Date: 04-18-2012

Case Style: Kenneth W. Morrissey v. Lorraine B. Morrisey

Case Number: 221, 2011

Judge: Steele

Court: Supreme Court of Delaware on appeal form the Family Court, New Castle County

Plaintiff's Attorney: Felice G. Kerr, Macelree Harvey, Ltd., Centreville, Delaware for appellant.

Defendant's Attorney: Gerald Z. Berkowitz, Berkowitz & Schagrin, P.A., Wilmington, Delaware
for appellee.

Description: A father filed a motion to modify a child custody and visitation agreement in
the Family Court. The trial judge denied the father’s motion, holding that contract
principles govern the agreement and bar the trial court from modifying
unambiguous contract language. On appeal, the father claims that the trial judge
erroneously applied contract principles to a custody and visitation agreement
instead of applying the best interests of the child test as required under 13 Del. C. §
722. Since the modification requested here should have been reviewed under the
best interest of the child test, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

Kenneth Morrisey and Lorraine Morrisey have been divorced and sharing
custody of their three children since 2008. The original custody and visitation
agreement did not allow for international travel and the father wanted to travel to
Scotland and Jamaica with the children. After negotiation, the parties modified the
visitation agreement to allow either parent to travel with the children outside the
United States, so long as they visited only countries that were signatories to the
Hague Convention of 1980 on the Civil Aspects of International Child Abduction.
Also, under the modification, the children could not be taken to countries where
the United States government had issued travel restrictions or warnings. When the
Family Court judge approved the modification, the parties could not agree on
whether the father could take the children to Jamaica, which was not a signatory to
the treaty and had previously been subject to travel warnings. The agreement
stated, “the parties shall continue to address the issue of traveling to Jamaica on
their own, and will attempt to reach an agreement to allow Father to travel to
Jamaica by next summer.”1

Six months after the modification, the parties still had not reached an
agreement on whether the children could travel to Jamaica. At this time, the father
petitioned for a second custody modification, requesting that the children be
allowed to travel to Jamaica with him. After a hearing, the Family Court judge
denied the father’s petition and held that contract principles govern court orders
which are entered into by stipulation or agreement. The trial judge also held that
contract principles do not permit a trial court to modify an agreement unless the
contract language is ambiguous. The father filed a Motion for Reargument arguing
that the modification request should have been determined by applying the best
interest of the child test. The Family Court judge denied the father’s Motion for
Reargument; this appeal followed.

II. DISCUSSION

In this appeal we are asked to determine whether a motion to modify a
custody and visitation agreement, which contemplated change, should be reviewed
based on the contractual analysis set forth in Rockwell v. Rockwell2 or by the
statutory best interests of the child test. We review a trial judge’s denial of a
motion to modify a child custody and visitation order for abuse of discretion.3
However, questions of law, including matters of statutory interpretation, are
reviewed de novo.4 Since resolution here requires statutory interpretation, we
review de novo.

As an initial matter, we recognize the importance of encouraging parental
agreements on child custody and visitation. Among other benefits, parental
agreements provide predictability and consistency. However, contract principles
do not bar a court from modifying parental agreements on visitation issues when
the contesting party can meet its burden of persuasion and proof. Therefore, we
hold that the party requesting the modification of a parental agreement concerning
child visitation carries the burden of proving by a preponderance of the evidence
that the agreement should be modified because the agreement, as written, is not
currently in the best interest of the child. If this burden is met, then a Family Court
judge must modify the visitation agreement to satisfy the best interest of the child
test as set forth in 13 Del. C. § 722.

A. The Family Court Can Review the Right to Travel with One’s
Children Because Travel Falls under the Manner of Visitation.

The Family Court has the authority under 13 Del. C. § 1519 to modify Court
Orders regarding child support, custody and visitation, and alimony.5 Travel
during parental visitation time is an issue that concerns visitation and therefore
subject to judicial review. When parents have joint custody, the parents must
communicate and try to reach an agreement regarding the major decisions
concerning their children.6 If the parents cannot agree on the determination of a
major decision, the parties can submit their dispute to a court for resolution.7 In
Ellis v. Ellis, a Family Court judge declared that travel constitutes a major
decision.8 Other Family Court judges have also resolved the issue of whether
children in a joint custody arrangement could travel with one parent.9 We have
previously supported trial judges’ discretion concerning determinations made
regarding the manner of visitation.

For instance, in Peterson v. Simpler we upheld a Family Court order which
applied the child’s best interest test to the manner of visitation and concluded that a
child’s extracurricular activities should not be interrupted regardless of where the
child lives. Therefore, the court ordered that the mother had to take her son to Tball
activities on Saturdays.10 Mandating that one parent had to do certain things
during that parent’s time with the child is an example of the court determining a
manner of visitation.

Also, in Prodromidis v. Burman we held that Family Court judges had the
power to modify the parties’ child custody order at any time in the best interest of
the child.11 The father wanted to travel with his daughter to Greece, but her mother
refused. The father filed a Motion for an Emergency Ex Parte Order and Rule to
Show Cause for the mother’s refusal. The father left the United States before the
scheduled hearing. At the rescheduled hearing the Family Court judge found that
the father had not met his burden and dismissed his motion for a Rule to Show
Cause. The court also, sua sponte, entered a temporary order permitting the father
to have liberal visitation with his daughter in Delaware but denying him
permission to take his daughter to Greece. We held the Family Court judge did not
abuse his discretion by limiting where visitation could occur until a full hearing
could be held and completed.

A visitation schedule includes not only when visitation occurs but also how it
occurs. Therefore, a Family Court judge has discretion to resolve conflicts over
travel with one’s children because travel is an integral part of parental visitation
rights.

B. Delaware Statutes Require that the Best Interest of the Child Test
be used to determine Child Visitation Agreement Modification
Requests.

Statutory language identifies that the best interest of the child test controls the
review of a visitation modification request. As stated above, the Family Court has
the authority under 13 Del. C. § 1519 to modify Court Orders regarding
visitation.12 Subsection (a)(2) of § 1519 states that custody or visitation
agreements should be modified or terminated “only as provided in Chapter 7 of
this title, or otherwise.”13 Sections 722(a), 728(a), 728(c), and 729 of Chapter 7
cover custody and visitation. According to § 728, “the court may modify a
parent’s custodial authority if it believes that it is in the best interest of the
children.”14 Also, § 729 states, “[a]n order concerning visitation may be modified
at any time if the best interest of the child would be served thereby in accordance
with the standards set forth in §728(a) . . . .”15 Finally, 13 Del. C. § 722(a) states,
“[t]he Court shall determine the legal custody and residential arrangements for a
child in accordance with the best interests of the child.”16 The statute then lists the
eight best interest factors that the court must consider.17 The statutory language is
clear and unambiguous that the best interest test must be applied for decisions
involving child custody and visitation. Therefore, the best interest test must be
applied during judicial review of a modification request.

When the trial judge conducts the best interest of the child test review, the
contract is still relevant and the trial judge should consider it. For instance, the
agreement shows the wishes of the parties at the time the agreement was made.

Furthermore, the agreement at issue here presents a special situation because the
agreement itself contemplated that the circumstances could change. Specifically,
permission to travel with the children could change based on Hague Convention
signatories and United States travel restrictions. Also, the parties themselves
specifically contemplated change regarding travel to Jamaica. According to the
agreement, “the parties shall continue to address the issue of traveling to Jamaica
on their own, and will attempt to reach an agreement to allow Father to travel to
Jamaica by next summer.”18

The contract is also relevant under the best interest of the child test analysis
because the moving party must show that the existing agreement is currently not in
the best interest of the child. If the movant fails to meet this burden then the
modification is not appropriate and the agreement should be enforced as written.

C. Rockwell Is Distinguishable and Therefore Inapplicable.

The mother argues that Rockwell’s contractual analysis should apply to
agreements for child custody and visitation agreements the parties negotiate, draft
and sign. However, Rockwell’s contractual analysis applies to, and only resolves,
modification requests for certain types of alimony agreements. Since the issue
here does not involve an alimony agreement, Rockwell does not apply. In
Rockwell the parties entered into a separation agreement which provided that
husband would pay wife alimony.19 The agreement also stated that the terms of the
agreement could not be modified or waived except by a writing signed by both
parties. Upon dissolution of the marriage, a Superior Court judge incorporated the
parties’ separation agreement into the final divorce decree. Seventeen years later,
the former wife filed a petition for modification of alimony alleging that there had
been a substantial change in circumstances justifying an increase in alimony. A
Family Court judge granted the modification after concluding that the Family
Court had jurisdiction to modify the agreement and that former wife proved a
substantial change in circumstances. On appeal we reversed and remanded,
holding that when the parties agreed to the original alimony provision that
agreement can only be modified in accordance with contract principles. On the
other hand, when alimony has been judicially determined, then the statutory
standard of real and substantial change governs. In reaching this determination, we
interpreted 13 Del. C. § 1519(a)(4) and § 1519(b), which addresses only the
modification or termination of alimony.

Rockwell is not applicable to custody and visitation agreements. Our holding
in Rockwell is limited to agreements made by the parties regarding alimony.20

Because alimony does not directly affect the children, we decline to extend
Rockwell’s contract principles analysis to parental agreements involving child
visitation.

* * *

See: http://courts.delaware.gov/opinions/%28sbeil3yi1m2kwcrcmuqdoj55%29/download.aspx?ID=171430

Outcome: For the foregoing reasons, the judgment of the Family Court is reversed and
remanded for action consistent with this Opinion.

Plaintiff's Experts:

Defendant's Experts:

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