Submitted October 28, 2014
Motion for Rehearing en Banc filed 12/1/2014; Denied 12/2/2014. Case Closed December 3, 2014.
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. CN11-04885. Pet. No. 13-33723.
Before HOLLAND, RIDGELY and VALIHURA, Justices.
Henry duPont Ridgely, Justice
This 25th day of November 2014, upon consideration of the parties' briefs on appeal and the appellant's motion for a stay pending appeal, it appears to the Court that:
(1) The appellant, David Stevens (hereinafter " Father" ), filed this appeal from the Family Court's order dated July 2, 2014 that granted custody of the parties' five-year old child (hereinafter " the Child" ), by default, to the appellee, Anne Brown (hereinafter " Mother" ) and visitation to Father (hereinafter " default custody/visitation order" ). By Order dated July 14, 2014, this Court denied Father's request for a stay of the default custody/visitation order because Father had not demonstrated that he sought a stay from the Family Court in the first instance as required.
(2) Father then filed a motion for stay in the Family Court. By order dated October 8, 2014, the Family Court denied the stay, and Father filed a motion for stay in this Court. Mother has not responded to Father's motion for stay.
(3) We review the denial of a stay for an abuse of discretion. In this case, the Family Court carefully and thoroughly applied the requisite four-part test when ruling on Father's motion for stay. Having reviewed Father's submissions and the October 8, 2014 order, we conclude that the Family Court's denial of a stay pending appeal was not an abuse of discretion.
(4) Turning to the merits of Father's appeal, the record reflects the following procedural history. On December 28, 2012, Mother filed a petition for an order of protection from abuse (" PFA" ) against Father and for custody of the Child. On December 28, 2012, the Family Court issued a temporary ex parte PFA order and awarded temporary custody of the Child to Mother. Thereafter, when Father did not appear at the full hearing on the PFA petition, the Family Court granted the petition by default and issued a PFA order (hereinafter " the PFA order" ). As for Mother's request for custody of the Child, the court " decline[d] to issue a custody provision" and stated in the PFA order that " [e]ither party [was] free to file a separate custody/visitation petition," that " [m]atters of custody, visitation, and/or support addressed through this order are done so on a temporary basis," and that " [s]eparate civil petitions must be filed with the Court in order to have permanent orders entered on these matters."
(5) Six months later, on June 28, 2013, Father filed a motion to vacate the PFA order. Mother appeared at the hearing on the motion, but Father did not. By order dated July 15, 2013, the Family Court dismissed Father's motion to vacate.
(6) On October 24, 2013, Mother filed a petition for custody of the Child. Mother's request for priority scheduling on the petition was denied. Following two failed attempts to personally serve Father with the custody petition, notice of the petition was published in a newspaper in Baltimore, Maryland, where Father resided. ...