Rosa v. Falcon

578 A.2d 171, 1990 WL 124529
CourtDelaware Family Court
DecidedJanuary 25, 1990
DocketNo. C-8825
StatusPublished

This text of 578 A.2d 171 (Rosa v. Falcon) is published on Counsel Stack Legal Research, covering Delaware Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosa v. Falcon, 578 A.2d 171, 1990 WL 124529 (Del. Super. Ct. 1990).

Opinion

OPINION

GALLAGHER, Judge.

On July 27, 1978 this Court approved a consent order, wherein Jose Falcon (hereinafter “father”) agreed to pay $30 per week in child support to Joanne Rosa (hereinafter “mother”), formerly Joanne Nordst-rum. On April 14, 1988, mother filed a petition for an increase in the amount of court-ordered support and for payment of support arrears. The petition was heard before a master, and on September 12, 1988, the master found that father was in contempt of the consent order and recommended that father pay the full amount of arrears owed, in installments, in addition to current support.

Father petitioned for a review de novo of mother’s petitions, following the findings and recommendations of the master. At the hearing on the review de novo on January 17,1990, the parties were in agreement as to the amount of current support calculated under the Melson Formula. However, the parties were in dispute as to the issue of arrears. Father does not deny that he failed to pay child support during the specified time; in fact the parties have stipulated to a Department of Child Support Enforcement (“DCSE”) audit, indicating what payments have and have not been made by father. Father’s contention is that mother should not be entitled to child support arrears, because she concealed the whereabouts of the child from him during the period in which he failed to make support payments, using the Family Court case of Sears v. Sears, Del.Fam., 462 A.2d 1099 (1983), as a defense.

[172]*172Mother responded to father’s allegation of concealment by arguing: 1) the Sears defense is inapplicable because father made payments to DCSE, not directly to mother, and 2) mother’s actions did not amount to a concealment within the contemplation of the Sears defense.

I find that mother’s actions did not rise to the level of concealment which would trigger the Sears defense, based on the evidence before me.

I.

When the child was born in 1972, mother was living at her mother’s home at 314 Parkside Boulevard in Claymont, Delaware under the name of Nordstrum. Father had visited that home, and the phone number there had been listed in the telephone directory under the name of Joanne Nordstrum. Mother lived at the Parkside Boulevard address until some time in 1975, at which time she moved to 1810 West Street in Wilmington. Father knew that mother had moved to an apartment at this address, but did not know which one. He did go by the apartment building once and spoke to one person at the door of one of the apartments. There were approximately three apartments in the building. Father made no further attempt to see the child at this address after this one visit. Mother’s phone number was listed under her own name, Joanne Nordstrum, at the 1810 West Street address for about one year.

In 1976, mother married Angel Rosa and changed her last name to Rosa. Her phone number did not change, but the listing was changed from Nordstrum to Rosa. At some point, father learned that mother had remarried and changed her name to Rosa.

In 1977, mother moved to 26 N. Rodney Street in Wilmington. Her phone number was listed under Rosa at this address, and had not changed from the phone number when she was living at the West Street address. In 1979, mother took steps to change the child’s name from Falcon to Rosa. Father was sent notice of the name change request and appeared in Court for the hearing. The name change was published in the Wilmington News Journal.

In 1981, mother moved to 22 Hillside Road in Claymont. Father had been to the house at 22 Hillside Road years earlier to do some work for the then-owner John Lowry. Mr. Lowry is now mother’s stepfather and at the time father was at the house, Mr. Lowry was a friend of mother’s family. Father never attempted to contact Mr. Lowry concerning mother’s whereabouts.

Mother never notified father of her moves. Mother did notify the Family Court of her new addresses in 1975 and 1977, but not in 1981. Mother did file change of address forms with the post office for each move.

Father tried on a few occasions to get mother’s address from the Bureau of Child Support Enforcement on Church Street but was unsuccessful. He tried to call mother’s mother on a couple of occasions in 1973 and 1974, but was unsuccessful. He did not try again. From 1974 through 1975, father did not inquire of anyone about mother’s location. The parties did not have friends in common. Father never tried to locate the child through Wilmington or Claymont schools. He claims he did not know what name to look under, although he knew that mother changed the child’s name to Rosa.

Father tried to file for visitation and a decrease in support on a few occasions from 1981 to 1985, unsuccessfully. Father went to this Court on at least a couple occasions, for visitation and decrease in support, but mother did not appear. Mother claims she did not receive notice of these proceedings.

In 1987, mother called father after reading his name in a newspaper article. Mother found father’s phone number in the directory. Child support was not discussed. Father requested visitation with the child and mother said that “she would get back with him”. She never did. During this phone conversation, mother told father that she was working at “Arnold’s Restaurant” in Claymont. Father was unclear as to whether she said “Arnold's”, “Arnie’s” or “Ernie’s”, and decided “not to bother” to [173]*173look for it. Mother did not give father her phone number or address at this time.

Mother called father when she heard that he had won the Delaware Lottery. Mother petitioned for an increase in child support and payment of support arrears. A paternity test was conducted, at which time father saw the child. Paternity was established. The parties went to mediation in 1989, at which time father obtained mother’s phone number.

Mother contends that it was father who stopped visiting the child when mother was living at 1810 West Street. Father argues that he wanted to visit the child, but could not locate mother.

Based on the testimony adduced at the hearing, I find that mother’s actions, while not promoting visitation, did not amount to an intentional concealment of the child from father. Mother’s phone number was listed under Nordstrum, the name father knew her by, until she married Angel Rosa in 1976. It is natural, and even expected, that a woman normally changes her name upon marriage. Mother did not change the child’s name until 1979, at which time father was given notice and attended the Court hearing. Mother did not change her phone number until she moved to 22 Hillside Road. Mother never left New Castle County, and the child always attended schools in the Claymont area. Mother did not have her phone number listed in her name for the last few years, initially because she moved into her stepfather’s home and did not change the listing from his name. She and her family received some “funny” phone calls and they decided to keep the number unlisted. All of the above actions are consistent with those of any person living their normal day to day existence.

Mother may not have encouraged the child to have visitation with father. As far as she was concerned father had voluntarily stopped visiting the child and her husband had assumed father’s role. She did nothing to promote visitation and perhaps even hindered it to some degree.

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Related

Schmidt v. Schmidt
459 A.2d 421 (Superior Court of Pennsylvania, 1983)
Sears v. Sears
462 A.2d 1099 (Delaware Family Court, 1983)
K. H. v. W. H.
415 A.2d 510 (Delaware Family Court, 1979)
Shaw v. Shaw
9 A.2d 258 (Court of Chancery of Delaware, 1939)

Cite This Page — Counsel Stack

Bluebook (online)
578 A.2d 171, 1990 WL 124529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosa-v-falcon-delfamct-1990.