , Father's sister-in-law, testified that she went with Father, her husband, and her three sons to pick up the 12 year old daughter and 6 year old daughter on Thursday, August 20, 2020. They took two cars so that there would be enough room for everyone and their belongings to take back with them to Father's residence, where he stays with his brother and sister-in-law.
Ms. K testified that when they showed up to Mother's house, there were only three very small bags of clothing. For the 6 year old daughter, there was a pair of denim shorts, three shirts, and two pairs of winter boots in the bag, plus the outfit and sneakers that she was wearing. The 6 year old daughter's glasses were not included with her belongings. The 12 year old daughter's bag had two pairs of shorts, three shirts, three sweatshirts, and one bra. The 12 year old daughter did not have a toothbrush, hairbrush, or any other personal care items with her, nor did she have her medication. Father requested the girls' bicycles but Mother did not give them to Father.
During the two hour car ride back to New Jersey, The 12 year old daughter was on her phone whispering into it for the entire trip. Ms. K testified that the 12 year old daughter's phone use continued the next morning as the 12 year old daughter seemed to be recording everything on her phone. When the 6 year old daughter went to go swim, the 12 year old daughter told the 6 year old daughter that Mother said the 6 year old daughter was not allowed to swim in the pool. When the 6 year old daughter was done swimming and asked Ms. K to brush her hair, the 12 year old daughter told the 6 year old daughter "no" because Mother said that the 12 year old daughter was supposed to take care of the 6 year old daughter. When the 6 year old daughter wanted to go out and ride a bike, the 12 year old daughter told the 6 year old daughter that Mother said the 6 year old daughter was not allowed to ride her bike. Ms. K testified that the 12 year old daughter stated that she needed to record things for Mother in case something happened.
Later that same Friday, Ms. K spoke with Father to inform him of the disruption by the child. Father told Ms. K to take the phone away from the 12 year old daughter. When Ms. K told the child of the sanction, the 12 year old daughter locked herself in the bathroom and called the police. When Father came home from work that evening, he took the 12 year old daughter's phone away because of the constant recording.
Ms. K testified that on Saturday morning, Father gave the 12 year old daughter her phone back but she continued once again recording everything. Father, the Paternal Uncle, and Aunt told the children that they were going to go out on the boat, but the 12 year old daughter said that Mother told her they were not allowed to go. As a result, Father took the 12 year old daughter's phone away again. Once the 12 year old daughter got out on the boat, she had a great time and was not withdrawn or fighting back like she had been the past day and a half. Ms. K testified that they stayed out on the boat until about midnight.
On Sunday morning, about five police officers showed up to the house, saying that they had gotten a call from Mother stating that her daughter was locked in a room and there was yelling and screaming. The police looked at the 12 year old daughter's phone and found that she had not spoken with Mother in the last day.
Ms. K testified that, prior to the Ex Parte Order stopping contact, whenever the 12 year old daughter would get off the phone with Mother she would cry a bit and then withdraw from everyone for about thirty minutes. Since not having daily communication with Mother, Ms. K testified that the 12 year old daughter is a "totally different person" who is helping pick meals, helping decide what is for dessert, and no longer tells the 6 year old daughter what to do. Ms. K stated that the 12 year old daughter is now acting like a girl of her age.
Ms. K testified that the 6 year old daughter had talked to Mother one or two times, but that she has not wanted to take the phone. The 12 year old daughter would try and make the 6 year old daughter get on the phone. The older sister's hands would shake and with tears in her eyes, she would tell the 6 year old daughter "Mom said you have to get on the phone." The 6 year old daughter went under the kitchen table or would walk outside.
Ms. K also testified that Mother has not been helpful with getting the documents needed to enroll the children into their school in New Jersey.
Father's testimony corroborated closely with that of his sister-in-law. Father had offered to meet Mother on Friday to get the 16 year old child but changed the date once the daughter told Father that she would not be going with him for visitation. Father stated that they went to pick up the children and their personal items on Thursday, August 20, 2020. Father described the three small bags with all the children's items as Victoria's Secret bags. Father testified that Mother did not send the 12 year old daughter with her medication or the 6 year old daughter with her glasses. When there were no bicycles with the children's clothing, Mother told Father that she was not aware of the bicycles needing to leave, and Father followed the police suggestion that it was not worth it to fight Mother at the time.
Father testified that on the way to New Jersey on August 20, 2020, the 12 year old daughter was upset, standoffish, and on her phone the entire time with Mother. Father further testified that he took the 12 year old daughter's phone from her at different times on Friday, Saturday, and Sunday, because it was causing such a disruption with her constantly being on the phone with Mother and recording others in the house. Father stated that after the 12 year old daughter is on the phone with Mother, she shuts down and has "an attitude" for thirty minutes to an hour. While Father had the 12 year old daughter's phone, he would still let her use his phone or the 14 year old daughter's phone to call Mother. Father testified that he received text messages from the 16 year old daughter telling him that he wasn't allowed to take the 12 year old daughter's phone. Since contact with Mother has stopped, Father states that the 12 year old daughter "is acting like a kid again" and is doing very well.
Father testified that he has been trying to get all of the records needed to enroll the children in school, but that Mother is providing only the last name of the doctors that the children have seen and nothing more.
Mother's Case
Mother testified that the children had much more clothing in their bags than Ms. K stated, and that the bags were duffle bags that were so full that they barely closed. Mother then reversed herself and stated that so little was packed only because she did not have enough time to pack more. Mother stated that she originally thought the children would be picked up Friday and her attorney told her she would have until Sunday to gather everything. However, Mother testified she was aware that the 16 year old daughter had told Father that she was not going with him. Consequently, Father would not be coming to the home on Sunday to get items. As to the bikes, Mother testified that she knew nothing of them and had only been notified that she needed to get apparel ready for the children, but that she "didn't disallow the bikes to be picked up." She further testified that it had been an oversight to not include the 12 year old daughter's medication or the 6 year old daughter's glasses, but she would have the items ready for the next time there was an exchange.
Mother testified that she did, in fact, take the 16 year old daughter to get a tattoo on July 23, 2020 without giving any information to Father at any time. Mother provided a timestamped photo of the tattoo showing the date July 23, 2020. The tattoo, located on the 16 year old daughter's forearm, states "love me for who I am."
Mother testified that she did not instruct the 12 year old daughter to take videos, and that the only videos that the 12 year old daughter sent her were of the 6 year old daughter playing in the pool, riding her bike, and playing with a worm. Mother stated that she did not talk to the 12 year old daughter as much as Father and Ms. K claim that she did, and that on the ride to New Jersey on Thursday night they only spoke for about fifteen minutes. On cross examination, Mother stated that she did FaceTime with the 12 year old but did not understand how FaceTime works even though she saw her daughter during the calls.
Mother called the police on Sunday morning because she had not heard from the 12 year old daughter since 1:30 p.m. on Saturday. She had tried contacting both the 12 year old daughter and Father, but heard nothing. Mother was concerned because the 12 year old daughter had told her on Friday night that Father pinned the 12 year old daughter down to take her phone away from her. Mother informed the police of everything that had transpired over the weekend, including the incident on Friday where the 12 year old daughter locked herself in the bathroom and called the police, but only intended that the police perform a welfare check.
Mother testified that she did not instruct the 16 year old daughter to make a TikTok video that the 16 year old daughter posted, claiming that she and Mother lost custody of her sisters because Father had all the money and Mother's lawyer "sucked." The TikTok video was made to alert people of the GoFundMe page, which contained a picture of all of the minor children even though Mother had objected to the children's photos being posted on social media pages in the past. Mother testified that the GoFundMe page was created for her by a friend that knew about what happened. Mother claims that she did not draft the text of the GoFund Me message.
On cross examination, Mother testified that reasonable phone contact with the children would be three calls every day - one in the morning, one in the afternoon, and one in the evening, with each call lasting one hour.
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 August 19, 2020 Custody Order issued by the Court is a valid Order. Mother had the ability to comply with the Order which permitted communication by phone with the children at "reasonable times." 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.
The Custody Order stated that Mother should have reasonable communication with the children. While the Court would expect that the parties would use "reasonable" as the understandable standard, the term is not defined in the Order or statute. In such cases, the parties must give the term its commonly accepted meaning. According to Merriam Webster, reasonable is defined as "not extreme or excessive" as well as "moderate" and "fair."
Bailey v. State, 450 A.2d 436, 438 (Del. 1982).
Reasonable, Merriam-Webster Third New International Dictionary (2020).
Mother's talking with the 12 year old daughter immediately after the children left Mother's home on Thursday evening was not reasonable and doing so for two hours was extreme and excessive. Mother talking to the 12 year old daughter all day Friday and instructing her to control the 6 year old daughter was extreme and excessive. Mother testified that she considers it "reasonable" to talk to the children three times a day, for an hour every time. Talking to the children three hours every day that they are with Father would be extreme and excessive.
Mother's standard for reasonable behavior is inconsistent with the contact that she allowed Father. At the Custody hearing, Father had asked Mother what the children we doing and Mother replied, "We're doing family things. Don't worry about us."
Mother's defense that she did not provide the 12 year old daughter with instructions or have her take videos is not credible as Ms. K testified that the 12 year old daughter was on FaceTime with Mother, calling her by name, and saying that she was following the 6 year old out of the house.
A reasonable parent would have respected the other parent's time and would have simply told the child to have a good time with the other parent. A reasonable parent would not encourage the child to give Mother's instructions to her younger sister, her Aunt, or her Father on what Mother wanted the younger daughter to do.
Mother's failure to send even a toothbrush, hairbrush, or any personal care items is not understandable. Further, Mother's defense that forgetting these items was an oversight is not supported by the evidence as Mother testified that they had spent much time gathering the children's items.
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 created great tension for the 12 year old child and disrupted the family home. Under the totality of the circumstances, the Court finds that Mother is in contempt of the August 19, 2020 Order.
ORDER
IT IS HEREBY ORDERED THAT:
1. Mother is in CONTEMPT of the Order issued on August 19, 2020. Mother's excessive contact and instruction to the 12 year old daughter was unreasonable and caused harm to the children and Father's family.
Dkt. #157. --------
2. Except for Mother's custodial time, Mother's contact shall be limited to two telephone calls per week at which time Mother may speak with the three younger children in Father's care. If a child does not want to speak to Mother, however, their wishes shall be honored. Each call shall not exceed ten minutes in duration.
3. Mother is to remove the photo of the children from her social media pages.
4. Mother is to deliver to Father all of the children's clothing, personal items, hygiene items, and recreational items within three days of this Order.
5. Mother shall reimburse Father $100.00 for the filing fee. Father may submit a request for attorney's fees under Family Court Civil Rule 88 within two weeks. Mother shall have one week to respond to the request. The request and the response shall each have a form of order attached.
IT IS SO ORDERED this 8th day of September 2020.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge Date E-mailed: September 8, 2020