Noble v. Richards ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
SHERRY NOBLE,1 §
§ No. 46, 2020
Petitioner Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File No. CN13-06305
SCOTT RICHARDS, § Petition Nos. 19-31904
§ 19-24691
Respondent Below, §
Appellee. §
Submitted: October 30, 2020
Decided: December 28, 2020
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
After careful consideration of the parties’ briefs and the record on appeal, we
conclude that the judgment below should be affirmed on the basis of the Family
Court’s order dated January 3, 2020. In denying the petition to modify custody,
which was filed less than two years after the court’s most recent custody order, the
Family Court appropriately considered whether continuing the existing custody and
primary residence arrangement would “endanger the child[ren]’s physical health or
significantly impair [their] emotional development,” as required under 13 Del. C. §
729(c). The fact that the appellant disagrees with the Family Court’s factual
1
The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).
determinations is not a basis for reversal. Factual findings will not be disturbed on
appeal unless they are clearly erroneous.2 On appeal, the appellant also has
submitted information that was not presented to the Family Court in the first
instance, including information relating to events after the Family Court’s decision.
This Court will not consider evidence that was not presented to the trial court in the
first instance.3
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
2
Shimel v. Shimel, 2019 WL 2142066, at *2 (Del. May 14, 2019).
3
See Price v. Boulden, 2014 WL 3566030, at *2 (Del. July 14, 2014) (“[T]his evidence was not
available to the Family Court in the first instance, is outside of the record on appeal, and cannot
properly be considered by this Court.”); Del. Elec. Coop., Inc. v. Duphily, 703 A.2d 1202, 1206
(Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews only matters
considered in the first instance by a trial court.”).
2