IN THE SUPREME COURT OF TI-]E STATE OF DELAWARE

DANIEL WRIGHT,l §
§
Respondent Below- § No. 467, 2016
Appellant, §
§
v. § Court Below_-Family Court
§ of the State of Delaware
ANNE EVANS-GRANT, §
§ File No. CN07-06749
Petitioner Below- § Pet. No. 16-15876
Appellee. §

Submitted: February 10, 2017
Decided: April 19, 2017

Before VALII'IURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This 19lh day of April 2017, upon consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:

(l) The appellant, Daniel Wright (“Father”), filed this appeal from
the Family Court’s decision granting a petition for a rule to show cause filed
by the appellee, Ann Evans-Grant (“Mother”). On appeal, Father argues,
among other things, that the Family Court erred by finding him in contempt
and thus sanctioning him by awarding Mother the sole right to make
decisions about aspects of their child’s medical care and modifying the

parties’ custody schedule. We uphold the F amin Court’s contempt ruling,

 

' The Court previously assigned pseudonyms to the parties.

in part, and find no basis to reverse the Family Court’s award of decision-
making authority to Mother. I-Iowever, on the record presented, we
conclude that the Family Court erred by holding Father in contempt for his
refusal to attend a joint therapy session With Mother and by modifying the
parties’ custody schedule as a sanction. Accordingly, we affirm in part and
reverse in part.

(2) The record reflects that the parties are the parents of one son
(“the Child”), born October 5, 2007. ln March 2009, the parties filed ajoint
stipulation with the Family Court regarding their shared custody
arrangements In August 2010, the Family Court, after a hearing, granted
Father’s petition to modify custody to allow Father, among other things, to
have the Child overnight on both Wednesdays and Thursdays each Week
plus every other weekend.

(3) Mother filed a petition for custody modification in 2014. In an
order dated December ll, 2015 (“the December 2015 Order”), the Family
Court, after a hearing and after considering the best interest factors of 13

Del. C. § 722(a),2 determined that a change in the parties’ custody schedule

 

2 13 Del. C. § 722(a) provides:

The Court shall determine the legal custody and residential arrangements for a child in
accordance with the best interests of the child, ln determining the best interests of the
child, the Court shall consider all relevant factors including:

was not in the Child’s best interests. l-Iowever, the Family Court did order
the following: (i) Mother and Father were directed to pursue nonbinding
arbitration to resolve their differences over whether the Child should play
football, given his history of at least one concussion; (ii) Father was directed
to make an appointment with a doctor recommended by the Child’s therapist
in order to discuss the Child’s ADI-l]) diagnosis and whether he should take
medication to treat his symptoms; and (iii) Father was directed to make the
first monthly appointment with the Child’s therapist and to alternate taking
the Child to his therapy sessions.

(4) In May 2016, Mother filed a petition for a rule to show cause.

She alleged that Father had violated the December 2015 Order because he

 

I) The wishes of` the child’s parent or parents as to his or her custody and residential
arrangements;

2) The wishes of the child as to his or her custodian or custodians and residential
arrangements;

3) The interaction and interrelationship of the child with his or her parents,
grandparents, siblings, persons cohabiting in the relationship of husband and wife
with a parent of the child, any other residents of the household or persons who
may significantly affect the child’s best interests;

4) The child’s adjustment to his or her home, school and community;
5) The mental and physical health of all individuals involved;

6) Past and present compliance by both parents with their rights and responsibilities
to their child under § 701 of this title;

7) Evidence of domestic violence as provided for in Chapter 7A of this title; and

8) The criminal history of any party or any other resident of the household including
whether the criminal history contains pleas of guilty or no contest or a conviction
of a criminal offense

had not met with the doctor to discuss the Child’s need for ADI-lD
medication. She also alleged that, although she and Father had agreed to
arbitrate their dispute about the Child playing football, Father later refused
to do so and unilaterally signed the Child up to play on a football team.
Mother also alleged that Father had not taken the Child to several of his
scheduled therapy appointments She asked the Family Court to award her
the sole right to make medical and extracurricular activity decisions for the
Child.

(5) Father filed an answer to the petition. He asserted that he had
called the doctor several times and left messages but only heard back from
the nurse, who faxed information about ADI-ID to Father for his review.
Father asserts that he believes the Child does not have ADI-[D and that the
problem lies with the Child’s teachers. Father also contended that he
declined to arbitrate or mediate the issue of the Child playing football
because, according to Father, the Child had never suffered a concussion and
because Father is an experienced coach and has the right as a parent to select
extracurricular activities for the Child. Finally, Father asserted that he had
made up two of the three appointments that the Child had missed with his

therapist

(6) The Family Court scheduled a hearing on Mother’s petition for
August ll, 2016. Two days before the hearing, Father called the Family
Court and left a message with the “call center” that he would not be
attending the hearing because of a work commitment Father did not file a
motion for continuance The hearing occurred as scheduled The Family
Court judge attempted to call Father on his cell phone at the beginning of the
hearing but only got his voicemail and left a message.

(7) After considering Mother’s testimony and evidence on the rule
to show cause petition, the Family Court found Father in contempt of the
December 2015 Order. Specifically, the court found that Father was in
contempt because he failed to: (i) to meet with the doctor to discuss
medication to treat the Child’s ADHD; (ii) participate in nonbinding
arbitration regarding the issue of football; and (iii) follow the therapist’s
recommendation that the parties meetjointly with her to discuss coparenting
issues. As a consequence of Father’s failure to meet with the doctor, the
Family Court, among other things, granted Mother sole decision-making
authority limited to the issue of medication to treat the Child’s ADI-lD.3 The

Family Court also granted Mother sole authority to consent to the Child’s

 

3 Although the Family Court found Father in contempt for failing to participate in non-
binding arbitration regarding football, the court specifically stated that no separate
sanction was imposed for that violation

lndividualized Education Plan. As a consequence of his failure to meet
jointly with Mother and the Child’s therapist, the Family Court ordered
Father’s custodial contact to be reduced from two ovemights per week to
one overnight per week. Father did not move to reargue or reopen the
Family Court’sjudgment but, instead, filed this appeal.

(8) Father identifies seven issues in his opening brief on appeal.
First, he contends that a joint meeting between Father, Mother, and the
Child’s therapist was not ordered by the Family Court in the December 2015
Order and, therefore, he was not in contempt for refusing to participate
Second, he argues that the Family Court erred in modifying custody as a
sanction because Mother had not requested such relief in her rule to show
cause petition. Third, Father contends that the Family Court erred in
allowing Mother to discontinue paying for child care that she does not
require (and making Father pay for child care that he does require) without
reducing Father’s child support obligations Fourth, he contends the Family
Court erred in requiring him to be responsible for transporting the Child to
alternate therapy sessions when Mother has work flexibility that Father does
not have, and Father does not believe therapy is needed. Fifth, he contends
that the Family Court erred in allowing Mother to decide where the Child

attends school. Sixth, he contends that the Family Court erred in allowing

Mother sole decision-making authority about the Child’s ADI-ID medication.
Seventh, Father asserts that Mother has refused to bring the Child to sports
practices

(9) With respect to Father’s arguments regarding his child support
obligations, transportation of the Child to therapy, the Child’s schooling, and
Mother’s refusal to bring the Child to sports practices, the Court cannot
review his arguments because he failed to appear at the hearing and present
his arguments to the Family Court in the first instance,4 and much of the
evidence he now offers is outside of the record on appeal.5 Moreover, in his
answer to Mother’s petition, Father acknowledged that he had neither met
with the doctor to discuss ADI-ID medication for the Child nor participated
in arbitration about football as required by the December 2015 Order. Given
Father’s failure to order a copy of a transcript of the contempt hearing, we
have no basis to overturn the Family Court’s judgment finding him in

contempt of those two aspects of the December 2015 Order and awarding

 

4 Del. Supr. Ct. R. 8.

5 See Del. Supr. Ct. R. 9; Delaware Elec. Co-op., Inc. v. Duphi`ly, 703 A.2d 1202, 1207
(Del. 1997) (holding that materials not offered into evidence and considered by the trial
court are not part of the record on appeal).

Mother sole discretion to decide the medication issue.6 We thus affirm these
aspects of the Family Court’sjudgment.

(10) But, we agree with Father that the Family Court erred in
modifying the parties’ custody schedule as a sanction for Father’s refusal to
participate in joint counseling with Mother and the Child’s therapist.
Although the December 2015 Order required Father to schedule the Child’s
first appointment with the therapist, the Order did not mandate joint
counseling Nor did the December 2015 Order mandate that the parties
abide by all of the counselor’s recommendations Under the circumstances
Father’s failure to participate in the therapist’s recommended joint
counseling was not a violation of the Family Court’s December 2015 Order.

(l 1) Moreover, Mother’s rule to show cause petition did not request
a change in the parties’ custodial arrangements Thus, Father had no notice
that a modification of custody would be presented as an issue at the hearing
scheduled to consider Mother’s contempt petition. Procedural due process
requires that parties Whose rights are affected be given meaningful notice

and an opportunity to be heard."r The defective notice given to Father about

 

6 Mahan v. Mahan, 2007 WL 1850905 (Del. June 28, 2007)(ci1ing Tricoche v. State, 525
A.2d 151, 154 (Del. 1987)).

7 Tsipouras v. Tsipoura.s', 677 A.Zd 493, 496 (Del. 1996).

the scheduled hearing is an independent legal basis to reverse that portion of
the Family Court’sjudgment modifying custody.8

NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED in part and REVERSED in part. The matter is
R_EMANDED to the Family Court to reinstate the parties’ prior custody

schedule. Jurisdiction is not retained.

 

BY THE COURT:
er %£
w i-‘ '_q/
Justice

 

8 Hammond v. Douglas, 2010 WL 1694792, *2 (Del. Apr. 28, 2010).

