Naccari v. Quails

• Court: Supreme Court of Delaware
• Decided: October 24, 2019
• Docket: 572, 2018
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JILL NACCARI,1 § § No. 572, 2018 Respondent Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. CN18-02284 MICHAEL QUAILS, § Petition No. 18-08173 § Petitioner Below, § Appellee. §

Submitted: August 23, 2019 Decided: October 24, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

(1) The appellant, Jill Naccari (“the Mother”), filed this appeal from a

Family Court decision and order, dated October 12, 2018, granting the petition for

visitation filed by Michael Quails (“the Father”). 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 Mother and the Father are the parents of a child born in 2017 (“the

Child”). On March 19, 2018, the Father filed a petition for visitation with the Child

two days a week and every other weekend. The Mother opposed the petition. After

an unsuccessful mediation, the mediator recommended—and the Family Court

approved—an interim visitation order granting the Father non-overnight visitation

every other weekend and one weekly non-overnight dinner with the Child. After a

hearing on October 8, 2018, the Family Court issued a decision granting the Father

visitation with the Child every other weekend. This appeal followed.

(3) This Court’s review of a Family Court decision includes a review of

both the law and the facts.2 Conclusions of law are reviewed de novo.3 Factual

findings will not be disturbed on appeal unless they are clearly erroneous and justice

required they be overturned on appeal.4

(4) On appeal, the Mother argues that the Family Court erred by: (i)

granting the Father visitation despite his admitted use of marijuana; (ii ) not granting

emergency relief under Family Court Civil Rules 65.2 and 226; and (ii) violating the

Delaware Child Support Formula. The Mother also appears to raise claims based on

events occurring after issuance of the visitation order or other Family Court

proceedings. Those claims are outside the scope of this appeal.

2 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006). 3 Id. 4 Id. 2 (5) The Family Court must determine visitation “consistent with the child’s

best interests and maturity, which is designed to permit and encourage the child to

have frequent and meaningful contact with both parents unless the Court finds, after

a hearing, that contact of the child with 1 parent would endanger the child’s physical

health or significantly impair his or her emotional development.”5 The best interest

factors are set forth in 13 Del. C. § 722(a).6 The Family Court carefully considered

§ 728(a) and all of the best interest factors under § 722 in determining that it was in

the best interests of the Child to have visitation with the Father every other weekend.

(6) In reaching this decision, the Family Court took the Father’s admitted

marijuana use into account. The Father claimed that he only occasionally used

marijuana when the Child was not in his care, but the Family Court noted that

marijuana is illegal and stays in the system. To address the Mother’s concerns

regarding Father’s marijuana use, the Family Court required that the Father’s

girlfriend or mother supervise overnight visitation until he could return a clean drug

test. The Mother has not shown that a parent’s marijuana use, by itself, precludes

overnight visitation. The Family Court did not err in granting the Father overnight

5 13 Del. C. § 728(a). 6 The § 722 factors include: (i) the wishes of the parents; (ii) the wishes of the child; (iii) the interaction of the child with his parents, relatives and any other residents of the household; (iv) the child’s adjustment to his home, school and community; (v) the mental and physical health of all individuals involved; (vi) past and present compliance of the parents with their rights and responsibilities to their child; and (vii) evidence of domestic violence.

3 visitation, subject to certain restrictions as long as he used marijuana, every other

weekend.

(7) The Mother next claims that the Family Court erred in failing to grant

emergency relief under Family Court Civil Rules 65.2 and 226 based on the Father’s

marijuana use. This claim is without merit. Rule 226, which governs preliminary

protective hearings in dependency, abuse, or neglect proceedings instituted by the

Department of Services for Children, Youth, and their Families, does not apply here.

Under Rule 65.2, the Family Court may grant emergency ex parte orders upon the

motion of a party or the Court’s own motion, but the Mother does not identify what

emergency relief was necessary. Assuming that the Mother wanted emergency relief

to keep the Child away from the Father, she has not shown that the Father’s

marijuana use merited such relief.

(8) Finally, the Mother contends that the Family Court violated the

Delaware Child Support Formula. The basis for this claim is unclear. It appears that

the Mother has filed child support petitions, but this appeal arises from the visitation

proceedings. To the extent the Mother claims that she is entitled to child support

from the Father, that claim is outside the scope of this appeal. To the extent Mother

claims that the Delaware Child Support Formula prohibits parents who do not pay

child support from having visitation with their children, she is incorrect.

4 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice