Opinion
No. 380, 2000.
Decided: March 18, 2002.
Court Below — Family Court of the State of Delaware, in and for New Castle County File No. CN98-09498 CPI No. 9934909.
Before VEASEY, Chief Justice, BERGER and STEELE, Justices
Affirmed.
Unpublished opinion is below.
ARTHUR KANE,[1] Respondent Below-Appellant, v. SUSAN BURNETT, Petitioner Below-Appellee. No. 380, 2000 In the Supreme Court of the State of Delaware. Submitted: January 11, 2002 Decided: March 18, 2002
Pseudonyms have been assigned to the parties in this case. SUPR. CT. R. 7(d).
ORDER
This 18th day of March 2002, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The respondent-appellant, Arthur Kane ("Father"), filed an appeal from that portion of the Family Court's March 23, 2001 report following remand that accepted the Family Court Commissioner's reliance on the Melson Formula to determine his child support obligation. We find no merit to the appeal.
See Dalton v. Clanton, 559 A.2d 1197, 1202-10 (Del. 1989) for a complete explication of the Melson Formula.
The parties have one minor child born of their marriage. They agree that the child has extended visitation with Father (that is, visitation in excess of the standard visitation guidelines), but disagree as to the effect of the extended visitation on Father's child support obligation.
No appeal was taken from the Family Court's reversal of that portion of the Commissioner's order that made Father's support obligation retroactive to September 7, 1999 through October 25, 1999.
(2) Following the filing of his notice of appeal and opening brief in this Court, Father and petitioner-appellee, Susan Burnett ("Mother"), entered into a stipulated motion for remand. In their motion, the parties stipulated that the Family Court failed to follow the procedures outlined in Smith v. Francisco, 737 A.2d 1000 (Del. 1999) in reviewing the Commissioner's determination of Father's child support obligation. On November 27, 2000, based upon the parties' stipulated representations, this Court issued an Order remanding the matter to the Family Court "for further factual and legal findings" utilizing "the procedures outlined in Smith v. Francisco." On March 20, 2001, the Family Court conducted its review following remand and on March 23, 2001 issued its report to this Court.
SUPR. CT. R. 30.
Specifically, the calculation of child support under the Melson Formula operates as a rebuttable presumption. In cases where the non-custodial parent has extended visitation with the child, the burden is on that parent to demonstrate that application of the Melson Formula would be inequitable in those circumstances. Id. at 1006.
(3) In his appeal, Father claims that on remand the Family Court: a) failed to conduct a de novo review as ordered by this Court; and b) failed to follow the proper procedures for review of an order of a Family Court Commissioner pursuant to Smith v. Francisco. Father's fundamental complaint is that the Family Court failed to consider his proposed findings of fact and his oral submission on March 20, 2001, which demonstrated that the child's extended visitation schedule with him renders application of the Melson Formula inequitable in determining his child support obligation.
Father argues that the Family Court failed to consider that the child has visitation with him over 30% of the time on a regular basis and, specifically, had visitation with him 44.54% of the time between November 1, 1999 and October 31, 2000, resulting in additional expenses.
(4) The appropriate standard of review to be applied by the Family Court to a Commissioner's order is contained in 10 Del. C. § 915, subsection (d) (1) of which provides, in part, as follows:
A judge of the [Family] 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.
Rule 53.1(e) of the Family Court Rules of Civil Procedure, which also governs procedures for the appeal of Commissioners' orders, provides as follows:
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. Prior to determination of the matter, a party may request in writing that additional evidence be permitted to be offered. The Court shall only accept such additional evidence if it finds: 1) that it is newly discovered evidence . . . or 2) if the circumstances are such as would justify reopening the record in the interest of justice. If the Court determines that the additional evidence should be considered, it may remand the matter to the commissioner . . . or the Court may hear and consider the additional evidence or the Court may conduct a de novo hearing.
(5) We find no basis for concluding that the Family Court utilized an improper standard of review of the Commissioner's order or abused its discretion in weighing the evidence in this case. There is no evidence suggesting that the Family Court failed to review de novo the decision of the Commissioner based on the record or that it failed to consider the proposed findings of fact submitted by the parties and their oral submissions on March 20, 2001 in accordance with the proper procedures in reaching its determination that the Melson Formula should be applied.
DEL. CODE ANN. tit. 10, § 915(d) (1) (1999); FAM. CT. CIV. R. 53.1(e).
(6) We also find that the Family Court applied the standard contained in Smith v. Francisco to the facts of this case, as required by this Court. As the Family Court observed, while Father contended that the child's extended visitation with him involved additional expenses, thereby rendering the Melson Formula inequitable, he did not provide any evidence to support that claim. As the Family Court further observed:
Upon reviewing the visitation schedule, the Court cannot see any significant increased expenses that [Father] would have over those expenses incurred by a support obligor with visitation under the Standard Visitation Guidelines, which would be every other weekend ending on a Sunday evening and a Wednesday dinner visitation. . . . This is a case where [Father] makes $120,000 a year and [Mother] earns $87,864. With these respective incomes and [Mother] having their son spend sixty-four percent of his evenings in her home, the Melson formula result is equitable and fair to both parties.
We conclude that the Family Court applied the proper standard, including weighing the "general equities inherent in the situation," in determining that the Melson Formula was appropriate in this case.
Smith v. Francisco, 737 A.2d 1000, 1007 (Del. op1999).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court is AFFIRMED.