Opinion
19-23139
01-21-2022
C. M. Petitioner v. J. M., SR. Respondent
Date of Hearing 11/8/2021
Date Submitted: 11/16/2021
ORDER - ANCILLARY MATTERS
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
The parties were married on September 14, 1996, separated in February, 2019, and were divorced by Order of this Court on January 30, 2020. In Wife's Petition for Divorce filed on August 16, 2019, she requested the Court retain jurisdiction over the property division, alimony, court costs, and counsel fees. Husband filed an answer to the Petition for Divorce on September 16, 2019 and requested that the Court retain jurisdiction over property division, alimony, court costs, and counsel fees. This case was assigned to this Judge on January 31, 2020.
A final ancillary hearing was held 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 is the Court's final written decision. This Order addresses property division, counsel fees, and court costs only. An Order addressing alimony is being entered simultaneously herewith.
MARITAL ESTATE
At the start of the hearing, the Court reviewed the Matters in Agreement and Matters in Dispute with the parties and narrowed the issues for trial. The marital estate consists of the following:
A. Issues in Agreement
1. Date of Marriage: September 14, 1996
2. Date of Financial Separation (DOS): February, 2019
3. Date of Divorce: January 30, 2020
4. The Marital Home: -.
a. Appraised Value: $277,000
b. 1st Mortgage Balance:
(1) DOS: $108,507
(2) Current: $ 97,280
c. 2nd Mortgage Balance:
(1) DOS: $11,353.
(2) Current: paid off.
d. Husband would like to retain the marital residence and buy out Wife's interest. Wife has no objection to Husband retaining the house but they do not agree on how to calculate the equity.
All amounts referred herein will be rounded to the dollar.
5. Vehicles
a. 2001 Hyundai Sonata: The parties agree the child driving this vehicle will retain the vehicle.
b. 2009 Ford Fusion: The parties agree the child driving this vehicle will retain the vehicle.
c. 2012 Chevrolet Suburban: The parties agree the Suburban is marital and that it has a current fair market value of $9,325 but do not agree that there is a loan associated with it or what the balance of that loan is. Husband drives this vehicle.
d. 2009 Honda Accord: The parties agree that the vehicle is worth $5,328 and Husband will keep the vehicle with the value of the vehicle going on his side of the balance sheet.
6. Bank Accounts
a. Wife's Franklin Mint FCU - $2,302 as of DOS.
b. Husband's JP Morgan Chase checking account - $113 as of DOS c. Husband's Wells Fargo checking account - $846 as of DOS.
d. Husband's Franklin Mint FCU - $1,422 as of DOS.
7. Debts
a. Husband's Best Egg - $25,355 as of DOS.
b. Husband's Capital One - $1,097 as of DOS.
c. Husband's Citi Simplicity - $9,200 as of DOS.
d. Husband's Discover - $5,806 as of DOS.
e. Husband's Chase-$1,642 as of DOS.
f. Husband's Chase SW Airlines - $4,932 as of DOS.
g. Husband's Macy's - $1,087 as of DOS.
h. Husband's Wells Fargo Visa Signature - $9,787 as of DOS.
i. Husband's Sears Citibank - Agreement on the record that there is no debt to divide.
j. Husband's Amex Hilton Honors - $11,138 as of DOS.
k. Raymour & Flannigan - $1,544 as of DOS. Parties agree the debt is marital but do not agree who should be responsible for paying for it.
l. Husband's Best Buy- The parties agree that debt was incurred during the marriage but do not agree on the balance due as of the DOS or who should be responsible for the debt.
8. Life Insurance: Wife's Penn Mutual Life insurance has a cash surrender value of $16,034 as of 7/15/20. The parties agreed to use this value for purposes of dividing the asset.
9. Retirement Accounts:
a. Wife's Brighthouse Annuity (formerly MetLife) - $75,640 as of 12/31/19. The parties agreed to use this value for purposes of dividing the asset.
b. Wife's retirement plan with LPL - $109,139 as of DOS.
c. Wife's Fidelity retirement plan - $1,448 as of DOS.
d. Wife's Lincare Retirement Plan - $11,027 as of DOS will go on Wife's side of the Wright Chart.
e. Wife's Lincoln Financial Group Annuity - The parties agree do not agree as to whether there is any balance in this account but agree that Husband may file a QDRO for a 50% share of the marital portion plus gains and losses.
f. Husband's---------------TSP - $138,282 as of DOS. The parties agree to divide the marital portion of the plan 50/50 via QDRO plus gains and losses. The parties dispute the DOS value.
g. Husband's--------retirement plan - The parties agree do not agree that there is any balance in this account but agree that Wife may file a QDRO for a 50% share of the marital portion plus gains and losses.
10.Husband's income - The parties initially did not agree on Husband's income. Flowever, after reviewing Husband's pay stub submitted for the first time during the trial, Wife now agrees that Husband's income may be based on his current pay stub which shows that he grosses $5,370 bimonthly.
Wife's Exhibit 11 (Neither party provided a current income for Husband in the Matters in Agreement and Matters in Dispute. However, during the trial, the Court determined Husband's income.)
B. Issue in Dispute:
1. Percentage distribution
a. Wife seeks a 60/40 division in Wife's favor.
b. Husband seeks a 50/50 division.
2. Marital Residence: The parties do not agree on how to calculate the equity in the marital residence so that Husband can buy out Wife's interest.
3. Husband's---------------TSP. The parties do not agree on the DOS value.
a. Wife believes it is worth $151,090 as of DOS.
b. Husband believes it is worth $138,282 as of DOS.
4. Debts:
a. Husband's Franklin Mint FCU auto loan.
(1) Wife does not know which auto loan had a balance of $19,245, but during the trial agreed the Court could use $6,000 as the balance due.
(2) Husband claims it is his auto loan in the amount of $19,245 as of DOS.
b. Husband's Franklin Mint FCU unsecured loan in the amount of $20,000.
(1) Wife denies that the loan is marital as it was incurred after the DOS and was a consolidation debt and the debts consolidated were accounted for by other means.
(2) Husband argues that it is marital because he took out the loan around the date of separation (February 28, 2019) and consolidated marital debts.
c. Husband's---------------TSP Loan - $30,000
(1) Wife denies that the debt is marital as it was incurred after the date of separation.
(2) Husband asserts that he took out the loan and consolidated marital debts. Fie concedes the debt was incurred in December, 2019.
d. Husband's Home Depot
(1) Wife agrees that it is a marital debt but disputes the balance due because Husband has only provided statements after separation.
(2) Husband claims that it is a marital debt and had a balance of $3,125 at DOS.
e. Husband's Best Buy
(1) Wife does not agree with the value and argues that Husband should be solely responsible for this debt as he retained all of the items that were purchased with the card with the exception of one television.
(2) Flusband argues that the parties amicably divided their household furnishings and Wife forfeited her right to any of the items and, therefore, the debt should be divided between them according to the percentage distribution.
f. Raymour & Flannigan - $1,544 as of DOS.
(1) Wife asserts that Husband should be responsible for this debt as he has retained the furniture that was purchased with this money.
(2) Husband asserts that it is marital and should be split between the parties.
g. NelNet /AES - Husband's student loan - $ 16,035
(1) Wife asserts that Husband should retain his student loans.
(2) Husband asserts that it is marital,
h. Wife's Citi-$4,049 as of DOS.
(1) Wife argues the debt was incurred during the marriage and should be divided.
(2) Husband argues that this debt is not marital.
i. Wife's Discover - $12,269 as of DOS.
(1) Wife argues the debt was incurred during the marriage and should be divided.
(2) Husband argues that this debt is not marital.
5. Miscellaneous Issues
a. Wife's-----------. Business
i. Wife asserts that the business has no value and is deactivated,
ii. Husband asserts the business has value but did not value the business and did not provide any closing argument as to what the Court should do.
b. Wife's PNC/Artisan Bank Account
i. Wife denies she has an account with PNC or Artisan Bank
ii. Husband claims that she currently has additional accounts.
c. Wife's Mortgage Payments to Mortgage Service Center
i. Wife asserts that the mortgage payments made from her checking account are payments for her mother's bills, ii. Husband argues that the payments are either for additional real estate which Wife owns and has not disclosed or the payments prove that Wife is not dependent because she can afford to pay her Mother's bills.
d. Wife's Unidentified ATM/Branch Withdrawals/Deposits/Cash App
i. Wife denies that she has income or assets via Cash App deposits,
ii. Husband argues that Wife has an additional source of income or that Wife is fraudulently taking her Mother's SSI.
6. Court Costs and counsel fees
a. Wife is requesting that Husband pay a portion of her attorney fees due to Husband's failure to comply with Discovery Requests, failure to negotiate, and litigiousness.
b. Husband is requesting attorney fees because Wife failed to disclose her Lincare retirement account.
7. Some of Husband's expenses. (Expenses will be address is the Alimony Order.)
8. Wife's income and some of her expenses. (Income and expenses will be addressed in the Alimony Order.)
9. Alimony: Wife is requesting alimony. Husband denies Wife is dependent. Alimony will be addressed in a separate Order.
LEGAL STANDARD
The Court considers the factors in 13 Del. C. § 1513(a) when determining how to divide the parties' marital property.
13 Del. C. § 1513(a) provides:
(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;
(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 properly, 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 (1 l)Tax consequences.
§1513 FACTORS
1. Length of the marriage;
The parties were married on September 14, 1996, separated in February, 2019 and were divorced by Order of this Court on January 30, 2020. The parties were married for twenty-three (23) years and four (4) months. The Court considers this a long marriage.
2. Any prior marriage of the party; This is the first marriage for both parties.
3. The age, health, station, amount and sources of income, vocational skills, employ ability, estate liabilities and needs of each of the parties;
Husband Husband is forty-nine (49) years old and is in good health. Fie works for the--------------. The parties agree that he earns $5,370 bimonthly (or $128,880 per year). His skills as a supervisor at the -- -----------allow him to earn an upper-middle-class salary. There is no dispute regarding Husband's income.
Wife's Exhibit 11.
Wife
Wife is thirty-eight (38) years old and is in good health. She was trained as a respiratory therapist prior to the marriage. Wife has been employed full-time with-------------------------------- (herein "--------------") as a respiratory therapist since September 2021. She also has the opportunity to work per diem shifts with----------------------------(herein "-------") as a respiratory therapist and works with-----------------------(herein "-----") as a caregiver for her Mother. She has only been working with-------since approximately November, 2020 but has been on the payroll at--------------- .......since April, 2018. While it is clear that Wife was working two jobs during the marriage, she testified that she is not currently accepting shifts at either location although the evidence showed that she had worked shifts the month immediately preceding the trial in the instant matter.
Prior to......-------, Wife was working full time with------------------as a case manager doing marketing and interviews. She was let go from that job after she had surgery in the summer of 2021.
Recording of November 8, 2021 Trial at 10:36:58 a.m.
At-------------, Wife earns $66,560.00 per year. Determining Wife's income through------- and-----is more difficult. Wife testified that she began working the extra hours with-------only after the parties separated to earn extra money to make ends meet. She further testified that she would typically accept per diem positions with-------approximately once per month but could not estimate the amount she received from-------. However, Wife has been paid by-----as her mother's caregiver since April, 2018 (during the marriage) and continued to do so through the month preceding the instant hearing. Wife has worked at-----while she had other full time jobs. Wife is paid weekly at-----and earned $3,783 in 2021 as of October 8, 2021. Therefore, Wife earned an average of approximately $94 per week or $4,917 per year at-----.
Wife's Exhibit 1 (Wife's offer letter states that the offer at--------------is for forty (40) hours a week at the hourly rate of thirty-two dollars ($32.00) per hour.) The Court took Wife's weekly income of $1,280 and applied that to every week of the year. Wife makes $66,560 per year.
Id. (Wife submitted paystubs which showed that she began working at--------------on, or around, September 6, 2021. She also submitted a paystub from-----which show that, for the pay period between September 26, 2021 and October 3, 2021, Wife worked thirty-two (32) hours at......)
Id.
Wife is paid on Fridays thought...... From January 1, 2021 until October 8, 2021 there were forty (40) Fridays, making her average weekly take home pay for 2021 approximately $94.00 per week or $4,917 per year. ($3,783/40 weeks = $94.57/week x 52 weeks/yr = $4,917/year.
Husband argues that Wife is underemployed because she is not working all of the per diem shifts that she worked during the marriage. Contrary to Husband's argument, the Court finds that Wife is appropriately employed. According to the Delaware Wage Survey, the average income for a respiratory therapist in Delaware is $32.81 per hour. Wife's income from---------------------- is consistent with this income.
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)
It is undisputed that, during the marriage, Wife worked as an independent contractor with------ -. Husband argued that she still has income from the business but she testified that she is no longer working for--------and that her--------account is closed. The evidence supports Wife's testimony. Wife received $159 in "nonemployee compensation" on her 2019 tax returns. Wife did not receive any compensation from--------on her 2020 tax returns. As Husband did not prove that Wife has additional income from--------, the Court will not include income from Mary Kay as part of Wife's income.
Wife's Exhibit 2a.
Wife's Exhibit 2b.
This Court does not find it equitable to include Wife's income from-------as the Court found Wife credible when she testified that she only worked the extra shifts to make ends meet and the Court is not requiring Husband to work two (2) jobs to make ends meet. However, Wife worked for----- while the parties were married and has continued to work for-----. As such, the Court does find it equitable to include income estimated at $4,917 per year from-----when calculating Wife's income.
Therefore, for purposes of assessing Wife's earning capacity for purposes of property division, 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.
As such, the Court finds Husband is appropriately employed earning $5,370 bimonthly or $128,880 per year based on the parties' agreement and Wife is appropriately employed earning $71,447 per year for the reasons stated herein.
4. Whether the property award is in lieu of or in addition to alimony;
Wife argues that she is dependent and is in need of alimony in addition to division of the marital estate. Husband argues that Wife is not dependent and should not be awarded alimony.
5. The opportunity of each for future acquisitions of capital assets and income;
Little evidence was presented on this factor. Husband has skills as a supervisor with the-------- ------which enables him to make an upper-middle-class salary. Husband has a graduate degree. Wife is trained as a respiratory therapist which enables here to earn a middle-class salary. Given Husband's current earning capacity, Husband has better opportunity for future acquisitions.
6. The contribution or dissipation of each party in acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker, husband, or wife;
Both parties worked full time during the marriage and contributed to the acquisition of the assets and debts in this marriage. There is a significant amount of marital debt in this case. Despite having an upper-middle class joint income, it appears these parties lived beyond their means by borrowing a significant amount of money on credit cards. There was no testimony or evidence that either party was more at fault than the other for their situation.
7. The value of the property set apart to each party;
The parties agreed that Husband will retain two (2) marital vehicles; one which may not be operational. Wife is retaining the vehicle she purchased post separation. Husband would like to retain the marital residence where he resides with the children if he can afford to buy out Wife's interest in the property. Wife is currently renting an apartment.
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;
Husband's income is almost two (2) times the amount of Wife's income. The parties Custody and Visitation Order provides that Father has primary residence of the minor child. Mother pays $361 per month in child support. Husband lives in the marital home with one (1) minor child and two (2) young adult children of the marriage. He wishes to retain that property. Wife is currently renting an apartment in---------.
9. Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;
No evidence was presented during the hearing regarding any gifts that will be excluded from property division.
10. The debts of the parties; and
The Court reviewed the debts with the parties on the record. Pursuant to that discussion, the parties agreed the following debts in Husband's name are marital: Best Egg ($25,355), Capital One ($1,097), Citi Simplicity ($9,200), Discover ($5,806), Chase ($1,642), Chase Southwest Airlines ($4,932), Macy's ($1,087), Wells Fargo Visa Signature ($9,787); and American Express Hilton Honors ($11,138). The parties also agree that the Raymour Flannigan debt was incurred during the marriage and had a date of separation balance of $1,544 and that Husband's Best Buy was incurred during the marriage. However, the parties do not agree who should be responsible for these debts or the balance due to Best Buy.
The debts in dispute are Husband's Franklin Mint FCU auto loan ($19,245), Flusband's Franklin Mint FCU unsecured loan ($20,000), Husband's---------------TSP Loan ($30,000), Husband's Home Depot ($3,125); Husband's student loan ($16,035); Wife's Citi credit card ($4,049), and Wife's Discover ($12,269). The Court will address the disputed debts and each parties' arguments in the discussion section of this Order.
Wife argues that the marital debts should be divided 60/40 in her favor and Husband argues that the debts should be divided 50/50.
11. Tax consequences.
No evidence was presented regarding any tax consequences which will result from the division of property. Alimony is not a taxable event in this case.
DISCUSSION AND CONCLUSIONS
A. Percentage Distribution:
Wife requests that the Court divide the assets and debts 60/40 in her favor and Husband request that the Court divide the assets and debts 50/50. Husband will be paying Wife alimony indefinitely. Even though the debts are being divided according to the percentage distribution, Husband will bear the responsibility of actually paying the majority of the debts because most of them are in his name. Husband earns $128,880 per year and Wife earns $71,477 per year. While Husband earns more than Wife, he does not earn twice what she earns but he certainly has a better chance at acquiring future assets than Wife does given his higher income. For all of these reasons, the Court finds it equitable to divide the assets 55/45 in Wife's favor and the debts the reverse.
B. Marital Residence
The parties do not agree on how to calculate the equity in the marital residence so that Husband can buy out Wife's interest. They agree the fair market value of the property is $277,000 but do not agree which date to use for the mortgage balance. Husband asserts that the parties should use the date of separation balance as Wife moved out of the home at that time. Wife asserts that the parties should use the current balance as Wife continued to make payments on the mortgage after she moved out of the martial home and because Husband enjoyed exclusive use and possession of the property since the date of separation.
The Family Court has broad discretion to value property as of the date of separation, divorce, or the ancillary hearing. In In re R.A.H., the Family Court valued the marital home by deducting the balance on the mortgage at the time of the ancillary hearing from the appraised value of the marital home. The Court used the current value of the mortgage because each party paid their own living expenses throughout separation. Furthermore, the husband enjoyed exclusive use and possession of the residence since the wife left the marital home.
In re R.A.H., 2000 WL 1663613 at *2 (Del. Fam Ct. Aug. 16, 2000) (citing Bachtle v. Bachtle, 434 A.2d 1253, 1256 (Del. 1985).
In re R.A.H.. at *2.
Id.
Id.
Wife testified and provided evidence that she made the mortgage payments after the parties separated while she was living with her mother. Husband testified that, in addition to Wife's mortgage payments, Husband made small mortgage payments after the parties separated. When Wife moved out of her mother's home, she stopped paying the mortgage on the marital residence and began her paying rent. There is no dispute that, for the entire separation, Husband enjoyed exclusive use and possession of the marital residence. As the parties paid their own living expenses (or Wife paid some of Husband's living expenses while she was not paying for her own living expenses) and Husband enjoyed exclusive use and possession of the marital home, the Court finds it equitable to use the balance on the mortgage as of the date of the trial to determine the equity. Therefore, for purposes of dividing the marital property, the equity in the marital residence is $179,720. The parties agree that Husband may retain the marital residence if he is able to refinance the property to remove Wife's name and buy her out of her interest in the property.
Fair market value of $277,000 less first mortgage of $97,280. The second mortgage was paid in full by the time of the trial.
C. Husband's---------------TSP.
Wife argues that Husband's---------------TSP was worth $151,090 as of the date of separation. Husband argues that his..............TSP was worth $138,282 as of the date of separation. Neither party presented evidence of what the..............TSP was worth as of the date of separation. As such, the Court cannot determine what the value was at the date of separation. Therefore, the Court finds it equitable and appropriate to allow Wife to file a QDRO for fifty percent (50%) of the balance as of the date of separation plus gains and losses and will not include this asset in the division of assets in the Wright Chart.
D. Debts
1. Husband's Franklin Mint FCU auto loan.
Husband asserts that there was a balance due on the auto loan for the Suburban, which he is retaining, in the amount of $19,245. Husband did not submit any documentary evidence supporting his position. Wife initially argued that she did not know which vehicle had a balance due of $19,245 and she believed the Suburban was paid off. At one point during the trial, Husband indicated that the balance due is now $6,000. At that point, Wife agreed the Court could use $6,000 as the balance due on the Suburban. Thereafter, Husband continued to assert that the balance due on an auto loan for the Suburban was $19,245.98 as of the date of separation. As the balance is disputed and Husband provided no documentation supporting his position, the Court has no choice but to accept the amount agreed upon, $6,000, as the balance due on the loan for the Suburban. Therefore, the Court will use the fair market value of the Suburban ($9,325) reduced by $6,000 as the value of the vehicle in Husband's column in the Wright Chart.
2. Husband's Franklin Mint FCU unsecured loan in the amount of $20,000.
Wife denies that the unsecured loan to Franklin Mint is marital as it was incurred after the date of separation (at the end of February, 2019) and was a consolidation debt. She believes the debts consolidated were accounted for by other means in these proceedings. Husband argues that it is a marital debt because he took out the loan around the date of separation (February 28, 2019). He concedes it was a consolidation loan and that he consolidated marital debts but he did not provide evidence of which marital debts were consolidated into this loan. As such, the Court finds it equitable to exclude this debt as an additional debt because it appears the balance has been accounted for by other means and Husband did not prove otherwise.
3. Husband's ---------------TSP Loan in the amount of $30,000
Wife denies that the debt is marital as it was incurred after the date of separation in December 2019. Husband concedes he took the loan to consolidate marital debts in December, 2019. Husband did not provide evidence of which marital debts were consolidated into this debt. As such, the Court finds it equitable to exclude this debt as an additional debt because it appears the balance has been accounted for by other means and Husband did not prove otherwise.
4. Husband's Home Depot
Despite her position in the Matters in Agreement/Matters in Dispute, at trial, Wife conceded that there was a Home Deport debt incurred during the marriage but denies the amount of the debt Husband claims exists because the only statement she was provided during Discovery was dated after the date of separation. Husband claims that the debt was incurred during the marriage and had a balance of $3,125 at the date of separation. Husband did not provide any evidence at trial regarding the amount of this debt as of the date of separation. As such, the Court cannot divide the debt as it has no evidence of the balance due.
5. Husband's Best Buy
The parties dispute the amount owed to Best Buy and whether the Court should divide it. Wife denies the amount Husband claims is due and Husband did not provide evidence of the balance due as of the date of separation at trial. Therefore, regardless of whether the debt was marital or not, the Court cannot divide the debt as it has no evidence of the balance due.
6. Raymour & Flannigan Debt
The parties agree that this debt was incurred during the marriage and the balance due was $1,544 as of the date of separation. Wife argues that Husband should be responsible for this debt as he has retained the furniture that was purchased with this debt. Husband argues that it is marital and should be divided between the parties. The parties were required to divide their personal property using the two-list method pursuant to this Court's Order dated October 20, 2020, unless they agreed otherwise. It is the Court's understanding that the parties divided their personal property amicably. As the household furnishings were divided as a whole, the Court finds it equitable to divide the debts as a whole. The Court will not sort out each individual item that was divided and account for the debts associated with them separately. The balance due of $1,544 as of the date of separation will be included in the division of the debts on the Wright Chart.
7. NelNet /AES - Husband's student loan - $16,035.21
Wife asserts that Husband should be solely responsible for his student loans. In support of her assertion, Wife cited the Wharton and M.L.S. cases. Husband asserts that the loans were incurred during the marriage and, therefore, should be divided as a marital debt. Debts incurred during the marriage are presumed to be marital. Generally, student loan debt is considered marital when "it was incurred prior to separation and the [party] was aware, or should have been aware, that [the other party] was accumulating student loan debt . . . during the marriage." However, the Court may determine other equitable considerations to be relevant when distributing student loans. For example, the Family Court has awarded a disproportionate distribution when Wife fraudulently obtained the student loan money or when Husband did not benefit from Wife's acquisition of the student loans.
Wharton v. Wharton. 2012 WL 1431234 at *2 (Del. Apr. 25, 2012).
Id.
See, e.g.. M.L.S. v. C.W.J.. 2016 WL 5957287 at *8 (Del. Fam. Ct. Sep. 30, 2016) (distributing Wife's student loan 75%/25% in Husband's favor because Wife fraudulently obtained the student loan money. Husband was still responsible for a portion of the loan because Husband was aware of Wife attending school and should have been aware Wife was receiving assistance.); M.R. v. A.R.. 2007 WL 4793148 at *7 (Del. Fam. Ct. Aug. 30, 2007) (distributing Wife's student loans 65%/35% in Husband's favor when Husband did not benefit from Wife's acquisition of the student loans).
M.L.S., 2016 WL 5957287 at *8.
Wife acquiesced in her closing argument that (1) the loans were incurred during the marriage; (2) she was aware of the loans; and (3) she benefitted from the student loans during the marriage. Wife's only argument that the student loans should be divided disproportionately is that Wife will not continue to benefit from Husband's student loans if she is not awarded alimony. This Court does not find that argument persuasive in this instance. As such, the Court finds it equitable to include the student loans in the division of marital debts.
8. Wife's Citi - $4,049
Wife argues the debt in her name to Citi was incurred during the marriage and should be divided as a marital debt. Husband argues that the debt is not marital but failed to provide evidence or argument to support that position. Wife provided documentation that, at the date of separation, the balance owed was $4,049. Therefore, the Court finds it equitable to include the debt in the division of marital debts.
9. Wife's Discover - $12,269
Wife argues the debt in her name to Discover was incurred during the marriage and should be divided as a marital debt. Husband argues that the debt is not marital but fails to provide evidence or argument to support that position. Wife provided documentation that, at the date of separation, the balance owed was $12,269. Therefore, the Court finds it equitable to include the debt in the division of marital debts.
E. Miscellaneous Issues
1. Wife's Business
Wife asserts that the business has no value and is deactivated. Husband asserts the business has value but did not value the business and did not provide any closing argument as to what the Court should do. Wife received $159 in "nonemployee compensation" on her 2019 tax returns. Wife did not receive any compensation from on her 2020 tax returns. As the evidence shows that Wife was only earning minimal income, if any, from in 2019, the year the parties separated, and Husband did not provide the Court with evidence of the value of the business, the Court will not attribute Wife with income for purposes of alimony determination and cannot include the business in the division of assets.
Wife's Exhibit 2a.
Wife's Exhibit 2b.
2. Wife's PNC/Artisans' Bank Account
Husband claims that an account existed in Wife's name at PNC or Artisan's Bank at the date of separation. Wife denies that she had an account with these banks at the date of separation. Wife provided evidence that she has not had an account with Artisans' Bank within the past seven (7) years. Husband did not provide any evidence showing that any account was open with either bank at the date of separation. As such, the Court cannot include the accounts in the division of assets.
Wife's Exhibit 4d.
3. Wife's Mortgage Payments to Mortgage Service Center
Husband alleges that Wife was making mortgage payments to another mortgage company after separation and, therefore, must own real estate that she has not disclosed. Wife asserts that the mortgage payments made from her checking account are payments for her Mother's bills. In the alternative, Husband argues that the payments prove that Wife is not dependent because she can afford to pay her mother's bills. In response, Wife testified that these mortgage payments were made from the money she received via Cash App from her sister who manages her mother's social security check. Husband provided no evidence that Wife owns additional real estate which was not disclosed and the Court finds Wife's testimony in this regard to be credible. As such, there is insufficient evidence to conclude that Wife has additional income which the Court should consider when determining alimony and there was insufficient evidence to prove that Wife owns additional real estate which should be divided as a marital asset.
4. Wife's Unidentified ATM/Branch Withdrawals/Deposits/Cash App
Husband argued Wife's Exhibit 3 showed that has an additional source of income or that Wife is fraudulently taking her Mother's Social Security Income because she has income from Cash App deposits. Wife denied Husband's allegations and provided evidence which shows that she was given money via Cash App for "mommy's ss $." Wife testified that when she receives these amounts via Cash App, she pays her mother's bills. Husband did not provide any evidence proving that Wife was earning additional income through unidentified ATM or branch withdrawals and deposits. The Court finds Wife's testimony credible in this regard and cannot find that Husband proved that Wife has additional income through Cash App or unidentified ATM or branch withdrawals and deposits.
Wife's Exhibit 3.
F. Court Costs and counsel fees
Wife is requesting that Husband pay a portion of her attorney fees due to Husband's failure to comply with Discovery Requests, failure to negotiate, and litigiousness. Husband is requesting attorney fees because Wife failed to disclose her Lincare retirement account. Both parties allege that they incurred additional attorney's fees because of the other party's bad faith. Wife's attorney may file an Affidavit of Fees and the Court will review same. Husband had an attorney at the beginning of the case but his attorney withdrew. To the extent that Husband claims he incurred fees because of Wife's actions, Husband may file an Affidavit and include a copy of any itemized bill from his attorney which shows the fees incurred. Any affidavit must be filed within twenty (20) days of the party waives their claim to fees.
WHEREFORE, the Court enters the following Order:
1. A Wright Chart is attached hereto as Exhibit A and made a part hereof.
2. For the reasons stated herein, the marital assets shall be divided 55/45 in favor of Wife with debts reversed.
3. Marital Residence:
a. Husband may retain the marital residence if he is able to refinance the marital residence and remove Wife's name from the first and second mortgages and pay Wife the sum she is owed pursuant to this Order within ninety (90) days of this Order.
b. If Husband cannot refinance the marital home within ninety (90) days, the parties shall work together to place the marital home on the market sixty (60) days thereafter.
(1) The parties shall agree on a realtor. If they cannot agree, Wife shall provide Husband with the names of three (3) realtors and Husband shall chose one of the realtors within ten (10) days of Wife sending the names. If Husband fails to timely choose a realtor, Wife shall choose the realtor.
(2) The parties shall cooperate with the real estate agent and follow the advice of the agent with respect to a listing price, decreasing the listing price, and accepting reasonable offers.
(3) The proceeds from the sale after payment of all costs and commissions of the sale shall be divided 55/45 in favor of Wife with the sums owed by either party to the other pursuant to this Order being subtracted from their portion of the proceeds.
4. Vehicles:
a. Husband shall retain the Chevrolet Suburban and the value determined herein shall go on his side of the Wright Chart.
b. Wife shall surrender the Honda Accord to Husband. Husband shall make arrangements to pick up the vehicle from Wife within thirty (30) days. The agreed upon value shall go on Husband's side of the Wright Chart.
c. The children driving the other vehicles shall retain those vehicles and neither party here shall make a claim for them.
d. Wife shall retain the vehicle she purchased after separation.
5. Bank Accounts: Each party shall retain the bank accounts listed in their column in the Wright Chart.
6. Debts: Each party shall be responsible for the marital debts listed in their column in the Wright Chart and hold the other party harmless for said debts
7. Life Insurance: Wife shall retain the cash value of her life insurance police with Perm Mutual Life Insurance and the agreed upon value shall go on her side of the Wright Chart.
8. Retirement Accounts:
a. Plans
1. Husband may file a Qualified Domestic Relations Order (herein QDRO) to obtain his 50% portion of Wife's Lincoln Financial Group Annuity as of the date of separation, plus gains and losses.
2. Husband may file a QDRO to obtain his 50% portion of Wife's Brighthouse Annuity as of the date of separation, plus gains and losses.
3. Husband may file a QDRO to obtain his 50% portion of Wife's LPL Retirement Plan as of the date of separation, plus gains and losses.
4. Husband may file a QDRO to obtain his 50% portion of Wife's Fidelity Plan as of the date of separation, plus gains and losses.
5. Husband may file a QDRO to obtain his 50% portion of Wife's Lincare Retirement Plan as of the date of separation, plus gains and losses.
6. Wife may file a QRDO to obtain her 50% portion of Husband's -.......... TSP as of the date of separation, plus gains and losses.
7. Wife may file a QDRO for her 50%) portion of Husband's--------retirement plan, if any, as of the date of separation plus gains and losses.
b. The parties shall file their QDROs within one (1) year of the date of this Order or they shall forfeit any interest they may have in the other party's accounts.
c. If a QDRO is not required for any specific plan, the party responsible for submitting the QDRO shall present the other party with all documents necessary to transfer their interests within one (1) year or they waive their claim to that account.
9. Alimony has been addressed by a separate Order issued simultaneously herewith. Payment of retroactive alimony is addressed in the Wright Charts attached hereto and made a part hereof.
10.Pursuant to the Wright Charts #1 and #2 attached hereto and made a part hereof, depending on whether the marital residence is retained by Husband or sold, one party owes the other party money to buy that party out of the marital estate. Said amount is due at the time Husband refinances the marital residence or the marital residence is sold.
11. Either party may submit an Affidavit regarding fees incurred within twenty (20) days. If a party fails to timely file the Affidavit, they waive their claim for fees.
IT IS SO ORDERED.