Pack v. McBride ( 2022 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
LEE PACK,1 §
§ No. 100, 2021
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File No. CN06-02393
KATE MCBRIDE, § Petition No. 20-13352
§
Petitioner Below, §
Appellee. §
Submitted: November 19, 2021
Decided: January 3, 2022
Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES,
Justices.
ORDER
Upon consideration of the opening brief and the record below, it appears to
the Court that:
(1) The respondent below-appellant, Lee Pack (“the Father”), filed this
appeal from the Family Court’s decision granting the petition to modify custody filed
by the petitioner-below appellee, Kate McBride (“the Mother”). We find no error
or abuse of discretion in the Family Court’s decision. Accordingly, we affirm the
Family Court’s judgment.
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
(2) The parties are the parents of two children (“the Children”). Under a
2009 default custody order, the Father had sole custody and primary residential
placement of the Children with the Mother having visitation every other weekend.
On July 2, 2020, the Mother filed a petition to modify custody. She alleged that the
Children had been living with their grandmother for the last six months because the
Father did not have housing and could not provide the Children with food or
clothing.
(3) On July 20, 2020, the Father filed his answer to the petition. He
admitted that the Children had been living with their grandmother, but stated that
they spent some nights with him and that he provided them with sufficient food.
(4) On September 1, 2020, the Family Court held a case management
conference with the parties. The Family Court initially scheduled the hearing for
January 4, 2021, but then rescheduled it for December 31, 2020. On January 12,
2021, the Family Court informed the parties that the hearing would be rescheduled
for March 11, 2021. The notices for the December 31, 2020 and March 11, 2021
hearings were emailed to the parties, contained Zoom links for the hearing, and
stated that failure to participate in the hearing could result in a default judgment or
dismissal of the petition.
(5) On March 11, 2021, the Mother appeared for the hearing. The Father
did not appear for the hearing. The Mother provided testimony in support of her
2
petition. At the conclusion of her testimony, the Family Court granted the Mother
sole legal custody and primary residential placement of the Children with the Father
having visitation every other weekend. The Family Court also entered a written
order analyzing the best-interest factors under 13 Del. C. § 722 and entering
judgment in favor of the Mother. This appeal followed.
(6) This Court’s review of a Family Court decision includes a review of
both the law and the facts.2 We review conclusions of law de novo. 3 The Family
Court’s factual findings will not be disturbed on appeal if they are supported by the
record and are the product of an orderly and logical deductive process.4 When
considering a motion to modify custody, the Family Court must consider the best-
interest factors of Section 722.5
(7) On appeal, the Father states that he had COVID-19 during the first
hearing and was not aware of it. He describes the parties’ history and argues that
the Children should be returned to him. He also contends that the Children have
missed a lot of school since the Family Court granted the Mother’s petition.
(8) After careful consideration of the opening brief and the record on
appeal, we conclude that the Family Court did not err in granting the Mother’s
2
Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
3
Id.4
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
5
Tatum v. Yost, 2007 WL 2323791, at *2 (Del. Aug. 15, 2007) (citing 13 Del. C. § 729(c)(2)(c)).
3
petition to modify custody. The issues that the Father raises on appeal were not
presented to the Family Court in the first instance and are not properly a part of the
record this Court can consider on appeal.6 To the extent the Father has an
explanation for his failure to appear for the March 11, 2021 hearing, he must first
present that claim to the Family Court through a motion to reopen the judgment
under Family Court Civil Rule 60(b).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
6
See, e.g., Anderson v. Anderson, 2014 WL 4179116, at *1-2 (Del. Aug. 21, 2014) (holding that
the Court could not consider the father’s explanations for why he did not appear at a custody
hearing because he did not present those explanations to the Family Court); Price v. Boulden, 2014
WL 3566030, at *2 (Del. July 14, 2014) (holding that the Court could not consider housing the
appellant obtained after the decision on appeal because the evidence was not available to the
Family Court in the first instance and was outside of the record on appeal); Delaware Elec. Coop.,
Inc. v. Duphily, 703 A.2d 1202, 1207 (Del.1997) (holding that materials not offered into evidence
and considered by the trial court are not part of the record on appeal).
4