GARRETT IRWIN, Respondent Below, Appellant, v. JENNY SHELBY, Petitioner Below, Appellee.
No. 235, 2018
IN THE SUPREME COURT OF THE STATE OF DELAWARE
May 6, 2019
Submitted: March 6, 2019
Court Below: Family Court of the State of Delaware
File No. CK16-03072
Petition No. 16-37170
Upon appeal from the Family Court. AFFIRMED.
Leslie B. Spoltore, Esquire, Oberymayer Maxwell Rebmann & Hippel LLP, Wilmington, Delaware, for Appellant, Garrett Irwin.
Melissa L. Dill, Esquire, Liguori & Morris, Dover, Delaware, for Appellee, Jenny Shelby.
VAUGHN, Justice, for the Majority:
The appellant, Garrett Irwin (the father), appeals from a Family Court order granting the appellee, Jenny Shelby (the mother),1 sole custody and primary residential placement of their two children.2 The father makes two claims on appeal. First, he contends that the Family Court abused its discretion by siding with the mother‘s treating psychologist instead of relying on the expert requested by the father. Second, he contends that the Family Court‘s order granting sole custody and primary placement to the mother was against the weight of the evidence and an abuse of discretion. According to the father, the court drew all inferences in the mother‘s favor, minimized her mental health and substance abuse issues while giving undue weight to the father‘s dated history of drug use, ignored the mother‘s role in their physical altercations, and was generally biased against the father.
The father expresses concern that the Family Court judge was biased in favor of the mother. One view of the record is that the Family Court judge came to the custody dispute predisposed against the father and approached the remainder of the proceedings with a closed mind. But, another view of the record is the Family Court undertook the proper legal analysis, and the factual findings it made in this difficult case with conflicting testimony—not unlike most cases coming before the Family
II. FACTS AND PROCEDURAL HISTORY
The mother and the father first met in 2012 when she went to work in his restaurant in Dover. Sometime thereafter, they started dating, and eventually, the mother moved into the father‘s house in Dover. During their relationship, they agreed to call themselves “husband” and “wife,” but they did not marry. The mother worked many hours at the restaurant until the couple had their first child on November 2, 2013. She then stopped working regularly. The couple had their second child on January 25, 2015. The mother has another minor child (age eight) from a previous relationship, and the father has an adult child with whom he has no relationship. The father is twenty-six years older than the mother.3
While the family was intact, the mother was primarily a stay-at-home mother and provided most of the children‘s daily care, including taking them to medical and dental appointments. The father, the primary financial provider, was involved in the children‘s care to varying degrees.
An incident occurred on November 22-23, 2016 (the “Restaurant Incident“).4 The mother was working at the father‘s restaurant on the night of November 22, and the father was home with the children. The mother did not return home that evening. The next morning, the father went to the restaurant with the children, who were not properly restrained in child seats, in his truck. He discovered the mother‘s car in the restaurant parking lot. He entered the restaurant and saw that it was in disarray, but he did not see the mother. He called for emergency assistance. He then went to the mother‘s car and saw that she was passed out on the floor of the back seat. When the police arrived, they roused her to consciousness and sent her to a hospital in an ambulance.
As a result of this incident, the mother was hospitalized initially for “acute intoxication or withdrawal.”5 During the admission process, in response to questions, she admitted to occasional marijuana use and alcohol consumption but denied any further (non-prescription) drug use. While at the hospital, the mother
As part of her treatment, she was evaluated by Dr. Joseph Zingaro, a psychologist, who found that “[s]he presented as someone who is typical for a victim of domestic violence.”7 Specifically, he said she was a victim of “coercive control, which means that it has happened over a fairly long period of time. And she‘s afraid of the individual, the perpetrator.”8
On December 3, 2016, the day after the mother was released from Dover Behavioral Health, she (along with the maternal grandmother) went unannounced to the father‘s residence to retrieve the children, who had remained with the father during the mother‘s hospitalization. An altercation ensued, resulting in physical contact between the parties and the father‘s shirt being ripped. The father called 911, and when the police officer arrived he advised the mother to go to the Family Court to handle the custody dispute, and he let the father keep the children.
As a result of this altercation, the parties each sought a protection from abuse (“PFA“) order from the Family Court. On December 5, 2016, the mother filed both
On December 20, 2016, the parties entered into an interim consent order on visitation. On January 9, 2017, the father answered the mother‘s petition for custody and counterclaimed for custody.
A hearing on the PFA petitions was held on January 10, 2017, and another Commissioner entered PFA orders against each party, finding that both parties had
The father sought review of the Commissioner‘s PFA order. The Family Court judge reviewed the order and approved and accepted it in full. Although the mother did not request a review of the PFA order entered against her, the Family Court judge, while recognizing that his review was limited to the PFA order against the father, noted in his order on review that he was “compelled to mention that [his] reading of the transcript le[ft him] unpersuaded that the evidence to support [the father‘s] petition justifie[d] a finding that [the mother‘s] actions [met] a definition of abuse.”11
On March 6, 2018, the Family Court held a custody hearing. At the hearing, the court heard testimony from both parents, Dr. Romirowsky, the maternal grandparents, and a friend of the mother‘s. The court also considered the record from the PFA hearing, which included testimony and a report from the mother‘s treating physician, Dr. Zingaro, concluding that the mother was a victim of domestic violence because of the father‘s controlling behavior.
Following the hearing, on April 16, 2018, the court issued an order granting the mother sole legal custody and primary residential placement—a result neither party requested. The mother had sought primary residential placement with the parents having joint custody of the children. The father, on the other hand, sought sole custody and primary residential placement, at least until the mother‘s drug use issues were resolved.
First, the court determined that Dr. Romirowsky improperly ignored the fact that this case involved domestic abuse and a victim of that abuse because Dr. Romirowsky testified that “domestic violence [was] irrelevant to [his] evaluation.”14 The court explained that “[i]n his evaluation report and testimony, [he] all but ignored the substantive fact findings of this Court in the transcript of the original PFA hearing and in the Order on Review of Commissioner‘s Order.”15 The court continued, “[h]e disparaged the report and testimony of Dr. Joseph Zingaro, a fellow psychologist involved in the PFA hearing, with whom [he] disagreed. He also dismissed, without explanation, Mother‘s suggestions that Father‘s actions contributed to her mental health challenges.”16
I accept as fact that the appointment was scheduled for Mother, that she did not appear at the appointed time, and that she insisted to [Dr. Romirowsky] later that she was at his office and that no one else was there. But Mother demonstrated that she sent an email message to [Dr. Romirowsky‘s] office manager indicating she was running late and may have been confused about the appointment date. Mother also testified that she arrived at [his] office and no one was there. [Dr. Romirowsky] confirmed that his office suite door is kept locked. And he never saw the email message Mother sent to the office manager. He made no suggestion that Mother‘s late arrival would be accommodated. [He] appeared to be personally offended by Mother‘s actions.19
The court also discussed and dismissed Dr. Romirowsky‘s other reasons for discrediting the mother. Although Dr. Romirowsky “was further disturbed by indications in Mother‘s medical record [that] she missed several appointments with
The court noted that Dr. Romirowsky “attached great significance to the fact that he told Mother to have her hair follicles tested for drugs in her system and, as
Third, the court found that Dr. Romirowsky “applied a different standard to his evaluation of Father than the standard he applied to Mother.”29 According to the court, “[t]he facts available to [Dr. Romirowsky] indicated that Mother had used marijuana casually and had used cocaine twice in her life, once during the November 22-23, 2017 incident at the restaurant, and once (by Mother‘s admission) while in high school.”30 Regarding the father, the court noted that he had admitted to Dr. Romirowsky that “he used marijuana and cocaine while in his twenties, thirties and forties.”31 Thus, the court found that Dr. Romirowsky applied a different standard
The court then analyzed the best interests of the children as required by
As to factor (3), which concerns the interaction and interrelationship of the children with their parents, grandparents, siblings, and others family members, the court found that it weighed in the mother‘s favor because she “presented persuasive evidence she has a positive and healthy relationship with the children.”36 In support, the court noted the following observations: the mother “ha[d] been engaged with them as their primary care giver for their entire lives“; the children were “very
As to the father, the court found that his testimony—that the mother “had been ‘unstable’ for the past three years” and that “he suspects she was using marijuana and cocaine“—was “not credible.”38 The court explained, “[h]is suspicions did not move him to make sure he was home with the children more often or for more time, but they convinced him to limit the money he provided to Mother.”39 Furthermore, the court noted that although the father “stepped up to provide care for the children since late November of last year,” there was “unrebutted testimony he generally provided no holiday gifts to the children.”40 The court also recognized that the father testified that the children were building relationships with paternal-side cousins and that he has no relationship with his thirty-three-year-old daughter (the children‘s half-sister) “because her mother ‘sabotaged’ the relationship.”41 The court concluded, “[f]actor 3 favors Mother‘s position. The children have
The court found that factor (5), which considers the mental and physical health of all individuals involved, was neutral provided that the mother complied with her treatment:
Mother has mental health issues that require professional attention. She takes medication and is monitored by a nurse practitioner. . . . Mother acknowledges her need for talk therapy. Father and the children present no health issues. When Mother complies with treatment, this factor (Factor 5) is neutral. If Mother fails to comply with treatment, this factor would favor Father‘s position.43
The court found factor (6), the parents’ past and present compliance with their rights and responsibilities for their children under Delaware‘s family law, to favor the mother “to a slight degree.”44 The court found that “Mother handled the children‘s medical appointments” and that while “Father participated in medical appointments early in the children‘s lives,” he had not in recent years.45 The court noted that “Father provided most of the financial support while the family was intact.”46 “Since the split,” the court continued, “Mother has relied on Maternal
The court then discussed the parties’ actions on the night of the Restaurant Incident:
When Father took the children to his restaurant on the morning of November 23, 2017, after Mother did not return home from work, Father transported them in a pickup truck with no child safety seats. He testified that he tried to contact Maternal Grandmother to look after the children, but was unsuccessful in reaching her. Father believed this was an “emergency” situation, justifying the risk to the children. His testimony was not clear about whether he left home that morning, putting the child at risk of injury, because he wanted to check on Mother or on the restaurant. Mother used poor judgment in using substances that contributed to her decompensation on November 22, 2017, but that bad judgment was exercised when she did not have these children in her care. Father‘s exercise of bad judgment is alarming because he put the children at risk.48
The court then concluded, “Factor 6 favors Mother‘s petition, to a slight degree.”49
As to factor (7), evidence of domestic violence, the court explained that “[t]his family has an important domestic violence problem”50 and found that “[t]he great
This Court has previously decided that Father committed abuse against Mother in several ways. On December 3, 2016,52 during a dispute over the children and while the children were present, Father shoved Mother up against a car multiple times, causing injury to her that required medical attention. Father also suggested to Mother she “slit her wrists,” again while a child was present. Father admitted throwing hot coffee on Mother in anger and that one child knew of Father‘s actions. Father also threatened Mother he would confuse her for a burglar and “shoot” her. This Court also found considerable support in the testimony and report of Dr. Joseph Zingaro that Mother was the victim of a pattern of coercive control by Father.
Father has completed a treatment course designed of [sic] people who have committed acts of abuse, as required by the January 10, 2017 PFA order entered against him.
I note that Mother also committed abuse against Father, according to the Commissioner who ruled on the PFA petitions, by ripping Father‘s shirt during the altercation that caused Mother‘s injuries, and by “yelling and screaming.” Mother was evaluated by the same service provider who treated Father. She did not need to take the course.53
Finally, the court summarized its analysis of the best interests factors. The court explained that “factors 3, 6 and 7 favor Mother‘s Petition, none of the factors favors [sic] Father‘s Petition, and the remaining factors are neutral.”56 The court concluded by noting additional reasons for its decision to give the mother sole custody of the children:
Father‘s priorities have been business- and money-related. He has developed little experience and skill in parenting. He is inclined to act inappropriately, and sometimes violently, when angry. He needs to be in control and does not share control well. These qualities weigh in favor of vesting Mother with decision authority.57
The court then gave the mother sole custody and primary placement of the children, with the father having the right to visit with the children every other weekend.
The father‘s first claim on appeal is that the Family Court abused its discretion when it rejected the expert testimony, opinion, and recommendation of Dr. Romirowsky. According to the father, the Family Court erred when it found that (1) Dr. Romirowsky ignored the fact that this case involved domestic abuse, (2) assessed mother‘s testimony as credible, and (3) applied a different standard of evaluation to the mother compared to the father.
When the Family Court decides to accept the opinion of one expert over another, the court “has considerable latitude in determining what weight to give to any expert witness testimony in a ‘best interests of the child’ analysis, and we have held it improper to consider any expert recommendation binding on that court.”58 Moreover, “[t]his Court will not disturb the Family Court‘s determination of questions of credibility on appeal unless clearly erroneous.”59 Even if we might have reached a different conclusion, a credibility determination is not clearly erroneous if it is supported by the record and the product of an orderly and logical deductive process.60 After carefully reviewing the record, we find that the father‘s
First, with regard to the father‘s claim that the court erred when it held that Dr. Romirowsky failed to adequately consider the evidence of domestic violence, the record shows that Dr. Romirowsky testified that “the whole issue of abuse or domestic violence really is irrelevant to my consideration and my recommendation.”61 Further, there was evidence in the record of abuse—the “imbalance of power and control” between the mother and the father62—found by Dr. Zingaro and the court in the PFA hearing. The father was approximately thirty years older than the mother, he was her employer, and she testified that he controlled the money, her work schedule, and even how she dressed. While Dr. Romirowsky raised some valid concerns with Dr. Zingaro‘s methodology, the court was free to decide which expert it found to be credible and to rely upon the court‘s earlier finding—by a different judicial officer—of the father‘s domestic abuse.
As to the court‘s second reason for rejecting Dr. Romirowsky‘s report—that Dr. Romirowsky determined that the mother completely lacked credibility—Dr. Romirowsky‘s report concluded that the mother had a “history of noncompliance” and a “pattern of not telling the truth.”63 This conclusion was primarily founded
The court also gave several other reasons for finding that Dr. Romirowsky unfairly determined that the mother completely lacked credibility. The court noted that it did not understand why Dr. Romirowsky “latched on to some of the things Mother said while ignoring other things she said” in evaluating her credibility.64 For example, Dr. Romirowsky found the mother‘s statements denying drug use during her intake examination following the Restaurant Incident “to be conclusive of her deceitfulness in light of the positive tests for cocaine and marijuana performed
Finally, as to the court‘s third reason for rejecting Dr. Romirowsky‘s report—that Dr. Romirowsky gave much greater weight to the mother‘s drug use than the father‘s record of his own drug use—we agree with the father that the Family Court‘s determination is questionable, given the passage of time since his last use of drugs.68 But, in our view, the Family Court had the best vantage point to judge the weight to be given the expert reports in light of the testimony of the mother and the father. The other reasons given by the Family Court to reject Dr. Romirowsky‘s report were sufficient to support the court‘s decision on appeal.
The father‘s second claim on appeal is that the Family Court abused its
Our review of a custody decision of the Family Court “extends to a review of both the facts and law as well as to inferences and deductions drawn by the Family Court.”69 “To the extent an appeal implicates findings of facts, the scope of our review is limited to whether the findings are sufficiently supported by the record and are not clearly wrong.”70 “Moreover, this Court will not substitute its own opinion for the inferences and deductions made by the Trial Judge where those inferences are supported by the record and are the product of an orderly and logical deductive process.”71 “If the Family Court has correctly applied the law, our review is for an abuse of discretion.”72 To the extent the issues on appeal implicate rulings of law, we conduct a de novo review.73
Under
Factor (1) concerns “[t]he wishes of the child‘s parent or parents as to his or her custody and residential arrangements.”78 The father argues that the Family
As the court explained in its decision, each parent desired placement of the children, with the mother requesting joint custody and the father seeking sole custody. The father‘s argument that the mother provided a “mother-centric,” as opposed to a “child-centric,” reason for custody does not relate to factor (1). This factor considers only the “wishes of the child‘s parent or parents.”82 Factor (2), which the father does not contest, is the “child-centric” factor; it considers “[t]he wishes of the child as to his or her custodian or custodians and residential arrangements.”83 The father‘s argument that factor (1) favors him is strained and unpersuasive.
With respect to this factor, the father contends that the court erred by determining that he “has little history to support his claim”85 and “has developed little experience and skill in parenting.”86 In particular, he argues that the court erred in calculating his time with the children when the court stated that he “stepped up to provide care for the children since late November of last year.”87 This statement, according to him, was incorrect, and “not merely a typographical error,” because it suggests that the court was referring to November 2017, not November 2016, which discredits the period of time he had primary and shared placement by one year in the court‘s analysis of factor (3).88
Furthermore, while the trial judge should have noted the correct date when discussing these events, the court did not focus on precisely when the father‘s
The court found factor (5), “[t]he mental and physical health of all individuals involved,”94 to be neutral. The court explained, “[w]hen Mother complies with treatment, this factor (Factor 5) is neutral. If Mother fails to comply with treatment, this factor would favor Father‘s position.”95 The father contests that conclusion,
The court, however, recognized that the mother takes medication, is monitored by a nurse practitioner, and acknowledges her need for talk therapy. Also, when dismissing Dr. Romirowsky‘s determination that the mother lacked credibility because she missed appointments with her nurse practitioner, the court noted that its “review of the medical record indicates that Mother made up most of the missed appointments.”96 This was supported by the record: the mother testified at the custody hearing that she had been attending therapy sessions every month since the Restaurant Incident except for two or three months during the summer of 2017, when her car was getting repaired and when she was meeting with Dr. Romirowsky (because she “thought that [he] was [her] therapist“).97
The court found factor (6), the parents’ past and present compliance with their rights and responsibilities under Delaware‘s family law,98 to favor the mother “to a slight degree.”99 The father contends that the court erred as to this factor because it subjected him to a higher standard than the mother. He argues that the court was swayed by its finding that the father did not provide money to support the children
Given the exigencies of the situation, we agree that the trial judge placed undue emphasis on the fact that the father did not have the children in child seats on the morning of the Restaurant Incident. But, as to the mother‘s “poor judgment,” the trial judge reasoned that the mother‘s “bad judgment was exercised when she did not have these children in her care.”101 Although we may have made a different finding on this factor, we are satisfied that the trial judge‘s finding that factor (6) favored the mother “to a slight degree” is sufficiently supported by the record and not clearly wrong. And, as noted before, the test is not a rigid application of any
The court found factor (7), evidence of domestic violence,102 to weigh heavily in the mother‘s favor. The father contests this conclusion, relying largely on an argument he made regarding the court‘s rejection of Dr. Romirowsky‘s report—that the record did not support the court‘s findings on domestic abuse. Although the court considered the acts of domestic violence by both parties in its analysis, it highlighted the father‘s acts of emotional and physical abuse and relied on Dr. Zingaro‘s testimony and report that the mother was the victim of a pattern of coercive control by the father and the court‘s earlier finding of abuse. Therefore, the court‘s finding of domestic abuse was supported by the record.
The court found factor (8), the criminal history of the parents,103 to be of no significance because the criminal history of both parties occurred before the children were born. The father argues that the court erred as to this factor for two reasons: (1) it omitted the salient fact that the mother involved her oldest child in her shoplifting by hiding the stolen item in her stroller and (2) it imposed a different standard on him than it did on the mother by considering his past drug history while not taking into account the mother‘s prior shoplifting conviction. First, although
In addition to his contentions challenging the court‘s findings as to the individual factors, the father contends that the court did not independently consider the best interests factors and give each its due weight. In support of this contention, he cites Holmes v. Wooley.104 In Holmes, although the trial judge weighed the best interests factors, his ultimate finding was the result of a mechanical, quantitative weighing of the factors with each factor having the same value irrespective of their relative strengths based on the actual facts in the case.105 This Court found that method of analysis to be erroneous because the Family Court considered only the enumerated factors in the statute, did not consider all relevant factors as required by the statute, and ultimately determined the best interests of the child based solely on which parent had “prevailed” in the majority of the statutory factors.106 The father asserts that the Family Court performed this same mechanical and perfunctory analysis in weighing the best interests factors.
Because the father contests the Family Court‘s factual and credibility determinations, his path to reversal is extremely narrow. The Family Court analyzed each of the required factors, heard from the experts, the mother and the father and another witness for the mother, and made a custody determination supported by the record. Thus, we affirm the judgment of the Family Court.
While we have decided to affirm, we also note with some discomfort the father‘s concern that the Family Court judge came to the custody hearing predisposed against the father. The trial judge did, it seems to us, place undue emphasis on the fact that the father drove to the restaurant on the morning of the Restaurant Incident without having the children in child seats. The record indicates that he attempted to contact the maternal grandmother to look after the children while he went looking for the mother, but was unable to contact her. Without depreciating the importance and necessity of using child seats when transporting children, the father reasonably believed that he was dealing with an emergency. Under the circumstances, the fact that he kept his children with him and by necessity used a vehicle not equipped with child seats had little probative value in deciding custody. We also think that the father‘s drug use of long ago, discussed in connection with Dr. Romirowsky‘s report, was a factor made irrelevant by the passage of time. Finally, the trial judge‘s misstatement that the Restaurant Incident
Some time has passed since the Family Court‘s custody and placement determination. We believe that, if the father choses to do so, and in light of this opinion, the Family Court should consider a renewed petition for joint custody by the father when permitted by
We respectfully dissent from the majority opinion. Our review of the father‘s arguments on appeal leads us to conclude that the Family Court‘s decision is not rationally grounded in the record evidence. If anything is clear from this record, it is that, like other human beings, neither the Father nor the Mother are close to perfect. But if children were only entitled to the love and care of perfect parents, all of us would be orphans. We hope that if the Father remains involved in the children‘s lives in a positive and loving way, that the trial judge will consider in an impartial and open-minded way any future applications by him to become more involved in his children‘s lives. For now, we can only say that we would reverse and restore the Father to having the status as joint custodial parent, a status that was taken from him not at the Mother‘s request, but at the spontaneous instance of the Family Court.