Opinion
No. 73, 1999.
Decided September 29, 1999.
Court Below: Family Court of the State of Delaware in and for Sussex County, File No. 38,654 and CPI No. 98-08990
AFFIRMED.
Unpublished Opinion is below.
VICTORIA SNADER, Respondent Below, Appellant, v. WILLIAM A. DUDLEY, JR. DIVISION OF CHILD SUPPORT ENFORCEMENT Petitioner Below, Appellee. No. 73, 1999. Supreme Court of Delaware. Submitted August 17, 1999. Decided September 29, 1999.
Court Below: Family Court of the State of Delaware in and for Sussex County, File No. 38,654 and CPI No. 98-08990
Before WALSH, HARTNETT, and BERGER, Justices.
ORDER
CAROLYN BERGER, Justice.
This 29th day of September 1999, upon consideration of the briefs of the parties, it appears to the Court that:
1) Victoria Snader ("Mother") appeals from a Family Court decision awarding child support to William Dudley ("Father"), for the support of their minor child. Mother argues that the lower court erred in the following respects: (i) it attributed earning capacity to her despite her obligations to her new infant; (ii) it applied the support retroactively; (iii) it failed to consider the minor child's renunciation of the relationship with Mother; and (iv) it failed to give her credit for her other dependent child.
2) On the first point, Mother argues that this Court should adopt the "nurturing parent doctrine," under which earning capacity is not always imputed to a parent who stays at home with a minor child. Delaware has not adopted the nurturing parent doctrine and we decline to do so on the facts of this case. The obligation to support a child falls equally on both parents, 13 Del. C. § 501(c), and earning capacity may be attributed to a parent who makes a conscious choice to leave or alter his or her employment. Dalton v. Clanton, Del.Supr., 559 A.2d 1197, 1213 (1989). Here, Mother chose to stay at home with her young child rather than work and place her child in day care. The trial court found that those circumstances did not rebut the presumptive applicability of the Melson Formula and we agree.
3) Mother next argues that the award should not have been made retroactive. It is settled in Delaware that support awards may be retroactive for up to two years prior to the date on which the petition for relief was filed. Patricia M.D. v. Alexis I.D., Del.Supr., 442 A.2d 952, 955-56 (1982). In this case, the child began living with Father in August 1996, and Father filed for support in July 1997. The award of retroactive support for the period from August 1996 to July 1997 was permissible within the Family Court's discretion. See Shuba v. Division of Child Support Enforcement/Reese, Del. Supr., 564 A.2d 1084, 1088 (1989) ("[f]amily court is vested with broad discretion in determining child support matters"). We find that the trial court acted within its discretion in applying its award retroactively for a period of eleven months.
4) Next, Mother argues that her support obligation should be reduced because the minor child has renounced her and, apparently, would refuse visitation with Mother. Mother offers no support for her argument and the law is to the contrary support obligations are not reduced because of lack of visitation with the child. See, e.g. Rosa v. Falcon, Del.Fam., 578 A.2d 171, 173 (1990) (lack of visitation with child did not relieve father of support obligation); Lucy K.H. v. Carl W.H., Del.Fam., 415 A.2d 510, 517 (1979) (father not relieved of support obligation when mother and child moved to Norway). The strained relationship between Mother and child does not relieve Mother of any part of her support obligation.
5) Finally, Mother complains that the trial court failed to consider her other dependent children when calculating her support obligation. Father acknowledges this apparent oversight and agrees that the matter should be remanded for the sole purpose of allowing the trial court to recalculate the support award under the Melson Formula with consideration for Mother's other dependent child.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court be, and the same hereby is, REMANDED for the recalculation of child support, crediting Mother for her other dependent child. In all other respects, the judgment of the Family Court is AFFIRMED. Jurisdiction is not retained.