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Price v. Boulden

Supreme Court of Delaware

July 14, 2014

AMY R. PRICE, [1] Petitioner-Below, Appellant,
v.
L. BRAD BOULDEN, Respondent-Below, Appellee

Submitted June 19, 2014

Case Closed July 30, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below: Family Court of the State of Delaware in and for New Castle County. File No. CN04-06244. Petition No. 13-18909.

Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.

OPINION

ORDER

Leo E. Strine, Jr. Chief Justice

This 14th day of July 2014, upon consideration of the appellant's opening brief and the appellee's motion to affirm, it appears to the Court that:

(1) The petitioner below-appellant, Amy R. Price (the " Mother" ), filed this pro se appeal from the Family Court's February 14, 2014 order denying her petition to modify custody with respect to the parties' minor children (" the children" ), Beverly Price[2] (born in June 2003) and Brian Price (born in October 2007). The respondent below-appellee, L. Brad Boulden (the " Father" ), filed a pro se motion to affirm the judgment below on the ground that it is manifest on the face of the Mother's opening brief that her appeal is without merit.[3] We agree and affirm.

(2) On January 18, 2011 the Mother filed a petition to relocate and a petition to modify custody. The Father filed a petition to modify custody on January 28, 2011. After a consolidated hearing on the parties' petitions to modify custody and the Mother's motion for relocation, the Family Court entered an order, dated June 13, 2011, ruling that the parties would continue to share joint legal custody over the children and granting the Father primary residential custody due to the Mother's relocation to Virginia. The Family Court found it to be in the children's best interest to remain together and to leave Beverly's schooling unchanged. Thus, the Father was awarded primary residential custody of the children during the school year and the Mother was granted residential custody for all but two weeks of the children's summer vacation from school and granted visitation during the children's spring break, winter break, and on weekends.

(3) On December 3, 2012, the Mother filed a petition to modify custody. Because the Mother's petition was filed within two years of the Family Court's June 13, 2011 Order, which was entered after a full hearing, the Mother's petition was governed by 13 Del. C. § 729(c)(1), which would only allow modification of the order if the Family Court determined that enforcing the order would endanger the children's physical health or significantly impair their emotional development. At the beginning of the February 28, 2013 hearing on her petition, the Mother admitted that she did not have sufficient evidence to satisfy the requirements of 13 Del. C. § 729(c)(1). But, the parties agreed to certain modifications to the June 13, 2011 order -- including that the Mother would have visitation with the children for three weekends every month and that the parties would share residential placement for the summer, rotating on a week by week basis -- which were memorialized in an order dated February 28, 2013. .

(4) On June 14, 2013, the Mother filed another petition to modify custody.[4] The Mother sought shared residential placement of the children on a week on, week off basis. The Family Court held a hearing on November 22, 2013 and heard testimony from the Mother, the Father, the maternal grandfather, and an employee of the Elkton Housing Authority. At the hearing, the Mother testified that because the children were not allowed to move to Virginia with her in 2011, she moved back to the area as soon as she could. At the time of the hearing, the Mother lived in a townhome in Elkton, Maryland operated by the Elkton Housing Authority. On February 14, 2014, the Family Court issued an order denying the Mother's petition and providing that the Mother and the Father would continue to exercise joint legal custody, the Father would have primary residential placement of the children, and the Mother's visitation with the children would continue as set forth in the Family Court's February 28, 2013 order.

(5) In reaching this decision, the Family Court found that all of the factors under 13 Del. C. § 722 were neutral, except for the fourth factor: " [t]he child's adjustment to his or her home, school and community." [5] The Court concluded this factor weighed against the Mother's petition because the children would have to change schools or share a bedroom with another of the Mother's children when they were with the Mother. This was because the Elkton Housing Authority witness testified that the Mother was not eligible to maintain her four-bedroom townhome in Elkton unless she had primary residential placement of the children, which in turn would mean that the children would have to leave their current school and enroll in Elkton schools. If the Mother did not have primary residential placement of the children and instead shared residential placement with the Father as she was requesting, then the Elkton Housing Authority would require her to move into a two-bedroom apartment and Beverly and Brian would have to share a bedroom with her other child during the weeks they resided with the Mother. The Family Court found that it was in the best interests of the children ...


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