Dugan v. Saget ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
EDWARD I. DUGAN,1 §
§ No. 124, 2018
Respondent Below- §
Appellant, §
§ Court Below—Family Court
v. § of the State of Delaware,
§ in and for New Castle County
YOLANDA LUCILLE SAGET, § File No. CN16-02507
§ Petition No. 16-10649
Petitioner Below- §
Appellee. §
Submitted: September 7, 2018
Decided: November 7, 2018
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
Upon consideration of the parties’ briefs and the record below, it
appears to the Court that:
(1) The appellant, Edward Dugan (“Father”), filed this appeal from
the Family Court’s order dated February 9, 2018, awarding the parties’ joint
custody of their two children but giving primary residential custody to
Yolanda Lucille Saget (“Mother”) and granting Mother’s petition to relocate
with the children to Canada, where Father and Mother both have citizenship.
We find no merit to the appeal. Accordingly, we affirm.
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
(2) Mother is a citizen of Taiwan and Canada. Father is a citizen of
Turkey and Canada. They were married in 2013 in Canada and moved to the
United States in 2014 as a result of Father’s job. Father obtained legal resident
status under a work visa. Mother’s legal resident status was obtained under a
dependent visa. The parties have a daughter, born May 1, 2014, and a son,
born September 16, 2015. They separated in April 2016. In the same month,
Mother filed for a protection from abuse (“PFA”) order, which resulted in the
entry of a PFA order by consent. The parties were divorced in November
2016. As a result of their divorce, Mother was required to seek legal residency
in the United States under a different visa.
(3) In December 2016, the Family Court held a hearing on Mother’s
petition for custody of the children and her request to relocate. At the time of
the hearing, Mother had a pending application for a tourist visa. If granted,
the tourist visa would allow Mother to stay in the United States for another
six months, but it would not permit her to get a job. As a result of the
testimony and evidence presented at the hearing, the Family Court, in an
interim order dated February 20, 2017, awarded the parties joint custody of
their children, with primary residential custody to Mother. The Family Court
denied Mother’s petition to relocate without prejudice and indicated its intent
to hold a review hearing within six months. The Family Court held that if
2
Mother’s visa application was denied or she was otherwise in danger of
deportation, she could file a motion with the Family Court before the review
hearing.
(4) The Family Court held the review hearing over two days on
October 4, 2017 and November 20, 2017. Mother and Father appeared and
were represented by counsel at both days of the hearing. The Family Court
heard testimony from both parties and multiple other witnesses, including Dr.
Samuel Romirowsky, who testified regarding a custody evaluation that he had
conducted. Among other things, Dr. Romirowsky opined that Father had
established a bond with the children that would not be broken if Mother were
permitted to move and Father could not maintain regular weekly visitation
with them.
(5) On February 9, 2018, the Family Court issued a 29-page letter
opinion detailing the evidence and testimony and its factual findings relevant
to the best interest factors that the court was required to consider under 13
Del. C. § 722,2 as well as the factors it was permitted to consider under the
2
The best interest factors include: (i) the wishes of the parents regarding the child's custody
and residential arrangements; (ii) the wishes of the child regarding her custodians and
residential arrangements; (iii) the interaction and interrelationship of the child with her
parents, grandparents, siblings, persons cohabitating in the relationship of husband and
wife with a parent of the child, and any other residents of the household or persons who
may significantly affect the child's best interests; (iv) the child's adjustment to her home,
school, and community; (v) the mental and physical health of all individuals involved; (vi)
past and present compliance by both parents with their rights and responsibilities to the
3
Model Relocation Act.3 The Family Court concluded that it was in the
children’s best interests for Mother and Father to have joint custody, with
Mother having primary residential placement. The court further concluded
that it was in the children’s best interests that Mother be permitted to relocate
with them back to Canada. Until their daughter reached school age, the
Family Court awarded Father visitation with the children on an eight-week
off/two-week on schedule, with additional visitation permitted during the
eight-week off period if Father traveled to Canada (where he owns a
condominium) to visit them. The Family Court’s order, among other things,
also laid out a visitation schedule if Father chose to relocate back to Canada.
(6) Father argues on appeal that the Family Court proceedings
violated his right to substantive due process, the Family Court failed to give
child under 13 Del. C. § 701; (vii) evidence of domestic violence; and (viii) the criminal
history of any party or any resident of the household. 13 Del. C. §722.
3
Potter v. Branson, 2005 WL 1403823, at *2 (Del. June 13, 2005) (holding the Family
Court has discretion to consider additional factors like the Model Relocation Act factors as
long as it considers the mandated Section 722 factors). The Model Relocation Act factors
include: (i) the nature, quality, extent of involvement and duration of relationship of the
child with each parent; (ii) the age, developmental stage, needs of the child, and the likely
impact the relocation will have on the child's physical, educational, and emotional
development; (iii) the feasibility of preserving the child's relationship with the non-
custodial parent; (iv) the child's preference, considering age and maturity level; (v) whether
there is an established pattern of the person seeking relocation either to promote or thwart
the child's relation with the other parent; (vi) whether the relocation of the child will
enhance the general quality of life for both the party seeking the relocation and the child,
including but not limited to financial, emotional, or educational opportunity (including
cultural opportunities and access to extended family); (vii) the reasons for seeking
relocation; and (vii) any other factor affecting the interest of the child.
4
“special weight” to Father’s wishes regarding custody, the Family Court gave
preference to Mother’s testimony “without a clear thought process,” and the
Family Court’s decision reflects that a double standard was applied to Father
and was the result of judicial misconduct.
(7) Our review of a Family Court order extends to the facts and the
law as well as to the inferences and deductions made by the trial judge.4 If
the Family Court has correctly applied the law, our standard of review is
abuse of discretion.5 Although we have a duty to review the sufficiency of
the evidence and to test the propriety of the trial court’s factual findings, we
will not overturn those findings unless they are unsupported by the record or
are clearly wrong.6 When the determination of facts turns on a question of the
credibility and the acceptance or rejection of the testimony of witnesses
appearing before the trial court, we will not substitute our opinion for that of
the trier of fact.7
(8) After careful consideration of the parties’ respective positions on
appeal and after a thorough review of the record, the Court has determined
that this appeal should be affirmed on the basis of the Family Court's well-
4
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
5
Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).
6
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d at 1204.
7
Id.5
reasoned decision dated February 9, 2018. The record does not support
Father’s contentions that he was denied due process or that the Family Court’s
decision was the result of bias or misconduct. It is clear that the trial judge
considered all of the evidence under the appropriate legal standards and that
its findings of fact are supported by the record. The Family Court did not err
or abuse its discretion in determining that shared custody was in the best
interests of the children, with Mother having primary residential placement,
and in granting Mother’s request to relocate with the children to Canada.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
6