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Mullens v. Kilborne

Supreme Court of Delaware

May 21, 2018

JONATHAN MULLENS, [1] Respondent Below-Appellant,
v.
TIFFANY KILBORNE, Petitioner Below-Appellee.

          Submitted: March 23, 2018

          Court Below-Family Court of the State of Delaware File No. CK08-01263 Petition No. 15-05215

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          Karen L. Valihura, Justice

         This 17th day of May 2018, upon consideration of the opening brief[2]and the record on appeal, it appears to the Court that:

         (1) The appellant, Jonathan Mullens ("Father"), filed this appeal from the Family Court's judgment dated August 16, 2017, which vacated, sua sponte, its February 20, 2017 judgment awarding primary residential custody of the parties' minor daughter to Father. Having reviewed Father's arguments on appeal and the record below, we conclude that the Family Court erred as a matter of fact and law in vacating its prior judgment. Accordingly, we reverse.

         (2) The parties are the parents of one daughter, who was born on January 23, 2007. On December 16, 2008, the parties entered a consent agreement providing for joint custody with Father having primary residential placement. Mother's visitation was to occur upon agreement of the parties. On February 24, 2015, Mother filed a petition for modification of custody. The Family Court appointed counsel to represent Mother. Father appeared pro se. After a hearing, the Family Court considered the best interest factors of 13 Del. C. § 722, including Father's prior criminal history, [3] and determined that it was in the child's best interests for Father to retain primary residential placement. But, the Court granted Mother visitation every other weekend and at holidays, as well as extended visitation in the summer.

         (3) On June 20, 2017, the Family Court issued an order informing the parties that it had reconsidered, sua sponte, its award of primary residential placement with Father. The Family Court stated that it had allowed Father, a registered sex offender, to have custody without any evidence that Father had rebutted the presumption against custody and placement under 13 Del. C. § 724A.[4]

         (4) After a hearing on August 16, 2017, the Family Court issued an order vacating its February 20, 2017 custody order awarding Father primary residential placement. The Family Court noted that Father had pled guilty to unlawful sexual contact in 1993 and, as a result, was a registered Tier II sex offender. The Family Court also noted that Father pled guilty in 1999 to a charge of carrying a concealed deadly weapon. The Family Court held that as a result of his 1999 conviction of a violent felony, Father could not rebut the presumption against custody set forth in 13 Del. C. § 724A.[5] Thus, the Family Court refused to consider the expert evaluation that Father submitted as evidence to rebut the presumption against him having custody of the parties' daughter.[6] The Family Court vacated its prior order, awarded Mother sole custody of the child, and ordered that Father could only have supervised visitation. Father appeals that ruling.

         (5) In his opening brief on appeal, Father contends, among other things, that the Family Court erred in holding that he had been convicted of a violent felony in 1999. Father contends that he pled guilty in 1999 to carrying a concealed deadly weapon under 11 Del. C. § 1442, which was designated a class G felony because the weapon in question was not a firearm.[7] Father asserts that, under 11 Del. C. § 4201(c), a conviction for carrying a concealed deadly weapon is only designated as a violent felony if the deadly weapon was a firearm.

         (6) Father is correct. Only firearm offenses under 11 Del. C. § 1442 are designated as violent felonies by 11 Del. C. § 4201. Father's criminal history reflects that he was convicted of a class G felony and not the more serious class D felony under Section 1442. Thus, the Family Court erred in finding that Father had been convicted of a violent felony in 1999 and that, therefore, the Family Court was not required to consider Father's expert evaluation in determining if he had overcome the presumption of Section 724A. Accordingly, we conclude that this matter must be remanded to the Family Court for further consideration, on a priority basis, of Father's expert evaluation.

         NOW, THEREFORE, IT IS ORDERED that the decision of the Family Court is REVERSED. The matter is REMANDED to the Family Court for further proceedings consistent with this Order. Jurisdiction is not retained.

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