Opinion
19-23139
01-21-2022
C. M., Petitioner v. J. M., SR. Respondent
Date Submitted: 11/16/2021
ORDER- ALIMONY
JANELL S. OSTROSKI, Judge
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the ancillary matter of property division, permanent alimony, counsel fees and court costs incident to the separation and divorce of C------M------(herein "Wife"), represented by, Laura Brooks, Esquire, against J- M-----, Sr., (herein "Husband"), self-represented. The Court held a hearing on November 8, 2021, and heard testimony from the parties.
PROCEDURAL HISTORY
Husband and Wife were married on September 14, 1996, and separated in February, 2019. On August 16, 2019, Wife filed a Petition for Divorce and requested that ancillary jurisdiction be retained for property division, alimony, counsel fees and court costs. Husband filed an Answer and requested that the Court retain jurisdiction over the same. The parties were divorced by final decree of this Court on January 30, 2020. The Court held trial on all matters on November 8, 2021. At the conclusion of evidence, there was insufficient time to complete closing arguments. Therefore, closing arguments were given via Zoom on November 16, 2021. This Order addresses alimony only. An Order addressing property division, counsel fees, and court costs is being entered simultaneously herewith.
LEGAL STANDARD
Pursuant to 13 Del. C. § 1512, the Court may award alimony to a dependent party. In Order to be awarded alimony, Wife must prove that she is dependent upon Husband for support. The Court must also find that Wife lacks sufficient property, to provide for her reasonable needs. Furthermore, the Court must conclude that Wife is unable to support herself through appropriate employment as an alimony recipient generally has a duty to obtain employment. The Court must also consider Husband's ability to meet his own expenses while paying alimony.
13 Del. C. § 1512 states in pertinent part:
(a) The Court may award interim alimony to a dependent party during the pendency of an action for divorce or annulment.
(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.
(c) The alimony order shall be in such amount and for such time as the Court deems just, without regard to marital misconduct, after consideration of all relevant factors, including, but not limited to:
(1) The financial resources of the party seeking alimony including the marital or separate property apportioned to him or her, and his or her ability to meet all or part of his or her reasonable needs independently;
(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
(3) The standard of living established during the marriage;
(4) The duration of the marriage;
(5) The age, physical and emotional condition of both parties;
(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
(7) The ability of the other party to meet his or her needs while paying alimony;
(8) Tax consequences;
(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and
(10) Any other factor which the Court expressly finds is just and appropriate to consider.
13 Del. C. § 1512(e) provides: Any person awarded alimony has a continuing affirmative obligation to make good faith efforts to seek appropriate vocational training, if necessary, and employment unless the Court specifically finds, after a hearing, that it would be inequitable to require a person awarded alimony to do so:
(1) At any time, due to a. A severe and incapacitating mental or physical illness or disability or b. His or her age, or
(2) Immediately, after consideration of the needs of a minor child or children living with him or her.
(1) The financial resources of the party seeking alimony including the marital or separate property apportioned to him or her, and his or her ability to meet all or part of his or her reasonable needs independently;
(a) Wife's Income
A "purpose of an alimony award to a dependent party is to encourage that party to become self-supporting." One of the factors that the Court uses to determine if alimony is appropriate is whether or not the party seeking alimony, "[i]s unable to support himself or herself through appropriate employment...." And, "[f]he burden is on the spouse seeking alimony to prove dependency and an inability to gain support through appropriate employment."
Gregg v. Gregg. 510 A.2d 474, 483 (Del. 1986).
Gregg. 510 A.2d at 483.
The Court's analysis of the arguments related to Wife's income set forth in the Court's decision regarding property division is incorporated herein by reference and made a part hereof. For purposes of calculating alimony, the Court will use $66,560 per year plus $4,917 per year for a total of $71,477 per year in income for Wife.
(b) Wife's Expenses
Wife contends that she is unable to meet her reasonable monthly expenses as outlined in Exhibit "A," attached hereto. The parties agreed, on the record, that most of Wife's expenses are reasonable. The Court will not address those expenses. The Court notes that neither party was allowed a monthly expense for legal fees, credit card payments, or support of adult children which neither party has a legal obligation to support as it is not appropriate to include these expenses when considering an award of alimony.
See P.B. v. S.B.. 2006 WL 2388696 fn. 29 (Del. Fam. Ct. May, 1, 2006) ("The Court excludes this expense because it is inappropriate to include legal fees related to the ancillary matters at issue when calculating Husband's alimony obligation.")
See R.B. v. A.B.. 2007 WL 1557136 at *15 (Del. Fam. Ct. Apr. 16, 2007) ("The Court eliminated Husband's expense for the . . . credit card . . . because these are marital debts that both parties shall be responsible for paying.")
See D.M.T. v. M.E.T., 2011 WL 13118215 at *9 (Del. Fam. Ct. Apr. 16, 2007) (reducing Husband's expenses for an emancipated child because he "had no obligation to support an adult child.")
Husband disputes the following expenses:
i. Health Insurance
Wife asserts that she spends $200 per month for health insurance. Husband asserts that a reasonable amount is $80. The only evidence that Wife submitted in support of her position is her paystubs from Excel, which shows that $45 is taken from her paycheck weekly for health insurance.This amount averages to approximately $195 per month. Husband did not present any evidence to support his position. Therefore, bbased on the evidence presented, the Court finds it equitable to allow $195 per month for Wife's health insurance expenses.
Wife's Exhibit 1.
ii. Out-of-Pocket Medical and Dental Expenses for Self
Wife asserts that she spends $400 per month for out-of-pocket medical and dental expenses. Husband asserts that a reasonable amount is $150. Wife had the burden to prove her expense and did not present any evidence to support her position. Therefore, the Court finds it equitable to use the amount agreed upon, or $150 per month, for Wife's out-of-pocket medical and dental expenses.
iii. Medical and Dental Expenses for Children.
Wife asserts that her expense for medical and dental expenses for the children is $50 per month. Husband asserts that a reasonable amount is $20 per month. Wife had the burden to prove her expense and did not present any evidence to support her position. Therefore, the Court finds it equitable to use the amount agreed upon, or $20 per month, for Wife's medical and dental expenses for children.
iv. Cosmetics and Toiletries
Wife asserts that she spends $100 per month for cosmetics and toiletries. Husband asserts that a reasonable amount is $70. Wife had the burden of proof and did not present any evidence to support her position. Therefore, the Court finds it equitable to use the amount agreed upon, or $70 per month, for Wife's cosmetics and toiletries expenses.
v. Automobile Gasoline.
Wife asserts that spends $200 per month for automobile gasoline. Husband asserts that a reasonable amount is $75. Wife provided her bank statements from June 2021 until September, 2021 as evidence of her gasoline expense. Wife's evidence shows that she spends, on average, $97 per month on gasoline. As such, the Court finds it equitable to use $97 per month for Wife's automobile gasoline expenses.
Wife's Exhibit 7.
Wife spent $215 on gasoline in June, 2021; $91 in July, 2021; $76 in August, 2021; and $97 in September, 2021.
vi. Child Support
The parties agree that Wife pays Husband $361 per month in child support. However, this amount is included as a deduction in the Family Law Software calculation and, therefore, will not be counted again in Wife's expenses.
See Exhibit C attached hereto (The Budget Report subtracts $361.00 from Wife's income, including it in expenses would allow Wife to "double dip" and include in her expense and as "expenses paid").
Based upon the adjustments outlined in Exhibit "A," the Court finds that Wife's reasonable monthly expenses total $4,408. Pursuant to the alimony calculation attached as Exhibit "C," after consideration of the income the Court attributed Wife with and her reasonable monthly expenses, Wife has a monthly deficit of $250 per month. Thus, Wife is dependent on Husband to meet her monthly expenses.
See Exhibit C attached hereto.
(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
The parties disagree as to whether Wife is appropriately employed. Wife claims that she is appropriately employed. Husband argues that Wife earned a higher income during the marriage and, therefore, could earn a higher income now. Husband did not provide any evidence of Wife's income during the marriage. Wife earns an amount consistent with the average salary for a respiratory therapist and only makes slightly under the mean for respiratory therapists who live in Delaware according to the Delaware Wage Survey. Therefore, the Court finds that Wife is appropriately employed.
See Delaware Wages, Occupational Employment & Wage Statistics at 10 (2020 Edition) (stating that the mean wage for a Respiratory Therapist in Delaware is $32.81 per hour or $68,244 per year)
(3) The standard of living established during the marriage;
Based on the testimony and evidence presented, it is clear to the Court that the parties enjoyed an upper middle-class lifestyle during the marriage. Wife testified that the parties would take four vacations a year typically spending $7,000 to $8,000 per year on vacations. She also testified that the parties would donate at least $150 per month to their church. Wife testified that she would get her hair and nails done every two weeks during the marriage. Wife asserts that she has significantly changed the way in which she is spending money compared to the standard of living established during the marriage. The standard of living was considered in the Court's analysis of Wife's monthly expenses as set forth herein.
(4) The duration of the marriage;
Husband and Wife were married on September 14, 1996 and divorced by this Court on January 30, 2020. As the parties were married for twenty-three (23) years and four (4) months, if dependent, Wife would have no time limit as to her eligibility.
13 Del. C. § 1512(d) provides: A person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility; however, the factors contained in subsection (c) of this section shall apply and shall be considered by the Court.
(5) The age, physical and emotional condition of both parties;
Wife is thirty-eight (38) years old and Husband is forty-nine (49) years old. As there was no evidence to the contrary, the Court will assume both parties are in good health and will continue working.
(6)Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
Husband obtained his master's degree during the marriage. As a result, Husband accrued student loans which, according to the Court's decision regarding property division being issued simultaneously herewith, the Court is considering a marital debt. The Court did not receive any other evidence on this factor.
(7) The ability of the other party to meet his or her needs while paying alimony;
Husband denies that Wife is dependent upon him for alimony and further denies that he has the ability to pay Wife alimony after meeting his reasonable monthly expenses.
(a) Husband's Income:
Husband is currently employed by the--------------. The parties agree that Husband's income is accurately reflected in the pay stub that Husband supplied during the trial. After reviewing the one (1) pay stub provided and questioning Husband, the Court was able to ascertain that Husband is paid $5,370 bimonthly. Husband also receives $361.00 per month in child support from Wife. Therefore, the Court will use $5,370 bimonthly for Husband's income plus $361 per month in child support income for purposes of calculating alimony.
Wife's Exhibit 11.
(b) Husband's Expenses:
Husband alleges that his monthly expenses are as outlined in Exhibit "B," attached hereto. The parties agreed, on the record, that most of Husband's expenses are reasonable. The Court will not address those expenses.
Wife disputes the following expenses:
i. Mortgage
Husband testified that his current mortgage is $1,600 per month. Wife denies this amount and asserts that the mortgage is $719 per month. Husband presented evidence that his current mortgage payments are $719 per month. As such, the Court finds it equitable to allow $719 per month for Husband's mortgage expense.
Husband's Exhibit 4
ii. Automobile Payment Husband testified that his current expense is $460. Wife argued that there is no such payment although she conceded that the Court could use $6,000 for the balance due on Husband's car loan during the ancillary hearing for purposes of property division. As such, the Court must assume that there is a monthly payment associated with the vehicle. Although Husband had the burden of proof and did not present any evidence to support his position, the Court notes that the amount Husband alleges is due on a monthly basis for his vehicle is less than the amount Wife pays for her car on a monthly basis. As such, the Court finds Husbands testimony credible and finds it equitable to allow an expense of $460 per month for Husband's car payment.
iii. Automobile Insurance
Husband testified that his monthly expense for car insurance is $340. Wife argued that this expense reflects the amount Husband pays for the car insurance for the adult children as well as Husband. Husband had the burden of proof and did not present any evidence to support his position. The Court finds Wife's argument to have merit and more likely true than not. However, the Court recognizes that Husband is required to have insurance and, rather than eliminate the expense totally, the Court finds it equitable to reduce Husband's expense for car insurance to an amount equal to the amount Wife is paying for car insurance or $158 per month.
iv. Automobile Gasoline
Husband asserts that his expense for automobile gasoline is $300 per month. Wife asserts that a reasonable expense is $100 per month. Husband had the burden of proof and did not present any evidence to support his position. As such, the Court finds it equitable to use the amount agreed upon, or $100 per month, for Husband's automobile gasoline expense.
Based upon the above calculations, the Court finds that Husband's reasonable monthly expenses total $4,047. Pursuant to the alimony calculation attached as Exhibit "C" after consideration of Husband's income and monthly expenses, Husband has a surplus of $3,751 per month before payment of alimony. Thus, Husband has the financial means to pay alimony to Wife.
See Exhibit C attached hereto.
(8) Tax consequences;
Alimony is not a taxable event.
(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and
Neither party presented evidence of this factor.
(10) Any other factor which the Court expressly finds is just and appropriate to consider.
The Court does not find any other information relevant to this factor.
CONCLUSION
For the reasons stated herein, the Court finds that Wife is dependent upon Husband as she lacks sufficient income to support herself and is unable to pay her reasonable monthly expenses commensurate with the standard of living during the marriage with her income. According to Exhibit "C", the alimony calculation attached hereto, Wife has a deficit of $250 per month, which indicates that her reasonable monthly expenses exceed her monthly income. Furthermore, based on Husband's reasonable monthly expenses and his income, Exhibit "C" indicates that he has a surplus of $3,751 per month and, therefore, can afford to pay Wife alimony. Attached hereto as Exhibit D is a revised Budget Report showing Wife can meet her expenses if Husband payer her $250 per month in alimony. Alimony is not a taxable event in this case.
WHEREFORE, Wife's request for Alimony is GRANTED.
1. Husband shall pay Wife $250 per month in alimony effective February 1, 2019.
2. Husband shall begin making payments to Wife February 1, 2022 in the amount of $250 per month and continuing monthly thereafter until terminated pursuant to 13 Del. C. §1519, by death of either party or upon Wife's remarriage or cohabitation.
3. Husband has a retroactive alimony obligation of thirty-six (36) months (February 2, 2019 through January 2022) for a total of $9,000 which shall be addressed in the division of the marital assets and debts.
4. Either party may seek a modification of this award upon a showing of real and substantial change in circumstances.
IT IS SO ORDERED this 21st day of January, 2022.