Nowles v. Cowan

• Court: Supreme Court of Delaware
• Decided: December 22, 2021
• Docket: 375, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KERRY NOWLES,1 § § No. 375, 2020 Respondent Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. CN13-04054 HOWARD COWAN, § Petition No. 19-23401 § Petitioner Below, § Appellee. §

Submitted: November 19, 2021 Decided: December 22, 2021

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

ORDER

After careful consideration of the opening briefs and the record on appeal, we

conclude that the judgment below should be affirmed on the basis of the Family

Court’s order dated October 8, 2020. The appellee filed a petition in the Family

Court seeking modification of a previous order governing custody of the parties’

child, which had been determined in January 2014 after a full hearing on the merits

and modified in September 2016 with the agreement of both parties. The Family

Court appropriately considered the factors set forth in 13 Del. C. § 729(c)(2),

including weighing the best interest factors in light of the evidence presented. The

1 The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d). Family Court acted within its broad discretion when concluding that the parties

would have joint legal custody and the child’s primary residence would be with the

appellant and in determining the visitation schedule.2 Moreover, the Family Court’s

order is consistent with the custody and visitation arrangement that the appellant

requested during the hearing, and the appellant therefore waived her current

challenge to the Family Court’s order.3 To the extent that the appellant argues that

she should be awarded sole custody based on events that have occurred since the

Family Court entered the order that is the subject of the appeal, that claim must be

presented to the Family Court in the first instance.4

2 See Russell v. Stevens, 2007 WL 3215667, at *2 (Del. Nov. 1, 2007) (affirming Family Court’s determination of primary residential placement of child, and stating that when the Family Court appropriately considers and weighs each of the best interest factors, the “law vests wide discretion in the trial court to determine where custody shall be placed”); Vilda v. Vilda, 1992 WL 397462, at *3 (Del. Nov. 13, 1992) (“The crafting of a visitation schedule is a matter within the Family Court’s discretion.”). 3 See Ogden v. Collins, 2010 WL 4816059, at *6 (Del. Nov. 29, 2010) (holding that appellant waived claim that a social report that she submitted to the Family Court was deficient, because she failed to raise the claim before the Family Court in the first instance). 4 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.”). 2 NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice