Opinion
No. 160, 2001
Decided: February 20, 2002
Court Below — Family Court of the State of Delaware, in and for New Castle County File No. CN97-09385.
Affirmed.
Unpublished opinion is below.
CAROL DIANE GONZALEZ, Respondent Below-Appellant, v. JOHN JAMES DEVLIN, III, Petitioner Below-Appellee. No. 160, 2001 In the Supreme Court of the State of Delaware. Submitted: December 21, 2001 Decided: February 20, 2002
Before HOLLAND, BERGER and STEELE, Justices
Carolyn Berger, Justice:
ORDER
This 20th day of February 2002, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The respondent-appellant, Carol Diane Gonzalez ("Mother"), filed an appeal from the February 22, 2001 order of the Family Court. The order granted the motion of petitioner-appellee, John James Devlin, III ("Father"), to modify the Family Court's previous August 24, 1999 order and transfer primary residential placement of the couple's minor son to Father, with visitation for Mother. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In this appeal, Mother claims that: a) the Family Court applied a weakened standard by erroneously considering the factors for determining the "best interests of the child" in conjunction with the standard applicable to modification of a custody order; and b) the Family Court's decision to transfer primary residential placement of the minor child to Father was based upon insufficient evidence and was not the product of an orderly and logical deductive process.
DEL. CODE ANN. tit. 13, § 722 (1990).
DEL. CODE ANN. tit. 13, § 729 (1990).
Id.
Citing Solis v. Tea, 468 A.2d 1276, 1279 (1983).
(3) Father and Mother were married on November 11, 1995, separated on June 19, 1997 and divorced by final decree of the Family Court on August 19, 1999. They have one minor child born of the marriage — Johnny, who was born on September 8, 1996. Since the date of their separation, Mother and Father have been before the Family Court numerous times in connection with custody and visitation issues. On August 24, 1999, after a full hearing on the merits, the Family Court issued an order granting joint legal custody of the minor child to Mother and Father, with a shared residential placement arrangement.
(4) On July 3, 2000 and September 29, 2000, Father filed two motions to modify the Family Court's order and award him full custody. On December 1, 2000, Mother filed a separate motion to modify the Family Court's order and award her full custody. All of these motions were filed within two years of the Family Court's previous order. On February 22, 2001, the Family Court held a full hearing on the merits of the parties' motions and awarded primary residential placement of the minor child to Father, with visitation for Mother. The effective date of the Family Court's order was August 24, 2001, approximately two weeks prior to the minor child's entry into kindergarten.
The Family Court did not disturb the prior order's award of joint legal custody to Mother and Father.
This was also two years from the date of the Family Court's previous order.
(5) After hearing testimony from both parties, the Family Court found that Father's attempt to help the minor child adjust to kindergarten by sending him to pre-school had been hindered significantly by actions taken by Mother. It also found that Mother refused to cooperate or communicate with Father in making necessary decisions on behalf of the minor child, including decisions about his schooling. The Family Court further found that it had to threaten Mother with sanctions before she would obtain counseling, as had been required in its previous order. Finally, the Family Court observed that "every proceeding with [Mother] has been difficult. She interrupts the Court and appears to be unable to control her outbursts." On these bases, the Family Court found that the shared residential placement arrangement, as reflected in its order dated August 24, 1999, "may endanger the child's physical health and/or his emotional development" once he was ready to begin kindergarten. The Family Court stated as follows:
Although such harm is currently being inflicted it does not rise to a level that the child's residence needs to be transferred at this time. However, once kindergarten begins, the Court believes that for the reasons set forth herein, the child should reside primarily with Father.
(6) The applicable legal standard for modification of a prior order concerning custody or primary residence is contained in 13 Del. C. § 729, subsection (c) (1) of which states as follows:
(c) An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(1) If the application for modification is filed within 2 years after the Court's most recent order concerning these matters, the court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development.
While this "heightened standard" applies to petitions for modification filed within two years of the prior order, the "best interests of the child" standard applies to petitions for modification filed beyond the two-year period. As this Court has previously ruled,
Friant v. Friant, 553 A.2d 1186, 1190-91 (Del. 1989).
This interpretation of the Delaware statutory scheme accomplishes the overriding policy purpose of the Delaware child custody laws, i.e., to provide for the best interests of the child on a continuing, but non-disruptive, basis. First, it requires initial custody decisions to be made in a child's best interests. . . . Second, it recognizes the need for providing a child with a stable and continuous home life by imposing a two-year moratorium on a modification of custody, in the absence of compelling circumstances. . . . Third, it recognizes that the factors which were determinative in a prior custody decision are susceptible to change and provides an opportunity for their re-examination in intervals of at least two years.
Id.
(7) Mother's first claim is that the Family Court applied an erroneous, and weakened, legal standard to the parties' cross-motions for custody by combining the heightened standard for petitions for modification filed within 2 years of a prior order with the "best interests of the child" standard. As part of this claim, Mother also urges this Court to require a showing of "an immediate threat to a child's physical or emotional safety" in order for the Family Court to grant a motion for modification of custody filed within 2 years of a prior order.
(8) We have reviewed carefully the transcript of the February 22, 2001 Family Court hearing and the Family Court's written decision of the same date. While the Family Court considered the "best interests of the child" factors and apparently relied on those factors in questioning the parties during the hearing, ultimately the Family Court did not "combine" two different legal standards in rendering its decision. Rather, the Family Court first determined that the evidence adduced at the hearing supported a modification of its previous order in accordance with the appropriate standard and then determined, again based upon the evidence, that the effective date of its order would be approximately two weeks prior to the minor child entering kindergarten. As such, we find no legal error and no abuse of discretion on the part of the Family Court. We, furthermore, find no support for Mother's argument that this Court should interpret 13 Del. C. § 729 to require a showing of "an immediate threat to a child's physical or emotional safety" in order for the Family Court to grant a motion for modification filed within 2 years of a prior order. The statute itself clearly states that the petitioner's burden is met upon a showing that "the prior order may endanger [the child's] health or significantly impair his or her emotional development." Where the intent of the General Assembly is clear from the language of the statute, there is no room for statutory interpretation.
The transcript of the hearing also reflects that the Family Court relied on the standard contained in 13 Del. C. § 729 (c) (1) to modify its previous custody order. (Tr. 6, 101).
Citing DEL. CODE ANN. tit. 13, § 723 (1990).
Id. (Emphasis added.)
Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982).
(9) Mother's second claim is that the Family Court abused its discretion in transferring the minor child's primary residence to Father because there was insufficient evidence showing "that the prior order may endanger the child's physical health or significantly impair his or her emotional development." As part of this claim, Mother also argues that the Family Court's order was inconsistent and not "the product of an orderly and logical deductive process" because it did not find the circumstances to justify immediate transfer of the minor child's residential placement, but found that such circumstances would exist only when the minor child was about to enter kindergarten. Mother's position appears to be that it was illogical for the Family Court to order a later transfer of the minor child's residence when it could not currently find sufficient justification for such a transfer.
(10) There is no merit to either of Mother's arguments. The findings of the Family Court are supported by the record. Moreover, the Family Court properly exercised its discretion in establishing the effective date of its order, based upon the facts adduced at the hearing. Our review of the facts and the law as well as the inferences and deductions made by the Family Court do not reveal any error or abuse of discretion.
Solis v. Tea, 468 A.2d 1276, 1279 (1983).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court is AFFIRMED.