Opinion
FILE NO.: CN 17-01619 CPI NO.: 17-15466
03-04-2019
L--- R-----, Petitioner v. J----- R-----, Respondent
ORDER AND DECISION ON ANCILLARY MATTERS
Before the Court are matters ancillary to the divorce of L--- R------ ("Wife"), self-represented, and J----- R----- ("Husband"), represented by Judith Jones, Esquire. On December 3, 2018, the Court held a hearing on the merits regarding these ancillary matters in which testimony was presented by Wife, Husband, and E--- O-----, a real estate appraiser.
PROCEDURAL HISTORY
The parties were married on ---- ---, 2002, separated on ------- --, 2016, and divorced by Order of this Court on November 17, 2017. In Wife's May 23, 2017 Petition for Divorce, she requested that the Court retain jurisdiction over matters ancillary to the divorce, including property division, alimony, counsel fees, and court costs. On August 3, 2017, Husband filed an Answer and Counterclaim to Wife's Petition for Divorce, wherein he requested that the Court retain jurisdiction over matters ancillary to the divorce, including property division, temporary and/or permanent alimony, counsel fees, and court costs.
On January 16, 2018, the parties filed a Rule 16(c) Financial Report. The parties then submitted an Ancillary Pre-trial Stipulation on November 9, 2018. On December 3, 2018, the parties appeared before the Court for a hearing on the matters ancillary to their divorce.
During the hearing, the parties informed the Court that the outstanding matters for the Court to decide were the value and distribution of the marital residence, the value and distribution of two vehicles, marital debts, including bills and expenses, and distributing personal and marital property.
DISTRIBUTION OF MARITAL RESIDENCE
Husband resides in the former marital residence at --- ------ ------ in Wilmington, Delaware. While the property was purchased during the parties' marriage in September 2015, the mortgage and title to the property is solely in Husband's name. Husband seeks to retain the marital residence, a request to which Wife does did not object. The parties further agreed that any marital assets, including equity in the marital residence, should be divided equally between the parties.
Husband called E--- O-----, a certified real estate appraiser of twenty years, to testify as the fair market value of the marital residence. In June 2018, Mr. O----- appraised the marital residence which valued the property at $100,000. A copy of this appraisal was submitted as Respondent's Exhibit #1. In performing this appraisal, Mr. O----- conducted a full walkthrough of the residence, accompanied by Husband. Based on this walkthrough, Mr. O----- determined that the property was in fair to average condition, due to deterioration on the front steps, damage to the rear porch, and issues with the central air conditioning. Mr. O----- testified that his estimated value of the marital residence considered the conditions of the home, similar properties in the neighborhood, and amenities within the home.
Wife expressed concerns regarding appraisal of the home. Specifically, Wife believed that the appraisal was not recent enough and suggested that Husband has decreased the value of the marital property over time by keeping the house in unsanitary and poor disrepair. Mr. O----- conceded that appraisal values can fluctuate over a period of six months, but did not believe that the value of this property would have changed significantly since June 2018. Mr. O----- further denied observing any significant signs of unsanitary conditions in the home which would have had a significant impact on the value of the marital property.
The parties purchased the marital residence for approximately $98,000 to $99,000. As of this hearing, the outstanding balance on the mortgage was $91,229.78. To support this, Husband submitted a copy of the Mortgage Statement from US Bank as Respondent's Exhibit #3. Husband testified that he has been making all mortgage payments since the date of separation.
While Wife objected to the appraised value of the marital home, Wife submitted no evidence to refute the current value of the property. The Court, therefore, accepts the appraisal of Mr. O----- and finds that the current value of the marital property is $100,000. Since there is an outstanding mortgage balance of $91,229.78, there is $8,771.22 of equity in the property. Because the parties agreed to equally share any marital assets, Husband and Wife shall each be entitled to $4,385.64, which represents one-half of the value of the equity in the martial residence.
DISTRIBUTION OF VEHICLES OWNED DURING THE MARRIAGE
Also at issue were the distribution of two vehicles owned by the parties during the marriage. The first vehicle is a 2011 Subaru Impreza. Husband testified that the NADA value of the Subaru is $6,600. Wife primarily drove the vehicle during the marriage and wishes to retain this vehicle for herself. Husband agreed that Wife should retain the Suburu but also informed the Court that the vehicle is in his name, as the car was a gift from Husband's grandmother to Husband. Husband further testified that he has tried to work with Wife to transfer title of the vehicle to Wife but was informed he needed to have a copy of Wife's proof of insurance before the DMV would allow him to do this. Husband claimed that he has tried to arrange to go to the DMV with Wife on several occasions but Wife has been uncooperative. Therefore, although Husband has agreed to transfer title of the vehicle to Wife, he cannot do so without Wife first providing him with proof of insurance. The parties discussed this issue during the hearing and Wife presented Husband with a copy of her proof of insurance. The parties further agreed to go to the DMV together on December 5, 2018 to ensure that Husband can transfer title of the Subaru to Wife without difficulty.
Wife did, however, disagree on the NADA value of the Subaru but presented no evidence to support her position. The Court, therefore, finds that the current value of the Subaru Impreza is $6,600, under the NADA valuation. While Husband agreed to allow Wife to retain the vehicle, Husband further contended that because the vehicle was a gift, it was not marital property and, therefore, Wife should be liable to Husband for the value of the vehicle if she wishes to retain it. Husband stated that if Wife cannot provide Husband with the value of the vehicle, he would like the Subaru returned to him. Because both Husband and Wife agreed that Husband received the Subaru as a gift, the Court finds that the Subaru is not marital property for property division. Therefore, if Wife wishes to retain the Subaru, she shall have to pay Husband $6,600, which represents the current re-sale value of vehicle.
The second vehicle is a 2005 Dodge Ram which Husband has in his possession. The parties agreed that Husband should retain the Dodge Ram solely in his name. Husband testified that after some difficulties with changing his bank accounts, he mistakenly believed that he had been up-to-date with his car payments. However, after several months, Husband learned that he was behind on his payments and the vehicle was repossessed. While Husband reclaimed possession of the vehicle, there is still a lien on the title. Husband further testified that, because of the additional payments and fees incurred due to the repossession of the vehicle, the outstanding balance on the loan for the vehicle is $8,912.42. Husband also submitted a copy of his credit union statement for the vehicle as Respondent's Exhibit #2. Husband testified that the NADA value of the vehicle is $8,300. The Court finds that because the current balance on the loan for the truck exceeds the value of the vehicle, there is $612.42 of negative equity in the vehicle. Because Husband wishes to retain this vehicle, Husband shall be solely responsible for this debt and loan.
DISTRIBUTION OF MARITAL DEBTS
Wife requested that Husband contribute to a variety of martial debts, including several past due bills incurred during the marriage and household expenses paid during the marriage. The Court addresses each of Wife's requests below. Car Insurance Bill
Wife also made an additional request that Husband reimburse Wife approximately $300 for property damage which Husband allegedly inflicted on Mother's boyfriend's car. The Court, however, informed Mother that such an expense does not constitute a marital debt and, therefore, cannot be considered by this Court.
Wife testified that Husband let the car insurance payments lapse for approximately two months. Wife paid $233.57 to pay off the amount due under the policy on March 16, 2017, but had no documentation to support this claim. Husband conceded that he had not made the car insurance payments because the payments were automatically withdrawn from his bank account, which he had closed. Husband did not, however, agree that he should be liable for these payments as the debt arose after separation, the insurance covered Wife's exclusive use of the Subaru Impreza, and Wife was cohabiting with her boyfriend.
While the insurance policy may have had Husband's name attached to it, the testimony suggests that the insurance was solely to Wife's benefit. The policy covered her use the Suburu Impreza and the bill was incurred several months after separation. Because this debt solely benefitted Wife and arose post-separation, the Court does not find this is a marital debt and Husband should not be required to reimburse Wife for this payment. T-Mobile Past Due Bill
Wife further requested that Husband contribute to a past due T-Mobile bill which includes charges for both Husband and Wife's phones. Wife testified that, in March 2017, she received a bill for $434.53 from T-Mobile. Although the parties both had phones under this account, which was in Wife's name, Wife testified that she stopped using her phone around December 2016 due to concerns that Husband was tracking her phone. Wife claimed that Husband made no payments towards the account, although he continued to use his cell phone. Husband agreed that both he and Wife had their own cell phones under this T-Mobile account. Husband, however, claimed that he should not be responsible for this debt, as his phone service was cut-off by Wife in January 2017 prohibiting him from using the cell phone beyond that date. Husband stated that because account was in Wife's name, he could do nothing with the account and, therefore, any remaining obligations to this account should be Wife's sole responsibility.
While Wife testified regarding the T-Mobile bill in March 2017, Wife provided no documentation to support this claim or to demonstrate how much has been paid towards this bill. However, the testimony suggests that the account enabled both Husband and Wife to have cell phones, and therefore, Husband and Wife shall be equally responsible for any debts associated with these phones. Electricity Bill Payments
Wife testified that she paid approximately $1,000 to the electric company because of past due bills for electricity in the marital residence. After the parties separated in mid-October 2016, Wife primarily resided in the marital residence with the children until late December 2016. During those months, Wife testified that she regularly paid Husband to cover expenses and bills in the home, including electricity. Although Husband was residing he returned to the marital residence periodically throughout these months to visit with the children. Wife claims that despite paying to Husband, she received a bill from the electricity for past due payments. Wife testified that she paid $1,000 towards this bill and requests reimbursement from Husband for this expense. Wife did not present the Court with any bank statements or account invoices to support her claim. The only corroborating evidence presented by Wife to support the contention that Wife paid $1,000 to the electric company was a vague text message from Wife to Husband in December 2016 requesting $500 for his share of the household bills. Husband testified that he could not recall whose responsibility it was to pay the electricity bill each month. Husband further conceded that Wife provided him with some money while she was residing in the marital residence but stated that Wife did not provide him enough money to cover the bills.
The only evidence Wife has to support this alleged expense is a text message which does not even reference to an electricity bill. Because Wife had no documentation or evidence to support the amount she has paid to the electric company, the Court finds no basis to require Husband to reimburse Wife for these alleged expenses. Reimbursement for NuTone Fan
Wife's final request for reimbursement arises out of the purchase of a fan which Wife claims to have bought for the former marital residence. Wife testified that in March 2017 she paid approximately $120 for a NuTone fan for the former marital residence. Wife did not, however, have any documentation or receipts to demonstrate how much she had paid for the fan and when it was purchased. The only evidence Wife submitted to support this claim was a photograph of the unopened fan with "120.00" handwritten on the photograph. Husband agreed that he was the primary resident of the former marital residence when Wife purchased the fan. Husband testified that Wife brought him this fan unsolicited and left it in his home. Husband further stated that he neither wanted nor needed the fan and claimed that it is still sitting in the exact spot where Wife left it over one year ago.
Wife has presented no evidence to suggest this fan was a marital expense. Although Wife purchased this fan for the former marital residence, she did so after the parties had separated and after Husband had become the primary and sole resident of the home. As Husband has indicated that he has no want or need for this fan, Wife only may have the fan returned to her, but the Court will not order Husband to reimburse Wife for any costs associated with this fan.
DISTRIBUTION OF PERSONAL PROPERTY
Both Husband and Wife agreed that Husband remains in possession of several personal items belonging to Wife. Since their separation, Husband has moved many items to a storage area at his Mother's place of employment. Husband has also moved several personal items of Wife's to the third bedroom of his home. Husband testified that he has invited Wife to come and collect these items on numerous occasions. Husband would still like Wife to come and collect these items and will make himself available to ensure that Wife can enter his home to retrieve her property. Husband did not, however, want Wife's boyfriend to accompany her while in Husband's home and, instead, suggested that she bring along her father or another third-party to help move the larger items and pieces of furniture. In addition, Husband indicated there are several items of marital property not yet distributed to the parties and requested the Court's assistance in distributing these items amongst the parties.
COURT COSTS AND COUNSEL FEES
Each party has requested that the other party pay their court costs. Husband has further requested that Wife pay his attorneys fees associated with this litigation. 13 Del. C. C. §1515 provides for an award of court costs and attorneys at the Court's discretion. The purpose of §1515 is to "equalize the positions of the parties by providing a financially disadvantaged spouse with financial means to prosecute or defend an action." When making this determination, the Court must also consider whether one party's excessively litigious conduct has had an adverse financial effect on the other party.
13 Del. C. §1515: "The Court ... after considering the financial resources of both parties may order a party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this title and for attorneys' fees...."
Gray v. Gray, 503 A.2d 198, 204 (Del. 1986).
Mays v. Mays, 1988 WL 141148, at *2 (Del. Nov. 23, 1988) --------
Wife testified that she is unemployed due to her pregnancy. Prior to this, Wife claimed to have earned approximately $30 hour by working for her boyfriend. Husband testified that he earns approximately $21 an hour, or approximately $30,000 annually, by working as a carpenter.
While Wife is unemployed due to her pregnancy, by Wife's own testimony, she was earning approximately $30 an hour. Therefore, when Wife would have incurred any costs associated with this litigation, the Court finds that Wifer appears to have been earning income comparable to that of Husband's. Although Wife initially filed the Petition for Divorce which requested the Court to retain jurisdiction over ancillary matters, Husband filed a Crossclaim for Divorce requesting the same, therefore, each party wished to litigate these issues since the inception of this case and should have known any costs associated with this. The Court also finds that neither party has engaged in excessively litigious behavior in these proceedings and both Husband and Wife presented reasonable claims and requests during this hearing. Each party shall be responsible for their own fees and court costs. ACCORDINGLY, IT IS HEREBY ORDERED, THIS 5TH DAY OF MARCH, 2019 AS FOLLOWS:
1. Subaru Impreza :
a. If Wife wants to retain possession of the Subaru Impreza, Wife shall have to pay Husband $6,600, the full NADA value of the vehicle. However, because each party is entitled to $4,385.64, one-half of the equity in the marital residence, Wife may contribute this distribution of the marital estate to the amount owed to Husband for the Subaru reducing the amount owed to Husband to $2,214.36. To satisfy this balance, Wife shall make payments of $221.43 to Husband each month for ten (10) months, beginning thirty (30) days after issuing this Order. The parties have agreed to go to the DMV together on December 5, 2018 for Husband to transfer title of the vehicle to Wife. If this does not occur as scheduled, and Wife still wishes to retain the Subaru Impreza, Husband shall ensure that title of the vehicle is transferred to Wife within fifteen (15) days of issuing this Order. Wife shall cooperate with transferring this title.
b. If Wife cannot make the payments above, or no longer wishes to retain possession of the Suburu Impreza, Wife shall return the vehicle to Husband. If title has been transferred to her name, Wife shall work with Husband to revert the title back to Husband. Having received this vehicle, Husband shall have to pay Wife $4,385.64, the value of her equal share of the equity in the marital residence. To satisfy this balance, Husband shall make payments of $438.56 to Wife each month for ten (10) months, beginning thirty days after issuing this Order.
c. Wife must notify Husband on whether or not she intends to retain possession of the Subaru Impreza within ten (10) days of issuing this Order.
2. Husband shall retain sole possession of the 2005 Dodge Ram, including any debts and liens associated, and indemnify and hold Wife harmless for any liability she may incur arising out of Husband's nonpayment.
3. If Wife has made any payments towards the T-Mobile account which provided cellular service to both her and Husband's phones, Husband shall be liable to Wife for 50% of any payments made. If future payments are made by Wife to this account, Husband shall also be liable for 50% of any remaining payments. To receive reimbursement for these payments, Wife must submit proof of payments to Husband. Husband shall then be required to reimburse Wife within fifteen (15) days of receiving such proof.
4. Husband shall return the NuTone fan to Wife within thirty (30) days of the issuance of this Order.
5. Wife shall arrange to obtain her personal property from Husband's mother's place of employment. Wife shall communicate directly with Husband's mother and shall pick up any items within thirty (30) days of the issuance of this Order.
6. Wife may go to Husband's home to retain her items of personal property. Husband shall cooperate with Wife obtaining these items and make himself available to do so within thirty (30) days of the issuance of this Order.IT IS SO ORDERED this fourth day of March, 2019.
7. Regarding the distribution of marital property, within fifteen (15) days of the issuance of this Order, Husband shall submit to Wife a list of all items of marital property not previously distributed amongst the parties. Wife may add any additional items to the list which Husband may have failed to include. Within ten (10) days of receiving this list, Wife shall then divide the items into two equal lists and provide these lists to Husband. Within ten (10) days of receiving this list from Wife, Husband shall then select which list of items he would like to retain and inform Wife of his selection. Husband shall provide the items on Wife's list to her within fifteen (15) days of informing Wife of his selection. If Husband fails to select a list within the allotted time, Wife may select the list of her choosing and may receive those items from Husband.
/s/ _________
ROBERT BURTON COONIN, Judge Cc: File, Parties and counsel
Date Mailed to parties: __________ RBC/jr