IN THE SUPREME COURT OF THE STATE OF DELAWARE
HANNA LAYTON and LINDA § COSTAS,1 § Nos. 87, 2018; 100, 2018; § and 125, 2018 Respondents Below, § Consolidated Appellants, § § Court Below—Family Court v. § of the State of Delaware § JACKSON P. LAYTON, § C.A. No. CN15-04403 § Petition Nos. 17-22998 and Petitioner Below, § 17-24587 Appellee. §
Submitted: August 17, 2018 Decided: October 23, 2018
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it
appears to the Court that:
(1) The appellants, Hanna Layton (“Mother”) and Linda Costas
(“Grandmother”), filed these consolidated appeals from three Family Court
orders. The underlying case involves Jackson Layton (“Father”) and Mother’s
two daughters (“the Children”) and Father’s efforts to visit and reunify with
the Children. At the time these appeals were filed, the Children were under
1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). the guardianship of Grandmother.2 In the orders on appeal, the Family Court
found Mother and Grandmother in contempt of its prior orders regarding
Father’s visitation and reunification therapy with the Children. The Family
Court also ordered Mother to pay attorneys’ fees to Father’s counsel3 and
ordered Grandmother to pay $2000 to secure the services of a new
reunification therapist. After careful consideration, we find no merit to these
consolidated appeals. Accordingly, we affirm the Family Court’s judgments.
(2) The Children were born on April 28, 2004 and March 25, 2007.
The family’s history is long and complicated. It appears that Mother and
Father became estranged from one another in 2011, and Mother was awarded
sole custody of the Children in November 2013. In August 2015,
Grandmother, through counsel, filed a petition for guardianship of the
Children. Mother’s whereabouts were unknown at the time. Although she
failed to file an answer to the guardianship petition, she later appeared in
person to support the petition. Father, through counsel, objected to the
2 Although the Family Court initially stayed its consideration of Father’s petition to rescind Grandmother’s guardianship pending reunification therapy, the Family Court later lifted the stay and granted Father’s petition for rescission after these appeals were filed. Mother and Grandmother filed several different appeals from the rescission proceedings, which are pending before the Court. 3 Father’s counsel is representing Father on a pro bono basis by assignment from a group providing services to military veterans. In turn, Father’s counsel was directed to forward Mother’s installment payments of $200 per month to the Veteran’s Clinic associated with the Delaware Law School.
2 petition. In March 2016, the parties reached an agreement for a temporary
guardianship order pending a hearing in July 2016. The temporary order
included the parties’ stipulation that Father and the Children would engage in
reunification therapy with Dr. Samuel Romirowsky in consultation with the
Children’s therapist, Jennifer Cutrona.
(3) After a two-day trial, the Family Court granted Grandmother’s
petition for guardianship on August 10, 2016 (“the Guardianship Order”).4 As
part of the Guardianship Order, the Family Court cautioned Mother and
Grandmother to cooperate with the previously agreed-to reunification therapy
between Father and the Children. The Family Court stated that it would “not
tolerate interference with Father’s attempts to improve” his relationship with
the Children.5 The Family Court further warned Mother and Grandmother
that, while it did not want to uproot the Children and remove them from
Grandmother’s home at present, “the Court will seriously consider moving
the children to Ohio [where Father lives] on a permanent basis if the maternal
family acts as an impediment to Father’s efforts.”6 The Guardianship Order
awarded Father visitation with the Children “as determined appropriate by Dr.
Romirowsky,” and stated that, if Dr. Romirowsky believed that the maternal
4 Costas v. Layton, File No. CN15-04403, Pet. No. 15-24413 (Del. Fam. Ct. Aug. 10, 2016). 5 Id. at 22. 6 Id.
3 family was interfering with Father’s visitation, then the Court would consider
imposing sanctions that might include granting “additional visitation to
Father, fines, incarceration, or a change in custody….”7
(4) In December 2016, Father filed a petition for a rule to show
cause, alleging that Grandmother and Mother were in contempt of the
Guardianship Order by thwarting the progress of his reunification with the
Children. After two days of hearings, the Family Court issued an order dated
June 5, 2017, finding both Mother and Grandmother in contempt (“the First
Contempt Order”).8 The Family Court warned them against “continuing to
display a negative and hateful attitude towards Father to the girls” and stated
that the Court would “tolerate no contempt of this Order.”9 The Court ordered
that “Dr. Romirowsky shall schedule reunification therapy/visits between
Father and the girls at his discretion and shall solely be responsible for setting
the frequency, date, time and length of the contact.”10
(5) Thereafter, Mother and Grandmother filed a petition for a rule to
show cause in July 2017, alleging that Father was in contempt of the First
Contempt Order and requesting, among other things, that the reunification
7 Id. at 23-24. 8 Layton v. Costas, File No. CN11-03412, Pet. No. 16-38190 (Del. Fam. Ct. June 5, 2017). 9 Id. at 13. 10 Id.
4 therapy with Dr. Romirowsky be discontinued. Father, in turn, filed a petition
for a rule to show cause, alleging that Mother and Grandmother were in
contempt of the First Contempt Order. Among other things, Father asked the
Family Court to rescind Grandmother’s guardianship as a sanction for her
ongoing contempt and interference with Father’s attempts to reunify with the
Children.
(6) The Family Court held three days of hearings in January and
February 2018 on the parties’ cross-petitions. Dr. Romirowsky testified that,
before Mother and Grandmother cut off his contact with the Children, he had
had more than twenty sessions with the Children and Father. When they
started therapy, the Children indicated they had no memories of Father, either
good or bad, but they were interested in developing their relationship with
him. Dr. Romirowsky testified that, on multiple occasions, the therapy
sessions would be interrupted by members of the maternal family. On one
occasion, when Father was participating in the session via Skype, Mother
walked into the session unannounced and ended it prematurely, stating that
the Children needed to have their dinner. Dr. Romirowsky finally told the
maternal family members that they were not allowed in his office but had to
wait outside during his sessions with the Children and Father.
5 (7) Dr. Romirowsky testified that, while sometimes the sessions
started with the Children protesting, the sessions quickly dissipated into
warm, playful and affectionate interaction between Father and the Children.
Based on his experience with the parties and in light of the Family Court’s
order giving him the discretion to do so, Dr. Romirowsky testified that he
approved Father taking the Children for visits in the community on two dates
in July 2017. Those visits were to be followed by debriefing with the parties
in his office, and if Dr. Romirowsky determined those visits had gone well,
then Father would be permitted to have two overnight visits with the Children
in August 2017. Dr. Romirowsky testified that Grandmother refused to
cooperate with his approved visitation plans, telling him that the Children
would not attend any of those visits.
(8) In September 2017, Grandmother and Mother appeared at Dr.
Romirowsky’s office without an appointment while he was in session with
another patient, demanding that he turn over the Children’s files. Dr.
Romirowsky explained that he could not release the files unless a proper
release was signed by both Grandmother and Father. One of the women then
called the police on her cell phone and began yelling into the phone that the
doctor was a liar. Dr. Romirowsky testified that one of his patients in the
waiting room was so disturbed by the ruckus that he left the office. Dr.
6 Romirowsky also testified that he received a letter from Mother in November
2017 stating that he was not permitted to have any further contact with the
(9) Dr. Romirowsky expressed the opinion that Mother and
Grandmother had created a toxic environment for the Children’s reunification
efforts and had placed enormous pressure on the Children not to have a
relationship with Father. He believed that the maternal family was planting
false memories in the Children and, in short, that the Children were being
“brainwashed.” Dr. Romirowksy testified that, because Grandmother was
blocking the reunification process, he would not continue undertaking
reunification therapy while the Children remained under Grandmother’s
guardianship.
(10) In addition to Dr. Romirowsky, the Family Court also heard
testimony from Father, Mother, Grandmother, Father’s stepfather, Mother’s
father, the Children’s therapist, and Dr. Romirowsky’s office assistant. The
Family Court also spoke briefly with the Children and listened to numerous
recorded Skype conversations between Father and the Children, which had
been made without Father’s knowledge and were offered into evidence by
Mother and Grandmother.
7 (11) On February 8, 2018, the Family Court issued a twenty-six page
opinion, setting forth all of the testimony and evidence presented during the
three-day hearing (“the Second Contempt Order”).11 The Court concluded
that the First Contempt Order gave Dr. Romirowsky sole discretion for
scheduling therapy and visits between Father and the Children. Dr.
Romirowsky had determined that it was appropriate for Father to go straight
to community visits with the girls rather than engaging in further therapy
sessions in Dr. Romirowsky’s office. Thus, Father was not in contempt of the
First Contempt Order for failing to engage in further counseling with the
Children before attempting to schedule community visits. The Family Court
denied Mother and Grandmother’s petition for a rule to show cause.
(12) As to Father’s petition for a rule to show cause against Mother
and Grandmother, the Family Court concluded that several of Father’s
allegations were not supported by clear and convincing evidence.
Nonetheless, as to Mother, the Family Court found that her letter to Dr.
Romirowsky, stating that the doctor did not have her permission to engage in
further therapy sessions with the Children, was a clear violation of the First
Contempt Order, which provided that Mother and Grandmother were to
11 Costas v. Layton, File No. CN15-04403, Pet. Nos. 17-22998, et al. (Del. Fam. Ct. Feb. 8, 2018).
8 follow the schedule set by Dr. Romirowsky and to follow his
recommendations for treatment. The Family Court ordered Mother to
reimburse Father’s counsel’s fees and costs incurred in filing and prosecuting
his contempt petition.
(13) As to Grandmother, the Family Court concluded that there was
clear and convincing evidence that she had violated the First Contempt Order
in multiple ways, including refusing to follow Dr. Romirowsky’s schedule for
visitation by declaring that further visits “were not going to happen,” by
disrupting what was left of Dr. Romirowsky’s therapeutic relationship with
the Children when she appeared unannounced in his office and demanded the
Children’s files in a belligerent and harassing manner, and by making or
permitting other family members to make disparaging remarks about Father
within the Children’s hearing.
(14) The Family Court further found that Grandmother had failed in
her statutory responsibilities as guardian of the Children to provide for their
emotional well-being and to comply with all Court orders because she failed
to support the Children’s reunification efforts and she allowed Mother daily
access to the Children and participated with Mother in the continued
poisoning of the Children against Father. Despite this conclusion, the Family
Court stayed further consideration of Father’s petition to rescind
9 Grandmother’s guardianship, pending further reunification efforts with a new
therapist. To retain a new therapist, Grandmother was ordered to pay $10,000
to Father’s counsel, who would hold the money in escrow until further order
of the Court. The Family Court stated that it would schedule a review hearing
for each Monday following every appointment with the new therapist.
(15) On February 20, 2018, the Family Court entered its final order
on attorney’s fees, requiring Mother to pay Father’s attorney $8900 in fees
and costs, payable at a rate of $200 per month until paid in full (“the
Attorney’s Fees Order”). Thereafter, on February 23, 2018, the Family Court,
following a review hearing with the parties on the progress of the reunification
therapy, issued a modification to the Second Contempt Order, reducing
Grandmother’s obligation from $10,000 to $2,000 to pay for the reunification
therapy (“the Revised Contempt Order”). The Family Court gave
Grandmother until March 14, 2018 to make the payment and noted that the
first therapy appointment was to be scheduled for March 16, 2018.
Grandmother never made the payment, and reunification therapy with a new
therapist never occurred.
(16) Mother and Grandmother filed these appeals, challenging the
Second Contempt Order, the Attorney’s Fees Order, and the Revised
Contempt Order. Although they raise six issues, only four were properly
10 raised in this appeal.12 First, they contend that the Family Court abused its
discretion by completely disregarding the testimony of Jennifer Cutrona, the
Children’s therapist, in favor of Dr. Romirowsky’s testimony. Second, they
contend that the Family Court erred in finding them in contempt because the
First Contempt Order required three additional therapy sessions before Dr.
Romirowsky could approve community visits between Father and the
Children. Third, they contend that the Family Court’s conclusion that the
three therapy session anticipated by the First Contempt Order were not
mandatory reflects judicial bias. And fourth, they contend that the Family
Court did not conduct a proper interview of the Children.
(17) In his answering brief, Father raises several points. First, he
contends that the appeals should be dismissed for Mother and Grandmother’s
ongoing contempt of the Guardianship Order, the First Contempt Order, the
Second Contempt Order, and the Revised Contempt Order. Second, Father
12 There are six claims raised in the body of the Argument section of the appellants’ opening brief on appeal. These six arguments do not correspond to the six arguments contained in the opening brief’s Summary of Argument section. See Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (noting that, under Supreme Court Rule 14(b)(vi)(A)(3), any argument that is not raised in the body of the argument section of the opening brief will not be considered by the Court on appeal). The following arguments were not properly raised in this appeal - the Family Court abused its discretion in accepting Father’s completion of an out-of-state domestic violence course as an adequate substitute for a Domestic Violence Coordinating Council course, which was previously addressed but was not part of the Second Contempt Order, and the Family Court erred in discharging the guardian ad litem who was appointed to represent the Children during the guardianship proceedings in 2016, which was not raised in and was irrelevant to the Second Contempt Order. Supr. Ct. R. 8.
11 contends that any issue about Grandmother’s payment for reunification
therapy is moot because, after these appeals were filed, the Family Court
rescinded Grandmother’s guardianship of the Children and awarded Father
custody. Finally, Father asserts that, if this Court reaches the merits of the
appeals, the judgments of the Family Court should be affirmed because: (i)
the Family Court did not err in denying the petition for contempt against
Father; (ii) the Family Court did not err in finding both Mother and
Grandmother in contempt of the First Contempt Order; and (iii) the Family
Court did not err in ordering Mother to pay $8900 in legal fees as a sanction
for her contempt.
(18) Our review of a Family Court order extends to the facts and the
law as well as to the inferences and deductions made by the trial judge.13 If
the Family Court has correctly applied the law, our standard of review is
abuse of discretion.14 Although we have a duty to review the sufficiency of
the evidence and to the test the propriety of the trial court’s factual findings,
we will not overturn those findings unless they are unsupported by the record
or are clearly wrong.15 When the determination of facts turns on a question
of the credibility and the acceptance or rejection of the testimony of witnesses
13 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 14 Jones v. Lang, 591 A.2d 185, 186 (Del. 1991). 15 Wife (J.F.V.), 402 A.2d at 1204.
12 appearing before the trial court, we will not substitute our opinion for that of
the trier of fact.16
(19) Father argues that we should dismiss these consolidated appeals
without reaching the merits because of Mother’s and Grandmother’s ongoing
contempt of the Family Court’s orders. Father relies upon this Court’s ruling
in Schmidt v. Schmidt,17 where we held that a party who displays defiance of
a trial court’s order by refusing to comply with the order should not be
permitted to appeal the substance of that ruling while persisting in his
defiance.18 In Schmidt, the appellant sought review of a property division
order without also seeking review of the Family Court’s order finding him in
contempt of the property division order. Under those circumstances, we
concluded that the appellant could not use the judicial process to appeal the
merits of the underlying property division order. We further noted, however,
that our dismissal of the appeal was not to be construed as a ruling that one
held in contempt could not seek review of the contempt determination itself.19
(20) The circumstances in this case are distinguishable from Schmidt.
In the present case, the parties are only appealing the Family Court’s orders
16 Id. 17 610 A.2d 1374 (Del. 1992). 18 Id. at 1377. 19 Id.
13 finding them in contempt of the court-ordered reunification therapy and
awarding attorney’s fees and imposing sanctions. The validity of the
reunification therapy, which was part of a consent order entered in 2016, was
never appealed and is not at issue here. The parties have a right to seek review
of the Family Court’s orders related to the contempt proceedings.
(21) Thus, we have considered the substance of Mother’s and
Grandmother’s fairly-raised issues on appeal, but we find no merit to their
arguments. The record reflects, contrary to their assertions, that the Family
Court carefully considered all of the witnesses’ testimony presented during
the three-day hearing on the parties’ cross-petitions resulting in the Second
Contempt Order. The Family Court’s findings that Mother and Grandmother
were each in contempt of its prior orders regarding the reunification therapy,
but that Father was not, are supported by clear and convincing evidence in the
record and are not clearly wrong.
(22) The First Contempt Order gave Dr. Romirowsky the sole
discretion to direct the reunification process and warned Mother and
Grandmother about the potential consequences of their continued interference
and contempt of the court-ordered reunification. Dr. Romirowsky’s testimony
at the hearing reflected that Mother wrote to him, saying that he was not
permitted to have further contact with the Children. Dr. Romirowsky also
14 testified that Grandmother, among other things, refused to make the Children
available for visits with Father that were approved by Dr. Romirowsky.
(23) Under these circumstances, we find no error in the Family
Court’s findings of contempt. Contrary to the appellants’ argument, the
Family Court did not abuse its discretion in finding Dr. Romirowsky’s
testimony to be credible and in giving that testimony more weight than the
testimony of the witnesses presented by Mother and Grandmother. Such
credibility determinations are entirely within the judge’s discretion.20 We also
find no merit to the appellants’ conclusory argument that the weight afforded
Dr. Romirowsky’s testimony is evidence of judicial bias or their contention
that the judge conducted an “improper” interview of the Children. Instead,
we find that the record supports the Family Court’s conclusion that Dr.
Romirowsky testified credibly about Mother’s and Grandmother’s continuing
interference with Father’s reunification efforts. The Family Court also
properly interviewed the Children. We also find no error in the Family
Court’s rejection for lack of credibility Mother’s and Grandmother’s
purported justifications for their contemptuous conduct.
(24) Moreover, we find no abuse of the Family Court’s discretion in
ordering Mother to pay Father’s attorney’s fees. The Family Court has broad
20 Wife (J.F.V.), 402 A.2d at 1204.
15 discretion in deciding whether to award attorney’s fees and costs.21 The award
in this case was to compensate Father’s counsel for the time and effort that
counsel expended in prosecuting a second contempt petition. Because
Father’s counsel is representing Father on a pro bono basis, the Family Court
ordered that Mother would pay a reduced fee, to be forwarded by Father’s
counsel to a veterans’ legal clinic. There is nothing in the record to support
Mother’s contention that the Family Court abused its discretion in awarding
reasonable attorney’s fees, payable in $200 monthly installments until paid in
full. The award was not arbitrary or unreasonable.22
(25) We also find no abuse of the Family Court’s discretion in
sanctioning Grandmother for her contemptuous conduct.23 The Family Court
found that Grandmother’s ongoing defiance and disruption of the court-
ordered reunification process led Dr. Romirowsky to refuse to provide further
reunification therapy. As a result of her contempt, the Family Court required
Grandmother to pay $10,000 (later reduced by the Revised Contempt Order
to $2000) in order to retain the services of a new reunification therapist.
21 Thomas v. Thomas, 102 A.3d 1138,1150 (Del. 2014). 22 Id. at 1150-51. 23 Father argues that this issue was rendered moot by the Family Court’s subsequent rescission of Grandmother’s guardianship, which nullified the need for further reunification services. Because the rescission of Grandmother’s guardianship is still pending appeal in this Court, the Family Court’s contempt sanction against Grandmother arguably remains a “continuing justiciable controversy,” which we will address on the merits. See Family Court v. Alexander, 522 A.2d 1265, 1268 (Del. 1987).
16 Under the circumstances, the compensatory sanction was justified and
reasonable. There is no basis in the record to overturn the Family Court’s
finding that Grandmother could afford to pay $2000.
NOW, THEREFORE, IT IS ORDERED that the judgments of the
Family Court are AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice