THOMPSON v. THOMPSON, 738 A.2d 239 (Del. 1999)

Thompson v. Thompson; Thompson, In re.

No. 552, 1998.Supreme Court of Delaware.
July 28, 1999.

Appeal from the Family Court, New Castle County, CN93-11460.

AFFIRMED

Unpublished Opinion is below.

PAULA M. THOMPSON, Respondent Below, Appellant, v. RANDALL L. THOMPSON, Petitioner Below, Appellee; IN THE INTEREST OF: RAYMOND D. THOMPSON, a minor, and DANA THOMPSON, a minor. No. 552, 1998. Supreme Court of Delaware. Submitted: June 29, 1999. Decided: July 28, 1999.

Family Court of the State of Delaware in and for New Castle County, File No. CN93-11460.

Upon appeal from the Family Court.

Affirmed.

Before WALSH, HOLLAND and BERGER, Justices.

ORDER
This 28th day of July, 1999, upon consideration of the briefs of the parties, it appears to the Court that:

1) Paula M. Thompson appeals from an order of the Family Court modifying custody and visitation for her two children, Raymond and Dana. By Order dated August 23, 1994, Mother was granted primary residential custody during the school year and Randall L. Thompson, the Father, had visitation two out of three weekends. During the summer, the children lived with Father, and Mother had visitation every other weekend. In response to Father’s petition to modify custody and Mother’s petition to modify visitation, the Family Court reversed the custody/visitation arrangement in effect under the 1994 Order.
2) Mother argues on appeal that the trial court applied the wrong statute in deciding whether to modify custody. She says that it had been less than two years since the denial of Father’s most recent petition for modification and, therefore, custody should not have been modified unless the trial court found that the prior order might “endanger the [children’s] physical health or significantly impair [their] emotional development.” 13 Del. C. § 729(c)(1). Mother misreads the record. The March 4, 1997, hearing that she contends was the most recent custody hearing, was a hearing on visitation. As a result, § 729(c)(1) is not applicable.
3) Alternatively, Mother argues that the Family Court erred in failing to consider the potential harm that would result from a change in custody, and whether that harm is outweighed by any advantages to such a change. § 729(c)(2)a. Based on our review of the record and the Family Court’s decision, we conclude that the Family Court properly applied all of the relevant factors under § 729(c)(2) and that there was factual support for the court’s findings.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family Court be, and the same hereby is, AFFIRMED.

s/ Carolyn Berger Justice