Opinion
CPI 21-14188 CN07-05918
03-08-2022
DCSS/S. L. Petitioner v. T. L. JR. Respondent
Date Submitted: 12/30/2021
ORDER-REVIEW OF COMMISSIONER'S ORDER
JANELL S. OSTROSKI JUDGE
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Request for Review of a Commissioner's Order (herein "ROCO"), filed on October 28, 2021, by T------L-----Jr. (herein "Father"), represented by Amanda Brinton, Esquire, against DCSS and S-----L----- (herein "Mother"), represented by Phillis Sculley, Esquire. DCSS/Mother did not file a response.
Father was self-represented at the trial and hired Ms. Brinton to file the instant matter.
STANDARD OF REVIEW
A party may seek review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1) which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by rules of the Court, within 30 days from the date of a Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject or modify in whole or in part the order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
Under Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must set forth with particularity the basis for each objection. Pursuant to Family Court Civil Rule 53.1(e), "From an appeal of a commissioner's final order, the Court shall make a de novo determination of the matter (that is, the matter shall be decided anew by a judge), based on the record below." Black's Law Dictionary defines de novo review as "an appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's ruling." In reviewing the matter the "judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party." However, "the Court will give weight to the fact findings of the Commissioner, especially in regards to the credibility of witnesses, even though the Court is not bound by them." The Court reviews the record independently, however, "the Commissioner has the opportunity to hear and assess witness testimony; thus, the Court applies an abuse of discretion standard of review as to the Commissioner's factual findings, wherein the Commissioner's factual findings are accepted if sufficiently supported by the record." And, "[f]indings of fact will not be overturned on appeal unless they are found to be clearly erroneous."
Fam. Ct. Civ. R. 53.1(b) provides: An appeal of a commissioner's order shall be accomplished by filing with the Court within 30 days from the date of the commissioner's order written objections to the commissioner's order which set forth with particularity the basis for each objection. A copy of the written objections shall be served on the other party, or the other party's attorney, if the other party is represented.
Black's Law Dictionary (10th ed. 2014).
Y.H. v. T.H., 2015 WL 6442087, at *2 (Del. Fam. Ct. July 10, 2015).
Id.
Cooky. Cook, 2013 WL 6869901, at *1 (Del. Fam. Ct. Sept. 24, 2013).
Kraft v. Mason, 11 A.3d227 (Del. 2010).
PROCEDURAL BACKGROUND
Father's support obligation is related to the parties' child,---------.------, ------, born--------, ------ (herein "child"). The child turned eighteen (18) on--------, ------. Father filed a Motion to Revoke Child Support on March 17, 2021. The Court granted the Motion on March 31, 2021 after neither DCSS nor Mother filed an objection.
Mother filed a Petition for Child Support on June 15, 2021. A Commissioner's hearing was held on September 30, 2021. Thereafter, the Commissioner found the child had not graduated from high school and was enrolled in and educational program and, therefore, Father still owed child support. The Commissioner then ran a child support calculation and issued an Order requiring Father to pay child support retroactive to March 18, 2021.
FACTUAL BACKGROUND
The child at issue,---------.------, ------, (herein "child"), turned 18 years old on--------, ------, Despite Father's argument that the child is not enrolled in an educational program, this Court is satisfied that DCSS/Mother proved that the child was enrolled in an educational program that would lead to a high school diploma. Mother represented that the child is not living with her but that she continues to support him. Father's position with respect to where the child is living is unclear. There were numerous times during the hearing that Father argued that the child was living with Mother and other times he argued that the child was not living with Mother. This Court is satisfied that the evidence showed that the child was not living with Mother but that Mother was still supporting the child.
DISCUSSION AND CONCLUSION
I. Father argues that "the Commissioner erred in entering a child support order as the Child at issue is emancipated, and as such, there is just cause to revoke/suspend child support."
Father argues that the minor child is emancipated since he turned 18 years old and, as such, Father does not owe child support. It is undisputed that the child turned eighteen (18) on--------, ------. However, under Delaware law, a parent may still be required to support their child if their child is enrolled in high school. Family Court has also extended the duty to support a parties' child who is "enrolled in a program of studies that will lead to a high school diploma." In this instance, Mother testified that the child is enrolled in a diploma program. Father denied that the child was in an educational program. The Commissioner weighed the credibility of the witnesses and found that the child was currently in a program that will allow him to obtain a high school diploma. This Court defers to the Commissioner's factual findings in this regard as she was in a better position to judge the credibility of the witnesses. As such, this Court finds that the child is still eligible for child support until he turns nineteen (19) or until he obtains a high school diploma, whichever occurs first. As such, Father's argument is without merit.
ROCO at 2-3.
13 Del. C. §517(a) provides that a current child support Order will terminate when the child has "reached 18 years; provided, however, that if a child over 18 is still enrolled in high school, current support shall terminate by operation of law when the child receives a high school diploma or attains the age of 19, whichever event first occurs".
C.A.F. v. R.F.V., 2004 WL 1146736 at *1 (Del. Fam. Ct. Feb. 25, 2004) (vacating a Commissioner's Order to revoke a father's child support obligating because the child was under nineteen (19) and enrolled "in a program of studies that will lead to a high school diploma.").
Transcript of Proceedings before Commissioner [], Hearing Officer (herein "Transcript") at 18, line 8-9 (Sep. 30, 2021).
II. Father argues that "the Court erred in awarding child support to Mother as the record does not support a finding that the child was/is living with Mother."
At the hearing, Mother testified that the child is not living with her but that she is still supporting him. In the ROCO, Husband argued that the child was not living with her. However, during the hearing, Father asserted numerous times that the child was living with Mother. It is not clear to this Court what Father's position is on this issue. However, regardless of whether the child is living with Mother or not, Family Court has ordered a parent to pay child support when they were not living with the child if the parent was still responsible for the child's basic needs. Two Delaware cases that address similar questions are J.G. v. Div. of Child Support Serv.'s, and DSCE v. Hammond. In J.G., the Court affirmed the Commissioner's decision to award the mother child support, even though the eighteen (18) year old lived in Florida because he was enrolled in high school and the mother paid for the child's living expenses. In DSCE v. Hammond, the Court affirmed the Commissioner's decision to award the mother child support, even though the child was living at the Terry Children's Psychiatric Center indefinitely because mother paid for the child's care and provided clothing, supplies, and transportation for visits home.
ROCO at 3.
Transcript at 38, line 14-17 ("The question is, is the child living with her? .... I know he is for a fact."); Id. at 40, line 4-5 ("I don't have any more questions because [Mother's] straight up lying. I know [the child's] living with [Mother]"); Id- at 47 line 15-17 (Father testified that "[Mother's] sitting there, lying, saying that [the child's] living at his girlfriend house in - .... ..... He is not! We can go to [Mother's] house right now. [The child's] probably asleep in bed."); Id. at 49, In 11-13 ("Commissioner []:... She says he is not living with her. Mr. T------L-----: Right. Well, she's lying.").
J.G. v. Div. of Child Support Serv.'s, 2021 WL 3812617 (Del. Fam. Ct. June 8, 2021); DSCE v. Hammond, 1995 WL 765541 (Del. Fam. Ct. Oct. 18, 1994).
J.G.. 2021 WL 3812617 at *2 ("[The child] returns to Mother's residence over some weekends and holidays. Mother pays rent at the room he uses in Florida, she buys the food he eats, and covers most of his travel to and from Delaware. [The fact that he lives] in Florida and not Delaware is of no monument.").
DSCE v. Hammond, 1995 WL 765541 at *3.
In this instance, it appears the child may have been removed from Mother's home in April, 2020 because he incurred criminal charges and Mother was the alleged victim. However, Mother testified that, subsequent to him leaving her home, she transferred money into the child's bank account for "food and clothes and just necessities to keep him going" but did not provide an exact amount.Mother further testified that she typically transferred money to the child's virtual wallet when she sees his bank account balance get low. Finally, Mother testified that she transferred $350.00 each month for the child's car payment. Father did not provide any evidence which refutes Mother's testimony in this regard. Other than alleging that the child was working for------- ------, Father did not submit any testimony or evidence which shows that the child does not need the support that Mother provides.Father also testified that he did not provide any support to his son except to pay for his bail which the Court will assume should have been returned to Father when the child appeared for his hearing. The Commissioner weighed the credibility of the witnesses and made a factual finding that Mother was still supporting the child regardless of where the child was living. The Court defers to the Commissioner's findings in this regarding as she was in a better position to assess the credibility of the witnesses and parties. Therefore, this Court finds that Father owed support for this child as the child was still enrolled in an education program and was under 19 years old.
Transcript at 31-32.
Id. at 32, line 17-19.
Id. at 34, line 16-17.
Id. at 33, line 5-6.
Id. at 47-52 (Father only testified about the reasons he feels that he doesn't need to pay support).
Id. at 70, line 21-22.
WHEREFORE, the Commissioner's Order dated October 6, 2021, is hereby AFFIRMED.
IT IS SO ORDERED.