Opinion
File No.: CN16-05018 Petition No.: 16-26053
05-10-2019
Re: A. M. A. v. B. J. A.
Curtis P. Bounds, Esquire
Bayard, PA
600 N. King Street, 4th Floor
Wilmington, DE 19801 Shawn Dougherty, Esquire
Wiek, Nitsche & Dougherty
305 N. Union Street, 2nd Floor
P. O. Box 2306
Wilmington, DE 19899-2306
LETTER DECISION AND ORDER
RE: Ancillary Matters - Motion for Interim Alimony Dear Counsel:
The parties were married on September 8, 1979 separated on July 29, 2016, and divorced on February 9, 2017. The Court retained jurisdiction over ancillary matters, including alimony. The ancillary pretrial conference is scheduled for November 5, 2019 and an ancillary hearing is scheduled for December 9-11, 2019. A. M. A. ("Wife") filed a Motion for Interim Alimony through her counsel, Mr. Bounds on April 24, 2019. On May 6, 2019 the Court received a Response to the Motion and filed by B. J. A. ("Husband"), through his counsel, Ms. Dougherty.
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 and Response, including, but not limited to: Husband's income, Wife's income and the reasonable expenses of the parties. Either party may, after receipt of this Order, request a hearing on interim alimony pursuant to Eberly . However, given the heavy burden of cases, a hearing on this Motion would not likely be scheduled for a number of months, and possibly not before the Ancillary Hearing, and should the party requesting the hearing fare worse at the hearing than in this Order, he or she may bear the costs of the other party's fees for having to prepare for and attend the Eberly hearing.
Eberly v. Eberly, Del., 498 A.2d 433 (1985)
WIFE'S INCOME AND EXPENSES
According to the Motions and attachments, Wife is currently employed part-time by Pier 1 Imports and C. H. as a retail sales associate. In 2018 Wife earned a total of $5387.00. The motion does not indicate how many hours Wife is working or what her hourly rate of pay is at each job. It is also not clear if there are additional hours available to Wife at either employer. Wife assisted Husband with the books and records at his business but outside of this work, Wife was unemployed for approximately 32 years during the marriage. The parties have been separated for over two years. Ellen Lock performed a vocation evaluation on Wife and determined that Wife could earn from $15.00 - $20.00 per hour as a bookkeeper. Husband believes Wife can earn more as she was only a credit short of receiving a masters in education. Husband also argues that Wife can earn up to $42,000.00 per year according to Ms. Lock's report. As Wife is working part-time and as it is not clear what her hourly rate is or how many hours she works, the Court will use $15.00 per hour as Wife's income.
Wife is not yet an alimony recipient and thus 13 Del. C. §1512(e) does not yet apply. However, now that Wife will be receiving alimony, she will need to follow the statutory requirement in §1512(e) to obtain reasonable employment unless she is able to prove that she is disabled or otherwise unemployable.
Wife alleges current expenses of $17,699.65 per month. The Court has made adjustments on Wife's expenses for this interim period. Wife lists significant increases in certain discretionary expenses between the date of the Financial Disclosure Report and the date of this Motion. For example, toys and presents went up by $250.00 per month and entertainment went up by $750.00 per month. The Court has reduced these two items to reflect the amount in the Financial Disclosure Report. The Court eliminated vacation and charitable contributions on an interim basis. The Court also eliminated the "discretionary" expense as Wife has a budget of $1,000.00 per month for entertainment and miscellaneous. The Court also eliminated restaurants of $650.00 per month given the generous entertainment budget and $650.00 per month grocery budget for one person. The grocery budget is $150.00 per month higher than in the Financial Disclosure Report. The Court also eliminated wedding expenses which presumably are for an adult child and life insurance as Wife has no dependents. Wife's adjusted expenses total $12,544.00.
HUSBAND'S INCOME AND EXPENSES
Husband is employed through his own business selling insurance and insurance products and earned $1,336,580.00 adjusted gross income in 2017. While Husband alleges that his income in 2018 will be less and that he may retire soon due to health concerns, the Court has no other income to use for Husband and Husband does not appear to be arguing that he does not have the ability to pay. His response is focused more on Wife's needs. Husband alleges expenses of $88,964.00 per month for Haverford which includes $50,000.00 per month in estimated taxes. As taxes will be calculated in the calculation and the Court will use an estimated net income, they will not be included as an expense. It is also unclear if some of Husband's listed expenses are business expenses which would already be included in arriving at his AGI as the Schedule C was not included in the Motion or the Response. The cell phone bill of $1500.00 per month is excessive for personal use as is the $2500.00 per month for airfare. These appear to be business expenses. The Court will reduce the cell phone to $200.00 per month and the airfare is eliminated. After eliminating taxes, Husband alleges expenses of $38,964.00 for Haverford and an additional $22,754.00 for Kiawah. The Court will eliminate vacation, airfare and charitable, consistent with Wife, and reduce the cell to $200.00 taking his Haverford expenses down to $28,497.00. The Court also eliminates the wedding expenses for the adult child as this is not a recurring expense and it was eliminated in Wife's expenses as well. Toys and presents are reduced to $500.00. This reduces Haverford to $21,997.00. Kiawah expenses are $22,754.00 for a total of $44,751.00.
ALIMONY ANALYSIS
The Court notes that in considering the Motion for Interim Alimony, the Court takes into consideration the standard of living the parties had during the marriage, the statements and documentation regarding Wife's history of earnings and support of Husband's career, Wife's earning capacity, the length of the marriage, the resources of Husband, taxes, and other relevant information as set forth in 13 Del. C. §1512, but the Court has not a full hearing or made complete findings. The pleadings in this case demonstrate that the parties lived an upper class lifestyle with many luxuries. The pleadings also demonstrate that this was due to Husband's significant earnings. Certain expenses which Husband disputed, the Court assumes would be very easily documented by Wife, primarily the car payment and the mortgage. The Court expects that Wife has greater knowledge than Husband of these debts and that Wife would not have listed them if they did not exist. These two expenses total $2,987.00 which is a significant portion of Wife's expenses disputed by Husband.
Wife requires the sum of $10,312.00 per month in interim alimony. As noted in the attached Budget Report for 2018, Husband would have an excess of $20,836.83 from which to pay Wife alimony of $10,312.00 per month. Thus, after paying this alimony, Husband would still have an excess of $10,500.00. The Court did not cut some large expenses of Husband's such as hobbies as these hobbies may be associated with marital assets such as the boat and club memberships.
ORDER
IT IS HEREBY ORDERED that the Motion for Interim Alimony is GRANTED. Husband shall pay to Wife the sum of $10,312.00 per month in interim alimony commencing May 15, 2019. Payments shall be made semi-monthly with $5156.00 paid on the 15th and 30th of the month. There should be no need for Wife to use marital assets to pay her expenses once payments begin on this Order.
IT IS SO ORDERED.
Very truly yours,
FELICE GLENNON KERR, Judge FGK/fgk Date mailed: 5/10/19 Budget Report for 2019 This report shows A 's and B 's income, taxes, expenses, including alimony income and child support income, including alimony expenses and child support expenses.
A Monthly B Monthly Income A 's Employer #1 $2,500.00 $0.00 B s Employer #1 0.00 108,333.33 Total Wage and Wage-Like Income $2,500.00 $108,333.33 TOTAL INCOME $2,500.00 $108,333.33 Mortgage Payments H Drive $2,000.00 $0.00 G Lane, Haverford $0.00 $5,263.00 Kiawah $0.00 $16,991.00 Total Mortgage Payments $2,000.00 $22,254.00 Living Expenses Condo Fee $417.00 $1,286.00 Homeowners' Insurance 44.00 0.00 Renters' Insurance 45.00 0.00 Real Estate Tax 593.00 0.00 Cable TV 190.00 559.00 Internet Access 0.00 0.00 Phone 0.00 200.00 Household Maintenance 321.00 4,333.00 Household Supplies 200.00 200.00 Maid/Cleaning Service 150.00 0.00 Utilities - Electricity 233.00 816.00 Utilities - Gas/Propane Heat 0.00 294.00 Utilities - Water/Sewer 91.00 111.00 Other Household 45.00 0.00 Car Payments 987.00 0.00 Car Insurance 85.00 233.00 Car Gasoline/Oil 300.00 596.00 Car Maintenance and Repair 208.00 300.00 Car License/Stickers 5.00 0.00 Car Other 17.00 0.00 Other Transportation 50.00 0.00 Bank Fees 10.00 0.00 Cell Phone 80.00 200.00 Clothes 300.00 1,000.00 Dry Cleaning 25.00 300.00 Dues/Clubs 55.00 0.00 Entertainment 1,000.00 1,000.00 6 A Monthly B Monthly Food/Groceries 650.00 850.00 Gifts 500.00 500.00 Hair 350.00 50.00 Legal and Accounting 125.00 1,000.00 Manicure/Pedicure 0.00 0.00 Personal Property Insurance 10.00 0.00 Pets 320.00 0.00 Stamps and Stationery 10.00 0.00 Sports/Hobbies/Lessons 118.00 5,292.00 Subscriptions, Books 10.00 0.00 Toiletries/Grooming/Drug Store 100.00 100.00 Other Personal 19.00 0.00 Health Insurance 1,110.00 1,500.00 Medical/Doctor 371.00 1,047.00 Drug & Prescription 100.00 0.00 Other Health 600.00 0.00 long term care insurance 700.00 0.00 Total Living Expenses $10,544.00 $21,767.00 TOTAL EXPENSES $12,544.00 $44,021.00 Taxes Federal Taxes $0.00 $40,149.67 FICA & Medicare $191.25 $0.00 State Taxes (estimate only) $76.75 $3,325.83 Local Wage Tax $0.00 $0.00 TOTAL TAXES $268.00 $43,475.50 Total Income $2,500.00 $108,333.33 Minus Total Expenses (12,544.00) (44,021.00) Minus Total Taxes (268.00) (43,475.50) BUDGET NET INCOME $(10,312.00) $20,836.83