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Irwin v. Shelby

Supreme Court of Delaware

May 6, 2019

Garrett IRWIN, Respondent Below, Appellant,
Jenny SHELBY, Petitioner Below, Appellee.

         Submitted: March 6, 2019

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          Court Below: Family Court of the State of Delaware, File No. CK16-03072, Petition No. 16-37170

         Upon appeal from the Family Court. AFFIRMED.

         Leslie B. Spoltore, Esquire, Oberymayer Maxwell Rebmann & Hippel LLP, Wilmington, Delaware, for Appellant, Garrett Irwin.

         Melissa L. Dill, Esquire, Liguori & Morris, Dover, Delaware, for Appellee, Jenny Shelby.

         Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

         VAUGHN, Justice, for the Majority:


         The appellant, Garrett Irwin (the father), appeals from a Family Court order granting the appellee, Jenny Shelby (the mother),[1] sole custody and primary residential placement of their two children.[2] The father makes two claims on appeal. First, he contends that the Family Court abused its discretion by siding with the mother’s treating psychologist instead of relying on the expert requested by the father. Second, he contends that the Family Court’s order granting sole custody and primary placement to the mother was against the weight of the evidence and an abuse of discretion. According to the father, the court drew all inferences in the mother’s favor, minimized her mental health and substance abuse issues while giving undue weight to the father’s dated history of drug use, ignored the mother’s role in their physical altercations, and was generally biased against the father.

          The father expresses concern that the Family Court judge was biased in favor of the mother. One view of the record is that the Family Court judge came to the custody dispute predisposed against the father and approached the remainder of the proceedings with a closed mind. But, another view of the record is the Family Court undertook the proper legal analysis, and the factual findings it made in this difficult case with conflicting testimony— not unlike most cases coming before the Family Court— are entitled to deference on appeal. Although we might have weighed the evidence differently and come to a different conclusion, we find that the Family Court’s factual determinations have support in the record, and thus affirm its judgment.


         The mother and the father first met in 2012 when she went to work in his restaurant in Dover. Sometime thereafter, they started dating, and eventually, the mother moved into the father’s house in Dover. During their relationship, they agreed to call themselves "husband" and "wife," but they did not marry. The mother worked

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many hours at the restaurant until the couple had their first child on November 2, 2013. She then stopped working regularly. The couple had their second child on January 25, 2015. The mother has another minor child (age eight) from a previous relationship, and the father has an adult child with whom he has no relationship. The father is twenty-six years older than the mother.[3]

          While the family was intact, the mother was primarily a stay-at-home mother and provided most of the children’s daily care, including taking them to medical and dental appointments. The father, the primary financial provider, was involved in the children’s care to varying degrees.

          The parties’ relationship began to deteriorate, with arguments that sometimes resulted in physical altercations. On November 18, 2016, the mother filed the petition for custody that is now at issue in this appeal.

         An incident occurred on November 22-23, 2016 (the "Restaurant Incident").[4] The mother was working at the father’s restaurant on the night of November 22, and the father was home with the children. The mother did not return home that evening. The next morning, the father went to the restaurant with the children, who were not properly restrained in child seats, in his truck. He discovered the mother’s car in the restaurant parking lot. He entered the restaurant and saw that it was in disarray, but he did not see the mother. He called for emergency assistance. He then went to the mother’s car and saw that she was passed out on the floor of the back seat. When the police arrived, they roused her to consciousness and sent her to a hospital in an ambulance.

         As a result of this incident, the mother was hospitalized initially for "acute intoxication or withdrawal."[5] During the admission process, in response to questions, she admitted to occasional marijuana use and alcohol consumption but denied any further (non-prescription) drug use. While at the hospital, the mother tested positive for Amphetamine, Cocaine, and THC.[6] She was ultimately transferred to, and remained at, Dover Behavioral Health for ten days to receive inpatient treatment for mental health problems. After release, she continued outpatient treatment.

         As part of her treatment, she was evaluated by Dr. Joseph Zingaro, a psychologist, who found that "[s]he presented as someone who is typical for a victim of domestic violence."[7] Specifically, he said she was a victim of "coercive control, which means that it has happened over a fairly long period of time. And she’s afraid of the individual, the perpetrator."[8]

          On December 3, 2016, the day after the mother was released from Dover Behavioral Health, she (along with the maternal grandmother) went unannounced to the father’s residence to retrieve the children, who had remained with the father during the mother’s hospitalization. An altercation ensued, resulting in physical contact between the parties and the father’s shirt being ripped. The father called 911, and when the police officer arrived he advised

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the mother to go to the Family Court to handle the custody dispute, and he let the father keep the children.

         As a result of this altercation, the parties each sought a protection from abuse ("PFA") order from the Family Court. On December 5, 2016, the mother filed both an emergency petition for an ex parte PFA order and a petition for a PFA order, each against the father. On that date, a Family Court Commissioner entered an ex parte PFA order on her behalf, which included a provision that the parties would have joint custody of the children with residential placement with the mother. Later that same day, the father returned[9] to the Family Court and filed an emergency petition for an ex parte PFA order against the mother and a motion to rescind the mother’s ex parte PFA order, in which he requested custody of the children. He informed the same Commissioner about the mother’s substance abuse, recent hospitalization, and the events on December 3. As a result, the Commissioner amended the mother’s ex parte PFA order to give the parties joint custody with the father having residential placement. The father then filed a PFA petition against the mother on December 14, 2016.

          On December 20, 2016, the parties entered into an interim consent order on visitation. On January 9, 2017, the father answered the mother’s petition for custody and counterclaimed for custody.

         A hearing on the PFA petitions was held on January 10, 2017, and another Commissioner entered PFA orders against each party, finding that both parties had committed acts of physical abuse during the December 3 incident. Both orders gave the parents temporary joint custody with shared residential placement. The shared residential placement was to rotate on a "2-2-3 schedule," beginning with the mother the next day, January 11.[10] The orders further specified that the mother’s time with the children was to be supervised by the children’s maternal grandmother unless the mother’s therapist recommended otherwise. The maternal grandmother was to supervise the exchanges until the parties set up exchanges at the Dover Visitation Center. These orders also required the father to participate in domestic violence counseling and the mother to participate in domestic violence therapy.

         The father sought review of the Commissioner’s PFA order. The Family Court judge reviewed the order and approved and accepted it in full. Although the mother did not request a review of the PFA order entered against her, the Family Court judge, while recognizing that his review was limited to the PFA order against the father, noted in his order on review that he was "compelled to mention that [his] reading of the transcript le[ft him] unpersuaded that the evidence to support [the father’s] petition justifie[d] a finding that [the mother’s] actions [met] a definition of abuse."[11]

         On May 31, 2017, the father moved for a custody evaluation to be performed by Dr. Romirowsky, which the court granted.[12] Dr. Romirowsky interviewed and met with each parent separately on multiple occasions,

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observed them with the children, reviewed court and health records, and conducted collateral interviews. He then prepared a report and recommendation that was admitted into evidence at the custody hearing.

          On March 6, 2018, the Family Court held a custody hearing. At the hearing, the court heard testimony from both parents, Dr. Romirowsky, the maternal grandparents, and a friend of the mother’s. The court also considered the record from the PFA hearing, which included testimony and a report from the mother’s treating physician, Dr. Zingaro, concluding ...

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