Opinion
File No(s) CN12-06628 CPI No(s) 16-09923
06-02-2017
J - - - - - D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -, AZ - - - - - Petitioner v. S - - - - B - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -, LA - - - - - Respondent
Petitioner Attorney STACI PESIN, ESQ. Respondent Attorney CHRISTINE DEMSEY, ESQ.
CIVIL DISPOSITION
Nature of Proceeding
ALIMONY MODIFICATION Petitioner Attorney
STACI PESIN , ESQ. Respondent Attorney
CHRISTINE DEMSEY , ESQ. [×] ANNOUNCED IN COURT [ ] DECISION RESERVED
Before the HONORABLE JENNIFER B. RANJI, JUDGE of the Family Court of the State of Delaware:
Introduction
This is the Court's decision on a Petition to Modify or Terminate Alimony filed by J----- P. D------ ("Husband") against S---- K. B--- ("Wife"). Husband's Petition to Modify or Terminate Alimony was filed on April 6, 2016. The Court held a hearing on this matter on October 24, 2016. The parties thereafter submitted written closing arguments, responses thereto, and stipulated facts. The Court issued a Letter Decision and Order on March 8, 2017, requesting additional information from the parties, which was timely provided.
Husband argues two bases for termination or reduction of his alimony obligation pursuant to the 2013 Civil Disposition. One basis is Husband's claim that there has been a substantial change in economic circumstances since entry of the Stipulation. The relevant portion of the Stipulation states, "The alimony shall remain in effect until the death of either party, the remarriage or co-habitation of wife, or modification following a substantial change in the economic circumstances of either party." The second basis for Husband's request for termination or a reduction in his alimony obligation is his claim that Wife has a continuing affirmative obligation to seek and maintain employment and has failed to do so.
Factual Background
Based on the Stipulated Facts submitted by the parties and the Court's findings, the relevant facts are as follows:
Husband and Wife were married on August 15, 1987, separated on November 27, 2012, and divorced on June 21, 2013. Husband and Wife placed an agreement regarding alimony and property division on the record at a hearing before Judge Conner on October 18, 2013. Judge Conner then issued a Civil Disposition reflecting the parties' agreement on that same date ("2013 Civil Disposition").
Husband served in the military throughout most of the marriage, retiring after 20 years in 2007. During the marriage, the parties relocated frequently due to Husband's military service, moving at least eighteen times in the United States and abroad. Through his training in the military, Husband was able to earn over $80,000 working for Summit Aviation upon retirement in 2007. Husband's salary with Summit Aviation increased to $110,739 in 2012, when Husband left Delaware to live with his paramour in Arizona, where he was employed by Boeing at a salary of approximately $89,000.
Wife did not develop a career throughout the marriage, as the frequency of the parties' relocations made doing so difficult. Although Wife worked sporadically, she was largely a homemaker and raised the parties' two children, who are now adults.
In 2010, Wife completed a course that taught her how to become a casino card dealer. Thereafter, Wife worked at Delaware Park from August 2010 until May 2013, earning $21,367 in 2011 and $27,864 in 2012. Wife's employment with Delaware Park was part-time and in 2012, Wife supplemented it with income from Home Depot and Pandora.
As noted above, the parties separated in November 2012 and divorced in June 2013. Wife remained in Delaware until April 2014, when she moved to --- -------. According to Wife, she felt at home in --- ------- and this was the first time she had moved someplace because she wanted to do so.
Upon moving to --- -------, Wife obtained minimal part-time employment until September 2014, when she began several months of training with Harrah's Casino. Wife began working full-time as a dealer and supervisor at Harrah's Casino in --- ------- in January 2015 and worked in that capacity until September 2015, when she quit her employment. In that nine month period, Wife earned $23,712. Wife claims that she quit because of stress, noting sleepless nights, difficulty with shift work, and a fainting episode while at work. Husband disputes the medical reasons for Wife leaving, noting the lack of evidence that a medical professional had concluded that Wife could not work as a card dealer and supervisor and citing a Facebook post in which Wife indicated she quit due to being undermined by a supervisor in front of others. After quitting, Wife was unemployed for approximately five months until February 2016, when she began working part-time at Eric's of Metirie until April 2016, when she began working at Avenue Art and Framing. Wife was still working at Avenue Art at the time of the hearing, working approximately 4 days per week earning $12 per hour. Wife earned approximately $11,100 in salary in 2016.
Claims for Relief
Husband argues that his alimony obligation should be terminated based on the language included in the 2013 Civil Disposition which provides that the alimony obligation remains in effect until, inter alia, "modification following a substantial change in the economic circumstances of either party." Husband also argues that his obligation should be terminated due to Wife's failure to make a good faith effort to obtain appropriate employment.
D------ v. B---, CN12-06628, Pet. No. 12-38987, J. Conner (Oct. 18, 2013).
Discussion
I. Changes in Circumstances
As noted above, the relevant portion of the 2013 Civil Disposition permits modification or termination of the alimony obligation if there is a substantial change in either party's economic circumstances. Unfortunately, many of the "economic circumstances" upon which the parties' agreement was based are not made clear in the 2013 Civil Disposition, as it does not provide findings of fact on which the parties' agreement was premised, with the exception of Wife's expenses. Therefore, there is not a readily available set of data points for the Court's consideration, and comparisons of changes to income and expenses become more difficult to determine, as it is not entirely clear to the Court (and, given the nature of such negotiations, it may not even have been clear to the parties) on what factual bases the calculations were made.
It is with that context in mind that the Court considers the arguments and facts presented by the parties.
A. Change in Circumstances Based on Wife's Income
Husband claims three changes to Wife's income that support his request to terminate alimony. First, he claims that there was a substantial change in Wife's salary, from $13,500 in 2013 to $23,700 in 2015, with the potential for a higher salary in 2015 if Wife had remained employed for the final 3 months of the year. Second, he claims that since the parties reached their agreement in 2013, Wife has begun to receive her portion of Husband's military pension, totaling $11,592 annually. Third, he claims that since the parties reached their agreement in 2013, Wife has begun to receive income from an inheritance from her Father. Wife receives $6,312 per year from her father's retirement plan.
The most complicated aspect of these three alleged substantial changes in income relates to Wife's earnings. As noted elsewhere, Wife had minimal part-time income via various jobs during most of the parties' marriage. In 2011, however, after having completed a card dealing course at Delaware Technical Community College, Wife began working for Delaware Park as a dealer, earning $21,367 in 2011 and $27,864 in 2012. Wife worked part-time both years at Delaware Park, and in 2012 she supplemented her income with two additional part-time positions.
From late 2012 through the first several months of 2013, Wife went through several significant changes. First, the parties separated in November 2012. Two months later, in January 2013, Wife's father passed away. Four months thereafter, Wife was laid off from Delaware Park. As of October 2013, when the parties' agreement was negotiated, Wife's income for 2013 totaled only $13,516, which included her Delaware Park salary until May 2013 and part-time work at Pandora and Home Depot thereafter.
The parties' Stipulation of Facts lists Wife's earnings from 2010 through 2016 as follows:
• 2010: $5,797
• 2011: $21,367
• 2012: $27,864
• 2013: $13,516
• 2014: $7,517 -- Wife moved to --- ------- in April 2014 and worked part-time until beginning training at Harrah's Casino in September 2014.
• 2015: $23,712 - This amount includes full-time employment at Harrah's Casino in --- ------- from January through September 2015.
• 2016: $11,032 - Wife was unemployed from September 2015 until February 2016, when she began working part-time at Eric's of Metirie. Wife worked there in February and March, before moving to Avenue Art, where she worked from April 2016 until the time of trial. Husband retained an expert witness to evaluate and testify regarding Wife's earning potential, and that expert determined that Wife has a current earning capacity of $25,000 to $31,000.
Given these facts, the Court has difficulty with Husband's argument that there has been a substantial change in Wife's economic circumstances based on her income. Husband's argument is based on a comparison between Wife's actual earnings in 2013 and her earning capacity of approximately double that amount in 2016. Using two different methods of measuring Wife's income is not an accurate way of determining whether her economic circumstances have changed. At the time of the parties' 2013 negotiations, Wife's actual salary was $13,516, and in 2016 Wife's actual salary was $11,032. At the time of the parties' 2013 negotiations, however, a reasonable measure of Wife's earning capacity would be $28,000, which is the amount Wife had earned in 2012 when she was working in her area of training. In 2016, Wife's earning capacity, as determined by Wife's 2015 earnings when working in her area of training and as determined by Husband's vocational expert, was between $24,960 and $31,200. Comparing 2013 actual income to 2016 actual income therefore shows a slight decrease, and comparing 2013 income capacity to 2016 income capacity, using Husband's expert's conclusion, shows no substantial change. The Court therefore finds that a comparison of like ways of measuring 2013 versus 2016 earnings shows no substantial change.
In his Petition, Husband argued a change in Wife's actual income from $13,500 in 2013 to $23,712 in 2015. Wife quit her employment in September 2015, however, so as of the time of the hearing, Wife's actual income was significantly less. Husband's argument was that Wife should be imputed with an income that reflects her earning capacity, as established by her income for the nine months she worked in her field in 2015 or as established by Husband's vocational expert.
Additionally, the Court finds Wife's earning capacity a more appropriate baseline against which to measure a change in her economic circumstances for purposes of determining whether alimony should be modified. After over two decades of minimal, part-time employment, Wife took a course to become a card dealer in 2010, approximately three years prior to the parties entering their agreement. Based on that training, Wife worked for Delaware Park as a dealer for almost 3 years, earning $5.35 per hour plus tips. Similarly, while working for Harrahs in 2014, Wife earned $5.35 per hour plus tips as a dealer, while being paid $18 per hour for the 40% of her time that she worked as a supervisor. With those earnings, Wife had earned $23,712 through September 2015 which, when pro-rated, would give her an annual salary of $29,640. Husband's expert testified that Wife has an earning capacity of $25,000 to $31,000. Wife's 2012 earnings were therefore consistent with the amount she earned at Harrah's two to three years later working in a similar position and with the earning capacity that Husband's expert witness identified.
Neither Wife's actual earnings nor her earning capacity changed substantially between 2013 and 2016. Therefore, while the Court finds the use of Wife's earning capacity, at the time of the parties' agreement and currently, a better measure of her economic circumstances, by either measure Husband has not shown a substantial change in Wife's economic circumstances.
B. Change of Circumstances Based on Husband's Income
Husband also argues a substantial change in circumstances based on his income. In his Petition, Husband alleges, "Husband's income has significantly decreased since the time of the marriage." In his Closing Argument, Husband states, "Husband's income for alimony purposes in 2013 was $76,500. Husband's income is now $84,200." Based on that assertion, it appears that Husband's income has actually increased between 2013 and 2016. The Stipulation of Facts submitted by the parties provides that Husband's salary in 2013 was $89,219 and that his salary in 2015 was $90,560. Again, that change is upward, not downward. While Husband argues that overtime should not be included in the calculation of his salary, the fact is that Husband entered the stipulation with a salary of $76,500 without overtime and close to $90,000 with overtime. In 2016, Husband had a salary of $84,200 without overtime and approximately $93,400 with overtime, based on Husband's paystub. In either case, Husband's salary has not been reduced since the parties' 2013 agreement.
Pet'r Mot. to Modify or Terminate Alimony ¶ 18.
Pet'r Amended Closing at p.4.
C. Change of Circumstances Due to Military Pension and/or Inheritance
Husband also argues that there is a substantial change due to the fact that Wife is receiving 50% of Husband's military pension as well as approximately $500 per month in interest from the inheritance she received from her father. The Court cannot find that either of these factors is a changed circumstance.
As it relates to the military pension, the fact that Wife was to receive 50% of the pension, which was already in pay-out status at the time of the parties' agreement, was clearly known to Husband and considered in entering into the agreement establishing Wife's right to alimony. The relevant portion of the 2013 Civil Disposition reads, "Husband has a military pension in pay-out status. This shall be divided in accordance with the Cooper formula with a 50% multiplier." In addition, the audio of the October 8, 2013 hearing reflects Ms. Demsey clearly stating that the amount of alimony to which the parties agreed was based on the understanding that Wife would be receiving 50% of Husband's military pension. It is therefore clear that Husband was aware that Wife would be receiving half of his military pension, which had already been in pay-out status, when he entered the agreement, and Wife's receipt of the pension is not a change in circumstances.
D------ v. B---, CN12-06628, Pet. No. 12-38987, J. Conner (Oct. 18, 2013) at p.3.
As it relates to Wife's inheritance, Husband was also aware of the fact that Wife had received an inheritance from her father. This fact was identified twice by Husband in his 52(d), in which he stated that Wife "inherited a substantial amount of money from her late Father's estate" and, at another point, "Wife received a substantial amount of inheritance from her late Father's estate." As with the military pension, the existence of the inheritance was also put on the record by the parties at the October 18, 2013 hearing. Husband now claims that he was not aware of how much money Wife actually received and that Wife stated in her 52(d) that she intended to use the income for her retirement. As to the first point, Husband and Wife dispute whether she had informed him of the amount of the inheritance prior to entering into the stipulation. Even were the Court to find that Husband was unaware of the amount of the inheritance, however, Husband's failure to determine the value of an inheritance of which he was fully aware and which he referred to as "substantial" is not the basis for a finding of a change in circumstance. As to the claim that Wife said she would not use the funds until her retirement, while this was stated in Wife's 52(d), such was not made a part of the stipulation. Husband knew of the inheritance and he knowingly entered into a stipulation without demanding further information or requiring that the inheritance be used at a particular time or in a particular way. He cannot now claim that his failure to know the amount or to place conditions on its use constitutes a change in circumstance.
D. Change of Circumstances Due to Children No Longer Living with Wife
Husband argued in his Petition and his Closing Rebuttal that Wife's expenses should be reduced due to the fact that the parties' adult son lived with Wife at the time of the entry of the Civil Disposition and he no longer resides with her. The Court has reviewed Wife's 16(c) expenses upon which the parties relied in reaching their agreement in 2013. The expenses list only $93 per month related to the parties' adult children, with those expenses due to the children's cell phones. While Wife's utilities at that time may have been a bit higher due to having another adult in the home, no such break-out was provided, or apparently demanded, by Husband at the time, and in any event any change due to Wife now living alone would not be substantial as compared to the overall expenses. In addition, Ms. Demsey noted on the record at the October 18, 2013 hearing that both Husband and Wife had included expenses related to their adult children in the 16(c) expense lists. Therefore, while Wife's expenses may have been reduced slightly as a result of no longer having an adult child living with her, Husband's would have done the same.
E. Conclusion
Having considered Husband's specific arguments regarding changes to Wife's income, Wife's expenses, and Husband's income, and having not found any such changes to be substantial, the Court notes that the language the parties agreed to in the 2013 Civil Disposition regarding termination of an alimony obligation is similar to that found in the Delaware Code for cases in which the alimony obligation was established by the Court after an evidentiary hearing. That language requires a "real and substantial change of circumstances" to terminate an alimony obligation. The Court notes the interpretation of that language as stated in Forbes v. Forbes, which states, "In order to modify a prior alimony amount, the change in the economic circumstances of one of the parties should not simply be different or change to some extent, it must be substantial so as to convince the Court that continuation of the original Order would produce an undue hardship on the obligor or provide an undue benefit to the obligee." Husband has not shown a substantial change in economic circumstances that produces such undue hardship or benefit. Husband may quite reasonably wish that he had more income to save for retirement or to allow him to work less overtime. Those reasonable desires do not, however, lead to a conclusion that there has been a substantial change in the parties' circumstances since the issuance of the 2013 Civil Disposition in this matter.
Forbes v. Forbes, No. CN94-07895, 9821839, 1998 WL 1035243 at *3 (Del. Fam. Ct. Dec. 2, 1998), aff'd, 738 A.2d 237 (1999) (citing Husband J. v. Wife J., Del. Fam., 413 A.2d 1267 (1979)).
II. Failure to Seek Appropriate Employment
The second basis for Husband's request for a termination or reduction of his alimony obligation is his claim that "Wife has a continuing affirmative obligation to seek and maintain employment." The 2013 Civil Disposition, however, does not include language requiring Wife to seek and maintain employment. Rather, this requirement stems from 13 Del. C. § 1512(e), which states that alimony recipients have a "continuing affirmative obligation to make good faith efforts to seek appropriate ... employment." Pursuant to Rockwell v. Rockwell, however, alimony awards entered via stipulation of the parties are to be modified based on contract principals rather than the provisions set forth in the Delaware Code. The Rockwell Court held as follows:
Rockwell v. Rockwell, 681 A.2d 1017, 1018 (Del. 1996).
We hold that when the Family Court is asked to modify or terminate an alimony award that is set forth in court order, pursuant to an agreement of the parties, the proper standards are the same that are generally applicable to the modification, reformation, or rescission of contracts.
Id. at 1021.
Approximately three years after Rockwell, in Forbes v. Forbes, the Supreme Court extended the holding in Rockwell to the obligation to seek appropriate employment found in Section 1512(e). In Forbes, the Court noted that there was no express provision in the contract requiring the alimony recipient to work, although four other requirements for continued receipt of alimony were included. The Court held, "As a matter of law, absent an express provision or provisions in the contract from which the Court can imply that the alimony recipient in this case must comply with the mandate of 13 Del.C. § 1512(e) and make a good faith effort to obtain bona fide employment, her failure to do so is not a ground for termination of alimony or modification thereof."
See generally Forbes, 1998 WL 1035243, at *1.
Id. at *2.
Id.
Similarly, in the current case, the 2013 Civil Disposition provides several bases on which a modification or termination of alimony may be ordered, yet the parties did not include any provisions requiring Wife to maintain employment or incorporating the requirements of Section 1512(e).
As neither party addressed the application of Rockwell or Forbes to the current matter, on March 8, 2017, the Court issued a Letter Order giving the parties ten days to submit their arguments regarding the application of Rockwell and whether it would bar Husband's claim that Wife is required to maintain appropriate employment. Each party timely submitted a response.
The Court considers the application of Rockwell without a finding as to whether Wife has or has not made good faith efforts to seek appropriate employment.
In her response, Wife argued that Rockwell and Forbes do in fact preclude Husband's claim, since the parties entered an agreement on alimony and the agreement did not provide that Wife has a continuing affirmative obligation to seek and maintain employment. The Court notes that Wife, in her Answer, agreed that she had "a continuing affirmative obligation" to seek and maintain employment and, as noted above, neither of the parties raised the question of whether Rockwell precluded Husband's claim. The Court also notes, however, that notwithstanding Husband's current position that Rockwell does not apply because there was no stipulation between the parties, in his closing argument Husband referred to the 2013 Civil Disposition as a "Stipulation and Order." Regardless of the parties' initial positions, however, the application of Rockwell is a legal matter on which the Court must be the ultimate arbiter.
See, e.g., Pet'r Closing Argument at p.2 (December 12, 2016).
In his response, Husband argued that Rockwell does not preclude his claim. Although Husband concedes that the parties reached an "agreement" that was placed on the record on October 18, 2013, several of his arguments are premised on his assertion that the 2013 Civil Disposition that was issued by Judge Conner based on the parties' agreement was not actually a stipulation between the parties. As such, Husband argues that Rockwell does not apply. The bases for this portion of Husband's argument are as follows:
• The Order that Judge Conner signed was titled "Civil Disposition," rather than being titled "Stipulation," "Agreement," or "Stipulation and Order";
• The Order was not drafted or signed by the parties;
• The Order did not include "custom statutory language which is routinely found in written ancillary stipulations and subsequent Orders";
• A review of the audio recording found differences between the 2013 Civil Disposition and the agreement placed on the record, with Husband arguing that issues "material to the parties" were not included in the Civil Disposition. Husband specified ten items that he argued differed between the agreement placed on the record and the Civil Disposition issued by Judge Conner, which included items such as a failure to mention that the bank accounts were to be closed within 30 days, and Judge Conner's inclusion of a provision saying that each party is responsible for his/her own attorneys' fees, when no mention of attorneys' fees was made on the record.
Husband further argues that if the Court finds that the parties did enter into a contract, the contract ought to be reformed, as both parties proceeded based on an assumption that Wife was required to maintain employment. Finally, Husband argues that treating the agreement between the parties in this matter as a contract would be contrary to public policy, as doing so means that "litigants and their counsel will be prevented from resolving cases on the courthouse steps because they would need to submit a written document to the Court to ensure its terms."
The Court begins by providing a brief overview from the audio recording of the hearing held on October 18, 2013. Judge Conner began the hearing by stating his understanding that the parties had resolved the ancillary matters and asked, "Which, Mr. Curran or Ms. Demsey, who would like to recite what the parties' agreement is here?" Ms. Demsey volunteered to recite the agreement, with the understanding that Mr. Curran would correct her if needed. Ms. Demsey then recited the agreement in detail over the course of approximately fifteen minutes, with Judge Conner asking questions for clarification and Mr. Curran clarifying certain issues during the presentation and having the opportunity to add to what Ms. Demsey had presented. Once he had done so, Mr. Curran stated that with his additions, "Our agreement is properly stated on the record." Judge Conner then turned his attention to Mr. D------ asking specifically, "Do you understand all aspects of the property division and alimony agreement?" Mr. D------ replied affirmatively. Judge Conner then asked him whether he had any questions, to which he replied that he did not. Judge Conner then asked Mr. D------ whether this represents the parties' agreement, to which Mr. D------ replied, "Yes." Judge Conner then asked similar questions of and received similar answers from Ms. B---. Following that, Judge Conner stated, "Well I'll be glad to enter that agreement with thanks to both attorneys and the parties for being reasonable, and we'll try to get it as close to what we've gone over here this morning on paper and enter it as your order and send it to you guys."
The Court took no testimony and received no evidence during the hearing as to any of the 13 Del. C. §1512 statutory factors upon which it would base a decision regarding alimony. Rather, the entirety of the hearing was the parties' attorneys placing their detailed agreement on the record. The Civil Disposition issued by Judge Conner states that the parties had reached an "agreement resolving all outstanding issues" and further notes, "[T]he terms of their agreement were announced in open court, on the record, and in the presence of the parties. Both parties acknowledged they understood all aspects of the agreement and were satisfied with it."
Husband's response states, "[T]he parties ... informed Judge Conner of such terms that they agreed on and then left it to the Court to apply Delaware law to the terms that they agreed upon and decide any outstanding issues," and further states that unlike the parties in Rockwell and Forbes, "these parties did not have any control of the language that they were ordered to follow." The Court cannot agree with this attempt to cast a detailed stipulation between the parties as a hands-off endeavor in which the parties somehow reached a partial agreement and then left it for the Court to craft the remainder of the agreement, without any evidence or testimony having been presented. The audio of the hearing, the Civil Disposition issued, and Father's own language in the current proceeding belie such an argument.
As the review of the audio recording shows, the parties were clear that a stipulation resolving the matter had been reached which they wished to place on the record and have made an Order of the Court. The agreement was detailed, taking 15 minutes to review verbally, with each attorney and party given the opportunity to clarify issues, ask questions, and note whether there were any additions or outstanding issues. Judge Conner meticulously ensured that both parties had the opportunity to state whether there were any questions, whether the information placed on the record reflected their agreement, and whether they understood it, and both parties affirmed that they did. Judge Conner's Civil Disposition clearly states that it is entered based on the agreements reached by the parties and notes that it was an agreement "announced in open court, on the record," and that the parties acknowledged that they understood all aspects of the agreement. Husband's own closing argument, submitted prior to the Court raising questions regarding the application of Rockwell, refers on multiple occasions to the Civil Disposition as a "Stipulation and Order." None of this indicates that the parties reached a partial agreement with an intention that the Court would somehow morph that agreement into a Court order that was not actually a contract between the parties, but was instead to be treated as an order entered after a contested hearing and full analysis by the Court.
Rather, such a detailed, negotiated, voluntary agreement between the parties which is then entered as a Court order is exactly the type of agreement to which Rockwell and Forbes would apply. The distinction that Rockwell makes is between alimony that "has been judicially determined" and would therefore be governed by the Delaware statutory provisions for modification and termination, and alimony that "has been determined by an agreement of the parties that is made an order of the court," with the latter being controlled by contract principles. As was stated in Rockwell, "The purpose of making the parties' agreement with regard to alimony an order of the Family Court is to confer jurisdiction upon the Family Court to construe the agreement in the event of a future dispute. ... Nevertheless, the voluntary settlement agreement between a husband and wife concerning alimony is and remains a contract."
Rockwell, 681 A.2d at 1020.
The premise underlying Rockwell is that if the Court enters an order that simply reflects the agreement of the parties, as opposed to an order entered after the Court has heard testimony, considered evidence, performed a legal analysis, and reached its conclusion, then the Court cannot impose other statutory conditions on the parties' agreement. In this case, the Court heard not one piece of testimony that would have provided a basis for the Court to conduct the analysis of 13 Del. C. §1512 that is required in order for the Court to make a decision regarding alimony. The Rockwell Court concluded, "[W]hen the Family Court is asked to modify or terminate an alimony award that is set forth in a court order, pursuant to an agreement of the parties, the proper standards are the same that are generally applicable to the modification, reformation, or rescission of contracts." In this case, the parties are disputing the modification of an alimony award that is set forth in a court order, pursuant to an agreement of the parties. The Court concludes that the Civil Disposition entered by Judge Conner was in fact a stipulation between these parties that is governed by Rockwell.
Rockwell, 681 A.2d at 1021. --------
The Court now addresses some of Husband's arguments related to the form of the order and details regarding its contents.
First, the fact that the heading on the Order issued by Judge Conner referred to the document as a "Civil Disposition" does not preclude a finding that the document was disposed of via a stipulation between the parties, as opposed to following a contested hearing. Both an agreement between the parties and a contested hearing result in the entry of a civil order disposing of the pending matters.
Even if this Court were to somehow conclude, however, that the title "Civil Disposition" cannot encompass a stipulation, the Court finds the contents of the document more persuasive than the title. As noted above, the body of the order itself states in multiple places that it was issued based upon the agreement of the parties.
The Court also does not find the fact that the parties did not draft or sign the order to be dispositive. The parties' attorneys provided detailed information regarding their stipulation, which Judge Conner simply committed to writing in lieu of having the parties provide a document whose content would simply reflect what the parties had placed on the record before the judge and whose signatures would take the place of the statements the parties made upon direct inquiry from the Court regarding the fact that they were entering into an agreement that they understood and which contents had been placed on the record. The hearing concluded with Judge Conner stating, "Well I'll be glad to enter that agreement ... and we'll try to get it as close to what we've gone over here this morning on paper and enter it as your order and sent it to you guys." This language makes clear that Judge Conner entered an order based on the stipulation of the parties, and not based on his own analysis. His reference to the document as "your order" indicates what was made absolutely clear by the parties and by Judge Conner: The order was being entered based on the parties' stipulation. It is not necessary that the parties physically draft or sign the document in order to be bound to the detailed agreement that they placed on the record.
Regarding Husband's claim that the 2013 Civil Disposition lacks terms that would typically be found in such a stipulation, the Court disagrees. Any lack of terms that Husband might believe are standard does not unmake an agreement between the parties. Further, stipulations take many forms, varying in detail depending on a number of factors, including whether the stipulation is drafted by one of the parties or the Court and whether the agreement is reached weeks or months prior to the trial date or in the final minutes prior to the start of the hearing. The parties chose to put their agreement on the record, and while either party could have requested the opportunity to draft the agreement such that additional boilerplate language could be added and submit it to the Court for signature, neither party did so. The lack of any additional language that Husband believes would have been customary is a reflection of the parties' decision to allow their verbal representation on the record to form the basis for their stipulation, rather than a reflection of the lack of a stipulation at all.
In this regard, however, what the Court finds more telling is the specific inclusion of language stating that alimony would remain in effect until death of either party, remarriage or cohabitation of wife, or a substantial change in circumstances. If the Civil Disposition were not based on a stipulation by the parties, the inclusion of this language would be unnecessary, as the provisions of Section 1519(a)(4) would apply. The parties' decision to include this language, which was specifically provided for by the parties in their verbal recitation of their agreement, further evidences the parties' positions that they had entered into a contract such that the provisions of Section 1519(a)(4) would not apply unless it was specifically included.
As for Husband's claim that the terms of the Civil Disposition differed in some ways from those placed on the record, the Court does not find the relatively minor distinctions identified by Husband sufficient for a determination that there was not a meeting of the minds between the parties. Relatively minor issues such as whether a bank account was closed within 30 days may have been overlooked by Judge Conner in his Civil Disposition reflecting the parties' agreement, but if that was the case the appropriate remedy was to request a clarification or correction of the Civil Disposition.
The parties verbally placed a stipulation on the record in a courtroom before a judge, expressly for the purpose of disposing of the alimony and property division matters by agreement of the parties while giving the Court authority to enforce the parties' agreement. The parties' statements and affirmations during the hearing, Judge Conner's statements during the hearing and in the Civil Disposition issued thereafter, and statements made by the parties throughout this proceeding reflect that the parties had entered into a stipulation. That stipulation is what the parties bargained for and asked be made an order of the Court. Judge Conner's 2013 Civil Disposition simply took their bargained for agreement and put it into writing. By doing so, he did not change the nature of the agreement between the parties.
Regarding the request that the contract be reformed, the Court does not find it appropriate to consider reformation of the contract when there has been no opportunity for presentation of evidence on that issue. A separate action for reformation would need to be instituted with the opportunity for both parties to provide evidence and argument.
Finally, Husband argues that treating the 2013 Civil Disposition as a contract would be contrary to public policy, as it would discourage negotiations that take place at the courthouse in the minutes and hours leading up to a hearing "because they would need to submit a written document to the Court to ensure its terms." The Court is unpersuaded by this argument. First, whether the ultimate agreement between the parties is put in writing by the parties or by the Court, the parties must ensure that its terms reflect their full agreement. If in fact the Court issues an order that expressly states, as Judge Conner's Civil Disposition did, that it is issued to reflect the agreement of the parties, and if there are missing or mistaken provisions in that order, the parties have remedies available that ought to be utilized to ensure that the order accurately reflects their agreement. Second, the Court finds that a larger disservice to public policy would occur if the terms of a negotiated agreement between parties can be overridden by application of additional requirements for which the parties did not bargain, based solely on the fact that the agreement was provided to the Court verbally on the record rather than in a written form signed by the parties.
Conclusion
For the reasons outlined above, Husband's Petition to Modify or Terminate Alimony hereby DENIED.
IT IS SO ORDERED.
/s/ _________
Jennifer B. Ranji
Family Court Judge JBR/
cc: Parties, File,
Date Mailed:__________