Opinion
No. 571, 2002.
Submitted: February 25, 2003.
Decided: April 8, 2003.
Court Below: Family Court of the State of Delaware in and for New Castle County, File No. CN98-06366, Case No. 02-07838
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
This 8th day of April 2003, upon consideration of the briefs of the parties, it appears to the Court as follows:
1. This is an appeal from a Family Court Order denying Phyllis Batchelder's Motion for Reargument. Following a hearing on September 10, 2002, the trial judge issued his decision and order on September 13, 2002 transferring physical custody of the parties' minor child from Phyllis Batchelder to David Batchelder. On September 17, 2002, Mother filed a Motion for Reargument and a Motion for an Emergency Ex Parte Order. On September 18, 2002, the Family Court judge denied Mother's Motion for an Emergency Ex Parte Order but agreed to interview the minor child. On October 1, 2002, after the Family Court judge conducted an interview with the child, he issued an "Addendum" to his Order that reiterated his decision granting custody to Father.
2. This is a child custody case between Father and Mother, divorced since 1997, concerning their eleven-year-old daughter. Both parents had joint legal custody with the child residing primarily with Mother. Father had extensive visitation. Mother decided to move to North Carolina and requested a visitation modification in the Family Court. Father filed an answer denying that it was in the child's best interest to relocate to North Carolina and seeking physical custody.
3. Mother claims two errors on appeal. First, Mother asserts she was denied the proper notice that the hearing would consider permanent custody of the child and not merely a modification of visitation. Mother claims this lack of notice amounted to a due process violation. Second, Mother asserts that the Family Court failed to conduct the necessary best interest of the child analysis.
4. This Court's review of appeals from the Family Court extends to review of the facts and law as well as to a review of the inferences and deductions made by the judge. This Court will not disturb findings of fact unless they are clearly wrong and justice requires they be overturned. This Court will not substitute its own opinion for the inferences and deductions made by the trial judge if they are supported by the record and are the product of an orderly and logical deductive process. Issues of law are reviewed de novo.
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983) (citing Wife (J.F.V.), 402 A.2d at 1204).
Solis, 468 A.2d at 1279.
In re Burns, 519 A.2d 638, 643 (Del. 1986); Wife (J.F.V.), 402 A.2d at 1204.
5. Mother's first argument lacks merit. Father specifically requested permanent physical custody of the child in his Answer. Although the notice from the Family Court was called "Petition for Modification of Visitation," Mother had adequate notice that Family Court would address physical custody of the child.
6. Mother's second argument, however, requires reversal. The Family Court judge listed all the factors of 13 Del. C. § 722 and specifically addressed five of the seven factors. However, the judge did not discuss factors six and seven on which Mother did present some evidence. The judge did not evaluate Father's choice not to exercise his full five weeks summer visitation and weeknight visits with the child, nor the vague allegations of Father's abuse of Mother during the marriage (factors six and seven, respectively).
7. While it is not automatic grounds for reversal if the Family Court does not explicitly discuss all the factors so long as "a fair reading of the decision below demonstrates implicit application of the statutory factors in the court's effort to reach a decision on modification that accords with the best interests of the child."
Jones v. Lang, 591 A.2d 185, 188 (Del. 1991).
Mother here elicited testimony on factors six and seven of the analysis during the hearing. A fair reading makes it impossible to determine whether the Family Court judge included those issues in his analysis. This fact prevents us from concluding that the decision demonstrated an "implicit" application of the factors. Therefore, this matter is reversed and remanded with a request that the Family Court judge specify, address and weigh factors six and seven in his decision.
NOW, THEREFORE, IT IS ORDERED, that the judgment of the Family Court is REVERSED and REMANDED for further proceedings consistent with this Order. Jurisdiction is retained.
DEL. SUPR.CT.R. 10(c).