C.G.K.v.J.G.

FAMILY COURT OF THE STATE OF DELAWAREMay 23, 2019
FILE NO.: CN13-05930 (Del. Fam. May. 23, 2019)

FILE NO.: CN13-05930 CPI NO.: 17-16206 (Mother-Custody Mod.; Father-Crossclaim) CPI NO.: 18-24679 (Mother- RTSC)

05-23-2019

C------ G---------K-----, Petitioner, v. J---- G-------, Respondent. In the Interest of: N----- G------- (M) (DOB --/--/10)


ORDER ON MOTION FOR REARGUMENT

On March 26, 2019, this Court issued an Order and Decision on a Petition to Modify Custody and a Petition- Rule to Show Cause, both filed by C------ G--------K----- (hereinafter "Mother") against J---- G------- (hereinafter "Father"), as well as a Crossclaim for Custody filed by Father, all in the interest of the parties' minor child, N----- G------- (hereinafter "Child"), born ------- --, 2010. On April 5, 2019, Father, by and through his attorney, Michelle Skoranski, Esquire, filed a Motion for Reargument which raised numerous concerns and requests for modification of the March 26, 2019 Order and Decision on Petition to Modify Custody and Petition-Rule to Show Cause (hereinafter "Final Order"). On April 17, 2019, Mother, by and through her attorney, Patrick Boyer, Esquire, filed a Response to Father's Motion for Reargument in which she agreed with some of Father's contentions but opposed others.

Applicable Law

Pursuant to Fam. Ct. Civ. Rule 59, a Motion for Reargument and/or a Motion to Alter or Amend a judgment may be filed within ten (10) days of the entry of an order. This shall not be used to raise new arguments or to re-litigate old matters. "[A] motion for reargument is the proper device for seeking reconsideration by the Family Court of its findings of fact, conclusions of law, or judgment." A Motion for Reargument "is appropriate where it is shown that the court overlooked a precedent or legal principle that would have controlling effect, or that it misapprehended the law or the facts such as would affect the outcome of the decision." Additionally, "the Court will not grant reargument where one parent is simply unhappy with its rulings, makes the same arguments that he or she made at trial, or attempts to [submit] evidence which could have been, but was not [introduced] at trial."

Pan v. Shak, 2008 WL 2898669, at *1 (Del. Fam. May 6, 2008).

Id.

G.G. v. T.Q., 2015 WL 9485202, at *2 (Del. Fam. Jan. 9, 2015).

Id. --------

Discussion

Father's first two concerns regarding the Final Order relate to Christmas Eve and Winter Break contact with Child. Father correctly notes that, in even-numbered years, he is awarded contact with Child during the first half of Child's Winter Break and Mother is granted contact with Child during the second half of Child's Winter Break. Also in even-numbered years, Father is awarded Christmas day contact while Mother is awarded Christmas eve contact. Therefore, Father requests that the Final Order be amended to allow whichever parent has the beginning half of Winter Break to have Christmas eve contact and whichever parent has the second half of Winter Break to have Christmas day contact. Mother does not object to this modification as it reduces the amount of times Child would need to be exchanged between the parents. Father also requests, to which Mother does not object, that Winter Break contact begins on the Friday which would be Child's last day of school before Winter Break commences. This would enable the parent with the first half of winter break to have the first full weekend of Child's Winter Break, regardless of the schedule, which is in accordance with the Court's December 17, 2018 Order on the Mother's Motion for Contempt and Interim and/or Declaratory Relief. The Court agrees that these slight modifications are logical and reflect the intentions of the Court when issuing the Final Order and so the contact schedule will be amended accordingly.

Father's next contention relates to the issue of utilizing step-parents for exchanges which this Court prohibited in Paragraph 3(d) of the Final Order. Specifically, Father requests that step- parents be able to be utilized for exchanges, as the parties had previously agreed on this issue in August 2018. Mother does not object to step-parents facilitating pick-ups and drop-off's of Child, though she reiterates Father's request that the step-parent not be permitted to exit their vehicle during any exchanges. Because the parties agree on this modification, the Court will amend the Final Order accordingly.

Father next requests that the Court remove language in Paragraph 4(h) of the Final Order relating to the right of first refusal for non-holiday related school closings and/or days when Child is sick. Father argues, as he did during the hearing, that this language has caused confusion for the parties previously and there does not appear to be a need for the parties to have this provision at the present time as they each have spouses who can assist with watching Child during the day. Mother objects to this request, stating that the issue of whether or not to have a right of first refusal provision was discussed during the hearing and the Court's ruling in this regard is supported by the evidence. The Court agrees with Mother's argument. The issue of whether to maintain a right of first refusal for non-holiday school closing and days when Child is sick and cannot attend school was raised and litigated during the final hearing. Having considered each parties' position and the evidence presented, the Court ultimately decided to maintain this provision in the Final Order, largely due the video-graphic evidence of Father's wife's interaction with the local police, which demonstrated the need for a specific provision to address the issue of which parent should have Child if he is sick and must stay home from school unexpectedly. Father does not raise any additional information or evidence in his current motion which would suggest that this finding should be changed, aside from his general inconvenience which is an insufficient basis for the Court to amend the Final Order.

Father next argues that the Court should reverse the finding of contempt and award of attorney's fees with regard to Mother's Petition-Rule to Show Cause. While Father recites several facts to demonstrate why he believes he should not have been found in contempt, the Court does not find that there is a basis to grant Father's Motion for Reargument on these grounds as Father has already made these arguments and presented evidence to support his claims during the final hearing. The Court rendered a decision on specific issue of whether Father should be found in contempt for unilaterally enrolling Child in a new school without discussing the issue with Mother. While the Court notes that the evidence demonstrated that there may have been some confusion as to when and if Mother was notified due to communication issues with her previous counsel and obtaining new counsel, Father had a legal obligation to discuss this proposed change with Mother and reach an agreement with her prior to executing any school transfers. While Father contends he notified Mother through counsel before transferring Child's school, Father's obligations as a joint custodian go beyond merely notifying Mother of a unilateral change. Father also had the responsibility of conferring with Mother and reaching a joint decision on the issue of school enrollment prior to executing any changes, which the Court has already found he failed to do, in direct violation of the Court's grant of joint legal custody.

Father next raises issues regarding a request for counsel fees which, at the time of the filing of his Motion for Reargument, had not yet submitted by Mother. The Court is now in receipt of Mother's Motion and Affidavit for Attorney's Fees and Costs and will be issuing a separate Order addressing that motion. The Court will, therefore, not address Father's specific requests as to what fees may or may not be appropriate in this Order, but will take Father's objections, and Mother's responses, into consideration when issuing an Order on Mother's motion.

Father's last contention regarding the Final Order relates to the Court granting Mother final decision-making authority for the purposes of deciding educational issues relating to Child. Specifically, Father argues, among other things, that the Court should reverse granting final-decision making authority to Mother for education issues and, instead, direct the parties to utilize a parent coordinator for these issues because Mother intends to transfer Child from his current school to a school in her district, which Father believes would be detrimental to Child's well-being and adjustment. Father also argues that Mother should not be granted this ongoing authority when she never even requested such authority in her Petition-Rule to Show Cause.

With regard to Father's more general arguments and concerns regarding the implications of granting Mother final-decision making authority, these contentions establish no basis to grant his Motion for Reargument. While the Court understands that Father may not agree with the Court's decision, without raising any evidence or new information which the Court was unable to consider when issuing the Final Order, or demonstrating that the Court has committed some form of legal error, there is no basis for the Court to reconsider this issue at the present time.

Father also argues that changing Child's school would be detrimental to his well-being at this time as he has only recently changed schools and is finally adjusted to this new school. While the Court does not necessarily agree or disagree with Father's concerns about Child's best interest, the Court notes that Child's most recent transfer of schools in Summer 2018 was a direct result of Father's unilateral decision-making. While Mother very well may choose to transfer Child to a school in her local district, her ability to do so is, again, the direct result of Father's unilateral decision making nearly one year ago. Furthermore, the specific issue of whether Child should change schools is not an issue which the Court can render a decision on at this time as this is, instead, something that both parents must discuss and reach a decision on together. If these efforts are unsuccessful, only then may Mother make the final decision on this issue, which the Court believes Mother will do with the best interests and well-being of Child in mind.

Father also argues that the language regarding final-decision making authority in the Order is confusing because it is unclear whether "Mother has final decision-making over any educational decision or only decisions in which the child's access to education is being hindered by the parents' inability to decide a matter or his education placement." The Court does not see that there is a significant distinction between "any educational decision" and "decisions in which the child's access to education is being hindered by the parents' inability to reach an agreement", particularly with these parents. Mother will only have the opportunity to exercise her final-decision making authority once the parties have reached a good faith disagreement as to an issue which involves Child's education. When there is an issue involving Child's education that the parents must decide together, their failure to reach a decision (admittedly a probable outcome for these parents due to their extensive history of disagreements) may likely hinder Child's access to education in some way because, without a final decision being made, Mother and Father could likely disagree on an issue for months or years even which would effectively stall any decision and progress being made on the educational issue at hand. By way of example, the Court notes the parents concerning disagreement regarding obtaining a new dentist for Child. While the issue originally did not arise because there was a specific issue or emergent need for dental care, because the parents simply could not reach an agreement on a new dentist, Child's access to dental care was stalled for several years without resolution.

Because the Court believes that Mother can be entrusted with exercising sound judgment in accordance with her grant of joint legal custody, in order to avoid any similar issues arising in the context of Child's education and to purge Father's contempt with regard to this specific issue, the Court believes that final-decision making for educational issues is a remedy that is just, proper, and well within the Court's authority to grant. The remedy is both as a sanction and purge of Father's contempt, as well as a grant of legal decision making authority that the Court has the authority to convey within the context of rendering a decision on issue of legal custody of Child.

ACCORDINGLY, IT IS HEREBY ORDERED THIS 23rd DAY OF MAY, 2019 AS FOLLOWS:

1. Father's Motion for Reargument is GRANTED IN PART AND DENIED IN PART. The Order and Decision on Petition to Modify Custody and Petition-Rule to Show Cause issued on March 26, 2019 shall be modified in accordance with the below provisions.

2. Paragraph 3(d) is modified as follows: Visitation Exchanges: Pick up and drop offs shall occur at school or Child's before/after school care. On days when school is not in session, pick up and drop offs shall occur at the Bear Delaware Troop 2 Station. Either Mother, Father, or a third-party who is not a step parent may pick-up and drop-off Child at the Bear Delaware Troop 2 Station. However, the Court suggests the parents mutually agree in writing on an alternative public location, perhaps the Bear Public Library, for example, as exchanges at the police station can present a threatening environment to some children. Step-parents may be utilized for exchanges but are not permitted to exit their vehicle during the exchange.

3. Paragraph 4(c) is amended as follows: Winter Break: Child's winter break holiday should be split and shared equally between Mother and Father. In even-numbered years, Father shall spend the first half of Child's winter break with Child and in odd-numbered years Mother shall spend the first half of Child's winter break with Child. This does not include Christmas Eve and Christmas Day, the schedule for which is outlined below. If Child's Winter Break is scheduled to begin on a Monday, the first half of Winter Break shall include the weekend immediately before the official commencement of his Winter Break and Winter Break contact shall, therefore, begin after Child is dismissed from school on Friday afternoon.

4
. Paragraph 4(d) is modified as follows: Christmas/Christmas Eve: Christmas eve contact shall begin at 6:00 P.M. on December 24th and end at noon on December 25th. Christmas day contact shall begin at noon on December 25th and end at 6:00P.M. on December 26th. Father shall have Child for Christmas day in even numbered years and Christmas eve in odd numbered years. Because whichever parent is scheduled to have Christmas eve with Child will already have Child in their home. Father shall have Child for Christmas eve on even-numbered years and Christmas day in odd-numbered years. Mother shall have Child for Christmas eve in odd-numbered years and Christmas day in even-numbered years. This schedule corresponds with the Winter Break schedule provided for in Paragraph 4(c) above such that whichever parent is scheduled to have Child for Christmas eve will already have Child in their care due to having visitation with Child for the first half of Child's Winter Break, which will presumably always entail

at least one day prior to Christmas eve
. This schedule obviates the need for any drop-off or pick-up to begin Christmas eve visitation. Christmas eve visitation shall end at noon on December 25th . Christmas day visitation shall begin at noon on December 25th and end at 6:00PM on December 26th .

5. All other provisions not addressed above shall remain in full force and effect.

6. Mother's request for Counsel fees in her Response to Father's Motion for Reargument is denied.


IT IS SO ORDERED.

/s/ _________


ROBERT BURTON COONIN
, Judge Cc: File, parties' attorneys
Date Mailed to Parties' attorneys: __________ RBC/jr