            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    RICHARD F. MORGAN,1                           §
                                                  §
           Respondent Below,                      §   No. 303, 2019
           Appellant,                             §
                                                  §
           v.                                     §   Court Below–Family Court
                                                  §   of the State of Delaware
    DAYTON JOSEPH,                                §
                                                  §
           Petitioner Below,                      §   File No. CN15-06495
           Appellee.                              §   Petition No. 18-15325
                                                  §
                                                  §

                               Submitted: December 6, 2019
                               Decided:   February 18, 2020

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

                                            ORDER

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

to the Court that:

         (1)     The appellant, Richard F. Morgan, appeals from the Family Court’s

June 17, 2019 order that granted, by default, sole custody of the parties’ minor son,

Mark (born in 2015), to the appellee, Dayton Joseph. On appeal, Morgan asks this

Court to set aside the Family Court’s order. We find no basis to overturn the Family

Court’s default judgment. Accordingly, we affirm.



1
    The Court previously assigned pseudonyms to the parties pursuant to Supreme Court Rule 7(d).
       (2)     The record reflects that, by order dated June 27, 2017, the Family Court

awarded sole custody and primary placement of Mark to Morgan after Joseph failed

to appear for a custody hearing. On May 23, 2018, Joseph filed a petition to modify

the custody order (“the Petition”). In the Petition, Joseph claimed that she had not

received notice of the prior hearing, she did not consent to Morgan having sole

custody, and she was having an extremely difficult time visiting with her son.

Morgan filed an answer to the Petition, alleging that Joseph was aware of the prior

hearing, had a substance abuse issue, was unemployed, and was unable to provide

for Mark.

       (3)     On November 21, 2018, Joseph filed an emergency ex parte motion for

custody modification, asking the Family Court to prohibit Morgan from taking Mark

to Mississippi and to grant her primary placement of Mark. In the motion, Joseph

alleged that Mark had been living with her since August, when Morgan abandoned

Mark in her care. The court denied the motion, noting that emergency action was

not warranted because a statutory injunction prohibited the parties from removing

Mark from the court’s jurisdiction.2




2
  See 13 Del. C. § 721(d) (“Upon the filing of a petition for custody or visitation, a preliminary
injunction shall be issued against both parties to the action, enjoining them from removing any
natural or adopted child of the parties then residing in Delaware from the jurisdiction of [the Family
Court] without the prior written consent of the parties or the permission of the [Family Court].”).
                                                  2
      (4)    On November 28, 2018, Morgan filed a motion to participate in the

custody proceedings by telephone. The Family Court denied Morgan’s motion and

noted that the parties were required to appear for trial. On February 6, 2019, the

Family Court held a case management conference via telephone with the parties.

When the parties indicated that they were unable to agree on a custody arrangement,

the court set an evidentiary hearing for June 17, 2019. The court subsequently sent

notices to both parties directing them to appear before the court on June 17, 2019.

The notices stated that a party’s failure to appear could result in the entry of a default

judgment against him.

      (5)    On June 17, 2019, Joseph appeared in the Family Court at the scheduled

time for the hearing on the Petition. Morgan did not appear in person. Instead,

Morgan called the court and represented to court staff that he had the court’s

permission to participate by telephone.         The court did not permit Morgan to

participate in the hearing by telephone.

      (6)    The Family Court proceeded to hear testimony from Joseph. Joseph

testified that Mark was currently residing with her, she was living in a recovery

home, she had been clean for almost ten months, she was presently employed at the

Charcoal Pit, and she planned to enroll Mark in a headfirst child care program.

Joseph asked for sole legal custody, and testified that she and Morgan do not

communicate well. At the conclusion of the hearing, the court found that Morgan


                                            3
had been properly notified of the hearing and had failed to appear as directed. In

light of the uncontroverted evidence presented, the Family Court modified the

existing custody order to award Joseph sole legal custody and primary placement of

Mark. Morgan did not move to reopen the default judgment under Family Court

Civil Rule 60(b). Instead, Morgan appealed to this Court.

         (7)    The Family Court’s entry of a default judgment against a party for

failing to appear, plead, or otherwise defend in accordance with the Family Court

Rules is reviewed by this Court for abuse of discretion.3 On appeal, Morgan asks

this Court to set aside the Family Court’s default order because (i) he believed that

once he “registered” for one telephone hearing, he was authorized to participate in

all future hearings by telephone and (ii) there has not been a change in circumstances

to warrant the change in the custody arrangement.

         (8)    To the extent Morgan asserts that he has an explanation for his failure

to appear in person, that issue must be presented to and ruled on by the Family Court

in the first instance through a motion to reopen the judgment under Family Court

Rule of Civil Procedure 60(b), which must be properly supported by facts justifying

the relief from the default judgment.4 In any event, the record belies Morgan’s

contention. Although Morgan filed a motion to participate by telephone in the



3
    Harper v. Harper, 826 A.2d 293, 296 (Del. 2003).
4
    Seeco v. Drummel, 2018 WL 4697148, at *1 (Del. Sept. 26, 2018).
                                                4
custody proceedings, the Family Court denied the motion. The notice sent to the

parties scheduling the case management conference specifically noted that the

conference would be handled as a teleconference and included directions for calling

in to the court. In contrast, the notice sent to the parties concerning the evidentiary

hearing on the Petition specifically noted, “You are hereby directed to appear before

the Family Court at the above address on the above noted date and time…. If you

fail to appear a default judgment may be rendered for the relief demanded in the

complaint.”5 Under the circumstances, we find no abuse of the Family Court’s

discretion in granting, by default, the Petition.

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

Court is AFFIRMED.

                                                    BY THE COURT:


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




5
 Attachment to the Family Court’s June 17, 2019 default order (emphasis added). The Family
Court’s June 17, 2019 order also states that the judge specifically told the parties during the
February 6, 2019 telephone conference that they would have to appear in court for the evidentiary
hearing.
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