From Casetext: Smarter Legal Research

C C. C v. A.C.S.

Family Court of the State of Delaware
Aug 29, 2017
File No.: CS03-06009 (Del. Fam. Aug. 29, 2017)

Opinion

File No.: CS03-06009 Petition No.: 17-10754

08-29-2017

Re: C------ C. C----, -- v. A----- C. S-----


William L. O'Day, Jr., Esquire
Woloshin, Lynch, & Associates
3200 Concord Pike
P.O. Box 7329
Wilmington, DE 19803-7329
woday@3200law.com Kara M. Swasey, Esquire
Bayard, P.A.
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, DE 19899
KSwasey@bayardlaw.com

LETTER DECISION AND ORDER

Dear Mr. O'Day and Ms. Swasey:

This is the Court's decision on an Amended Motion to Change Forum under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") filed by Kara M. Swasey, Esquire ("Ms. Swasey") on behalf of A----- C. S----- ("Mother"). Mother seeks to relocate the pending custody modification proceeding in the interest of the parties' two children, L---- C---- ("L----," born ------ --, 2002) and E--- C---- ("E---," born -------- --, 2004), to Maryland. On behalf of C------ C. C----, -- ("Father"), William L. O'Day, Jr., Esquire ("Mr. O'Day") filed a response opposing Mother's request. Based on the pleadings submitted by counsel, the Court's decision is as follows.

Procedural History

Pursuant to this Court's September 2, 2011 Order and a Consent Visitation and Custody Order dated September 28, 2011, the parties have been serving as joint legal custodians of L---- and E---. Mother, who resides in Maryland, has primary residency of the children during the school year, and Father is granted a schedule of visitation essentially consisting of every other weekend. Pursuant to the Custody Order, residency is to transfer to Father, who resides in Delaware, during the children's summer breaks.

On April 7, 2017, Father filed a Petition to Modify Custody in this Court seeking joint legal custody and primary residency of the children. Mother filed a response opposing Father's request on May 2, 2017, and the matter was scheduled for trial on August 29, 2017.

On June 20, 2017, Mother's prior counsel, Stephan J. Holfeld, Esquire ("Mr. Holfeld"), filed a "Motion to Change Venue" seeking to relocate the custody modification proceeding to Queen Anne's County, Maryland, based on the children's residence with Mother therein. On behalf of Father, Mr. O'Day filed a response opposing Mother's request on June 30, 2017. Following a Stipulation for Substitution of Counsel on July 24, 2017, Mother's new attorney, Ms. Swasey, requested leave to amend the "Motion to Change Venue" at a teleconference on August 1, 2017. With the consent of Mr. O'Day, the Court granted Ms. Swasey's request. The Amended Motion to Change Forum was filed by Ms. Swasey on August 7, 2017, to which Mr. O'Day filed a response on August 18, 2017.

On August 14, 2017, Ms. Swasey filed a Motion for Continuance of the custody modification hearing scheduled for August 29, 2017 due to outstanding discovery. Although Mr. O'Day did not file a written response, he objected to the continuance on behalf of Father during a teleconference conducted by the Court on August 23, 2017. Due to incomplete discovery, which left Ms. Swasey insufficient time to prepare for the hearing on August 29th, the Court granted her request for a continuance. The Court deferred rescheduling the custody modification hearing pending this decision on Mother's Motion to Change Forum.

Counsel stipulated to a discovery deadline of August 4, 2017 for the custody modification hearing scheduled for August 29, 2017.

Legal Standard

The applicable legal standard for forum non conveniens under the UCCJEA is set forth in 13 Del. C. § 1926. In pertinent part, § 1926 states:

(a) A court of this State which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this State;
(3) The distance between the court in this State and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

(c) If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

§ 1926(b) Factors

(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

In Mother's Amended Motion and Father's response thereto, the parties both set forth allegations of domestic violence in their past relationship, which the Court will not restate. The Court notes that these allegations were not raised during the initial custody proceedings, and there have been no findings of domestic violence or Orders of Protection from Abuse ("PFA") entered against either party.

In her Amended Motion, Ms. Swasey contends that Mother filed a PFA petition against Father following an incident on December 31, 2002. However, after Father filed a cross-PFA petition, Mother subsequently dismissed her petition "out of fear."

(2) The length of time the child has resided outside this State;

L---- and E--- have resided primarily with Mother in Maryland since 2011, or approximately six years. However, they have continued to visit Father in Delaware every other weekend and during their summer breaks.

The Court notes that there was some disruption to the children's visitation with Father this year due to Mother's failure to comply with the Custody Order, for which she was held in Contempt of Court.

(3) The distance between the court in this State and the court in the state that would assume jurisdiction;

Mother seeks to relocate the custody matter to Queen Anne's County, Maryland, which is about 64 miles from New Castle County, Delaware, where the custody modification hearing was scheduled to be conducted on August 29th. Ms. Swasey represents that Mother and the children reside only 22 miles from the Queen Anne's County Circuit Court but approximately 85 miles from the New Castle County Courthouse. Father also resides in closer proximity to the Queen Anne's County Circuit Court than the New Castle County Courthouse, which are located 67 miles and 98 miles from his home, respectively. If this state were to retain jurisdiction, the Court further notes that the Sussex County Courthouse is only 15 miles from Father's home in M--------. However, that courthouse is approximately 67 miles from Mother's home in S-----------, Maryland.

Although this was originally a Sussex County case, the custody modification proceeding was scheduled to be heard in New Castle County due to the availability of judicial resources and with the consent of the parties.

(4) The relative financial circumstances of the parties;

Ms. Swasey contends that Father's financial circumstances are far superior to Mother's. At the time the Amended Motion was filed, Mother was a doctoral student at the University of Maryland earning $27,000 per year. However, Mother expected to begin earning $50,000 annually upon obtaining full time employment on August 25, 2017. Conversely, Ms. Swasey asserts that Father is a millionaire who has repeatedly "bragged about his unlimited resources and family inheritance;" he is a principal and owner of R-------- P---, LLC, and owns several properties, vehicles, and family land outright. Mr. O'Day conceded that Father's family holdings have significant economic value but asserted that his wealth is tied up in the lands. Although Ms. Swasey was not aware of Father's actual income due to his failure to file tax returns since 2012, Father estimated that he earned $150,000 annually for child support purposes.

(5) Any agreement of the parties as to which state should assume jurisdiction;

Father would like Delaware to retain jurisdiction over the custody matter, while Mother would like to relocate the proceedings to Maryland. Since the parties disagree as to which state is the appropriate forum, this factor is neutral.

(6) The nature and location of the evidence required to resolve the pending litigation , including testimony of the child;

As noted above, L---- and E--- have resided primarily with Mother in Maryland since 2011 and have attended school therein. According to Ms. Swasey, the children have participated in extracurricular activities in Maryland for the past six years, including church choir, sailing, music lessons, gymnastic, and tennis. Further, the children's primary doctors and dentists are located in Maryland, and they have several relatives residing in that state. The parties also requested that the Court interview the children, who live in Maryland, as a part of the custody modification proceeding. Thus, Ms. Swasey argues that all of the evidence relating to the children's wellbeing is located in Maryland, and the Court of that state has greater access to the "competent, reliable information" necessary to render a custody decision in their best interests.

Notwithstanding their connections to Maryland, Mr. O'Day asserts that the children have continued to visit Father regularly in Delaware every other weekend and during their entire summer breaks. Further, they have friends and family remaining in Delaware, and they participate in several activities in this state, including Nanticoke Indian Tribe activities with Father. Although Mr. O'Day conceded that the children's regular physicians and dentists are located in Maryland, he asserted that L---- attended physical therapy in Delaware over the summer.

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

Father's Petition to Modify Custody was initially scheduled for a hearing before this Court on August 29, 2017. However, due to Father's noncompliance with discovery, the Court continued that hearing following a teleconference on August 23, 2017. The Court deferred rescheduling the hearing pending its decision on this Motion to Change Forum.

Specifically, Father did not provide all of his requested social media records by the stipulated discovery deadline of August 4, 2017. Further, although he executed a release for Mother to obtain his medical records, he did not provide her with a list of his providers, leaving her to track them down based on her memory and Father's prescription drug history. At the teleconference on August 23, 2017, Ms. Swasey represented that she had just obtained many of Father's medical records and would be unable to subpoena the necessary witnesses in time for the August 29th hearing.

Mother filed a Request for Registration of a Foreign Child Custody Order and a Petition to Modify Custody in Maryland on June 7, 2017. Following a hearing on August 4, 2017, a magistrate judge in Maryland recommended that the Delaware Order be registered for enforcement purposes and that Mother's Petition to Modify Custody be stayed pending this Court's decision on the instant motion. Ms. Swasey represented that, if this Court declines to exercise jurisdiction due to forum non conveniens, the magistrate judge expressed her intention to immediately issue a summons to Father and set a scheduling conference. Ms. Swasey avers that "Maryland has strict case management guidelines to keep cases moving swiftly[,] and Maryland counsel reports that the assigned judge, Judge Thomas Ross, is prompt in his attention to scheduling."

(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

This Court has some familiarity with the facts and issues in this case, as the parties' custody action was initially litigated in Delaware in 2011. However, since that time, the Court has only conducted one hearing in July 2017 on Father's Petition - Rule to Show Cause ("RTSC") regarding Mother's noncompliance with visitation under the 2011 Custody Order.

To date, Maryland has conducted only one hearing on August 4, 2017 regarding Mother's Request for Registration of a Foreign Custody Order and Petition to Modify Custody filed in that state.

§ 1926(b) Conclusion

Based upon its analysis of the § 1926(b) factors above, the Court finds that Maryland is the more convenient forum for the custody modification proceedings at this time. Although factor (8) slightly favors continued litigation in Delaware, factors (2), (4), and (6) outweigh that factor in favor of Maryland as the appropriate forum. Factors (1), (3), (5), and (7) of the § 1926(b) analysis are neutral.

Notwithstanding the cross-allegations of past domestic violence under factor (1), the Court notes that there have been no findings of domestic violence or PFA Orders entered against either party in this matter. Regardless, both Delaware and Maryland have court procedures by which to protect victims of domestic violence and the children if necessary. Thus, the Court considers this factor to be neutral.

Under factor (2), L---- and E--- have resided primarily with Mother in Maryland for the past six years. Although they continued to visit Father in Delaware every other weekend and for summer breaks, they have spent the majority of time in Maryland and have attended school therein since 2011. Accordingly, this factor favors Maryland as the appropriate forum for the custody modification proceeding.

In regards to factor (3), both parties reside in closer proximity to the Queen Anne's County Circuit Court in Maryland than the New Castle County Court in Delaware, where the custody modification proceeding was scheduled to be conducted. However, that hearing has now been continued. For purposes of rescheduling, Father resides nearest to the Sussex County Courthouse in Delaware, while Mother's home is closest to the Queen Anne's County Circuit Court in Maryland. Since at least one party would have to travel a considerable distance regardless of the forum, the Court finds this factor to be neutral in the § 1926(b) analysis.

The evidence under factor (4) indicates that Mother is in an inferior financial position to Father. Although this has not prevented her from obtaining counsel, the Court notes that Father's income alone, without consideration of his lands assets, is three times greater than that which Mother recently began earning as of this month. Due to Father's superior financial position, the Court finds that factor (4) favors Mother's request to relocate the proceedings to Maryland.

The parties do not agree on which state is the more convenient forum for the custody modification proceeding under factor (5). Thus, this factor is neutral in the Court's analysis.

In regards to factor (6), this Court has indicated "[i]t is imperative that the Court have competent, reliable information upon which to make a determination of custody" in deciding the appropriate forum for custody litigation. For instance, in the similar case of Zook v. Davis, this Court held that it was no longer a convenient forum to determine custody modification where the children had been residing with their mother in New Jersey for three years and the evidence regarding their wellbeing was more readily available in that state, despite the fact that the children continued to visit their father in Delaware every other weekend and maintained a significant connection with this state.

Albert v. Phillip, 602 A.2d 104, 107 (Del. Fam. 1991).

See Zook v. Davis, 641 A.2d 849 (Del. Fam. 1992). --------

In the instant case, factor (6) demonstrates that the majority of information related to the children's current home environment, health, education, and activities is located in Maryland, where they have primarily resided since 2011. While the Court acknowledges that the children have maintained certain activities in Delaware, such as participating in Nanticoke Indian Tribe activities with Father, they have attended school in Maryland since 2011 and have engaged in many additional extracurricular activities in that state. Further, although L---- attended physical therapy in Delaware over the summer, Mr. O'Day conceded that the children's regular physicians and dentists have been located in Maryland for the past six years. The parties have also requested that the Court interview the children, who live primarily in Maryland, in conjunction with the custody modification proceeding. For those reasons, the Court finds that factor (6) favors Maryland as the more convenient forum due to its access to competent and reliable information necessary to render a custody determination in the children's best interests.

This Court was initially on track to decide the custody modification issue expeditiously under factor (7). However, the hearing scheduled for August 29th was continued due to Father's noncompliance with discovery requirements, and it has not yet been rescheduled in light of the Court's imminent decision on this Amended Motion to Change Forum. Notably, a Petition to Modify Custody has been filed in Maryland but was stayed pending the outcome of this decision. The Court credits Ms. Swasey's representation that the Maryland Court intends to issue a summons and conduct a scheduling conference promptly, and that it has "strict case management guidelines to keep cases moving swiftly." Since both Courts are in the same position with respect to scheduling a custody modification hearing, factor (7) is neutral in the forum non conveniens analysis.

Lastly, as evidenced by the number of docket entries in this case, this Court has familiarity with the facts and issues under factor (8). The parties' initial custody action was litigated in Delaware, and this Court issued the existing Custody Order in 2011. However, but for one RTSC proceeding in July 2017, the Court has not been presented with evidence regarding the children's custodial arrangements and wellbeing throughout the past six years. Thus, the assigned judge in Maryland, who also conducted one recent proceeding, is similarly situated to this Court with respect to knowledge of current evidence in this case. In regards to case history, all of the relevant past facts and findings are contained in this Court's written order, to which the Maryland judge could refer upon receipt of the instant custody modification action. Nonetheless, factor (8) slightly favors Delaware as the appropriate forum in light of the fact that this Court, unlike Maryland, has conducted a full custody hearing in this matter in the past. However, this factor is outweighed by more compelling evidence under factors (2), (4), and (6).

Based upon the foregoing analysis of the § 1926(b) factors, the Court GRANTS Mother's Amended Motion to Change Forum.

ORDER

IT IS HEREBY ORDERED this 29th day of August, 2017 that:

1. Mother's Amended Motion to Change Forum is GRANTED. The Court declines to further exercise jurisdiction over the custody modification
proceeding. The parties shall continue this litigation in Queen Anne's County, Maryland, where Mother has already filed a petition.

2. All matters related to the custody modification petition are RESOLVED by this Order.

IT IS SO ORDERED.

Very truly yours,

/s/_________

MICHAEL K. NEWELL, Chief Judge MKN/amp Date emailed: 8/29/2017


Summaries of

C C. C v. A.C.S.

Family Court of the State of Delaware
Aug 29, 2017
File No.: CS03-06009 (Del. Fam. Aug. 29, 2017)
Case details for

C C. C v. A.C.S.

Case Details

Full title:Re: C------ C. C----, -- v. A----- C. S-----

Court:Family Court of the State of Delaware

Date published: Aug 29, 2017

Citations

File No.: CS03-06009 (Del. Fam. Aug. 29, 2017)