IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVID STEVENS,1 § § No. 375, 2014 Respondent Below, § Appellant, § Court Below–Family Court of § the State of Delaware in and for v. § New Castle County § ANNE BROWN, § File No. CN11-04885 § Pet. No. 13-33723 Petitioner Below, § Appellee. §
Submitted: October 28, 2014 Decided: November 25, 2014
Before HOLLAND, RIDGELY and VALIHURA, Justices.
ORDER
This 25th day of November 2014, upon consideration of the parties’ briefs on
appeal and the appellant’s motion for a stay pending appeal, it appears to the Court
that:
(1) The appellant, David Stevens (hereinafter “Father”), filed this appeal
from the Family Court’s order dated July 2, 2014 that granted custody of the
parties’ five-year old child (hereinafter “the Child”), by default, to the appellee,
Anne Brown (hereinafter “Mother”) and visitation to Father (hereinafter “default
custody/visitation order”). By Order dated July 14, 2014, this Court denied
1 By Order dated July 11, 2014, the Court assigned pseudonyms to the parties. Del. Supr. Ct. R. 7(d). Father’s request for a stay of the default custody/visitation order because Father
had not demonstrated that he sought a stay from the Family Court in the first
instance as required.2
(2) Father then filed a motion for stay in the Family Court. By order
dated October 8, 2014, the Family Court denied the stay, and Father filed a motion
for stay in this Court. Mother has not responded to Father’s motion for stay.
(3) We review the denial of a stay for an abuse of discretion.3 In this
case, the Family Court carefully and thoroughly applied the requisite four-part test
when ruling on Father’s motion for stay.4 Having reviewed Father’s submissions
and the October 8, 2014 order, we conclude that the Family Court’s denial of a stay
pending appeal was not an abuse of discretion.
(4) Turning to the merits of Father’s appeal, the record reflects the
following procedural history. On December 28, 2012, Mother filed a petition for
an order of protection from abuse (“PFA”) against Father and for custody of the
Child. On December 28, 2012, the Family Court issued a temporary ex parte PFA
order and awarded temporary custody of the Child to Mother. Thereafter, when
Father did not appear at the full hearing on the PFA petition, the Family Court
2 See Del. Supr. Ct. R. 32(a) (“A motion for stay must be filed in the trial court in the first instance.”). 3 Homestore, Inc. v. Tafeen, 886 A.2d 502, 504 (Del. 2005). 4 See id. (discussing four factors set forth in Kirpat, Inc. v. Del. Alcoholic Bev. Control Comm’n, 741 A.2d 356 (Del. 1998)). 2 granted the petition by default and issued a PFA order (hereinafter “the PFA
order”). As for Mother’s request for custody of the Child, the court “decline[d] to
issue a custody provision” and stated in the PFA order that “[e]ither party [was]
free to file a separate custody/visitation petition,” that “[m]atters of custody,
visitation, and/or support addressed through this order are done so on a temporary
basis,” and that “[s]eparate civil petitions must be filed with the Court in order to
have permanent orders entered on these matters.”
(5) Six months later, on June 28, 2013, Father filed a motion to vacate the
PFA order. Mother appeared at the hearing on the motion, but Father did not. By
order dated July 15, 2013, the Family Court dismissed Father’s motion to vacate.
(6) On October 24, 2013, Mother filed a petition for custody of the Child.
Mother’s request for priority scheduling on the petition was denied. Following two
failed attempts to personally serve Father with the custody petition, notice of the
petition was published in a newspaper in Baltimore, Maryland, where Father
resided. Thereafter, Mother’s second request for priority scheduling on the petition
was denied.
(7) On June 12, 2014, Father filed an answer opposing Mother’s custody
petition. Father argued that the Family Court “lack[ed] jurisdiction to adjudicate
[custody] based on the doctrine of collateral estoppel.” According to Father, the
PFA order “denied [Mother] custody effectively divesting jurisdiction, which now
3 estops [the] . . . custody petition because [Mother] has already had her bite of the
proverbial apple by raising the custody issue when she successfully applied for an
ex parte PFA.” Also, Father asserted that he was “totally and permanently
disabled,” and he requested “that the court rule on the papers given [his] disability,
which precludes unnecessary travel.”
(8) On July 2, 2014, the Family Court held a hearing by teleconference on
Mother’s custody petition. Mother appeared at the hearing, but Father did not. At
the conclusion of the hearing, the Family Court issued the default
custody/visitation order that granted sole custody of the Child to Mother and
visitation to Father. In the order, the Family Court found that:
Father failed to participate notwithstanding the fact that a scheduling letter was sent to him dated June 16, 2014 advising both parties that they were directed to contact the Court at the phone number provided on the letter prior to the day of the teleconference. . . . [T]he court notes that it did receive unsolicited correspondence from Father dated June 21, 2014 which was returned to him as ex-parte communication, but [ ] which [ ] indicated that he was well aware of having received the June 16, 2014 scheduling letter. The Court is therefore satisfied that jurisdiction was properly obtained over him, especially since Mother further obtained publication notice on him and Father filed an answer to the petition.
Also in bold was the sentence ‘You are still required to contact our office even if you believe that we have your phone number on record.’ The notice goes on further in the following paragraph that states ‘Failure to participate may result in the case being dismissed or a default judgment being entered.’ 4 (9) On appeal, Father asks this Court to overturn the default
custody/visitation order on the basis that the Family Court “lack[ed] jurisdiction to
adjudicate [custody] based on the doctrine of collateral estoppel.” Also, Father
argues that the court’s finding of default was an abuse of discretion given that his
jurisdictional issue was pending before the court, and that his June 21, 2014
correspondence to the court “had a telephone number prominently included” that
the court “neglected to employ.”
(10) Father argues that the doctrine of collateral estoppel precludes
Mother’s petition for custody because Mother’s request for custody was declined
in the preceding PFA order. Father’s argument is without merit. Collateral
estoppel does not apply here. Collateral estoppel precludes a party from
relitigating a fact issue that was litigated and decided in a prior action.5 In this
case, when adjudicating Mother’s PFA petition, the Family Court expressly
“decline[d] to issue a custody provision” and stated that “[e]ither party [was] free
to file a separate custody/visitation petition,” that “[m]atters of custody, visitation,
and/or support addressed through this order are done so on a temporary basis,” and
that “[s]eparate civil petitions must be filed with the Court in order to have
5 Gunn v. U.S. Bank National Ass’n, 2011 WL 6009676 (Del. Dec. 1, 2011) (citing M.G. Bancorporation, Inc. v.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVID STEVENS,1 § § No. 375, 2014 Respondent Below, § Appellant, § Court Below–Family Court of § the State of Delaware in and for v. § New Castle County § ANNE BROWN, § File No. CN11-04885 § Pet. No. 13-33723 Petitioner Below, § Appellee. §
Submitted: October 28, 2014 Decided: November 25, 2014
Before HOLLAND, RIDGELY and VALIHURA, Justices.
ORDER
This 25th day of November 2014, upon consideration of the parties’ briefs on
appeal and the appellant’s motion for a stay pending appeal, it appears to the Court
that:
(1) The appellant, David Stevens (hereinafter “Father”), filed this appeal
from the Family Court’s order dated July 2, 2014 that granted custody of the
parties’ five-year old child (hereinafter “the Child”), by default, to the appellee,
Anne Brown (hereinafter “Mother”) and visitation to Father (hereinafter “default
custody/visitation order”). By Order dated July 14, 2014, this Court denied
1 By Order dated July 11, 2014, the Court assigned pseudonyms to the parties. Del. Supr. Ct. R. 7(d). Father’s request for a stay of the default custody/visitation order because Father
had not demonstrated that he sought a stay from the Family Court in the first
instance as required.2
(2) Father then filed a motion for stay in the Family Court. By order
dated October 8, 2014, the Family Court denied the stay, and Father filed a motion
for stay in this Court. Mother has not responded to Father’s motion for stay.
(3) We review the denial of a stay for an abuse of discretion.3 In this
case, the Family Court carefully and thoroughly applied the requisite four-part test
when ruling on Father’s motion for stay.4 Having reviewed Father’s submissions
and the October 8, 2014 order, we conclude that the Family Court’s denial of a stay
pending appeal was not an abuse of discretion.
(4) Turning to the merits of Father’s appeal, the record reflects the
following procedural history. On December 28, 2012, Mother filed a petition for
an order of protection from abuse (“PFA”) against Father and for custody of the
Child. On December 28, 2012, the Family Court issued a temporary ex parte PFA
order and awarded temporary custody of the Child to Mother. Thereafter, when
Father did not appear at the full hearing on the PFA petition, the Family Court
2 See Del. Supr. Ct. R. 32(a) (“A motion for stay must be filed in the trial court in the first instance.”). 3 Homestore, Inc. v. Tafeen, 886 A.2d 502, 504 (Del. 2005). 4 See id. (discussing four factors set forth in Kirpat, Inc. v. Del. Alcoholic Bev. Control Comm’n, 741 A.2d 356 (Del. 1998)). 2 granted the petition by default and issued a PFA order (hereinafter “the PFA
order”). As for Mother’s request for custody of the Child, the court “decline[d] to
issue a custody provision” and stated in the PFA order that “[e]ither party [was]
free to file a separate custody/visitation petition,” that “[m]atters of custody,
visitation, and/or support addressed through this order are done so on a temporary
basis,” and that “[s]eparate civil petitions must be filed with the Court in order to
have permanent orders entered on these matters.”
(5) Six months later, on June 28, 2013, Father filed a motion to vacate the
PFA order. Mother appeared at the hearing on the motion, but Father did not. By
order dated July 15, 2013, the Family Court dismissed Father’s motion to vacate.
(6) On October 24, 2013, Mother filed a petition for custody of the Child.
Mother’s request for priority scheduling on the petition was denied. Following two
failed attempts to personally serve Father with the custody petition, notice of the
petition was published in a newspaper in Baltimore, Maryland, where Father
resided. Thereafter, Mother’s second request for priority scheduling on the petition
was denied.
(7) On June 12, 2014, Father filed an answer opposing Mother’s custody
petition. Father argued that the Family Court “lack[ed] jurisdiction to adjudicate
[custody] based on the doctrine of collateral estoppel.” According to Father, the
PFA order “denied [Mother] custody effectively divesting jurisdiction, which now
3 estops [the] . . . custody petition because [Mother] has already had her bite of the
proverbial apple by raising the custody issue when she successfully applied for an
ex parte PFA.” Also, Father asserted that he was “totally and permanently
disabled,” and he requested “that the court rule on the papers given [his] disability,
which precludes unnecessary travel.”
(8) On July 2, 2014, the Family Court held a hearing by teleconference on
Mother’s custody petition. Mother appeared at the hearing, but Father did not. At
the conclusion of the hearing, the Family Court issued the default
custody/visitation order that granted sole custody of the Child to Mother and
visitation to Father. In the order, the Family Court found that:
Father failed to participate notwithstanding the fact that a scheduling letter was sent to him dated June 16, 2014 advising both parties that they were directed to contact the Court at the phone number provided on the letter prior to the day of the teleconference. . . . [T]he court notes that it did receive unsolicited correspondence from Father dated June 21, 2014 which was returned to him as ex-parte communication, but [ ] which [ ] indicated that he was well aware of having received the June 16, 2014 scheduling letter. The Court is therefore satisfied that jurisdiction was properly obtained over him, especially since Mother further obtained publication notice on him and Father filed an answer to the petition.
Also in bold was the sentence ‘You are still required to contact our office even if you believe that we have your phone number on record.’ The notice goes on further in the following paragraph that states ‘Failure to participate may result in the case being dismissed or a default judgment being entered.’ 4 (9) On appeal, Father asks this Court to overturn the default
custody/visitation order on the basis that the Family Court “lack[ed] jurisdiction to
adjudicate [custody] based on the doctrine of collateral estoppel.” Also, Father
argues that the court’s finding of default was an abuse of discretion given that his
jurisdictional issue was pending before the court, and that his June 21, 2014
correspondence to the court “had a telephone number prominently included” that
the court “neglected to employ.”
(10) Father argues that the doctrine of collateral estoppel precludes
Mother’s petition for custody because Mother’s request for custody was declined
in the preceding PFA order. Father’s argument is without merit. Collateral
estoppel does not apply here. Collateral estoppel precludes a party from
relitigating a fact issue that was litigated and decided in a prior action.5 In this
case, when adjudicating Mother’s PFA petition, the Family Court expressly
“decline[d] to issue a custody provision” and stated that “[e]ither party [was] free
to file a separate custody/visitation petition,” that “[m]atters of custody, visitation,
and/or support addressed through this order are done so on a temporary basis,” and
that “[s]eparate civil petitions must be filed with the Court in order to have
5 Gunn v. U.S. Bank National Ass’n, 2011 WL 6009676 (Del. Dec. 1, 2011) (citing M.G. Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 520 (Del. 1999)). 5 permanent orders entered on these matters.” Mother’s custody petition is not
precluded under collateral estoppel.
(11) The record reflects that Father was notified by scheduling letter of the
custody hearing and was advised that “[f]ailure to participate may result in . . . a
default judgment being entered.” Father chose not to participate in the
teleconference hearing. Under these circumstances, we find no abuse of discretion
in the Family Court’s issuance of the default custody/visitation order.6
NOW, THEREFORE, IT IS ORDERED that Father’s motion for stay
pending appeal is DENIED. The judgment of the Family Court is AFFIRMED.
BY THE COURT:
/s/ Henry duPont Ridgely Justice
6 See Anderson v. Anderson, 2014 WL 4179116 (Del. Aug. 21, 2014) (affirming default judgment entered on petition to modify custody when hearing was properly noticed and Father did not appear). But see Harper v. Harper, 826 A.2d 293 (Del. 2003) (reversing denial of motion to open default judgment and remanding for hearing on the merits of petition to modify custody). 6