Burton v. Burton

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IN THE SUPREME COURT OF THE STATE OF DELAWARE DONALD J. BURTON, Petitioner BelowAppellant, v. BETTY H. BURTON, Respondent BelowAppellee, and OFFICE OF THE COURT APPOINTED SPECIAL ADVOCATE, Appellee. § § § § § § § § § § § § § § § § § § No. 558, 2004 Court Below---Family Court of the State of Delaware, in and for Sussex County File No. CS94-3107 Petition No. 02-34657 Submitted: May 16, 2005 Decided: July 19, 2005 Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices O R D E R1 This 19th day of July 2005, upon consideration of the appellant s opening brief and the Office of the Court Appointed Special Advocate s ( CASA s ) motion to dismiss the appeal pursuant to Supreme Court Rule 29(b) or, in the 1 The Court has sua sponte assigned pseudonyms to the parties and their minor child. Supr. Ct. R. 7(d). alternative, to affirm the judgment of the Family Court pursuant to Supreme Court Rule 25(a),2 it appears to the Court that: (1) The petitioner-appellant, Donald J. Burton ( Father ), filed an appeal from the Family Court s November 30, 2004 order granting sole custody and primary placement of Hanna, the parties minor child, to Mother and permitting Father therapeutic visitation.3 In conjunction with his appeal, Father also requests this Court to issue a writ of prohibition preventing the Family Court from exceeding the limits of its jurisdiction. (2) The Rules of this Court direct all parties to order a transcript and to include in their appendix those portions of the record that are relevant to any claims on appeal. In this appeal, Father, as the appellant, had the burden of producing such portions of the trial transcript as are necessary to give this Court a fair and accurate account of the context in which the claim of error occurred and the record must include a transcript of all evidence relevant to the challenged finding or conclusion. 4 2 At the direction of this Court, appellee Betty H. Burton ( Mother ) filed responses to CASA s motions. In her responses, Mother stated that she supported the motions. 3 Therapeutic visitation consists of visitation between parent and child under the supervision of a counselor or psychologist. The Family Court s order was issued following a two-day hearing on November 29 and 30, 2004. 4 Supr. Ct. R. 9(e) (ii) and 14(e). -2- (3) Father s failure to provide the transcripts of the Family Court hearing precludes appellate review of his claim that the Family Court committed error and/or abused its discretion by awarding sole custody of Hanna to Mother and granting him therapeutic visitation. Father s claim must, therefore, be dismissed. (4) Even if we were to grant Father s request to decide this appeal on the basis of the remaining Family Court record, Father still would not prevail. Assuming all facts recited in the Family Court s November 30, 2004 order to be correct, we find no error of law or abuse of discretion on the part of the Family Court in fashioning the order it did.5 (5) In the absence of any factual support for Father s claim that the Family Court exceeded its jurisdiction, we hereby deny his petition for a writ of prohibition. (6) Father also filed several motions in conjunction with his appeal---a motion to prevent his attorney from withdrawing his appearance, a motion to dismiss Mother s attorney because of a conflict of interest, a motion to compel the Family Court to surrender transcripts of all testimony supporting its rulings, and a motion for a mandatory injunction. We find no appropriate factual or legal support for any of these motions and, therefore, hereby deny them. 5 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979); Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983). -3- NOW, THEREFORE, IT IS ORDERED that: Father s appeal is DISMISSED; Father s petition for a writ of prohibition is DENIED; and Father s motions are DENIED. BY THE COURT: /s/ Myron T. Steele Chief Justice -4-

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