      IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL NEWMAN,1                          §
                                          §   No. 119, 2016
      Petitioner Below-                   §
      Appellant,                          §
                                          §   Court Below—Family Court
      v.                                  §   of the State of Delaware
                                          §
SARAH NEWMAN,                             §   File No. CN10-01567
                                          §   Petition No. 14-23105
      Respondent Below-                   §
      Appellee.                           §

                           Submitted: October 7, 2016
                           Decided:   November 29, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                    ORDER

      This 29th day of November 2016, upon consideration of the parties’

briefs and the record on appeal, it appears to the Court that:

      (1)    The appellant, Michael Newman (“the Father”), filed this

appeal from the Family Court’s order dated February 15, 2016, denying his

petition for modification of a prior custody order.               After careful

consideration, we find no merit to the appeal. Thus, we affirm the Family

Court’s judgment.




1
  The Court previously assigned pseudonyms to the parties under Supreme Court Rule
7(d).
      (2)     The record reflects that the parties are the parents of a son, born

June 28, 2001, and a daughter, born November 19, 2004 (collectively, “the

Children”).    The parties were married in 2001 and were divorced on

September 2, 2010. On January 26, 2011, the parties signed a stipulation

agreeing to joint legal custody of the Children with shared residential

placement. The Family Court entered the parties’ stipulation as an order of

the court.

      (3)     In January 2012, the Father filed a petition to modify custody,

which the parties again resolved by stipulated order dated August 7, 2012,

agreeing to continue joint legal custody of the Children with shared

residential placement. The Father then filed another petition to modify

custody in October 2012. After a full hearing, the Family Court entered an

order on March 20, 2013, denying the Father’s petition and ordering the

parties to continue joint legal custody with shared residential placement. On

August 27, 2014, the Father filed a petition to modify the 2013 custody

order. After a hearing, the Family Court denied that petition on February 15,

2016. This appeal followed.

      (4)     Although it is not entirely clear, the Father appears to argue in

his opening brief on appeal that the Family Court erred by failing to enforce

a provision of the 2012 stipulated order, which provided that the Father


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would be given primary residential custody of the Children if the Mother

failed to move back to Delaware before the start of the Children’s 2012-

2013 school year. The Father implies that the Mother failed to comply with

the 2012 custody order and, as a result, he was entitled to primary custody of

the Children.

       (5)    Any issues related to the 2012 custody order are moot,

however, because the 2012 judgment was superseded by the 2013 order and

the 2016 order, which is currently before the Court on appeal.2 With respect

to the 2016 custody order, the Father appears to argue that the Family Court

did not accept his evidence that the Mother previously had been evicted

from several properties, that she frequently had her utilities cut-off, that she

was causing stress for the Children by continuing to make false allegations

in the custody proceedings, and that the Children’s grades were “declining.”

The Father requests “retroactive” custody, as well as child support.3

       (6)    In reviewing a motion for modification of custody that is filed

within two years of the Family Court’s most recent custody order entered

after a full hearing, the Family Court “shall not modify its prior order unless

it finds, after a hearing, that continuing enforcement of the prior order may

2
  Randall v. Randall, 2012 WL 4377844 (Del. Sept. 25, 2012).
3
  The issue of child support was not a matter that was raised to or decided by the Family
Court in response to the Father’s petition to modify custody. Accordingly, we do not
reach the issue of child support in this appeal. See Del. Supr. Ct. R. 8.

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endanger the child’s physical health or significantly impair his or her

emotional development.”4 In this case, the Family Court concluded, after

considering all of the evidence, that the Father had not sustained his burden

of showing that the March 2013 order granting the parties joint custody with

shared residential placement endangered the Children’s physical health or

threatened their emotional development.

       (7)    Our standard of review of a decision of the Family Court

extends to a review of the facts and law, as well as inferences and deductions

made by the trial judge.5 We have the duty to review the sufficiency of the

evidence and to test the propriety of the findings.6 Findings of fact will not

be disturbed on appeal unless the findings are clearly erroneous.7 We will

not substitute our opinion for the inferences and deductions of the trial judge

if those inferences are supported by the record.8

       (8)    In this case, the Family Court held a hearing on the Father’s

petition to modify custody on November 25, 2015. The transcript of that

hearing reflects that both parties appeared, without counsel, and were the

only two witnesses to testify.         At the parties’ request, the Family Court

conducted an interview of both children on January 20, 2016. On February
4
  13 Del. C. 729(c)(1) (2009).
5
  Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
6
  Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
7
  Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
8
  Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d at 1204.

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15, 2016, the Family Court issued a twenty-six page opinion setting forth its

findings and conclusions. The court reviewed all of the parties’ testimony

and evidence and concluded that the Father had failed to sustain his burden

of showing that joint custody with shared residential placement was

endangering the physical health or significantly impairing the emotional

development of the Children.

      (9)     Among other things, the Family Court found that, although the

Mother had moved several times in a short period, she had never been

homeless or subjected the Children to inappropriate housing arrangements.

The court noted that, while both parties cared for the Children, their joint

conduct contributed to the Children’s feelings of anxiety and their

fluctuating grades. In ordering the parties to maintain joint custody with

shared residential placement, the Family Court gave great weight to the

Children’s expressed wishes to continue the existing custody arrangement so

that they could spend equal time with both of their parents.

      (10) After careful review of the record and the parties’ contentions

on appeal, we hold that the Family Court’s factual findings are amply

supported by the record, and we find no basis to disturb those findings on

appeal.     The Family Court properly applied the law to the facts in

concluding that Father failed to sustain his burden of proving that continued


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enforcement of the March 2013 order awarding joint custody of the Children

with shared residential placement endangered the Children’s physical health

or significantly threatened their emotional development. We find no basis to

overturn the Family Court’s judgment.

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

Family Court is AFFIRMED.

                                     BY THE COURT:

                                     /s/ Collins J. Seitz, Jr.
                                            Justice




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