Sullivan v. Yanez

IN THE SUPREME COURT OF THE STATE OF DELAWARE

FRED SULLIVAN,1 §
§ No. 399, 2023
Respondent Below, §
Appellant, § Court Below–Family Court
§ of the State of Delaware
v. §
§ File No. CK23-02126
YVETTE ANDERS YANEZ, § Petition No. 23-17381
§
Petitioner Below, §
Appellee. §

Submitted: April 4, 2024
Decided: June 20, 2024

Before VALIHURA, TRAYNOR, and LEGROW, Justices.

ORDER

After consideration of the parties’ briefs and the Family Court record, it

appears to the Court that:

(1) The appellant, Fred Sullivan (“Father”), filed this appeal from the

Family Court’s protection-from-abuse (PFA) order dated September 25, 2023. We

find no error or abuse of discretion in the Family Court’s decision and therefore

affirm.

(2) Father and the appellee, Yvette Yanez (“Mother”), are the parents of a

boy, born in 2010 (the “Child”). In August 2023, Mother filed a petition for a PFA

1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
order together with a motion and affidavit for an emergency ex parte PFA order

against Father on behalf of herself and the Child. The filings alleged that Father had,

among other things: (i) beaten the Child with a belt on multiple occasions and then

withheld the Child’s phone from him so that he was unable to take pictures of the

resultant bruising; (ii) on one occasion, pushed the Child up against a wall while

yelling at and choking him; and (iii) sent multiple derogatory and threatening texts

to Mother. On August 17, 2023, the Family Court entered a temporary PFA order

and scheduled a hearing on the merits for September 5. On September 1, the Family

Court extended the temporary PFA order and rescheduled the hearing for September

25. On September 14, Father filed a motion and affidavit for an emergency ex parte

order for custody of the Child. As is typical, Father’s motion was assigned a

different petition number. The Family Court consolidated the custody petition with

the PFA petition and sent a notice to the parties informing them that the Family Court

would consider both petitions at the September 25 hearing.

(3) At the September 25 hearing, the Family Court heard testimony from

Mother and Father and interviewed the Child. Following the hearing, the Family

2
Court granted the PFA petition and awarded temporary custody of the Child to

Mother.2 Father appeals.

(4) Our review of a decision of the Family Court extends to a review of the

facts and law, as well as inferences and deductions made by the trial judge.3 Our

duty is to review the sufficiency of the evidence and to test the propriety of the

findings.4 Findings of fact will not be disturbed on appeal unless they are clearly

erroneous.5 We will not substitute our opinion for the inferences and deductions of

the trial judge if they are supported by the record.6 If the Family Court correctly

applied the law to the facts, we review its decision for abuse of discretion.7 To obtain

a PFA order, a petitioner must establish by a preponderance of the evidence that the

respondent has committed an act of domestic violence.8

(5) Father’s arguments on appeal may be fairly summarized as follows: (i)

the evidence presented did not support the PFA order; (ii) insufficiency of service;

2
The Family Court also denied Father’s petition for emergency custody. Father filed a motion to
reargue, identifying the custody petition number and Father as the petitioner in the caption but
attempting to reargue the merits of Mother’s PFA petition. The Family Court denied the motion,
finding it lacked merit with regard to either petition.
3
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
4
Id.
5
Id.
6
Id.
7
Clark v. Clark, 47 A.3d 513, 517 (Del. 2012).
8
Stuart v. Stuart, 2017 WL 1090543, at *1 (Del. Mar. 22, 2017).
3
and (iii) the Family Court was biased in favor of Mother. We find Father’s

arguments to be unavailing.

(6) Although Father raises various “due process” complaints in connection

with his first claim of error, his argument is essentially that the evidence presented

at trial did not support the Family Court’s finding that a PFA order was warranted.

But a review of the PFA hearing transcript reflects that Mother did, in fact, present

sufficient evidence to support the Family Court’s finding that Father had engaged in

domestic violence. The definition of “abuse” includes “[i]ntentionally or recklessly

placing or attempting to place another person in reasonable apprehension of physical

injury” and “[e]ngaging in a course of alarming or distressing conduct in a manner

which is likely to cause fear or emotional distress.”9 In finding that a PFA order was

warranted with regard to the Child, the Family Court credited the Child’s accounts

of Father beating him with a belt and choking him—that is, the Family Court found

that Father recklessly placed the Child in reasonable fear of physical injury. And

Mother presented evidence that Father had sent her threatening text messages,

including one in which he threatened to kill her. Although Father attempted to place

the blame on the Child for those texts, the Family Court explicitly rejected his

proffered theory as “unpersuasive” and implicitly found that Father had engaged in

a course of distressing conduct that was likely to cause Mother fear or emotional

9
10 Del. C. § 1041(1).
4
distress. “When the determination of facts turns on a question of the credibility and

the acceptance or rejection of the testimony of witnesses appearing before the trier

of fact, we will not substitute our opinion for that of the trier of fact.” 10 As Father

acknowledges, “[t]he Judge’s finding appear[s] to have been based on the credibility

of [the Child’s] and [Mother’s] testimony.”11 He is correct. We will not disturb the

Family Court’s credibility determinations on appeal.

(7) We review Father’s insufficiency-of-service argument for plain error

because he did not raise it in the Family Court in the first instance.12 There is no

plain error here. Defects in service of process must be raised in the first instance or

they are waived.13 In any event, it is clear that Father had adequate, actual notice of

the proceedings: (i) Father concedes that he learned of the hearing on (if not before)

September 14—eleven days before the hearing; (ii) Father does not dispute that he

received the Family Court’s notice of the hearing scheduled for his petition for

custody, and that document noted that his custody petition was consolidated with

10
Shimel v. Shimel, 2019 WL 2142066, at *2 (Del. May 14, 2019) (citations omitted).
11
Opening Br. at 18.
12
Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”); Whittaker v. Houston, 888 A.2d 219, 224 (Del.
2005) (observing that plain error is that which is “so clearly prejudicial to substantial rights as to
jeopardize the fairness and integrity of the trial process”).
13
Brewington-Carr v. Coleman, 1999 WL 734775, at *2 (Del. Aug. 30, 1999) (holding that a
party’s failure to register a timely objection to insufficient service of process procedurally bars it
from raising the argument later). See also Del. Fam. Ct. Civ. R. P. 12(h)(1) (a defense of
insufficiency of process is waived if not made by motion under Rule 12 or included in a responsive
pleading).
5
Mother’s pending PFA petition and cited the September 25 hearing date; (iii) Father

emailed Mother’s counsel about discovery in advance of the September 25 hearing;

and (iv) Father prepared for the September 25 hearing, as evidenced by the fact that

he appeared at the hearing with documents and witnesses.

(8) We also review Father’s claim that the Family Court judge was biased

in favor of Mother for plain error because Father did not move for the judge’s recusal

below. Again, there is no plain error here. Father’s claim of bias is based on the

fact that the attorney (“Counsel”) who filed the petition for a PFA order and related

documents on Mother’s behalf is a former law clerk for the judge who presided over

the September 25 hearing. Even assuming, without accepting, Father’s position that

a judge cannot fairly preside over a proceeding involving one of his former law

clerks,14 a different attorney from Counsel’s office represented Mother at the

September 25 hearing. Moreover, Father’s claim of bias seems to be predicated

entirely on the fact that the Family Court granted Mother’s petition for a PFA order.

But “a trial judge’s rulings alone almost never constitute a valid per se basis for

disqualification on the ground of bias.”15

14
Indeed, the Court finds such a bright-line assumption untenable, given the frequency with which
a law clerk goes on to practice before the court for which he clerked as well as the professional
nature of the law clerk/judge relationship.
15
In re Whittrock, 649 A.2d 1053, 1054 (Del. 1994).
6
(9) As a final matter, after Father filed his reply brief in this appeal, he

continued to submit various documents to the Court. These documents were

improperly filed because they either: (i) contain additional argument that is

impermissible under Supreme Court Rule 15(a)(vi),16 or (ii) cite information that

Father discovered after—or factual developments that followed—the Family

Court’s September 25 order and are therefore not part of the record on appeal.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court be AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor
Justice

16
Del. Supr. Ct. R. 15(a)(vi) (providing that “no other brief or writing containing argument may
be submitted without leave of the Court” after briefing is complete).
7