Opinion
File No.: CN20-04153 Petition No.: 20-20621
04-19-2021
M------- D------, Petitioner, v. R---- D------, Respondent.
Motion for Interim Alimony ORDER ON MOTION FOR INTERIM ALIMONY
On March 5, 2021, M------- D------ ("Wife") filed a Motion for Interim Alimony through her counsel, Rachelle R. Cutrona, Esquire. On March 12, 2021, R---- D------ ("Husband"), through his counsel, Darlene Wyatt Blythe, Esquire, filed a Response to the Motion. With the Court's permission, Wife filed a Reply on April 1, 2021, and Husband filed a Sur-Reply on April 13, 2021. This is the Court's decision on Interim Alimony.
The parties must both bear in mind that this is only an Interim Order pending a final hearing on alimony and, as such, can be modified retroactively if the Court determines that the interim amount is either excessive or insufficient. There are numerous issues raised in the Motion, Response, Reply and Sur-Reply including, but not limited to, Husband's income and the reasonable expenses of the parties. In this case, the Court specifically asked parties if either wished to have a hearing on the motion, or if the Court should rule on the papers. Neither party requested an evidentiary hearing.
FACTUAL BACKGROUND
The parties were married on May 20, 2000, and separated on March 16, 2020. A decree of divorce was entered on December 20, 2020. The parties have two adult children who have lived with each parent from time-to-time.
Wife filed a Petition for Divorce on September 23, 2020, requesting that the Court retain jurisdiction over property division, alimony, counsel fees, and court costs. Husband did not request ancillary jurisdiction.
The purpose of interim alimony, as opposed to temporary or permanent alimony, is to ensure that both parties are able to support themselves while the ancillary matters are pending. In some states, interim alimony is referred to as "alimony pendante lite" highlighting the nature of the proceeding. It is important to note that in interim alimony proceedings, the Court will not consider all of the parties' expenses. For example, the Court does not consider laundry/dry cleaning, clothing, credit cards (except for minimums), vacation, or charitable contributions in interim alimony orders. However, contractual obligations that have to be paid monthly are considered. The Court generally will reduce household items and repairs, entertainment, and hobbies in interim orders. The point is to "pay what has to be paid" until the final order is issued which in this case will be in early July 2021 based on the current scheduling order. The Court gives more consideration to all of the claimed expenses in the final order which addresses alimony on an on-going basis.
In determining interim alimony, the Court first looks to the party seeking interim alimony ("Applicant") to determine whether the party is dependent upon the other spouse ("Payor") for support to be able to pay the required monthly payments. The Court first looks at the income of the Applicant and subtracts the reasonable monthly expenses required to be paid. If the Applicant has a monthly deficit, the Court examines the income and reasonable monthly expense to be paid by the Payor. If the Payor has the ability to meet the deficit, the Court will order that interim alimony be paid until the final order issues.
WIFE'S INCOME AND EXPENSES
According to the Motion and attachments, Wife has been employed for the last nine years as a paraprofessional with the Christina School District. Wife is paid bi-weekly and receives "flex credits" that are applied pre-tax to Wife's medical expenses. Wife has subtracted the pre-tax medical deductions in her application for interim alimony.
The Court considered Wife's W-2 income from 2020 as well as Wife's most recent pay advisory statements. In 2020, Wife had Medicare wages of $39,014. After pre-tax medical and required retirement contributions, Wife had taxable gross income of $37,281. Wife paid $2,058 in federal tax, $2,419 in social security tax, $566 in Medicare tax, and $1,179 in Delaware tax. Wife's net income in 2020 was $31,059, or $2,588 per month.
Wife's current pay advisories show similar income in 2021. Wife is paid $1,543 bi-weekly which extrapolates to $2,528 per month, including Wife's medical insurance, union dues and supplemental benefits payments. The Court will use $2,588 as Wife's net monthly income as the W-2 covers an entire year of Wife's income and required deductions. The Court notes that it has allowed Wife's claim for union dues in the allowable expenses, making the net available income essentially identical to the 2020 tax year.
Wife's monthly expenses and the Court's adjustments are as follows:
Wife's Expenses and Court Adjustments
| Item | Wife's Claim | Court's Adjustment |
|---|---|---|
| Rent | $1050 | $1050 |
| Water/Sewer/Utilities/Trash | $205 | $205 |
| Cable/Internet | $100 | $100 |
| Telephone | $230 | $230 |
| Household Items/Repairs | $20 | $20 |
| Groceries | $300 | $300 |
| Clothing | $50 | $0 |
| Medical/Dental Out of Pocket | $172 | $10 |
| School Tuition | $50 | $0 |
| Laundry/Dry Cleaning | $10 | $0 |
| Toys/Presents | $100 | $0 |
| Cosmetics | $20 | $20 |
| Hobbies | $20 | $20 |
| Barber/Hairdresser | $40 | $40 |
| Charitable Contributions | $0 | $0 |
| Vacation | $100 | $0 |
| Entertainment/Miscellaneous | $200 | $50 |
| Transportation (other than auto) | $0 | $0 |
| Car Payments | $478 | $478 |
| Repairs/Maintenance | $30 | $30 |
| Car Insurance | $175 | $175 |
| Gasoline | $200 | $200 |
| Other: Life Insurance | $90 | $0 |
| Credit Card (minimum) | $350 | $50 |
| Pet Care | $30 | $30 |
| Gym Membership | $20 | $20 |
| Netflix/Hulu/Pandora, etc. | $45 | $45 |
| Union Dues | $42 | $42 |
|---|---|---|
| $4,127 | $3,115 |
On an interim basis, the Court did not consider Wife's claims for Clothing, Toys and Presents, Charitable Contributions, or Vacation as these items are not necessary at the present time. Additionally, the Court reduced, on an interim basis, the following items: (a) Medical from $172 to $10 as the medical insurance deduction is included in the reductions from gross income; (b) School Tuition from $50 to $0; (c) Wife's claim for Entertainment from $200 down to $50 per month; and (d) Credit Cards from $350 to $50 to cover the estimated minimum payments only. The Court allows Wife $3,115 in reasonable required monthly expenses
After a full hearing, the Court will consider other arguments regarding Wife's reasonable on-going monthly expenses. If Wife's total monthly expenses for interim purposes are $3,115.00, she would need interim alimony in the amount of $527.00 per month to pay these expenses until the final decision issues.
HUSBAND'S INCOME AND EXPENSES
Husband is employed by Agilent Technologies as a Sales Representative. Husband's income is based on a "target pay" with 70% paid on a bi-weekly basis and 30% paid based on his quota achievement. While Husband earned $117,113 in 2018 and 2019, his pay decreased slightly to $114,294 in 2020. The Court analyzed Husband's income based on his 2020 W-2 income and his pay advisory statements through the first ten weeks of 2021.
Husband had gross income of $114,294 in 2020. Husband's deductions included $12,403 in federal tax, $7,028 in social security tax, $1,644 in Medicare tax, and $4,956 in Delaware tax. Additionally, $11,397 was deducted for his 401(k) contributions, and $1,102 was deducted from the company flex plan for Husband's medical insurance(s). Husband had net income of $75,763 or $6,314 per month in 2020.
Husband's pay advisories for the first ten weeks of 2021 show that Husband earned $18,207 in "straight pay" and $8,012.26 of his "incentive pay". Husband's net pay for the first ten weeks was $14,757. The annualized amount is $76,734 or $6,395 per month. The Court will use $6,314 as the W-2 covers an entire year of Husband's income and required deductions, and is the lesser of the two monthly calculations.
As with Wife's estimates, the Court adjusts Husband's claimed expenses for purposes of interim alimony as follows:
Husband's Expenses and Court Adjustments
| Item | Husband's Claim | Court's Adjustment |
|---|---|---|
| Mortgage | $1526 | $1526 |
| Water/Sewer/Utilities/Trash | $500 | $500 |
| Cable/Internet | $180 | $180 |
| Telephone | $0 | |
| Household Items/Repairs | $100 | $20 |
| Groceries | $1,092 | $400 |
| Clothing | $100 | $0 |
| Medical/Dental Out of Pocket | $246 | $55 |
| School Tuition | $0 | $0 |
| Laundry/Dry Cleaning | $0 | $0 |
| Toys/Presents | $80 | $0 |
| Cosmetics | $60 | $20 |
| Hobbies | $50 | $20 |
| Barber/Hairdresser | $80 | $50 |
| Newspaper/Subscriptions | $10 | $10 |
| Charitable Contributions | $200 | $0 |
| Vacation | $0 | $0 |
| Entertainment/Miscellaneous | $164 | $50 |
| Transportation (other than auto) | $0 | $0 |
| Car Payments | $0 | $0 |
| Repairs/Maintenance | $0 | $0 |
| Car Insurance | $0 | $0 |
| Gasoline | $0 | $0 |
| Other: Home Warranties | $115 | $115 |
| Student Loans | $400 | $400 |
| Memberships | $53 | $53 |
| Pet Care | $30 | $30 |
| Traveling Sports | $314 | $0 |
| Kids Juice Supplements | $100 | $0 |
| $5,566 | $3,429 |
On an interim basis, the Court did not consider Husband's claims for Clothing, Toys and Presents, Charitable Contributions, or Vacation as these items are not necessary at the present time. Additionally, the Court reduced, on an interim basis, the following items: (a) Household items and repairs from $100 to $20; (b) Groceries from $1,092 to $400 which is the standard for one adult; (c) Medical from $246 to $55 as the medical insurance is covered in the reductions from gross income; (d) Cosmetics from $80 to $20 which matches Wife's allowance; (e) Hobbies from $50 to $20 which matches Wife's allowance; (f) Barber and Hairdresser from $80 to $50; (g) Entertainment from $164 down to $50 per month which matches Wife's allowance; (h) Traveling Sports from $314 to $0; and (i) Kids' Vitamin and Juice Supplement from $100 to $0. The Court allows Husband $3,429 in reasonable required monthly expenses.
After a full hearing, the Court will consider other arguments regarding Husband's actual income to date and his reasonable monthly expenses that are on-going. If Husband's total monthly expenses for interim purposes are $3,429, he has a surplus adequate to meet Wife's deficit in full. After payment of $527 per month, Husband still has a surplus of $2,348.
CONCLUSION
Wife has an interim monthly deficit of $527 per month. Husband is able to meet Wife's deficit with his interim surplus. The Court will order that Husband pay Wife $527 per month commencing April 1, 2021. The April payment will be due on or before April 23, 2021, with subsequent payments due on the first day of each month. This obligation will continue until further order of the Court.
ORDER
IT IS HEREBY ORDERED as follows:
1. The Motion for Interim Alimony is GRANTED in the amount of $527 per month effective April 1, 2021.
2. Husband shall make the first payment of $527 prior to April 23, 2021. All future payments shall be due on the first of each month.
3. This Order will continue until further Order of the Court.
IT IS SO ORDERED this 19th day of April 2021.
/Michael W. Arrington/
MICHAEL W. ARRINGTON
Judge Date E-mailed to Counsel: 4/19/2021