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Zachery v. Division of Child Support Services

Supreme Court of Delaware

July 10, 2018

DAVID ZACHERY [1] , Respondent Below, Appellant,
v.
DIVISION OF CHILD SUPPORT SERVICES/FAITH ZACHERY, Petitioner Below, Appellee.

          Submitted: April 27, 2018

          Court Below-Family Court of the State of Delaware in and for New Castle County File No. CN04-09734 Petition No. 16-34608

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

          JAMES T. VAUGHN, JR. JUSTICE

         This 10th day of July 2018, upon consideration of the parties' briefs and the record below, it appears to the Court that:

         (1) The respondent-appellant, David Zachery ("the Father"), has filed an appeal from the Family Court's decision, dated October 27, 2017, affirming a Family Court Commissioner's child support order.[2] We find no error or abuse of discretion in the Family Court's decision. Accordingly, we affirm the Family Court's judgment.

          (2) The record reflects that, in 2006, the Family Court entered an ancillary order awarding Faith Zachery ("the Mother") alimony of $1, 150 per month once one party left the marital home. Although the alimony order was intended to be temporary until a child support order was entered, neither parent applied for child support until 2016. In October 2016, the Father stopped paying the $1, 150 in monthly alimony because only one of the parties' three children was still in high school, and gave the Mother a check for $300.

         (3) On November 2, 2016, the Division of Child Support Services filed a petition on behalf of the Mother against the Father for support of the parents' only remaining minor child, who was born in March 2000. A mediation was scheduled for April 4, 2017. After the parties were unable to reach an agreement at the mediation, a Family Court Commissioner issued an interim new support order, dated April 24, 2017, requiring the Father to pay $1, 461 per month for child support.

         (4) A hearing on the child support petition was scheduled for August 3, 2017. A Family Court Commissioner entered a permanent support order, dated August 14, 2017, requiring the Father to pay, effective November 3, 2016, $1, 605.00 plus $45.00 per month in arrears/retroactive support for child support. The order also allocated cash medical support 71% to the Father, 29% to the Mother.

          (5) The Father requested review of the Commissioner's order. On October 27, 2017, the Family Court affirmed the Commissioner's order. This appeal followed.

         (6) This Court reviews the Family Court's factual and legal determinations as well as its inferences and deductions.[3] We will not disturb the Family Court's rulings on appeal if the court's findings of fact are supported by the record and its explanations, deductions, and inferences are the product of an orderly and logical reasoning process.[4] We review legal rulings de novo.[5] If the Family Court correctly applied the law, then our standard of review is abuse of discretion.[6]

         (7) The Father's arguments on appeal may be summarized as follows: (i) the Family Court erred in calculating his wages for purposes of his child support obligation based on Department of Labor figures, instead of pay records the Father provided; (ii) the Family Court's calculation of his child support obligation was erroneous because parents' financial obligations and medical support for a child must be equal under 13 Del. C. §§ 501 and 701; (iii) the Family Court should not have applied the Melson formula to calculate his support obligation; (iv) the Family Court violated his rights to due process and equal protection by failing to appoint counsel to represent him; and (v) the child support orders, including the award of back support, violated his constitutional rights under the Eighth, Thirteenth, and Fourteenth Amendments of the United States Constitution.

         (8) In calculating the Father's wages, the Family Court Commissioner relied upon Department of Labor figures instead of pay records provided by the Father. Although the Mother provided pay stubs from July 2017, her 2016 tax return and her 2016 W-2 as directed by the notice for the August 3, 2017 hearing, the Father only provided records of his pay in July 2017, which showed wages of $1, 002 per week. The Father claimed he could not find his W-2s from 2016 or 2015, and had not filed his taxes in two years.

         (9) The Father did not dispute, however, that he made $152, 473 in 2015 and close to that in 2016. The Father worked overtime for most of his career after the children were born. Department of Labor figures showed that the Father earned $34, 765 in the third quarter of 2016, $36, 951 in the fourth quarter of 2016, and $49, 076 in the first quarter of 2017. Based on those figures, the Commissioner calculated the Father's monthly wages as $13, 421.

         (10) The Family Court did not err in accepting the Commissioner's reliance on the Department of Labor figures instead of the weekly pay records provided by the Father. The Department of Labor figures are consistent with the amount the Father admitted to earning in 2016. The Father failed to provide his 2016 W-2 and tax return. The pay records that the Father did provide did not show his year-to-date income, overtime, or shift differential. As the Family Court concluded, it appears that the Father may "have intentionally attempted to provide evidence of an income less than his actual ...


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