64 A.3d 867 (Del.Fam.Ct. 2013), CS08-03564, F.C. v. B.C.

Docket Nº:CS08-03564
Citation:64 A.3d 867
Opinion Judge:JONES, Judge
Party Name:In the Matter of F.C.[1], Petitioner, v. B.C., Respondent. Petition No. 13-00840
Attorney:Jennifer Davis Oliva, Esquire, Cooley, Manion, & Jones, L.L.P., Wilmington, Delaware, for Petitioner F.C. B.C., New Castle, Delaware, pro se.
Case Date:March 07, 2013
Court:Family Court of Delaware
 
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64 A.3d 867 (Del.Fam.Ct. 2013)

In the Matter of F.C.1, Petitioner,

v.

B.C., Respondent.

No. CS08-03564

Petition No. 13-00840

Family Court of Delaware, Sussex.

March 7, 2013

Submitted: Jan. 28, 2013.

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Jennifer Davis Oliva, Esquire, Cooley, Manion, & Jones, L.L.P., Wilmington, Delaware, for Petitioner F.C.

B.C., New Castle, Delaware, pro se.

REQUEST FOR REVIEW OF COMMISSIONER'S ORDER

OPINION

JONES, Judge

Pending before the Court is a Request for Review of Commissioner's Order (" Request for Review" ) filed by B.C. (" Husband" ). Husband objects to a Protection from Abuse (" PFA" ) Order entered by a Commissioner of this Court on January 18, 2013. The Commissioner entered a finding by a preponderance of the evidence that Husband had committed an act or repeated acts of domestic violence against F.C. (" Wife" ). Wife did not file a Response to Husband's Request for Review.

Background

Husband and Wife were married in June 2002, and were divorced by a final decree of this Court on November 17, 2010. The parties have two minor children born of

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the marriage. On January 11, 2013, Wife filed a Petition for PFA against Husband, as well as an Affidavit for Emergency Ex Parte Order. The Court entered a Temporary Emergency Ex Parte PFA Order on January 11, 2013, and scheduled a hearing on the Petition for PFA for January 18, 2013.

Husband and Wife appeared for the hearing on January 18, 2013. Wife was represented by counsel at this hearing, but Husband appeared pro se. Wife and Wife's mother testified on behalf of Wife at the hearing, and additionally, Wife called Husband's paramour, E.W., as a witness.2 Husband did not testify, and did not call any witnesses on his own behalf. After hearing the evidence, the Commissioner stated that she would only consider the testimony of Wife and Wife's mother in making her decision. The Commissioner found by a preponderance of the evidence that Husband had committed abuse under Title 10, Section 1041 of the Delaware Code by engaging in a course of alarming or distressing conduct likely to cause fear or emotional distress, and conduct a reasonable person under the circumstances would find threatening or harmful. The Commissioner entered the Order granting a PFA against Husband on January 18, 2013. The PFA protects both Wife and the children, and orders that Husband may not commit any acts of abuse towards Wife or the minor children.

Husband filed the present Request for Review on January 28, 2013, objecting to the Commissioner's January 18, 2013 Order on numerous grounds. In particular, Husband argues that: (1) The Commissioner erred in her finding of domestic violence by a preponderance of the evidence; (2) Wife lied under oath 3; (3) The Commissioner disregarded witness's statements that defended Husband from allegations of abuse; (4) Husband was not afforded an opportunity for a continuance to obtain legal representation; (5) Wife's attorney entered her appearance the morning of the hearing; (6) The Commissioner did not acknowledge Husband's lack of legal representation; (7) No evidence was presented by Wife which substantiated her allegations of abuse " in her ex parte statement on her sworn statement" 4; and (8) Wife did not present any police reports documenting any allegations of domestic violence.

Standard of Review

The Delaware Code confers upon this Court appellate jurisdiction over a Commissioner's Order. Specifically, the Code provides that " [a]ny party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a Judge of the Court." 5 A Commissioner's Order may be appealed to a Judge of the Court within 30 days by filing written objections setting forth with particularity the basis of each objection of the Commissioner's Order.6 From an appeal

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of a Commissioner's Order, this Court must make a de novo determination based on the record below.7 In making a de novo determination, an appellate court is to use the trial court's record, but review " the evidence and law without deference to the trial court's ruling." 8 When reviewing a Commissioner's Order, although the Family Court is not bound by the Commissioner's findings of fact, the Court will give weight to the factual findings of the Commissioner, especially in regards to the credibility of witnesses.9 The Court will place great weight on a Commissioner's findings of credibility of witnesses, as the parties and witnesses were before the Commissioner for trial, and the Commissioner had the opportunity to observe the demeanor of the parties and witnesses at trial.10

A Judge deciding an appeal from a Commissioner's Order may accept, reject, or modify, in whole or in part, the Commissioner's Order.11

Facts

After reviewing the transcript from the January 18, 2013 hearing, the Court finds the facts in this case to be as follows: Husband and Wife separated in 2008. As of the date of the hearing, Husband was a New Castle County police officer, but was suspended due to a police report Wife had filed against Husband on December 25, 2012. Wife testified that Husband has a history of yelling and screaming when he gets upset about things, or when he does not get his way.12 Additionally, Wife's mother testified that Husband has a history of screaming and yelling at Wife, and calling Wife names via the telephone, text messages, and e-mail.13 Prior to the parties' separation in 2008, Husband learned that Wife was having an affair and was going to leave him.14 At that time, an incident occurred in the home where Husband, in his police uniform, followed Wife around and continued to yell at her while keeping his hand on his weapon.15 During this incident, Husband called Wife's mother, who then called the police when she heard Husband screaming.16

On December 22, 2012, Husband repeatedly sent numerous text messages to Wife regarding information unrelated to the children, despite Wife's requests that he stop.17 This prompted Wife to go to Troop 7 of the Delaware State Police for advice on how to get Husband to stop sending Wife the text messages. A sergeant at Troop 7 advised Wife that if Husband continued to contact Wife about anything unrelated to the children, to advise Husband that Troop 7 had advised Wife to tell Husband that he was not to contact Wife about anything unrelated to

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the children.18 Wife also contacted Husband's superior at the New Castle County Police Department that evening, who indicated to Wife that he would have a conversation with Husband and advise him that he was not to contact Wife about anything other than the children. 19

On December 24, 2012, Husband made repeated phone calls to Wife's cell phone to speak with the children. Husband spoke with the parties' son, who indicated to Husband that the parties' daughter was in the shower, but that she would call Husband when she was out of the shower.20 However, Husband continued to call Wife's cell phone, approximately five times in a ten-minute period.21 Each time, the parties' son would answer and indicate to Husband that the parties' daughter was still in the shower, and would then hang up on Husband. On the last phone call, Husband began to scream on the phone to the parties' son, and Wife encouraged the parties' son to hang up the phone. 22 Wife then sent Husband a text message telling Husband not to yell at the parties' son, and also advising him that Wife had been advised by Troop 7 to tell Husband he was not to contact Wife about anything else other than the children.23 From that point, Husband sent numerous and repeated text messages to Wife, prompting Wife to revisit Troop 7 that evening to file a harassment report against Husband.24

When Wife went to Troop 7 on the evening of December 24, 2012, she met with another officer, who viewed her cell phone and the text messages Husband had sent Wife.25 This officer indicated that he would be filing a report, and would also be contacting Husband's superiors and Husband himself to tell Husband that he was not permitted to contact Wife regarding anything other than the children.26 Later that evening, upon learning that Wife had gone to the police, Husband sent an e-mail to Wife and Husband's parents, indicating that he wanted no further contact with Wife and wanted all communication between him and Wife to go through his parents.27

On January 10, 2013, Husband was suspended from his position as a New Castle County police officer.28 On that same date, Wife was contacted by the Delaware State police, who advised her that they were planning on following through with harassment charges against Husband, and that they had been in contact with Husband's superiors in New Castle County, who indicated that they were relieving Husband of his duties and taking his work equipment.29 That evening, Husband sent Wife an e-mail through his parents indicating that he did not want any future contact with his children whatsoever.30

Wife testified that after Husband was suspended from his position in New Castle County, she was concerned for her safety.

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Wife stated that being a police officer is very important to Husband, and because he had a history of getting angry at Wife, she was afraid he would " come after her" after he was suspended from his job based on her allegations.31 Wife's mother also testified that she is afraid of Husband, as he often screams and yells and makes threats 32, and that she believes the children are afraid of Husband,33 and believes Wife is very afraid of Husband 34. Accordingly, on January 11, 2013, Wife filed the Affidavit for Emergency Ex Parte Order and Petition for PFA.

Discussion

Because some of Husband's arguments are repetitive and...

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