Opinion
FILE NO.: CN 18-01777 CPI NO.: 18-10402
07-18-2019
V---- L. S--------- Petitioner v. C----- J. D-------- Respondent
ORDER AND DECISION ON ANCILLARY MATTERS
Before the Court are matters ancillary to the divorce of V---- L. S--------- ("Wife") and C----- J. D-------- ("Husband"). Wife is represented by Achille Scache, Esquire, and Husband is represented by Jessica Markowski, Esquire. On April 26, 2019, the Court held a hearing on the merits regarding these ancillary matters in which testimony was presented by Wife; Wayne McCormick, a short sale facilitator; and Husband.
Ms. Markowski entered her appearance on behalf of Husband on March 4, 2019. From May 4, 2018 until January 4, 2019, Shauna Hagan, Esquire represented Husband.
Mr. McCormick testified by telephone.
PROCEDURAL HISTORY
The parties were marred on August 20, 1999, separated for purposes of divorce in November 2017, and divorced by Order of this Court on June 25, 2018. In Wife's Petition for Divorce of April 3, 2018, she requested the Court retain jurisdiction over matters ancillary to the divorce, including property division, temporary and permanent alimony, counsel fees, and court costs. On May 4, 2018, Husband filed an Answer and Counterclaim, in which he requested that the Court retain jurisdiction over matters ancillary to the divorce, including property division, counsel fees, and court costs.
Wife later testified that she did not move out of the former marital residence until March 2018.
On May 30, 2018, Wife filed a Motion for Interim Alimony against Husband. On June 11, 2018, Husband filed an Answer to Wife's Motion. Pursuant to 13 Del. C. § 1512(a), the Court granted Wife's Motion on June 26, 2018 and ordered Husband to pay Wife $1,212 per month on the first day of each month until a final order was issued. At that time, the Court also ordered Husband to pay to Wife the sum of $3,000 as an advance toward her attorney's fees. Furthermore, for the purpose of an interim alimony calculation, the Court attributed Wife with $39,268 per year (or, $3,272 per month) in income and $3,644 per month in expenses, and attributed Husband with $100,000 per year (or, $8,333 per month) in income and $3,810 per month in expenses. On July 6, 2018, Wife filed a Motion for Reargument to which Husband filed a Response on July 17, 2018. On August 18, 2018, the Court granted Wife's Motion in part, reducing Wife's attributed income to $34,268 per year (or, $2,856 per month) and increasing the amount Husband was to pay Wife in interim alimony to $1,584 per month.
On September 4, 2018, the Court issued a Notice of Order of Income Attachment for Alimony to Husband's employer in the amount of $1,584 per month.
On August 20, 2018, Wife filed a Motion for Contempt and Sanctions alleging that Husband had still not paid the previously ordered $3,000 advance toward her attorney's fees and that Husband had stopped paying the mortgage on the former marital home as of early June 2018. Wife requested that Husband pay the fee, bring the mortgage to current, and pay Wife's attorney fees related to the necessity of filing the Motion. On September 4, 2018, Husband filed a Response alleging that he had insufficient funds both to pay the mortgage and the advance toward Wife's attorney's fees. The mortgage issue is now moot. The issue of the $3,000 advance of fees is addressed in the decision below. As to the request for fees related to filing this motion, the Court will deny the request.
On October 12, 2018, the Court scheduled a final hearing in this matter for January 29, 2019 and pre-trial conference for January 4, 2019. However, on December 27, 2018, Husband filed a pro se Motion for Continuance due to lack of representation. On December 31, 2018, Wife filed a Response opposing the Motion. At the time of the previously scheduled pre-trial conference, the Court granted the Motion for Continuance, rescheduling the final hearing for April 26, 2019 with the pre-trial conference for April 4, 2019, and permitted Ms. Hagan to withdraw as Husband's counsel. However, the Court also permitted Wife's counsel to submit an affidavit for fees related to responding to the Motion for Continuance and appearing at the January 4th hearing. On January 15, 2019, Wife filed a Motion for Reargument that the Court's Order of January 7, 2019 failed to memorialize the full extent of the Court's instructions from the January 4th hearing. On January 30, 2019, the Court granted Wife's Motion for Reargument and directed the parties to follow all recommendations of the realtor with respect to the marketing, pricing and sale of the former marital residence. In his Affidavit of Time and Expenses of January 17, 2019 related to the Motion for Continuance and appearance at the January 4, 2019 hearing, Wife's counsel requested an award of $2,375 in fees. Husband did not file a response to this Affidavit. As a result, on February 12, 2019, the Court ordered Husband to pay Wife's counsel $2,375 within 30 days of the date of the order.
On February 20, 2019, Wife filed a Motion to Compel production of documents which the Court granted in part, ordering Husband to respond to the requests for production by March 22, 2019. On April 4, 2019, the parties submitted an Ancillary Pre-trial Stipulation. On the day of the final hearing, the parties submitted an updated Stipulation of Matters in Agreement/Dispute. Following the conclusion of the April 26th final hearing, the Court issued a Partial Order Resolving Ancillary Matters directing Husband to pay the Midland Funding judgment valued at $996 and Citi judgment valued at $1485 prior to the closing on the short sale of the former marital residence. The Partial Order also directed the parties to file all delinquent tax returns within 45 days, with Husband to pay the accountant's fees. Husband was to receive credit for these payments at the time of the final reconciliation of the property division consistent with the percentage distribution.
Following a review of the Pre-trial Stipulation on April 4th, the Court ordered Husband to produce the following documents by April 14, 2019: two months of paystubs, a social security wage statement, and a Honda Accord purchase agreement.
Issues in Agreement
Either during the hearing or as noted in the Ancillary Pretrial Stipulation or the supplemental Stipulation of Matters in Agreement/Dispute provided to the Court on the day of the final hearing, Husband and Wife reached an agreement on a number of matters or values related to the division of marital property.
1. The former marital residence located at ---- Baird Avenue was to be sold.
2. Wife shall retain the 2015 Jeep Patriot and related loan, without offset.
3. Husband shall retain his 2016 Honda Accord and related loan, without offset.
4. The 2009 Volkswagen Jetta was a gift to the parties' son and is not subject to division.
5. Husband's State of Delaware pension is to be divided in accordance with the Cooper formula.
6. The parties shall divide Husband's WSFS savings account valued at $2,230 and his WSFS checking account valued at $1,263.
7. The parties shall divide the following debts:
a. Wife's Capital One credit card debt valued at $440.
b. Wife's AT&T debt valued at $390.
c. The New Castle County sewer debt valued at $459 unless it is satisfied via short sale of the former marital residence.
d. The 2015 federal tax debt valued at $2,623 and 2015 state tax debt valued at $1,061.
8. A second mortgage on the former marital home of approximately $1500 shall be taken care of in the short sale and is not a debt subject to division.
Issues in Dispute - Property Division
1. Settlement of Judgments against Former Marital Home
As memorialized in the Court's Partial Order Resolving Ancillary Matters, Mr. McCormick testified that the former marital residence was under contract for short sale at the time of the final hearing. He explained that the mortgage lender had agreed to reduce the parties' debts associated with the home and the short sale had been approved through the end of May 2019. However, in order to reach a final settlement, the parties needed to pay two outstanding judgments to pass clear title to the buyer. Husband had a debt of $996 owed to Midland Funding and Wife had a debt of $1,485 owed to Citi for a total marital debt of $2,481. According to Mr. McCormick, the parties had also reached an agreement as part of the short sale that they would only be responsible for paying any sewer bill on the property that exceeded $740. Finally, if the short sale did not go through, the home would likely go to foreclosure and a sheriff's sale, and the parties would be liable for about $75,000 to the mortgage lenders. Whereas, under a short sale, the parties would owe nothing if the sale went through.
Wife requested that Husband pay the full $2,481 in debt immediately and then receive a credit consistent with the overall percentage distribution of the marital estate. Husband argued that he did not have the money to make such a payment at present and therefore requested that the parties each pay half of the judgment or let the Court decide how to allocate the debt as part of the final Order. Wife responded that she could not afford to pay half of the $2,481 debt.
At the conclusion of the April 26, 2019 hearing, the Court ordered Husband to pay both judgments in full to avoid foreclosure. In so deciding, the Court noted that Husband earned over $36,000 in gross pay during his first three months of work in 2019. Therefore, after taxes and alimony, Husband had a net income of about $19,000 during that three-month period and could afford to pay the $2,481 debt from his surplus income subject to a credit at the final reconciliation of the property division.
According to Husband's Earnings Statement from the pay period ending on March 17, 2019, he had a year to date gross pay of $36,636. Wife's Ex. #1. After taxes, alimony and other deductions, Husband's net pay during this period was $19,004. Husband's reported monthly expenses during this same period was $4,733. Husband's Ex.#10. Even if the Court used that expense estimation and did not project additional earnings for Husband for the rest of March, Husband would still have $4,805 in surplus income from which to pay the $2,481 debt.
2. Allocation of Credits
a. Payments Made to 2009 Volkswagen Jetta
The parties agree that the 2009 Volkswagen Jetta was a gift from Husband and Wife to one of their sons, and that it should not to be subject to division as a marital asset or debt. However, Wife is seeking a credit for the payments made by both parties on the vehicle. Wife reportedly paid $1,522 toward the vehicle and Husband reportedly paid $578. Because the vehicle was a gift and is therefore not a marital asset, the Court declines to give either party credit for any part of the amount they paid toward the vehicle, just as the Court would decline to give either party any credit for any other gifts, such as clothing, given to a child.
b. Husband's Post Separation Payments on Mortgage and Utilities
Wife testified that the mortgage on the former marital residence was current when she left the residence in March 2018, and that Husband continued to make mortgage payments from March through May 2018. According to Husband, he made all post-separation mortgage payments from November 2017 through July 2018, until he moved out in August 2018. Husband's Ex. #3. He requests a credit for these nine months of payments in the amount of $1,741 per month. However, with regard to Wife's request for interim alimony, both parties reported in 2018 that the mortgage was $1,731. Additionally, in its July 2018 Order on interim alimony, the Court credited Husband with the cost of the mortgage in factoring his monthly expenses as part of the award amount granted to Wife. Furthermore, Husband was residing in the former marital home at all times he was paying the mortgage and exclusively benefiting from the monthly expense during at least the months of April 2018 through July 2018. Therefore, the Court will not credit Husband for any of the payments toward the mortgage after Wife left the home in March 2018. However, for the period when Wife continued to reside in the home along with Husband, and therefore also benefitted from being in the residence, Husband will be credited with a portion of $8,655 (or, $1,731 for each month from November 2017 through March 2018) consistent with the overall distribution.
Although the parties dispute whether Husband paid the mortgage through July 2018, and there is no documentary evidence to support that assertion by Husband, that fact is immaterial as the Court has declined to give Husband any credit for any mortgage payments after March 2018.
Husband also seeks a credit for the utility bills he has paid on the former marital residence from post-separation until present. Husband denied residing in the home after August 2018 but the property continued to accrue water and electricity bills. Husband testified those bills are due to the realtor's instructions that he leave the water dripping and heat on so that nothing freezes in the home. Husband also testified that he relied on two electric space heaters running in the house during the winter months and that the realtors left the lights on every time they left the residence. Wife responded that the utility bills are evidence that Husband still resides in the home. She further testified that she drives by the former marital home about five or six times a week and Husband's vehicle is always there, even at 11:30 PM. Wife added that the week before the hearing she went into the home to remove some of her belongings from the basement, closet and shed and she found food in the refrigerator.
While the parties' son A---, Wife, and Husband were still in the home, the water bill charges were $84 for February 2018 and $59 for March 2018. After Wife and A--- left the home and Husband solely occupied the home, the water bill charges decreased to $51 for April 2018, $44 for May 2018, $43 for June 2018, and $43 for July 2018. Despite the fact that the water bill charges jumped to $208 for August 2018, after Husband reportedly vacated the home, Husband denied filling up the pool that month. He gave no reasonable explanation for this increase. For the following the months, the water bill charges remained at or lower than when Husband remained in the home in the summer months, other than in January 2019 when the bill charges were $136. In September 2018, the bill charges were $52. In October 2018, the bill charges were $35. In November 2018, the bill charges were $26. In December 2018, the bill charges were $27. In February 2019, the bill charges were $19. In March 2019, the bill charges were $26. Husband's Ex. #5. The total remaining amount due on the water bill was $45.32 as of March 26, 2019 because Husband was slightly behind on payments.
During the post-separation months when Wife and A--- remained in the home from November 2017 through March 2018, the electric bill charges averaged $289. In November 2017, the new charges were $282. In December 2017, the new charges were $315. In January 2018, the new charges were $363. In February 2018, the new charges were $317. In March 2018, the new charges were $171. Starting in March 2018, Husband did not always pay the bill in full. In April 2018, the new charges were $230. In May 2018, the new charges were $111. In June 2018, the new charges were $156. In July 2018, the new charges were $125. In August 2018, after Husband reportedly vacated the home, the new charges dropped to $99. In September 2018, the new charges were $104. In October 2018, the Court is uncertain what the new charges were because the page is cut off and the September 24 bill amount of $494 is more than the October 23 bill amount of $401. This suggests that Husband made a payment between those dates but that payment was not copied. Therefore, the Court cannot give Husband any credit for the October 2018 charges. In November 2018, the new charges were $193. In December 2018, the new charges were $203. In January 2019, the new charges were $255. In February 2019, the new charges were $247. In March 2019, the new charges were $201. The total remaining amount due on the electricity bill was $749.03 as of March 25, 2019 because Husband had fallen significantly behind on payments since vacating the home.
The Court finds that Wife's testimony, as it came without supporting documentary evidence, is insufficient to overcome Husband's assertion that he vacated the home in August 2018. The Court further finds Husband's explanation for the ongoing utility bills to be reasonable overall. Therefore, Husband will be credited with a portion of the $672 in water bills for each month from February 2018 through March 2018, and from August 2018 through March 2019, consistent with the overall distribution. Husband will also be credited with a portion of the $2,750 in electric bills for each month from November 2017 through March 2018, from August 2018 through September 2018, and from November 2018 through March 2019, consistent with the overall distribution.
At the final hearing, Husband did not provide sufficient proof of all water and electric bills dating back to the November 2017 month of separation. Therefore, Husband is barred henceforth from seeking any additional credits on these bill payments not reflected herein.
3. Pool Fine
The County issued a $275 fine on April 16, 2019 for inappropriate upkeep of the above ground pool located at the former marital residence. Husband's Ex. #6. Wife argues that the fine should be Husband's sole responsibility because the pool was covered and winterized when she left the residence in March 2018. Husband argues that the parties should share the responsibility for the fine because he never opened the pool after Wife moved out, so the cover remained on it and it was appropriately winterized at all times. However, the fine does not expressly mention the pool being uncovered or inappropriately winterized. On the Violation Notice page, the County notes "Outside Storage of Debris. Remove and maintain the premises free from the outside storage of any debris. Wood debris no [sic] the ground next to swimming pool." As a result, both of the parties believe the fine might be related to a deck that their son tried to build on the pool. Wife testified that Husband did not want to get a permit for the deck, so their son and his friends tried to remove the deck with a truck. Because the parties did not provide any documentary evidence as to the state or usage of the pool at any date post-separation or even testify to the date their son built the deck and/or tried to remove it, the Court believes that it would be inequitable to assign the debt solely to one party only on such limited testimony. As such, the Court will divide the debt consistent with the overall percentage distribution.
4. 2016 and 2017 State and Federal Tax Debts and Penalties and Interest
At the time of the final hearing, the parties had not filed state or federal taxes for 2016 or 2017. The parties do not dispute that the taxes owed should be divided consistent with the overall distribution. However, they disagreed over how to assign the penalties and interests related to not filing those taxes until now. Wife testified that for much of the marriage the parties worked together on filing their taxes. However, in 2015, Wife took sole responsibility for filing the taxes by using Turbo Tax. Although she said she thought she filled out everything correctly, she later realized that "it didn't turn out right." As a result, in 2016 and 2017, Wife said that she asked Husband to help her with the taxes by having H&R Block or another company file on their behalf. According to Wife, Husband kept saying he would do it but kept putting it off. Wife added that she did not file without Husband because she thought he would need to sign for himself if they filed jointly, and that Husband has a "terrible anger" so she never pushed him to file like he said he would. Therefore, Wife wants Husband solely assessed with any penalties and interest for both 2016 and 2017 state and federal tax returns.
As noted above, the parties still have outstanding state and federal tax debts from 2015 which they have agreed to divide consistent with the overall distribution of marital debts.
In contrast, Husband wants Wife to share the penalties and interest consistent with his requested overall percentage distribution of 50-50. Husband testified that the parties have not used an accountant for about twenty years and that Wife has filed their taxes jointly using Turbo Tax of late. He also testified that he has never denied Wife access to his W-2 so that she could file their taxes. According to a notice issued by the Internal Revenue Service to Husband on October 22, 2018, the parties still owe a proposed amount for the 2016 tax year of $14,383 of which $4,157 is from penalties, and $896 is from interest. Husband's Ex. #2. Neither party provided a similar notice from the IRS regarding tax year 2017. In addition to tax years 2016 and 2017, Husband also believes that the parties did not file taxes in 2014. However, he did not provide any documentary evidence to support this claim.
At the conclusion of the April 26th hearing, the Court directed the parties to file their delinquent tax returns within 45 days from the hearing. If the parties needed to hire an accountant to assist them in filing these returns, Husband was to pay the accountant and receive a credit for that payment consistent with the overall distribution. Furthermore, the Court now finds that Wife should not be relieved of paying a portion of the interest and penalties. If Wife was not able to get Husband to assist her in filing a joint tax return for 2016 and 2017, Wife could have filed a "married filing separately" tax return both years. Therefore, the Court will divide the 2016 and 2017 state and federal tax returns and their respective interests and penalties consistent with the overall percentage distribution. To the extent that there are other delinquent tax years' liabilities, they are to be divided similarly.
5. Distribution of the Marital Estate
The Delaware Code at 13 Del. C. § 1513 sets forth the factors to consider in dividing marital property following a divorce as follows:
13 Del. C. § 1513 states that:
(a) In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including:
1) The length of the marriage;
The parties were married for eighteen years.
2) Any prior marriage of the party;
Husband has no prior marriages but this is Wife's second marriage.
3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
Husband and Wife are very close in age. Wife is 52 years old and Husband is 55 years old. Wife testified that her health is "not too good" because she has a "bad liver" due to non-alcohol hereditary cirrhosis for which she is receiving medical treatment. Wife also testified that she takes prescribed medication for anxiety. Husband testified that he sees a doctor for a heart problem, and that he takes prescribed medication for anxiety and "bad headaches." No evidence was presented that either party is unable to be gainfully employed due to such medical conditions.
Wife has been employed as a waitress at Hilltop Crab House since 2014. She has worked as a waitress since she was 17 years old. From prior to the marriage until 2013, Wife worked at Feby's Fishery. Wife has a high school diploma with no further technical training. Early in the marriage, she worked as an administrative assistant at the Kirkwood Detoxification Center in Wilmington, DE and as a waitress for three to four nights per week. However, once the parties started having children, Wife stopped working during the day. Wife testified that it was the agreement of the parties that Wife would take care of the children during the day rather than pay for daycare, and Husband would maintain employment in a full-time position with benefits.
The parties disputed why Wife stopped working at Feby's. However, as she is currently working in a similar position and there was no testimony that she was making considerably more money at Feby's, the Court finds the reason for her leaving Feby's is immaterial.
In 2015, Wife earned $16,183, including over $11,000 in tips. In 2017, Wife earned $29,268, including over $21,000 in tips. In 2018, Wife earned $33,821, including over $24,000 in tips. Pet. Ex. #1. Wife testified that her income went up in 2018 because she was working double shifts in order to make more money. According to her Social Security Earnings Record, Wife made between $26,000 and $30,000 every year from 2005 to 2012 while working at Feby's.
Wife did not provide a W-2 for 2016. However, her Earnings Record indicates she earned $20,635.
Husband has been employed at the Port of Wilmington since he was about 20 years old during which time the Port operator has changed. Since October 2018, his employer has been GulfTainer USA. Prior to that, he was employed by Diamond State Port Corporation. Husband has a high school diploma. In 2015, Husband earned $121,506. In 2016, Husband earned $141,282. In 2017, Husband earned $137,198. Wife's Ex. #4. In 2018, Husband earned $89,420 from Diamond State and $25,127 from GulfTainer, for a total earning of $115,547. Husband's Ex. #1. By March 17, 2019, Husband had earned $36,636 in gross pay year to date, $22,109 by virtue of logging overtime hours. Wife's Ex. #4. Husband testified that it is not mandatory that he take overtime hours and that he does not always take them when they are available because of his age and health. However, based on his earnings through March 17, 2019, projecting forward with the same level of overtime, Husband's expected 2019 gross earnings would be approximately $176,000, a figure significantly higher than the five prior years' earnings, although it would be speculative to conclude his 2019 earnings would be that high. Husband also testified that he has worked more overtime hours than normal so far this year. During the first three months of 2019, Husband regularly worked between about 35 and 45 hours of overtime per week. Wife's Ex. #4. According to his Social Security Earnings Record, Husband last earned less than $113,000 per year in 2012, and last earned less than $77,000 in 2006. Wife's Ex. #4.
The Court notes that this is substantially more than $100,000 the Court projected Husband would earn in 2018 as part of the Court's interim alimony Order.
4) Whether the property award is in lieu of or in addition to alimony;
As described in detail below, this property award is in addition to alimony.
5) The opportunity of each for future acquisitions of capital assets and income;
The parties do not have any minor children. Because Husband has historically earned a much higher income, the Court finds that Husband has a better opportunity to acquire capital assets and income in the future. Although Wife testified that she previously worked as an administrative assistant in addition to working as a waitress, Husband did not allege that Wife should be working two jobs at present or that she has the capacity to earn more as a waitress.
6) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;
The parties have two adult children in common. The older child was 22 years old at the time of the final hearing. The younger child, A---, is now 20 years old. A--- resides with Wife. Wife also has an older son by a prior relationship who is about 29 years old. Both parties worked throughout the marriage. Wife also testified that she was the primary caregiver for the children as they were growing up. She washed and cleaned, took the children to and from school, prepared dinner and shopped for groceries, among others, all before going to work at 4:30 PM. Wife acknowledged that Husband helped raise the children at times in the evenings when Wife was at work, less during the last three to four years, no doubt as the children advanced through their teens and required much less hands on supervision.
7) The value of the property set apart to each party;
The parties have a minimal estate considering their collective incomes. The distribution of the marital property is set forth in the chart attached as Exhibit A.
8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;
The four-bedroom former marital home was under contract for sale at the time of the final hearing. Wife now resides in a two-bedroom apartment with A---. Wife testified that she had to throw away "half of [her] stuff" when she relocated to the apartment from the larger marital home. Husband resides in his sister-in-law's home with six other relatives. Each of the parties will end up with a share of the marital assets and debts. Husband presently earns substantially more per year than Wife, three to four times as much to be more precise.
9) Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;
The parties did not report any property acquired by gift.
10) The debts of the parties; and
The division of marital debts appears on the Wright Chart attached as Exhibit A.
11) Tax consequences.
The parties reported no tax consequences.
Analysis
Wife requests that all marital assets should be divided 70% - 30% in Wife's favor and the reverse for all marital debts. Husband requests that all marital assets and debts should be divided 50% - 50%. Based on the evidence presented and considering Husband's substantially higher income, the credits the Court is giving Husband, and the limited assets and debts at issue, the Court finds that a general division of marital assets of 65% - 35% in Wife's favor, and a division of the marital debts of 35% - 65% in Wife's favor to be equitable.
Issues in Dispute - Alimony
Pursuant to 13 Del. C. § 1512(b), the Court may only award alimony in cases wherein the party requesting alimony is found to be dependent. Husband requests that the Court find that Wife is not dependent and deny her any alimony going forward, in part because their now twenty-year-old son, A---, resides with Wife and reportedly earns $12.00 per hour from his employment.
13 Del. C. § 1512(b) A party may be awarded alimony only if he or she is a dependent party after consideration of all relevant factors contained in subsection (c) of this section in that he or she:
(1) Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment;--------
(2) Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and
(3) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.
On June 26, 2018, the Court ordered Husband to pay interim alimony in the amount of $1,212 per month "on the first day of each month until a final order has been issued." On August 17, 2018, the Court granted Wife's Motion for Reargument in part and increased Husband's interim alimony payment per month to $1,584. Wife argued at the final hearing that Husband had failed to pay $8040.91 in interim alimony to date, at least in part because Wife has not received any payments from Husband's income except that which has been garnished by wage attachment. She testified that she first received a check from the Port of Wilmington in November and then there was a gap in payments until she started receiving regular checks from a corporate headquarters in Texas. Husband testified that he did not pay alimony starting in July 2018 because he understood from his former attorney that the Court would handle it and that it would automatically come out of his wages.
During the initial period of months that Wife was not receiving consistent alimony payments from Husband, she said that A--- tried to help pay some of the expenses like the electric bill and rent, as well as his student loan. But Wife said she was reluctant to depend on him in part because he only made $12 per hour and he was only 19 years old at the time. In order to make up for the lack of alimony and meet her expenses, Wife said she also worked double shifts, took out a holiday loan to cover a car payment, and incurred $5,000 in credit card debt. Wife's Income
Based on the evidence cited above on page 11, the Court attributes Wife with an annual gross income of $33,821 (or, $2,818 per month), consistent with her earnings for 2018 which were not substantially higher than what she has historically made as a waitress. This income is both lower than what the Court attributed to Wife in its initial Order on interim alimony and following the partial grant of Wife's Motion for Reargument. Additionally, if Husband is to be attributed an income consistent with working considerable overtime hours, the Court finds it reasonable to also attribute Wife with an income reflective of her working double shifts.
Although the Court attributed Wife with unreported cash tips in its initial Order on interim alimony and following the partial grant of Wife's Motion for Reargument, the Court declines to do so at this time. Wife testified that all of her tips are reflected on her W-2s and that most tips are now added on to credit card payments rather than as cash tips. Although at the time of Wife's request for interim alimony Husband challenged that Wife had unreported tips such that her actual income was higher than her reported income, Husband did not re-raise that argument during the final hearing or seek to prove that Wife historically had unreported income in the form of cash tips. Wife's Monthly Expenses
In her 2018 request for interim alimony, Wife estimated that her monthly expenses were $4,711 (after subtracting $1,731 for the reported cost of the mortgage assigned by the Court to Husband). The Court further reduced that amount, for the purpose of calculating interim alimony, down to $3,644. At the April 2019 final hearing, Wife presented her monthly expenses as $4,793. The monthly rent for the two-bedroom apartment that she shares with A--- is $1,255, of which A--- reportedly pays $100. Wife testified that she is both opposed to asking A--- to move out and further downsizing to a one-bedroom apartment even if A--- voluntarily moved out. Husband requests that if A--- remains in the apartment that he be assigned with half of the monthly rent. The Court declines to find as Husband requests. Husband presented no evidence that Wife's rent would be only about $627, or half of the current rent, if she moved into a one-bedroom unit. Therefore, the Court will only ascribe to A--- $200 in monthly rent, or the reasonable difference between the cost of a one-bedroom and two-bedroom apartment. By so finding, the Court finds this case distinct from L.K. v. E.K which was before Judge Ostroski in November 2018. In L.K., the wife was still residing in the marital home such that Judge Ostroski declined to reduce the rental expense attributable to the wife based on an adult child being in the home because the mortgage would remain the same regardless of whether the adult child was in the home or not. Here, although Wife is opposed to further downsizing to a one-bedroom unit within her current complex, that would be a relatively simple way to reduce her rental expense.
As to utilities, Wife testified that A--- pays the electric bill which is about $130 per month. However, he does not help with the cable bill, which Wife reports is $170 per month. The Court finds it reasonable that Wife pay one bill and A--- pay the other. In support, the Court again cites to Judge Ostroski's decision in L.K where the judge reduced the utilities attributable to the wife by the percentage of the people in wife's home that neither party had a responsibility to support. Here, that percentage reduction is half, as neither party has a legal duty to continue supporting A---. Furthermore, Wife testified that her cell phone bill plan, which includes A---, is actually $291 but she is only reporting it as $100 per month. However, the Court previously only assigned Wife a telephone expense of $53 per month based on a telephone bill she submitted as part of her request for interim alimony. At this stage, Wife did not provide an updated telephone bill, only a bank statement with a line item for a $291 payment to AT&T. The Court has no information that Wife's individual phone now costs more than $53 per month or any documentary basis for assigning Wife an expense of $100.
As to household expenses, Wife is asking for $500 in groceries, whereas Husband is asking for $400 in groceries. The Court finds it equitable for A--- to pay the $100 difference between the parties as Wife admitted that her expenses reflect what she is spending on groceries for both her and A---, rather than reducing Wife's bill to $250 but keeping Husband's at $400. As to household items, clothing, and cosmetics/toiletries, the Court previously found that $200 per month was excessive for household items and $150 was excessive for clothing and $100 was excessive for cosmetics/toiletries for the purpose of interim alimony. Wife has presented insufficient evidence for the Court to revise its prior determinations, in part because the Court cannot parse through the various receipts, and bank and credit card statements to determine which expenses could be assigned to which of the above three categories.
As to various amenities, the Court previously found that $75 per month was reasonable for a barber/hairdresser and will not revise that determination. Although Wife did not present documentary evidence in support of the amounts for toys/presents, hobbies, donations, vacation and entertainment, other than the $25 monthly gym membership, the Court finds these amounts, and Wife's testimony that these amounts are lower than they were during the marriage, to be reasonable for the purpose of a final alimony determination. Additionally, all her amounts are roughly the same as Husband's and Husband has not contested any of Wife's amounts. Finally, Wife testified that her pet expenses are for the same dog that the parties had during the marriage and a cat for A---. If Wife wants to keep the dog, the Court finds $75 per month to be reasonable.
Therefore, the Court attributes Wife with monthly expenses of $4,295.50. After considering both parties' arguments and the documentation from Wife, the Court has adjusted Wife's expenses as follows:
| Expense | Monthly Amount |
|---|---|
| Rent | $ |
| Electric | $0 |
| Cable TV | $170.00 |
| Telephone | $ |
| Household Items | $ |
| Groceries | $ |
| Clothing | $ |
| Health Insurance | $526.50 |
| Laundry and Dry Cleaning | $25.00 |
| Toys and Presents | $100.00 |
| Cosmetics and Toiletries | $ |
| Hobbies | $150.00 |
| Barber and Hairdresser | $75.00 |
| Newspaper/Magazine Subscriptions | $10.00 |
| Charitable/Religious Donations | $100.00 |
| Vacation | $150.00 |
| Entertainment and Miscellaneous | $150.00 |
| Car Payments | $425.00 |
| Repairs and Maintenance | $100.00 |
| Car Insurance | $221.00 |
| Gasoline | $220.00 |
| Life Insurance | $90.00 |
| Pet Supplies | $75.00 |
| Total | $ |
Based on the evidence cited above on page 11 and, the Court attributes Husband with an annual gross income of $128,883 (or, $10,740 per month), which is the average of his gross earnings from 2015 through 2018. Because Husband changed employers at the end of 2018, it is unclear to the Court exactly how much Husband is projected to make in 2019. However, he will most assuredly make more than the $100,000 the Court attributed to him in June 2018 for the purpose of interim alimony based on his at the time representation that there would be limited overtime availability for the remainder of 2018. Husband ended up making about $115,000 in 2018, and he already has made about $28,000 in the first two months of 2019 alone in part because he has logged extensive overtime hours. Husband's Monthly Expenses
In response to Wife's 2018 request for interim alimony, Husband estimated that his monthly expenses were $4,899.15. The Court reduced that amount, for the purpose of calculating interim alimony, down to $3,809.76. At the April 2019 final hearing, Husband presented his monthly expenses as $4,733. Part of that reduction in his estimated expenses is because he reported a current rent that is less than the mortgage on the former marital home. Husband testified that he pays $1125 per month in cash to his sister-in4aw to rent out a basement space in her home. In support of his testimony, he provided copies of hand-written receipts signed by his sister-in-law. Husband's Ex. #7. Husband further testified that he cannot afford to live elsewhere because of debts against the parties. Although Wife argued that she does not believe that Husband is actually paying the rent or at least not that much and the Court did not admit the receipts as evidence of payment, the Court finds $1,125 per month to be reasonable. If Husband had to locate his own apartment for rent, $1,125 would be comparable to what Wife is currently paying. There is insufficient evidence by which the Court could attribute no rental expense in perpetuity to Husband.
As to utilities, Husband listed the ongoing utilities that he is paying for the former marital residence. He also testified that once the marital residence is sold, he will start contributing toward his sister-in-law's utilities. The Court finds it reasonable to attribute utilities going forward to Husband rather than assigning him a $0 amount. However, the Court will reduce the water and electric utility amounts consistent with a share of a home or a small apartment similar to Wife's current bills. The Court will further reduce the oil expense due to Husband's testimony that $180 was a one-time and not monthly expense. Husband testified, without providing any documentation, that he is still paying the cable bill in the former marital home because he cannot cancel it. The Court finds Husband's testimony on the cable bill to lack credibility, but recognizes that he may be paying for a share of a bill going forward or activate cable in a future residence.
As to household expenses, the Court will reduce Husband's household items listing to a value consistent with Wife's. As to clothing, the Court previously found that $200 was excessive for clothing and $100 was excessive for Wife's cosmetics/toiletries (as Husband did not request a line item for cosmetics/toiletries) for the purpose of interim alimony. Husband has presented insufficient evidence for the Court to revise its prior determinations.
As to various amenities, although he did not present documentary evidence in support of the amounts for toys/presents, hobbies, donations, vacation and entertainment, the Court finds these amounts and Husband's testimony that these amounts are lower than they were during the marriage to be reasonable for the purpose of permanent alimony. Additionally, all his amounts are roughly the same as Wife's and Wife has not contested any of these amounts.
Finally, Husband testified that he is paying $387 per month for car insurance, when in actuality the monthly premium per the documentation provided is $377. Husband's Ex. #8. At the time of the interim alimony Order, Husband was only paying $280 per month. Wife's Ex. #3. The Court declines to attribute the former insurance rate to Husband going forward and understands that people sometimes have valid reasons for changing insurance providers even when the monthly premium goes up. Although the Court declined to assign to Husband his attorney's fees loan of $396 for the purpose of interim alimony, the Court accepts this expense of $273 per month at this stage.
Therefore, the Court attributes Husband with monthly expenses of $4,055. After considering both parties' arguments and the documentation from Husband, the Court has adjusted Husband's expenses as follows:
| Expense | Monthly Amount |
|---|---|
| Rent | $1,125.00 |
| Water | $ |
| Electric | $ |
| Oil | $ |
| Cable TV | $ |
| Telephone | $80.00 |
| Household Items | $ |
| Groceries | $400.00 |
| Clothing | $ |
| Laundry and Dry Cleaning | $ |
| Toys and Presents | $100.00 |
| Cosmetics and Toiletries | $ |
| Hobbies | $150.00 |
| Barber and Hairdresser | $40.00 |
| Charitable/Religious Donations | $75.00 |
| Vacation | $150.00 |
| Entertainment and Miscellaneous | $200.00 |
| Car Payments | $390.00 |
| Repairs and Maintenance | $80.00 |
| Car Insurance | $ |
| Gasoline | $125.00 |
| Life Insurance | $20.00 |
| One Main Financial | $273.00 |
| Total | $ |
|---|
Therefore, the Court concludes that Wife is dependent pursuant to 13 Del. C. § 1512(b). She lacks sufficient property to provide for her reasonable needs and she is unable to support herself through appropriate employment as a waitress. Wife has a monthly income of $2,818 and reasonable monthly expenses of $4,295, whereas Husband has a monthly income of $10,740 and reasonable monthly expenses of $4,055. As indicated by the attached alimony calculation, Exhibit B, Wife has a negative net cash flow of $1,984 per month. Husband has a net cash flow of $3,325 per month. Therefore, the Court finds that Husband shall pay Wife $1,984 in permanent alimony through November 2027 which accounts for the period of nine years and five months, from date of divorce, being one half the length of the marriage, reduced by the length of time Husband has been under an interim alimony order. This allows Wife to meet her reasonable monthly expenses and does not place Husband in deficit.
Issue in Dispute - Counsel Fees and Costs
On June 26, 2018, the Court ordered Husband to pay Wife $3,000 as an advance for her attorney's fees. On February 12, 2019, the Court ordered Husband to pay Wife $2,375 for the cost related to defending against Husband's Motion for a Continuance. It is undisputed that Husband has paid none of this $5,375 to date. Husband testified that he has not had sufficient funds by which he could pay these amounts. Wife seeks an additional award based on the parties' earning disparity and her belief that Husband has taken an unreasonable position with regard to litigating these matters. Husband requests that each party should be responsible for their own fees and costs. Husband's position for no alimony and for a 50% - 50% division of marital assets and debts was unreasonable in light of the significant income disparity between the parties and Husband's greater prospects than Wife for acquiring capital in the future. Nevertheless, the Court does not believe that requiring Husband to pay more than $5,375 toward Wife's counsel fees is necessary in this matter in part because the Court is awarding Wife alimony for the maximum allowable duration under 13 Del. C. § 1512(d). ACCORDINGLY, IT IS HEREBY ORDERED, THIS 18TH DAY OF JULY, 2019 AS FOLLOWS:
1. Wife's request for alimony is granted. Husband shall pay Wife $1,984 per month on the first day of the month until November 1, 2027, starting on August 1, 2019, which shall be secured at Wife's request through income attachment.
2. Wife's request for an award of attorney's fees and costs in addition to the previously awarded $5,375 is denied. However, Husband shall pay $2,375 directly to Wife's counsel as previously ordered by the Court on February 12, 2019, with the remaining $3,000 to be paid to Wife in accordance with paragraph 12 below. The $2,375 shall be paid to Wife's counsel within 15 days of this Order.
a. Wife's Motion for Contempt and for Sanctions of August 20, 2018 is denied as moot at this time.
3. Husband shall retain as his sole property and responsibility the 2016 Honda Accord and related loan.
4. Wife shall retain as her sole property and responsibility the 2015 Jeep Patriot and related loan.
5. Any amount of the New Castle County sewer debt that is not satisfied via short sale of the former marital residence shall be divided 35% - 65% in Wife's favor.
6. Any and all outstanding water and electric bills from the former marital home shall be paid by Husband solely. Husband was already credited with payment of these charges for the purpose of the division of marital debt. Therefore, the payment of these debts, if still required, will not be subject to reimbursement.
7. The 2016 and 2017 state and federal tax debts, penalties and interest shall be divided 35% - 65% in Wife's favor. Any other delinquent tax debts, penalties and interest shall also be divided 35% - 65% in Wife's favor.
8. Wife shall timely reimburse Husband 35% of any accountant's fee related to the filing of all delinquent state and federal tax returns.
9. Husband's State of Delaware pension shall be divided by a pension allocation order with Wife awarded 65% of the marital portion of Husband's benefit.
10. Upon payment of any outstanding debt not otherwise attributed the parties in the Court's calculations in Exhibit A and presentation of proof of payment, the non-paying party shall reimburse their respective share of that payment within 15 days.
11. Each party shall retain any other asset or debt in their respective name or possession.
12. To accomplish 65% division of assets in Wife's favor and 35% division of debts in her favor and Husband's payment to Wife for $3,000 in past due counsel fees and $8041 in past due interim alimony payments, in accordance with Exhibit A, Husband owes Wife the sum of $8,755. Husband shall pay the $3,000 in past due counsel fees to Wife within 30 days. Husband shall pay the remaining $5,755 to Wife with interest at the legal rate of 5%. Starting on August 1, 2019, Husband shall pay no less than $400 to Wife, on the first of each month until paid in full.
IT IS SO ORDERED.
/s/ _________
/s/ ROBERT BURTON COONIN, Judge Cc: Counsel via email
Parties via regular mail
Date emailed: __________
Date mailed: __________ RBC/plr
(1) The length of the marriage;
(2) Any prior marriage of the party;
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
(4) Whether the property award is in lieu of or in addition to alimony;
(5) The opportunity of each for future acquisitions of capital assets and income;
(6) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;
(7) The value of the property set apart to each party;
(8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;
(9) Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;
(10) The debts of the parties; and
(11) Tax consequences.