Harris v. Kerr

• Court: Supreme Court of Delaware
• Decided: February 2, 2021
• Docket: 59, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MATTHEW HARRIS,1 § § No. 59, 2020 Petitioner Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. CN13-06160 NANCY KERR, § Petition No. 18-11799 § Respondent Below, § Appellee. §

Submitted: December 4, 2020 Decided: February 2, 2021

Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.

ORDER

Upon consideration of the parties’ briefs and the record below, it appears to

the Court that:

(1) The petitioner below-appellant, Matthew Harris (“the Father”), filed

this appeal from the Family Court’s order affirming in part and denying in part the

Commissioner’s child support order. For the reasons set forth below, we affirm the

Family Court’s judgment.

(2) The Father and the respondent below-appellee, Nancy Kerr (“the

Mother”) were married and lived with their child, who was born in 2012 (“the

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). Child”). The parties separated in 2013 and divorced in 2014. After the parties’

separation, the Mother and the Child moved to Massachusetts. The Father remained

in Delaware. On September 24, 2014, the Family Court issued a permanent child

support order requiring the Father to pay $1,697.00 a month (the “Delaware Child

Support Order”).

(3) On April 24, 2018, the Father filed a petition in the Family Court to

modify the Delaware Child Support Order. He argued that the amount of child

support should be reduced to $800.00 per month because the Mother’s income had

substantially increased. The Mother filed a motion to dismiss the petition, arguing

that the Middlesex Probate and Family Court in Massachusetts had exclusive

jurisdiction over child support. The Father opposed the motion.

(4) After the Family Court Commissioner dismissed the Father’s petition,

the Father filed a motion for reargument. The Commissioner granted the Father’s

motion for reargument, concluding that the Family Court had continuing, exclusive

jurisdiction over child support. On June 10, 2019, the Commissioner ordered the

Father to pay $2,255.00 a month (which included $100.00 a month in arrears) in

child support. The Father filed a request for review of the Commissioner’s child

support order.

(5) The Family Court reopened the record to gather additional evidence

related to the Father’s request for review. After a hearing, the Family Court issued

2 an order, dated January 9, 2020, affirming in part and denying in part the

Commissioner’s order. The Family Court ordered the Father to pay $1,279.00 a

month in child support effective April 28, 2019. This appeal followed.

(6) At the time of the filing of this appeal, the Father’s motion to correct a

clerical mistake concerning the effective date of the January 9, 2020 order was

pending in the Family Court. This Court remanded the matter for the Family Court

to rule upon the Father’s motion. After the Family Court granted the motion and

changed the effective date of the January 9, 2020 child support order to April 28,

2018, the matter was returned to this Court.

(7) This Court’s review of a Family Court order, including the Family

Court’s review of a Commissioner’s order, extends to a review of the facts and the

law, as well as to the inferences and deductions made by the judge.2 We review

issues of law de novo.3 If the Family Court has correctly applied the law, our

standard of review is abuse of discretion.4

(8) On appeal, the Father argues that the Family Court erred in failing to

impose sanctions upon the Mother for filing a false financial disclosure report under

Family Court Civil Rule 16(a) and for deducting childcare costs from the Mother’s

2 Kraft v. Mason, 2010 WL 5341918, at *2 (Del. Dec. 20, 2010) (citing Solis v. Tea, 468 A.2d 1276, 1279 (Del.1983)). 3 In re Heller, 669 A.2d 25, 29 (Del. 1995). 4 Jones v. Lang, 591 A.2d 185, 187 (Del. 1991). 3 income. The Mother requests re-calculation of the Father’s child support obligation

based on documents showing her childcare expenses for 2019.

(9) The imposition of sanctions is within the discretion of the Family

Court.5 In addressing the Father’s contention that the Commissioner should not have

accepted the Mother’s allegedly false and incomplete Rule 16(a) report, the Family

Court found that the report was not admitted into evidence, the Commissioner did

not rely on the report to make her calculations, and the error in the employer’s name

would not have affected the outcome of the proceedings. The record supports these

findings. Under these circumstances, the Family Court did not abuse its discretion

in failing to impose sanctions based upon the Mother’s Rule 16(a) financial report.

(10) Although the Family Court reduced the Commissioner’s calculation

of the Mother’s monthly childcare expenses from $2,299.00 to $950.00, the Father

argues that this reduced amount is still inflated because it is based on the false

premise that the Mother worked overtime and had to pay for childcare. In making

this argument, the Father relied on a document he obtained from the Mother’s

employer stating that, in the last calendar year, the Mother had worked 2080 hours

(forty hours per week) at her regular pay rate and did not receive any overtime. In

rejecting the Father’s argument, the Family Court highlighted the Mother’s

testimony that she was a salaried employee who often had to work more than forty

5 Tandy v. DCSE/Violet Tandy, 2006 WL 435584, at *2 (Del. Feb. 21, 2006). 4 hours per week even though she did not receive overtime compensation for those

additional hours. The Mother also worked with individuals overseas, which

necessitated that she work in the evenings. The Family Court found the Mother’s

testimony on this subject credible. 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 trier of fact, as it does here, we will not substitute our

opinion for the trier of fact.6

(11) Finally, the Court will not direct the Family Court to re-calculate child

support as the Mother requests in her answering brief. If the Mother wished to

challenge how the Family Court calculated child support, she should have filed a

cross-appeal. She did not do so. In addition, the Mother’s request is based on

documents that were not presented to the Family Court in the first instance, and we

will not consider them for the first time on appeal.7 Having carefully considered the

parties’ positions and the record on appeal, we conclude that the Family Court’s

judgment should be affirmed.

6 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 7 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.”). 5 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves Justice