            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    GARY I. STUART, JR.,1                         §
                                                  § No. 64, 2018
           Respondent/Petitioner Below,           §
           Appellant,                             § Court Below—Family Court
                                                  § of the State of Delaware
           v.                                     §
                                                  § File No. CK15-02155
    OLIVIA STUART,                                § Petition No. 16-15710
                                                  §
           Petitioner/Respondent Below,           §
           Appellee.                              §

                                Submitted: September 21, 2018
                                 Decided: December 5, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                          ORDER

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

to the Court that:

         (1)    The appellant, Gary I. Stuart, Jr. (“the Father”), filed this appeal from

the Family Court’s January 11, 2018 order affirming the Commissioner’s September

26, 2017 child support order. We find no error or abuse of discretion in the Family

Court’s decision. Accordingly, we affirm the Family Court’s judgment.

         (2)    The appellee, Olivia Stuart (“the Mother”) and the Father are the

parents of three children, a son born in 2005 and twin daughters born in 2011



1
    The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
(collectively, “the Children”). On May 31, 2016, the Mother filed a petition for child

support. After two continuances, the Family Court Commissioner held a hearing on

the petition for child support on September 13, 2017. The Mother, who was

represented by counsel, and the Father, who was not, testified at the hearing. On

September 26, 2017, the Commissioner ordered the Father to pay child support of

$2,000.00 a month, which included a current monthly support obligation of

$1,773.00 and $227.00 a month in arrears.

       (3)    On October 4, 2017, the Father filed a request for review of the Family

Court Commissioner’s order. The Mother argued that the request should be denied.

On October 12, 2017, the Father filed an amended request for review. On January

11, 2018, the Family Court entered an order affirming the Commissioner’s order.

This appeal followed.

       (4)    This Court’s review of a Family Court decision includes a review of

both the law and the facts.2 Conclusions of law are reviewed de novo.3 Factual

findings will not be disturbed on appeal unless they are clearly erroneous.4 The

Father’s arguments on appeal may be summarized as follows: (i) the Family Court

erred in attributing more income to him than the $489.00 per month he receives as a

30% disability payment from the Veteran’s Administration; (ii) the Family Court


2
  Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
3
  Id.
4
  Id.
                                             2
misstated the record and was biased against him; (iii) the Family Court failed to take

into account his monthly contributions to the Children’s college funds, a medical

expense of $2,751.00 that he paid for one of the Children, and amounts of money

that he claims the Mother owes him from property division matters; and (iv) the

Family Court erred in excluding income the Mother receives from tenants and Booz

Allen Hamilton. After careful review of the parties’ briefs and the record, we

conclude that these arguments are without merit.

         (5)     The Family Court may attribute income to a parent in the calculation of

child support.5 Family Court Rule of Civil Procedure 501(c) provides that:

         Unemployment or underemployment either voluntary or due to
         misconduct or failure to provide sufficient evidence or failure to appear
         for a hearing or mediation conference may cause income to be
         attributed. The Court may examine earnings history, employment
         qualifications and the current job market. The Court may take judicial
         notice of Department of Labor wage surveys for individual occupations
         to estimate or corroborate earning capacity.

The Father was unemployed after he left the Air Force in 2014. Rule 501(g)

provides that “[p]arents who suffer a loss of income either voluntarily or due

to their own misconduct may have their support obligation calculated based

upon reduced earnings after a reasonable period of time if the parent earnestly

seeks to achieve maximum income capacity.”



5
    Sentner v. Sentner, 799 A.2d 1154, 1161 (Del. 2002).

                                                 3
       (6)    Based on the Father’s education (a college degree and a master’s in

business administration) and his twelve years of Air Force service in the field of

medical and health services management, the Family Court Commissioner attributed

the Father with income as an entry level health services manager in a civilian

position ($33.55 per hour6 * 40 hours a week * 52 weeks a year or $5,815.00 per

month). This was in addition to the $489.00 that the Father received each month

from the Veteran’s Administration for his 30% disability status. The Family Court

Commissioner determined that the salary for an entry level position was appropriate

because the Father had been out of the health services industry for several years and

had not worked in the civilian sector. The Family Court accepted the Family Court

Commissioner’s findings. The Father argues that he should not have been attributed

with income as an entry level health services manager. He contends that the Family

Court disregarded his efforts to seek other employment, failed to consider how his

federal whistleblower complaints made it difficult for him to find work, ignored that

he was homeless for a while and had to devote substantial time to litigating his

whistleblower complaints and Family Court matters,7 and was inconsistent in the

handling of his mental health.


6
 The Family Court Commissioner took this rate from the Department of Labor’s 2016 Wage
Table.
7
  The Family Court matters included the child support proceedings, custody proceedings, and
protection from abuse proceedings.

                                            4
      (7)    We disagree. The Family Court recognized that the Father had made

strenuous but unsuccessful efforts to rejoin the Air Force for more than three years.

Although the Father testified that he had applied for numerous, unspecified jobs with

the federal government, he could not recall that he had sought employment outside

of the Air Force or federal government. The Father’s testimony reflects that he was

primarily focused on rejoining the Air Force. The Family Court did not err in

concluding that the Father’s strenuous but unreasonable efforts to rejoin the Air

Force did not constitute earnest efforts to achieve maximum income under Rule

501(g).

      (8)    The Father also argues that the Family Court ignored that he was

homeless at one point, but he did not indicate how long he was homeless (based on

the child support hearing transcript it appears it may have been for a few months in

2015) or how that affected his ability to find work. Even assuming that the Father’s

federal whistleblower complaints complicated his efforts to rejoin the Air Force,

there is no indication that those complaints would have prevented him from finding

employment in the civilian sector. The Father’s desire to rejoin the Air Force

(despite how unlikely that was as time passed) and the time he spent litigating his

federal whistleblower complaints and Family Court matters did not excuse his

failure to seek employment commensurate with his education and work experience.




                                         5
       (9)     As far as the Father’s mental health, the Family Court Commissioner

acknowledged that his 30% disability status for an adjustment disorder with anxious

features suggested there were mental health issues. The Family Court Commissioner

also suggested that the Father explore applying for Social Security Disability

benefits. But as the Family Court Commissioner and the Family Court recognized,

there was nothing in the record from a medical or mental health professional opining

that Father’s mental condition limited his ability to work or prevented him from

working. The Father testified that his disability status did not preclude him from

working fulltime.8 The fact that the Father’s mental health was also an issue in the

custody proceedings does not mean the Family Court was required to find that the

Father’s mental health precluded from him working. Under these circumstances, the

Family Court did not err in accepting the Family Court Commissioner’s attribution

of income as an entry level health services manager in a civilian position to the

Father.

       (10) The Father next contends that the Family Court Commissioner made

false statements and was biased against him. The false statements identified by the



8
 On appeal, that Father argues that his disability payment from the Veteran’s Administration falls
within Rule 501(f), which provides that if “[w]hen a person has been determined to be eligible for
Social Security Disability or Supplemental Security Income (SSI), this determination shall be
substantive evidence of a disability.” The Father did not raise this argument below. Supr. Ct. R.
8 (“Only questions fairly presented to the trial court may be presented for review….”). We also
note that Section 501(f) does not refer to Veteran’s Administration payments.

                                                6
Father include: (i) that he could have pursued an extension before he left the Air

Force but did not do so; (ii) he elected to forego work in other states or work for the

federal government; (iii) he was evaluated by the Army, which was one of his former

employers; and (iv) he was hospitalized at Dover Behavior Health after he left active

service. These statements do not support reversal of the child support order. As far

as the statements concerning whether the Father could have pursued an extension

with the military and that the Father had foregone employment in other states and

with the federal government, the Family Court Commissioner made those statements

in describing the Mother’s testimony. The transcript of the child support hearing

supports the Family Court’s acceptance of the Commissioner’s conclusion that the

Father focused, primarily and unreasonably, on reinstatement in the Air Force. As

the Family Court recognized in affirming the Commissioner’s decision, the

misidentification of the Army as one of the Father’s former employers (the Father

served in the Air Force, but was evaluated at one point by an Army physician) as

well as whether the Father could have applied for an extension in the military did

not bear on the Commissioner’s conclusions.          Similarly, the Commissioner’s

conclusions did not depend upon the timing of the Father’s admission to Dover

Behavioral Health.

      (11) The record does not support the Father’s allegations of bias. The

Family Court Commissioner patiently listened to the Father’s arguments at the


                                          7
custody hearing and warned him when he was raising irrelevant issues or rehashing

points he had already made. There is nothing in the record to support a rational

inference that the Family Court Commissioner was biased against the Father.

       (12) The Father next argues that the Family Court failed to reduce his child

support obligation by his $150.00 monthly contributions to the Children’s college

funds, a $2,751.00 medical expense he paid for one of the Children, and other

amounts of money that he claims the Mother owes him from property division

matters. The Father did not raise the college fund payments he claimed to be making

or the property division matters in his objections to the Commissioner’s order, so we

will address only the medical expense. The Family Court did not err in holding that

the Father was not entitled to a credit for the medical expense because parents are

equally charged with a child’s support and care, which includes payment of medical

expenses, under 13 Del. C. § 701(a).

       (13) Finally, the Father argues that the Family Court Commissioner erred in

excluding $500.00 in monthly rent and Booz Allen Hamilton consulting wages the

Mother received in 2016 from the Mother’s income.9 As to the $500.00 in monthly

rent, the Family Court held that the Commissioner did not err in excluding this from

the Mother’s income because the Mother was splitting the rent and utilities with


9
 The Mother testified that she had not received any pay from Booz Allen Hamilton since October
2016 and did not expect to receive any pay from Booz Allen Hamilton in the future.

                                              8
other people who lived in the house she rented, not renting space in a home that she

owned. Under these circumstances, we conclude that the Family Court did not abuse

its discretion. We decline to address the exclusion of the Booz Allen Hamilton

wages as the Father did not raise this issue in his objections to the Family Court

Commissioner’s order.

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

Court is AFFIRMED.

                                      BY THE COURT:

                                      /s/ James T. Vaughn, Jr.
                                            Justice




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