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Stuart v. Stuart

Supreme Court of Delaware

December 5, 2018

GARY I. STUART, JR., [1] Respondent/Petitioner Below, Appellant,
v.
OLIVIA STUART, Petitioner/Respondent Below, Appellee.

          Submitted: September 21, 2018

          Court Below-Family Court of the State of Delaware, File No. CK15-02155 Petition No. 16-15710

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

          James T. Vaughn, Jr. Justice

         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 (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 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."

         (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 hour[6] * 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.

         (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 ...


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