Opinion
CN19-01388 CPI No(s)19-26488
05-10-2022
E.C, Petitioner v. S.B, Respondent
PATRICK BOYER, ESQUIRE, Attorney DAVID GAGNE, ESQUIRE KARA SWASEY, ESQUIRE, Attorney
Date of Hearings June 9, 2021 November 1, 2021 November 2, 2021 November 3, 2021
Final Post-Hearing Submissions Received February 16, 2022
Nature of Proceeding PETITION FOR CHILD SUPPORT
PATRICK BOYER, ESQUIRE, Attorney
DAVID GAGNE, ESQUIRE KARA SWASEY, ESQUIRE, Attorney
MARY S. MUCH, Judge
[] Announced in Court
[X] Decision Reserved
Before the HONORABLE MARY S. MUCH, JUDGE of the Family Court of the State of Delaware:
Petitioner, E -------- A. C---- (hereinafter "Mother"), her counsel, Patrick Boyer, Esquire, Respondent, S ------ B. B -------- (hereinafter "Father"), and his counsel, David Gagne, Esquire and Kara Swasey, Esquire, appeared for multiple hearings on the above-captioned Petition for Child Support on behalf of the parties' two (2) minor children, A---- B -------- (DOB -/-/2013) and M------ Brauerman (DOB --/--/2015) (hereinafter collectively "Children"). At the request of counsel, this matter was heard before the undersigned in the first instance due to Father's position that the application of the Melson Formula in this case would produce an inequitable result.
Procedural History
Mother filed the above-captioned Petition for Child Support on September 13, 2019. The January 29, 2020 Stipulation and Order resolving ancillary matters established that "any child support obligation will be retroactive to January 1, 2020, except if Wife is awarded child support in excess of $50,000 per year, Husband shall pay to Wife the difference between any such award and $50,000 for 2019." By Stipulation and Order Regarding Custody and Contact dated January 29, 2020, the parties have shared residential placement of Children. On February 25, 2020, the parties and counsel participated in a Family Court mediation at which a child support calculation was performed and a resulting Interim Child Support Order was entered, dated February 27, 2020, requiring Father to pay $2,979.00 per month current support to Mother, as well as monthly child care ($1,409.00) and tuition ($2,605.00) for Children - a total monthly obligation of $6,993.00. On or about June 24, 2020, Father filed a Motion for Protective Order in these proceedings; by Order dated July 30, 2020 the Motion was denied. On or about August 20, 2020, Father filed a Request for Review of Commissioner's Order denying the Protective Order, and an Expedited Motion for Stay of Order; Mother filed timely Responses to both pleadings. On or about August 28, 2020, Father filed a Motion for Oral Argument. By Order dated August 31, 2020, Father's Motion to Stay was granted pending the outcome of the Review. By Order dated September 17, 2020, the Motion for Oral Argument was denied. By Order dated November 10, 2020, the Commissioner's Order was affirmed. Following the parties' hearings in related matters and in the above-captioned proceedings, the Court reversed its decision regarding Father's request for a Protective Order and by Order dated November 18, 2021 memorializing its oral direction, Mother was placed under a protective order as to information obtained during the course of the Child Support proceedings. The Court permitted counsel to submit written closing arguments in this proceeding, which were received on February 3, 2022; rebuttal arguments were received on February 16, 2022.
File CN19-01388; Tab 34.
Testimony regarding Income/Employment
The parties stipulated Jonathan Patterson, CPA, RW is an expert regarding tax issues. Mr. Patterson testified regarding income tax projections for Mother and Father. Mr. Patterson projected an average annual income for Mother for 2020, gross and net of taxes (using $28,000.00 of Schedule A deductions), retirement, and health insurance deductions, based on three (3) sum-certain gross annual incomes provided to him. Mr. Patterson projected an average annual earning for Father, gross and net of taxes and retirement, based on Father's actual W-2 gross Medicare earnings from 2018, 2019, and 2020.
Respondent's Exhibits 2, 3.
Respondent's Exhibit 3.
Respondent's Exhibits 22, 24, and 26.
G ----- A. K---, MD testified regarding Mother's work hours and employment description. Dr. K--- has been the physician in charge of N ------ M --------- P --------- since June 2012; he is charged with ensuring the standard of practice at the facility for doctors, nurse practitioners, and administrators. Mother is Dr. K---'s colleague; he confirmed she is an experienced pediatrician who began working in his office in July 2013 as a full-time employee and changed to part-time in 2014, after the birth of her first child. Mother is currently paid a salary for a 0.6 FTE, which is considered a "part-time" employee; she works 24 "patient-hours" per week, over a three (3) day period, from 7:30 - 8:00 a.m. through 4:00 - 4:30 p.m., seven (7) hours of which are "templated to see patients." Dr. K--- defined an employee categorized as a 0.75 FTE and above, is considered a full-time employee. Dr. K--- confirmed Mother is working less hours in 2021 than in 2020; following the onset of COVID-19, doctors and nurse practitioners worked reduced hours to offset the hospital's losses. Dr. K--- expects this reduction in hours to end soon.
Respondent's Exhibit 4.
Dr. K--- testified Mother is required to see patients, answer telephone calls, and prepare medication refills. Dr. K--- affirmed, regardless of FTE status, doctors have additional responsibilities; they must document patient care on an electronic medical record, which typically takes five (5) to eight (8) additional hours per week, "outside the typical office day;" typically, doctors arrive at least thirty (30) minutes early to review records and charts for upcoming patients, stay one (1) to one and one-half (1½) hours after the end of the work day for follow up patient calls and emails, and eat their lunches at their desks while engaged in work-related tasks. In addition to office work, Mother shares "call" responsibilities encompassing one (1) to two (2) nights per month for a twelve (12) to fifteen (15) hour shift, and shares "call" responsibilities on six (6) or seven (7) Saturdays per year for all N ------ practices and C --------- C--- N ------ . Dr. K--- described "on-call" responsibilities require Mother to be available to take phone calls and contact nurse practitioners and nurses. Although Dr. K--- estimated Mother works between forty (40) and fifty (50) hours per week, he affirmed he has no actual knowledge of the work she performs outside of the office.
R-Y ------- testified he is the administrator for N ------ D ------- P ------ C---- practices in Delaware. Mr. Y ------- described Mother as a part-time employee based on her current FTE status (.55), who works 22 hours per week "in the office," two (2) days one week and three (3) days the second week. Mr. Y ------- confirmed Mother started with N ------ as a full-time employee in or about 2013 and changed to part-time approximately one (1) year later. Mr. Y ------- testified a 1.0 FTE doctor would be in the office five (5) days per week for 8 hours per day, "not all seeing patients."
Mr. Y ------- outlined N ------' employee benefit packages based on an employee's FTE status; full-time employees receive a contribution from N ------ toward these benefits, whereas part- time employees receive no contribution. In addition, N ------ pays professional licensure fees for all employees from .5 FTE and above and reimburses its providers for training/medical education/dues based on FTE status; full-time employees can be reimbursed up to $3,000.00 per year and Mother, based on her .55 FTE status, would be entitled to reimbursement up to $1,650.00 per year.
Mother testified she goes into the office three (3) days per week and five (5) weekends per year; she confirmed her annual salary is $104,800.00, her early 2020 monthly paystubs reflected 104 employment hours per month, and her 2021 paystubs reflect 95.34 employment hours per month. Mother confirmed she was originally hired as a full-time pediatrician in April 2013 and subsequently changed her status to part-time pediatrician, and her hours were reduced. In addition, Mother admitted she has not sought to return to full-time employment status at her current employer nor has she sought supplemental employment since her hours were reduced in 2021.
Respondent's Exhibit 13.
Respondent's Exhibit 10.
Petitioner's Exhibit 83.
Mother testified she is aware that N ------' contribution rates for health insurance differ for full- time positions as opposed to part-time positions. Lastly, Mother confirmed she did not decrease her retirement contribution in 2021 despite her reduced income.
Father testified he is a director, stockholder, president, and vice chairman of B ----- L--. He is primarily employed in the litigation department; Father bills approximately 2000 hours per year, which comports to sixty (60) billable hours per week. Father estimated he works between sixty (60) and eighty (80) hours per week. Father's earnings have progressively increased since 2016 except for a slight dip in earnings in 2017. Father testified he receives a draw of $212,800.00 monthly, paid in equal semi-monthly installments. In addition, Father receives a year end compensation bonus, based on a portion of the firm's profits for the year less his annual compensation; Father testified this percentage of profit changes annually. Should the Court determine that Father's child support obligation is at or near his current disposable semi-monthly earnings, Father requested the Court establish a reasonable monthly (or semi-monthly) payment and a lump sum payment at the beginning of the subsequent year to make up the difference in his obligation from his profit-sharing compensation. The firm pays for the cost of Father's and Children's health insurance. Father contributes to a pension, disability insurance, and life insurance.
Respondent's Exhibit 22.
Respondent's Exhibits 22, 24, and 26.
Respondent's Exhibit 31.
Respondent's Exhibit 30. The Ancillary Order requires Father to maintain life insurance naming Mother as beneficiary for the duration of Father's child support or alimony obligation.
Legal Analysis of Income/Employment
In establishing a child support obligation, the Court must determine both parent's reasonable earning capacity; if a parent is employed at least thirty-five (35) hours per week in a job commensurate with his/her education, skill, and experience that parent shall be presumed to have reached his/her reasonable earning capacity; however, if a parent's income is based on fewer than thirty-five (35) hours per week, the parent is deemed underemployed and shall be imputed with hours reasonably available with a current employer or through similar employment with an alternate employer. Mother is fully capable of working as a full-time pediatrician yet chooses to work in a part-time position claiming she works, in essence, forty (40) hours per week but is only paid for her contracted FTE. Mother has provided no legal basis to negate an attribution of earnings of a full-time pediatrician; Mother has no medical limitations nor do either of the children, the subject of this child support litigation, have profound special needs, which would inhibit Mother's ability to maintain employment. In addition, Mother provided no evidence she has sought increased employment and been denied or that increased hours would not result in increased earnings. Dr. K--- testified all pediatricians in the practice work additional hours per week, over and above the hours dedicated to seeing patients. Mother did not argue she could not work in a full-time capacity, merely she chooses not to and believes her "additional hours" outside direct patient care should be considered full-time employment; however, Mother is not compensated for these additional hours. These additional hours simply are not considered full-time employment by Mother's employer as evidenced by the testimony of Dr. K---and Mr. Y ------- .
Del. Fam. Ct. R. Civ. P. 501(a) provides: "In determining each parent's ability to pay support the Court considers the health, income and financial circumstances, and reasonable earning capacity of each parent, the manner of living to which the parents had been accustomed as a family unit and the general equities inherent in the situation."
Del. Fam. Ct. R. Civ. P. 501(b).
Del. Fam. Ct. R. Civ. P. 501(c) provides: "A parent with documented earnings representing an average of fewer than 35 hours per week at employment otherwise commensurate with his or her training and experience shall be imputed the number of hours reasonably available either with parent's current employer or through similar employment but not less than 35 hours per week unless: (1) The parent has medical limitations; (2) More substantial employment has proven unavailable despite diligent efforts; (3) Upon consideration of available hours and rates of pay, available full-time employment would not produce greater total earnings; or (4) A child of the union has profound special needs inhibiting the support recipient's ability to maintain employment." (emphasis added)
Del. Fam. Ct. R. Civ. P. 501(c).
Id.
Father requests the Court use the Delaware Department of Labor Wage Surveys to attribute Mother's full-time earnings commensurate with an experienced pediatrician, $102.84 per hour.Although the Court may take judicial notice of the Wage Survey to attribute reasonable earning capacity, it is not bound to do so. Because Mother has an actual hourly wage at a job she has held for nine (9) years, which no one argues is below her skill level, the Court will attribute Mother with earnings commensurate with a full-time pediatrician employed at N ------, extrapolating from her current hourly base rate of pay, $91.35. No evidence was presented which would indicate Mother would be paid a higher hourly rate if she works full-time hours; she receives additional compensation for education, extended leave, and group term life, which totaled approximately $800.00 through May 2021. In 2020, Mother received bonus income totaling $26,051.00 and up through May 2021, Mother received a $6,306.00 bonus. Pursuant to the testimony in this proceeding, Mother works anywhere from 22 - 24 hours per week and is considered a part-time employee (.55 or .6 FTE). If the Court attributes Mother with full-time earnings (40 hours per week) at $91.35 per hour, her annual base earnings total $190,008.00. To this base annual attribution, the Court will add bonus income, as well as compensation for education, extended leave, and group term life, evidenced by Mother's pay statements, for a total annual attribution of income of $216,850.00 (rounded). For purposes of performing a Melson Formula Calculation, the Court will deduct a 5% (capped) retirement contribution and Mother's actual health insurance deduction. Father argues the Court should attribute Mother with a reduced medical insurance deduction based on the reduced out of pocket cost to Mother if she were a full-time employee, as well as the "wellness" rate, even though she does not take advantage of that rate. Although the Court has the authority to attribute earnings to an underemployed parent, it does not deem it equitable to reduce this actual routine health care deduction.
2020 Delaware Department of Labor Occupational Employment Statistics: Pediatricians, General (29-1221); Experienced level hourly wage, https://labor.delaware.gov/divisions/oolmi/.
Del. Fam. Ct. R. Civ. P. 504(e).
Petitioner's Exhibit 83.
Respondent's Exhibit 10.
Petitioner's Exhibit 83.
Because Mother's actual 403b contribution is $945.90, the Court feels comfortable allowing a deduction of 5% of Mother's attributed earnings, $904.00. If the calculated deduction based on attributed earnings was more than Mother's actual contribution, the Court would have used Mother's actual contribution.
For purposes of performing a Melson Formula Calculation, the Court used Father's actual gross earnings from 2020 forward, deducting a 5% retirement contribution, as well as his disability and life insurance contributions. Although Father initially argued the Court should take an aggregate of Father's three (3) prior years' earnings [2018 - 2020], the Court finds Father's income has increased each year and his 2020 income is indicative of his earnings moving forward.
The final piece required to perform a Melson Formula Calculation is the addition of children's tuition and/or childcare needs for 2020 forward. Father testified he has borne all childcare and tuition expenses for the Children. For the year 2020, Father incurred childcare costs for a nanny for one or both children, T---- H--- aftercare for A----, and X ----- for M ------, totaling $12,632.00. A---- attended T---- H--- S ----- for the 2020/2021 school year at a cost of $24,986.84. For the year 2021, Father incurred a childcare expense for a nanny for one or both children, T---- H--- aftercare for A----, and X ----- for M ------, totaling $9,318.00. Both A---- and M ------ enrolled in T---- S ----- for the 2021/2022 school year at a total cost of $50,545.00. Although Father paid the final payment for any given school year in January or February of the next calendar year, the Court included that expense for the previous calendar year for ease of calculation.
Respondent's Exhibit 32.
Respondent's Exhibit 33.
Respondent's Exhibit 32.
Respondent's Exhibit 33.
The Court completed two (2) calculations covering the periods from January 1, 2020 through December 31, 2020, and January 1, 2021, prospectively. These calculations are attached hereto as Exhibits A and B, respectively, and incorporated herein by reference. Father's monthly obligation for 2020 is $10,979.00 and for 2021 is $10,697.00. The High Income Offset is less than $30,000.00 per month, which extrapolates to approximately 18% of Father's gross monthly earnings and 67% more than Mother's gross monthly earnings.
Presumptive Applicability of the Melson Formula
Father argues the Melson Formula creates an inequitable result in that the net obligation owed grossly exceeds Children's expenses and the standard of living to which Children were accustomed during the parties' marriage. Father bears the burden of proving the use of the Melson Formula is rebutted. Mother argues the use of the Melson Formula is equitable, in part, because Rule 504(b), adopted in 2019, "expressly contemplates high income cases and the Ford problem." The 2018 Delaware Child Support Formula Evaluation and Update states, "If either parent's net available income for the Standard of Living Adjustment (SOLA) exceeds $15,000 per month (approximately $200,000 total earnings per year), each parent's net available for SOLA should be reduced by 20% of the combined excess. Currently, high income obligations are dominated by SOLA and any proportional difference in the parents' incomes has a minimal impact on the calculation. This proposal will restore the relevance of the custodial parent's income and prevent obligations from becoming a mere percentage distribution of the obligated parents' wealth." The recommendation, codified at Rule 504(b), states, "If either or both parents' Net Available Income for the SOLA exceeds $15,000, then each parent's Net Available Income for the SOLA will be reduced by 20% of their combined excess." In explaining the SOLA reduction, the 2018 Delaware Child Support Formula Evaluation and Update cites Ford v. Ford and explains how the 20% reduction operates: "If the obligated parent's income exceeds the threshold, the SOLA percentage on the excess is effectively reduced by 20%. If the custodian's income exceeds the threshold, the obligated parent's SOLA obligation abates similarly. If both exceed, then the opposing forces create an obligation truly customized to the parent's relative resources." Father argues "[t]he implication of Mother's argument is that the Family Court effectively abrogated Dalton and Ford when it modified Rule 504 to include the High Income Adjustment." Following the 2019 enactment of Rule 504(b), the Court can find no cases which cite to Ford v. Ford using Ford to justify rebutting the presumptive applicability of the Melson Formula. The Court recognizes the High Income Adjustment; however, it finds this adjustment in the Formula does not preclude a party from arguing that the presumptive applicability of the Melson Formula is inequitable and, therefore, should be rebutted.
Petitioner's Closing Argument, 4.
The Honorable Chief Judge Michael K. Newell, Delaware Child Support Formula Evaluation and Update: Report of the Family Court Judiciary, 5 (November 8, 2018), https://courts.delaware.gov/forms/download.aspx?id=39228.
Del. Fam. Ct. R. Civ. P. 504(b).
The Honorable Chief Judge Michael K. Newell, Delaware Child Support Formula Evaluation and Update: Report of the Family Court Judiciary, 26 (November 8, 2018), https://courts.delaware.gov/forms/download.aspx?id=39228.
Father's Rebuttal Argument, 19-20.
Dalton v. Clanton is the seminal Delaware Supreme Court case addressing the merits of the Melson Formula as a vehicle to consistently apply the factors enumerated in 13 Del. C. §514 to reach uniform results. This case outlined the two-pronged review required by the lower court in cases where the presumption was rebutted; the Court must first determine the dollar amount produced by applying the Melson Formula and then that the amount is inequitable in any given case. In deviating from the Melson Formula, the Court must "[f]irst, . . give the reasons for its conclusion that the presumptive applicability of the Melson Formula has been rebutted. Second, it must give reasons for the decision that it does enter and which is in variance with the result that would otherwise follow from an application of the Melson Formula."
Dalton v. Clanton, 559 A.2d 1197 (Del. 1989).
Id. at 1212.
Id. at 1211.
Ford v. Ford established when "the Formula dictates an amount of child support far in excess of what is necessary to maintain a 'manner of living to which the parties have been accustomed when they were living under the same roof'" the presumptive applicability of the Melson Formula is rebutted. In Ford, the father agreed to deed the family home to the mother and remain responsible for the mortgage payments, pay the children's educational expenses through college, provide medical and health insurance for the children, and obtain a $1 million term life insurance policy with the children as named beneficiaries. On appeal from the Family Court, which found the father had rebutted the Melson Formula presumption, the mother argued, "children are entitled to share in the post-separation increase of Father's standard of living." The Court explained,
Ford v. Ford, 600 A.2d 25, 27 (Del. 1991) (quoting 13 Del.C. §514(2)).
Ford, 600 A.2d at 27.
Id. at 28.
the formula operates as a rebuttable presumption. Unless a party can show that use of the formula would be inequitable, the court will apply its terms to fix the minimum income requirements of the parents and determine the primary child support needs of the children. If there is income remaining after these basic needs are met, the court will add a portion of that remainder to the support order, based on the number of minor dependents and their specific needs. The purpose of the third step award is 'to ensure that the child enjoys, as nearly as possible, the standard of living to which he or she would have been accustomed were the parties residing under the same roof.' The court may also make an additional award, in a proper case, of supplemental quarterly child support. This provision addresses the situation where a substantial discrepancy exists between the respective incomes of the custodial and non-custodial parents. It is intended 'to allow the child to enjoy the standard of living of the more affluent parent.'
Id. at 29 (citations omitted).
In finding the formula had been rebutted, the Court considered the father's "generous" provisions for the children, including the father's agreement to deed the family home to the mother and remain responsible for the mortgage payments, pay the children's educational expenses through college, provide medical and health insurance for the children, and obtain a $1 million term life insurance policy with the children as named beneficiaries. Specifically, "[t]he Family Court found that these expenditures allowed the children to maintain a standard of living at least equal to the one they enjoyed when their parents lived under the same roof." The Court disagreed with the mother's argument that she should be awarded a higher level of support, "even after all their needs have been satisfied and they are secure in a comfortable lifestyle" just because the father's income would permit a greater award. The Court found "Family Court has no duty or authority to order payments which go beyond the demands of reasonable and generous support, meaning, in this context, enough to share in the respective lifestyles of the parents."
Id. at 27.
Id. at 29.
Ford, 600 A.2d at 29.
Id. at 30.
In Guerke v. Guerke, although finding "the Guerke children lack some of the protection which the Ford children had by contract," the Court held the presumptive applicability of the Melson formula was rebutted. In so holding, the Court reasoned, "[c]hild support is intended to cover only those expenses related to the child, not those of the parent or of any other person ineligible for support who is part of the parent's household. Thus, the amount necessary to support [the child] is a fraction of that amount necessary to run Mother's household." The Court balanced the similarities and differences of the Guerke matter and the Ford case, but eventually held Ford was controlling precedent.
Guerke v. Guerke, 1994 WL 831983, at *3, *4 (Del. Fam. Ct. June 1, 1994).
Id. at *4.
Id. at *8.
In Taylor v. Taylor, the Delaware Supreme Court reversed a decision of the Family Court, finding the Family Court's application of the Melson Formula was not equitable, given the facts of the case. In Taylor, the Delaware Supreme Court found the child support obligation of $3,200.00 per month imposed on the father by the Melson Formula, in addition to the father's responsibility for the mortgage payments/real estate taxes/insurance on the mother and childrens' residence, the mother's car payments and insurance, and "the payments required on the family debts," combined, "appear[ed] to go beyond the reasonable and generous support to which the children are entitled."
Taylor v. Taylor, 1991 WL 316970, at *3 (Del. 1991).
Id.
To determine whether the presumptive application of the Melson Formula had been rebutted in similar "disparate income" cases, the Family Court in Amy M. v. John T. "[found] it to be appropriate to set certain guidelines to assist." The Court stated the parties' income ratio "should be 10:1 or above," and that "excess money cannot be accounted for." This Court agrees with Father and finds no persuasive reason to utilize the "guidelines" in Amy M., as it cannot find a subsequent case which relies on the guidelines, and it cannot find a citation to legal precedent within the guidelines, which provide support for their reliability.
Amy M. v. John T., 2002 WL 32101224, at *4 (Del. Fam. Ct. Oct. 16, 2002).
Id. at *4.
Id.
In M.D.C. v. L.A.E., the parties had three (3) minor children and shared residential placement. Husband argued the Melson Formula had been rebutted on the basis of his "significantly high income." In M.D.C., the Court found the Melson Formula presumption had been rebutted because it produced a result in excess of the wife's monthly expenses. In coming to this conclusion, the Court excluded the cost of children's private school expenses from the wife's monthly expenses, as it found the husband was paying 100% of the cost.
M.D.C. v. L.A.E., 2008 WL 4698531 at * 4 (Del. Fam. Ct. June 11, 2008).
Id.
Id. at *5.
Id.
In Rogers v. Rogers, the father claimed on appeal the Melson Formula had been rebutted because he made "numerous expenditures" for the children's recreation. The Court did not adopt the father's reasoning, explaining, "[o]n the contrary, only a showing that application of the Melson Formula will produce an inequitable result will rebut the presumption." Because the father "made no showing that the Melson Formula will produce an award that far surpasses the requirements of the children," the Court found he did not rebut the Melson Formula.
Rogers v. Rogers, 1995 WL 622425, at *2 (Del. 1995).
Id. at *2 (citations omitted).
Rogers, 1995 WL 622425, at *3.
At the outset, the Court must determine whether Father has successfully demonstrated that the presumptive applicability of the Melson Formula has been rebutted. The facts of each child support case are unique and, pursuant to Dalton and Ford, Father must present evidence supporting his contention that the award to Mother is inequitable. If Father fails to meet his burden, the result is not the abrogation of Dalton and Ford. The Court is directed by Ford to determine whether the presumptive applicability of the Melson Formula "is rebutted by a showing that the Formula dictates an amount of child support far in excess of what is necessary to maintain a 'manner of living to which the parties have been accustomed when they were living under the same roof.'"
Ford, 600 A.2d at 27 (quoting 13 Del.C. § 514(2)).
An average of the parties' marital expenses, taking into consideration this is a child support matter and not an alimony matter, from 2016 through 2018 assist in establishing the standard of living of the parties and Children during the marriage. Father provided a summary sheet detailing the parties' average monthly expenses over a five (5) year period and Mother provided an expense sheet detailing the parties' marital expenses. It is most appropriate to use Father's figures, and average the years 2016, 2017, and 2018 to account for marital spending following the birth of M ------, the parties' youngest child; Father provided extensive documentation regarding the marital expenditures and Mother's documentation conflates years, which causes the Court to question the accuracy of Mother's document expenses incurred during the marriage.
If the Melson Formula awards Mother a sum "far in excess of what is necessary to maintain a 'manner of living to which the parties have been accustomed when they were living under the same roof[,]" Father should be deemed to have rebutted the presumptive applicability of the Melson Formula and the Court should proceed to an enhanced needs analysis under Ford. Father argues even after utilizing the Melson Formula, with the High Income Adjustment, the monthly obligation still greatly exceeds Children's reasonable expenses. The Court shall consider Children's expenses and Children's share of household expenses of Mother and Father as well as the standard of living to which they were accustomed during the marriage.
Ford, 600 A.2d at 27.
The presumptive monthly child support award to Mother under the Melson Formula is $10,697.00 in 2020 and $10,979.00 in 2021. According to the Court's calculation of marital expenses ("Marital Expense Spreadsheet") attached hereto and incorporated herein by reference, the cost of raising Children, on average, for the years of 2016, 2017, and 2018 was approximately $12,187.36 per month. However, as the courts in Taylor and M.D.C. did, this Court shall take into account the fact Father solely pays for Children's private school tuition and childcare costs, and any award to Mother would not go toward paying such costs; subtracting the private school tuition and childcare costs leaves the Court with an average monthly expense for raising Children during the marriage of $9,270.22. In contrast, the presumptive support award to Mother under the Melson Formula is almost $1,500.00 more than the total sum necessary to allow Children to maintain the marital standard of living. The Court emphasizes the word, "total," above to reflect that the sum required for Children to maintain a marital standard of living is not borne by Father alone; while the Melson Formula assesses Father a 91% share of the parties' total income, Mother is not without earnings or earning potential, which enables her to contribute to the Children's needs. For the reasons stated above, the Court finds Father has rebutted the presumptive applicability of the Melson Formula.
See Exhibit A, attached hereto and incorporated herein by reference. Father's total monthly obligation to Children is, in essence, $14,114.00 [$10,979.00 owed to Mother plus $3,135.00 owed for Children's tuition and childcare].
See Exhibit B, attached hereto and incorporated herein by reference. Father's total monthly obligation to Children is, in essence, $15,686.00 [$10,697.00 owed to Mother plus $4,989.00 owed for Children's tuition and childcare]
See Exhibit C for a breakdown of marital spending. This figure was derived by averaging the 2016, 2017, and 2018 marital expenses provided by Father and adding 100% of the expenses directly incurred for Children to 50% of the household expenses, excluding purely personal expenses to the parents, like alcohol and vacations without Children, (to account for the fact that Children made up 50% of the household). See the attached Excel Spreadsheet for greater detail.
Enhanced Needs Analysis
The Court must now perform an enhanced needs analysis to "determine what amount of child support would be required in light of those enhanced needs and order that amount paid."The Court must determine "what amount is necessary for the children to share in the heightened standard of living of their more affluent parent." Children's enhanced needs are defined as "more than just essentials." The Court, "[i]n allocating that amount between the parents, . . . should consider the relative earning abilities of the parents to participate in that level of support and to allocate their respective payments accordingly" and ensure the amount awarded is "equitable" and "fair to all parties." However, "[t]his does not mean that the Family Court must sanction waste or require the purchase of luxuries simply because the parents' income permits. The Court must apply a standard of reasonableness."
Ford v. Ford, 600 A.2d 25, 32 (Del. 1991).
Id.
Id.
Id.
Id. at 32 n.6.
In M.D.C., at the husband's suggestion, the Court segregated the wife's expenses directly attributable to the children, and used a .75 multiplier to determine the children's share of the household expenses. Husband suggested, and the Court found it reasonable, to assess the husband with 100% of the wife's expenses attributed directly to the children and 75% of the wife's household expenditures, accounting for the fact that the children made up ¾ of the household members. In addition, the husband remained responsible for the children's tuition and medical/dental insurance. The court accepted the husband's proposal, finding, "that this approach is reasonable and comports with the Supreme Court's mandate."
M.D.C. v. L.A.E., 2008 WL 4698531, at *5 (Del. Fam. Ct. June 11, 2008).
M.D.C., 2008 WL 4698531, at *6.
Id. at *5.
Id. at *6.
In In re Matter of Toy v. Mullen, which concerns a Petition for Modification requesting the Family Court decrease an obligor's child support award, the Family Court outlined how it established the father's original support award, after a finding the presumptive applicability of the Melson Formula had been rebutted. In Toy, "the Court was guided, in part, by [the] mother's analysis of the expenses of her household. The Court took into account the nature of these expenses (whether for necessities or luxuries) and their reasonableness, and then allocated a portion of the expenses to the children." The Family Court noted "the exercise was helpful as a guide to what constitutes a reasonable amount of support."
In re Matter of Toy v. Mullen, 1994 WL 872658, at *2 (Del. Fam. Ct. Nov. 28, 1994).
Id.
Id.
To calculate Mother's child support award, Father seeks to (1) eliminate all expenses "purely personal" to the parents, (2) divide general household expenses by 50%, to account for shared placement of Children, and then reduce this amount by 1/3 to account for the parental share, (3) reduce expenses which benefit both the parent and Children by 1/3 to eliminate the parental share of those expenses, (4) include Mother's stipulated and Father's corresponding expenses, subject to the Shared Placement Adjustment or Child's Allocation, (5) include expenses benefitting only Children at full value, "stipulated or supported by evidence," (5) increase Mother's "discretionary lifestyle expense[s]" where she spends less than Father or less than the parties did during the marriage, to reflect Father's expenditure and apply the Children's Allocation, and (6) decrease Mother's discretionary lifestyle expenses where she claims to spend more than the parties did during the marriage to reflect the higher of Father's expense, or the amount the parties spent during the marriage, subject to Children's Allocation; Father proposes he receive his "actual expense" for such "discretionary lifestyle expenses," subject to Children's Allocation.
Which Father classifies as Mortgage, HOA, Water, Garbage, Sewer, Electric, Mowing, Sprinklers, TV/Internet, Phone, Pool, Cleaning, Car Insurance, Car Repairs, Pet Expenses, Alarm System, Home Repairs, Gardening, and Groceries.
Which Father names, "Shared Placement Adjustment."
Which Father classifies as Gasoline, EZ Pass, Household Items, Amazon, Vacation, Transportation other than auto, Miscellaneous/Incidentals, and Disney Vacation Club.
Which Father names, "Children's Allocation."
Respondent's Closing Argument, 31.
As a preliminary matter, the Court declines to use Father's six (6) step formula to calculate his child support award. The Court is directed to, first, "determine what amount is necessary for the children to share in the heightened standard of living of their more affluent parent[,]" second, "determine what amount of child support would be required in light of those enhanced needs and order that amount paid[,]" and, third, "[i]n allocating that amount between the parents, the court should consider the relative earning abilities of the parents to participate in that level of support and to allocate their respective payments accordingly. At the outset, the Court does not find dividing general household expenses by 50% to account for shared placement of Children is in keeping with Ford's mandate. Mother and Father may share placement of Children, but Children do not merely receive the benefit of half of Mother/Father's household expenditures just because they have two (2) homes; mathematically, if the Court were to reduce Mother's household expenditures by 50% before applying Children's Allocation, the Court would enter a support award that accounts for only 1/3 of the total household expenditures, despite Children accounting for 2/3 of Mother's household. In the Court's view, such an award would, effectively, only account for the expenses associated with one (1) child and would not reflect Children's needs or it would ignore the fact that Mother must maintain a household for Children even when Children are placed with Father.
Ford v. Ford, 600 A.2d 25, 32 (Del. 1991).
To the extent Father disagreed with the majority of current expenses provided by Mother, the Court must determine whether Mother's listed expenses are reasonable, related to Children, and in line with the expenditures on Children/household during the parties' marriage. Father argues Mother has increased her expenditures since the parties resided together and even since she completed the Ancillary Financial Disclosure Report. Any expenses solely related to a parent will not be included for child support purposes. Mother testified she should be given credit for expenses for her to maintain her health and professional appearance (e.g., medical bills, clothes, professional/career expenses, hairdresser, accounting fees, wellness fees) because her profession and wellness allow her to care for Children. The Court finds no merit with that argument; the Family Court in M.D.C. found it reasonable to segregate expenses relating to the household, the children, and the wife, and award Wife a child support award equivalent to a percentage portion of reasonable household expenses attributable to children and actual expenditures on children; the Family Court did not feel the need to include expenses solely attributable to Wife in this calculus.Further, the Family Court in Toy, in calculating its original child support award to Mother, "was guided, in part, by mother's analysis of the expenses of her household. The Court took into account the nature of these expenses (whether for necessities or luxuries) and their reasonableness, and then allocated a portion of the expenses to the children . . . as a guide to what constitutes a reasonable amount of support."
M.D.C. v. L.A.E., 2008 WL 4698531, at *5 (Del. Fam. Ct. June 11, 2008).
In re Matter of Toy v. Mullen, 1994 WL 872658, at *2 (Del. Fam. Ct. Nov. 28, 1994).
Mother was unable to adequately explain certain of her expenses and delineate what portion thereof were attributable to Children. For example, regarding entertainment expenses, Mother was unable to testify whether expenses incurred involved Children or were simply her expenses. Father testified he explicitly segregated those expenses he incurred when Children were with him and when they were not. None of Father's expenses were rebutted.
Mother lists the following household monthly expenses:
Expense name
Claimed monthly expense ($)
Mortgage
$4,418.58
HOA fee
$55.25
Water
$67.30
Garbage
$23.58
Sewer
$18.22
Electric
$289.92
Sprinklers
$27.00
TV, internet, landline
$224.15
Phone
$84.05
Pool
$126.14
Alarm system
$57.00
Home repair
$282.17
Cosmetics/toiletries
$4.17
Transportation other than auto
$18.40
Misc./incidentals
$57.48
Toys and presents
$150.00
Zoo membership
$13.00
Sesame Place and DE Children's Museum
$89.03
Please Touch Museum
$18.75
Ice skating/Soccer
$17.34
Lawn service
$49.00
Mowing, mulching, power washing
$241.00
Cleaning service/Stanley Steemer
$473.00
Car and home insurance
$272.75
Car repairs
$626.00
Pet expenses
$195.34
Medical bills
$315.66
Gas
$162.02
EZ-Pass
$25.00
HELOC
$2,045.73
Household items
$1,508.30
Gardening
$131.00
Groceries
$654.00
Barber/hairdresser
$47.50
Amazon
$617.00
Entertainment
$509.76
Mother's clothes
$127.00
Laundry/dry cleaning
$10.75
Vacation
$1,578.61
Accountant
$53.00
Mother's career
$75.00
Children's clothing
$226.12
Children's furniture
$649.13
D-- C------C---
$906.00
Disney Vacation Club
$133.10
Children's photos
$21.00
HAC/swim lessons
$331.47
Father stipulated to Mother's HOA, Water, Garbage, Sewer, Electric, Sprinklers, TV/internet/landline, Phone, Pool, Alarm system, Home repair, Cosmetics/toiletries, Transportation other than auto, Misc./incidentals, Toys and presents, Zoo membership, Sesame Place and DE Children's Museum, Please Touch Museum, and Ice skating expenses. The Court includes those expenses for purposes of calculating Mother's child support award at the value listed above. As Father pays Children's private school tuition and associated costs, as well as childcare costs, the Court does not include those costs in Mother's expenses for the purpose of a child support award.
Father argues Mother's mortgage expense should be reduced to the monthly expense the parties incurred during the marriage. Mother refinanced the home in June 2021 and obtained a 15-year mortgage at an increased monthly amount; Father has a 30-year mortgage on his current residence and the parties had a 30-year mortgage on the marital residence. The parties' mortgage payment during the marriage was $4,202.21 and Mother's current monthly payment is $4,418.58. This Court does not question Mother's authority to refinance her debt and does not find she did so to significantly alter Father's child support obligation. The Court finds Mother's current mortgage expense is a reasonable household expense.
Father argues the lawn service expense of $49.00 per month should be excluded because the parties did not have this expense during the marriage; Mother testified she would fertilize the lawn herself during the marriage, but currently she does not have the time or physical capacity to do so. The Court finds this is a reasonable household expense for lawn upkeep.
Petitioner's Exhibit 21.
Father argues the lawn mowing expense is miscalculated and is well in excess of what the parties spent during the marriage. Mother submitted one (1) monthly receipt for the month of April 2021 totaling $175.00 as evidence of that month's mowing charge; Mother testified she is charged "about $40.00" per cut, which is weekly through the mowing season from March to November and she retains the same service the parties used during the marriage. Father testified the mowing cost during the marriage totaled $630 annually in 2017 and 2018 and requests the Court reduce Mother's expense accordingly; Father's own mowing expense is approximately $174.50 per month, which is more than the parties spent during the marriage. It is evident to the Court the parties maintained a mowing expense during the marriage, and Father continues to carry a mowing expense; Mother's monthly mowing expense shall be set at $131.25.
Petitioner's Exhibit 22.
Respondent's Exhibit 36.
The Court derived this figure by multiplying $175.00 by nine (9) months to account for the "mowing season" as testified by Mother, and dividing the sum, $1,575.00, by twelve (12) months.
Father argues Mother's mulching expense is inflated because the parties did not have such an expense during the marriage and Mother submitted one (1) receipt therefor, dated May 7, 2021 for $950.00. Mother testified she was responsible for mulching during the marriage, but no longer has the time or physical capability to mulch. The Court deems an annual expense of $950.00 to be a reasonable household expense; Mother's mulching expense shall be set at $79.17.
Petitioner's Exhibit 22.
The Court derived this figure by dividing $950.00 by twelve (12) months.
Mother testified her current power washing expense is $54.00 per month, as evidenced by a May 7, 2021 receipt for $650.00. Father argues this expense should not be included as a household expense for child support purposes as the parties did not expend money to power wash the property during their marriage. Mother testified she, personally, power-washed the parties' property during the marriage and conceded she could still lift a power washer. The Court does not find it unreasonable to include the power washing expense for purposes of the child support calculation, as the parties did power wash the property during the marriage. Mother's monthly power washing expense shall be set at $54.17.
Petitioner's Exhibit 22.
The Court derived this figure by dividing $650.00 by twelve (12) months.
The parties agree they had a cleaning service during the marriage, which cost $180.00 semi-monthly; Mother provided documentation that this expense increased to $190.00 semi-monthly. The Court finds this is a reasonable household expense. Mother's monthly cleaning service expense shall be set at $380.00 per month.
Petitioner's Exhibit 23.
The Court derived this figure by multiplying the semi-monthly $190.00 expense by two (2) to derive a monthly expense.
Father disputes the Stanley Steemer Cleaning Service annual expense based on the parties' spending on this service one (1) time during the marriage. Mother testified she uses this service once or twice per year; she presented one (1) receipt for $732.00. The Court finds Mother has not proven an annual or semi-annual use of this service; however, the Court will extrapolate this figure over a three-year period, similar to during the parties' marriage, for purposes of a child support calculation as it is a reasonable household expense. Mother's monthly Stanley Steemer expense shall be set at $20.33 per month.
The Court derived this figure by dividing $732.00 by thirty-six (36) months.
Mother testified her car insurance and homeowner's insurance expense is $272.75 per month and paid through one insurance company. Mother's testimony in this regard was extremely confusing; her Encompass insurance statement lists car and homeowner's insurance. It is clear from Mother's mortgage statement that homeowner's insurance is escrowed in her monthly mortgage payment to contemplate a payment of $2,610.00 annually; Mother believes the additional payment, through Encompass, is for Umbrella Policy coverage. In addition, Mother has two (2) insured vehicles - a Porsche and a Subaru. Father contends the Subaru provides no current benefit to Children and was purchased for a previous nanny who retained the vehicle while she was in parties' employ, using it to transport Children. Father testified he has one (1) vehicle to transport Children. Father argues the only insurance expense to be included for purposes of the child support calculation is Mother's Porsche insurance of $125.25 per month. The Court finds merit with Father's argument concerning the Subaru; in addition, the Court finds Mother is double covered with homeowners insurance and will include only the Umbrella Policy expense for the Porsche and home. Mother's monthly car and umbrella insurance expense shall be set at $135.33 per month.
Petitioner's Exhibit 24.
Petitioner's Exhibit 1.
Petitioner's Exhibit 24 - Umbrella Insurance totals $188.00, covering both vehicles and the residence.
The Court derived this figure by dividing $1,624.00 [$1503.00 for car insurance plus $67.00 Umbrella policy on Porsche plus $54.00 Umbrella policy on home] by twelve (12) months.
Father argues Mother's car repair expense is excessive in that it is for two (2) vehicles and Mother drives the Porsche. Father contends any expenses associated with the Subaru should be excluded; for the reasons set forth above, the Court agrees with Father's position. Mother testified the Porsche will need ongoing maintenance every 10,000 miles, which she expects to incur each year; Mother documented the cost of the 70,000 mile through 110,000 mile routine maintenance charges (5 routine maintenance amounts); the routine maintenance is duplicative every 40,000 miles, such that the 70,000 mile maintenance expense is the same as the 110,000 mile maintenance expense. The total expenditures for a four (4) year, 40,000 mile, period are $4,651.40. These shall be divided over a forty-eight (48) month period for purposes of calculating Mother's monthly car maintenance expense of $96.90.
Petitioner's Exhibit 25.
Father argues Mother miscalculated her current monthly pet expense of $195.34. However, in totaling Mother's receipts from January 2020 through January 2021, the total expended on pets was $2,355.99; this extrapolates to a $196.33 per month household expense.
Petitioner's Exhibit 26.
Mother claims medical expenses of $315.66 per month. Mother's submissions indicate she included the cost of co-parenting counseling, various Walgreens purchases, and medical expenses solely related to her. As Father noted at hearing, Mother's testimony did not sufficiently indicate which of the claimed medical expenses were attributable to Children. As Mother failed to provide evidence or testimony indicating any of this expense is related to Children, the Court finds it reasonable to classify this expense as incurred solely on Mother's behalf.
Petitioner's Exhibit 27.
Mother contends her monthly gasoline expense is $162.02 per month. Mother documented her annual gasoline expenses for 2020 totaling $1,685.07, which extrapolates to $140.42 per month. Father argues only a portion of gas is spent on Children and the remainder is for Mother to commute to and from work. The Court finds Mother's monthly gas expense to be a very reasonable household expense and is simply not going to parse out what is spent on the commute or specifically in transporting Children.
Petitioner's Exhibit 28.
Mother testified her EZ-Pass expense is primarily for her commute to and from work. Mother documented an annual EZ Pass expense from February 2020 through February 2021 totaling $340.00, which extrapolates to $28.33 per month. Father suggests using $2.00 per month to account for Mother and Children's trips to the beach. Because Mother goes to and from work approximately three (3) days per week, the Court determines she expends EZ-Pass funds at least six (6) times per week. The Court deems Father's suggestion reasonable as the monthly EZ-Pass expense, which benefits Children, and will use $2.00 per month for child support purposes.
Father argues Mother's HELOC expense, $2,045.73 per month, should be excluded from household expenses because Mother chose to engage in extensive home improvements of an already "grandiose property." Father claims the parties did not have extensive debt during the marriage; capital improvements were funded from savings, and credit cards were paid off monthly. Mother testified the parties spent approximately $50,000.00 on home improvements during the marriage, from 2013 through 2018. The Court finds merit with Father's argument that Mother's HELOC expense, incurred in May 2021, should be excluded from expenses for purposes of calculating Father's child support obligation. Mother testified she is simply following through with home improvements which the parties' envisioned during the marriage. Mother testified she is using these funds to install a new "wider, more functional" front walkway and add lighting, repair a travertine walkway in the back of the home, for $70,000.00, repair and repaint the kitchen and small hallway, and purchase $28,723.00 of window treatments for the home's rear windows. Mother would like to finish the basement, currently estimated at $143,000.00. When asked whether these home improvements benefit Children, Mother replied, "everyone loves living in a more beautiful home" and "it makes [Mother] a happier person." The Court does not find the HELOC to be a reasonable household expense, as there is no indication to the Court the HELOC expense is necessary or comports with the standard of living Children enjoyed during the parties' marriage.
Respondent's Closing Argument p. 50.
Respondent's Closing Argument p. 49.
Petitioner's Exhibit 30.
Mother listed a $1,508.30 per month household items expense, which she testified included replacing Frontgate furniture for $5,229.38, her MacBook Air computer for $1,249.00, and drapes for the living and dining rooms totaling $6,150.00. Mother testified the parties purchased Frontgate furniture every year during their marriage. Father contends he spends approximately $248.00 per month on household expenses and requests the Court afford a $250.00 per month expense as a reasonable household expense. The Court concurs with Father's rational that Mother's expense on furniture and an Apple computer are one-time expenses and not necessarily indicative of a spending pattern on household expenses. The Court deems a $250.00 monthly expense is a reasonable household expense to account for large one-time purchases for the household over the years.
Petitioner's Exhibit 31.
Mother testified she expends $131.00 per month on gardening; she and Children enjoy this hobby; Mother provided receipts indicating she has purchased items from Home Depot and Walmart to support this hobby. Father argues the parties expended $11.63 per month on gardening during the marriage. The Court finds it reasonable to allot Mother a $12.63 per month gardening expense; the Court derived this figure from averaging the parties' 2016, 2017, and 2018 gardening expenses.
Petitioner's Exhibit 32.
Respondent's Exhibit 34.
Mother testified her average monthly grocery expense is $654.00 per month. Father argues Mother noted a $500.00 monthly grocery expense on the Ancillary Financial Disclosure Report. Father calculated the marital grocery expense at $578.00 per month. The Court deems Mother's listed expense is reasonable for a family of three (3). Further, using Father's numbers,the parties spent an average of $802.74 per month in groceries from 2016 to 2018, when Children were younger. As the Court is not going to waste judicial resources by parsing out what exactly of the marital expense Children can be attributed with, the Court finds Children and Mother accounted for 75% of that expense, which is $602.55. Mother's $654.00 monthly grocery expense is reasonable and in line with the marital spending.
Petitioner's Exhibit 33.
Respondent's Exhibit 34.
Mother spent $55.00 on Children's haircuts in 2020; this extrapolates to $4.58 per month. Father concurs this is a reasonable expense.
Petitioner's Exhibit 34.
Mother's Amazon expenses referenced above are listed at $977.85 per month, which Father argues are inflated. Initially, Father argues a mathematical error in Mother's calculation for 2020, which reduces monthly expenses to $616.00; Mother acquiesced in the miscalculation and readjusted her figure downward to $617.00 per month. Mother testified the parties historically spent a "ton" of money on Amazon, for purchases such as clothes, toys, shoes, books, water bottles. Included in the 2020 Amazon expenses are chandeliers, and presents for family and friends, which were difficult to delineate at best. Father argues other than the year he vacated the marital residence in 2018, the parties spent between $366.00 and $1,200.00 per year with Amazon. The Court undertook the painstaking task of reviewing all Mother's Amazon purchases from 2020 and came to the conclusion she spent approximately $1,688.16 on Children in 2020, which extrapolates to approximately $140.68 per month in Amazon expenditures solely on Children. The Court shall set Mother's Amazon expense at $140.68 per month as an expense she incurs for Children. The Court shall not include additional spending Mother undertook on Amazon in reasonable household expenses because a review of Mother's purchases indicates Mother's Amazon purchases, which were not for Children, were purchases for Mother, and Mother alone.
Petitioner's Exhibit 35.
Mother's entertainment expenses were inflated due to the number of people for whom Mother paid when attending events; Mother testified she would pay for family members and friends to attend events with Children. Further, Mother did not adequately testify to many of her expenses involving dinners out, to enable the Court to discern if she was incurring the expenses with Children. Father testified he spends $342.74 per month on entertainment including Children and requests this monthly amount be used as a reasonable monthly entertainment expense for both parties. During the marriage the parties spent on average $214.03 per month on Children's entertainment and on average $1,071.60 per month on restaurants/events/and other for the family. The Court finds attributing Mother with an entertainment expense of $342.74 per month for entertainment including Children is reasonable.
Mother claims to spend $127.00 per month on clothing for herself. As mentioned above, the Court does not feel it is reasonable to include this expense for the purpose of a child support award.
Mother testified she launders A----'s dresses and Children's comforters, which costs approximately $10.75 per month. Mother's submissions indicate she spent approximately $89.50 in 2021 on dry cleaning. Father argues Children have no dry-cleaning or laundry expense. The Court finds Mother's dry cleaning expense is a reasonable household expense, and sets the expense at $7.46 per month.
Petitioner's Exhibit 38.
Father argues the parties' spent on average $784.27 per month on vacations with Children; the Court finds the parties spent approximately $1079.20 per month on vacations with Children from 2016 through 2018. Additionally, Mother was awarded the Disney Vacation Club in the divorce, which costs $131.10 per month; Mother testified she and Children go to Walt Disney World every year; Mother also took Children to Grand Teton, Yellowstone, and Texas in 2021. Mother testified she took Children to Walt Disney World and Texas in 2020. Mother testified she and Children typically take three (3) to four (4) vacations per year. Mother's claims her average monthly vacation expense is $1,578.61. Father testified he vacationed with Children once in 2020 and twice in 2021; he spent on average $396.83 per month. Father testified it was not the parties' standard practice to take Children on multiple vacations each year. The Court finds vacations are a reasonable expense benefitting Children and sets Mother's monthly vacation expense at $670.70.
Petitioner's Exhibit 45. Mother's submissions indicate the annual dues for the Disney Vacation Club are $1,597.07, which approximates $133.10 per month.
The Court derived this figure by dividing the parties' average monthly vacation expense for 2016, 2017, and 2018 in half, and adding the cost of the Disney Vacation Club.
Mother claims to spend $53.00 and $75.00 per month on her accountant and career expenses, respectively. Based on the rationale above, the Court finds these expenses are solely attributable to Mother and shall not be included for the purposes of a child support calculation.
Mother claims to spend $226.12 per month on clothing for Children; Father refutes Mother's clothing expense for Children. From 2016 through 2018, the parties spent approximately $135.74 per month on clothing for Children. The Court finds it appropriate to attribute Mother a $190.84 monthly clothing expense for two (2) growing children, as the parties should not be expected to share a clothing expense because they each have their own households and wardrobes to maintain for Children.
Petitioner's Exhibit 42. The Court derived its figure by adding Mother's Capital One and Citi 2020 credit card summaries for Children's clothing, and a 2020 receipt for Shop Disney together, which totals $2,290.12, and dividing that number by twelve (12) months.
Mother purchased new furniture for Children; Mother provided a Pottery Barn receipt totaling $4,167.47 in April 2021 and an April 2020 receipt for blinds totaling $343.50. These are one-time expenses, not ongoing reasonable household expenses for purposes of child support. The Court will include $125.30 per month in Children's expenses to account for these expenses on a recurring basis.
Petitioner's Exhibit 43.
The Court derived this figure by adding Mother's Pottery Barn and blinds receipt together, and dividing the sum, $4,510.97, by thirty-six (36) months to account for the useful life of an item, and for the fact Children may outgrow furniture in that time.
Mother joined the D ------ C ------ C--- in 2018. A---- started tennis lessons in 2019 and the tennis lessons cost approximately $65.00 per hour; A---- incurs a monthly membership fee of $75.00; currently, M ------ is not charged a membership fee. Per Mother's submissions, A---- attends tennis lessons approximately twice per month. Children attended the Easter party at a cost of $165.00 and breakfast with Santa at a cost of $140.00. Father argues this membership was not in keeping with marital expenditures on Children and objects to Children's private tennis lessons at the country club. However, Father also belongs to a country club, and Children should be able to participate in a lifestyle in which their parent's engage. The Court finds it reasonable to include as an expense solely attributable to Children, a D ----- C ------ C--- Expense of $235.00 per month.
Petitioner's Exhibit 44.
Id.
The Court derived this figure by adding A----'s $75.00 per month membership fee for twelve (12) months, two (2) monthly tennis lessons at $65.00 per hour for twelve (12) months, and the cost of the Easter and Santa events together, and averaging the sum, $2,820.00 over twelve (12) months.
Mother's submissions indicate she spent $425.00 in 2019 on family photos; this extrapolates to $35.42 per month. Father does not claim a monthly expense for family photos. The parties' had a photo expense during the marriage which averaged $39.17 per month for 2016 through 2018. The Court finds Mother's $35.42 per month expense reasonable and it shall be included for child support purposes.
Petitioner's Exhibit 46.
Mother testified she spend $331.47 per month in HAC fees and swim lessons; Father has a family membership which includes Children. Mother testified Children have taken swimming lessons since A---- was three (3) years old. Mother's submissions indicate she spent approximately $1,951.00 in 2020 for the months of July through December, and $1,633.59 in 2021 for the months of January through May. These amounts include Mother's monthly membership fee of $131.00 and Children's swimming lessons for two (2) blocks, totaling $2,138.00. Mother testified she must be a member to accompany Children to the club; Father has offered to pay for swim lessons at the HAC. The Court finds the swim lesson expenses and Mother's membership expense to be reasonable and related to Children. Adding Children's swim lesson expenses and Mother's annual membership, Mother spends $3,710.00 per year; this extrapolates to $309.17 per month. Father argues he should be permitted to pay for Children's swim lessons because this expense will not be ongoing and will artificially inflate his obligation to Mother. The Court finds with this expense, as with all other expenses it considers in calculating Father's child support obligation to Mother, that these are the current reasonable expenses for child support purposes and shall be included in the calculation.
Petitioner's Exhibit 47.
Mother's reasonable household expenses and those expended on Children are listed below:
Mother's Household Expenses
Monthly Amount
Mortgage
$4,418.58
HOA fee
$55.25
Water
$67.30
Garbage
$23.58
Sewer
$18.22
Electric
$289.92
Sprinklers
$27.00
TV, internet, landline
$224.15
Phone
$84.05
Pool
$126.14
Alarm system
$57.00
Home repair
$282.17
Cosmetics/toiletries
$4.17
Transportation other than auto
$18.40
Misc./incidentals
$57.48
Lawn service
$49.00
Mowing, mulching, power washing
$264.59
Cleaning service/Stanley Steemer
$400.33
Car and home insurance
$135.33
Car repairs
$96.90
Pet expenses
$196.33
Medical bills
$0
Gas
$140.42
EZ-Pass
$2.00
HELOC
$0
Household items
$250.00
Gardening
$12.63
Groceries
$654.00
Entertainment
$342.74
Mother's clothes
$0
Laundry/dry cleaning
$7.46
Vacation/Disney Vacation Club
$670.70
Accountant
$0
Mother's career
$0
Total Monthly Household Expenses
$8,975.84
Children's Expenses
Monthly Amount
Toys and presents
$150.00
Zoo membership
$13.00
Sesame Place and DE Children's Museum
$89.03
Please Touch Museum
$18.75
Ice skating/Soccer
$17.34
Amazon
$140.68
Children's clothing
$190.84
Children's furniture
$125.30
D-- C------C---
$235.00
Children's photos
$35.42
HAC/swim lessons
$309.17
Barber/hairdresser
$4.58
Total Children's Expenses
$1,329.11
Father's Child Support Obligation
The Court follows M.D.C. in calculating Father's child support obligation to Mother, by considering reasonable expenses incurred by Mother for Children and a portion of Mother's reasonable household expenses attributable to Children. Father is ordered to pay over a monthly sum to Mother in addition to paying for Children's private school tuition, childcare, and associated fees and maintaining Children's health insurance coverage. Father is ordered to pay child support to Mother of $6,388.00 per month (rounded). The Court, considered Mother's above-listed expenses, adjusted for reasonableness, as espoused by the courts in M.D.C. and Toy. To determine Children's monthly needs in Mother's home the Court considered 100% of Mother's reasonable monthly expenses solely attributable to Children plus two-thirds (⅔) of Mother's reasonable monthly household expenses, because Children account for two-thirds (⅔) of Mother's household. The Court did not include any expenses attributable solely to Mother. Next, the Court must "consider the relative earning abilities of the parents to participate in that level of support and to allocate their respective payments accordingly. Therefore, in determining Father's child support obligation, payable to Mother, the Court considers both parties' earnings/earning capacity and apportions the percentage of responsibility for these expenses between the parties.
$8,975.84 x .67 = $6,013.81.
$1,329.11 + $6,013.81 = $7,342.92.
Ford v. Ford, 600 A.2d 25, 32 (Del. 1991).
Initially in his closing argument, Father requested the Court look to the parties' marital expenses attributable to Children and apportion those expenses between the parties. The Court has considered the marital expenditures attributable to Children in fashioning a support award, which accounts for Children's enhanced needs and could be used in evaluating the reasonableness of Mother's household expenses. However, further in his closing argument, Father directed the Court to consider both parties' current expenditures on Children (subject to Father's various aforementioned adjustments, which the Court declined to follow) to determine Father's obligation to pay child support to Mother. The Court finds no precedent for that position. In this case, considering Father's household expenses attributable to Children will dilute Mother's expenses attributable to Children in her household. To the extent Father requests the Court reduce his child support obligation to Mother by Children's total tuition/childcare expenses, the Court determines this is inequitable as Father's payment of tuition informed the Court's decision that the Melson Formula is rebutted in this instance; to reduce Father's child support obligation to Mother by the total, unadjusted, cost of Children's tuition would not take into account for expenditures attributable to Children in Mother's household and would further dilute Father's contribution to Children's needs in Mother's household.
Respondent's Closing Argument, 35.
Respondent's Closing Argument, 67.
Father argued the Court should use a three-year average of his annual earnings. For the reasons set forth above, the Court considers Father's 2020 annual earnings, less taxes, at his defined tax rate as outlined by Mr. Patterson, before and after-tax retirement contributions, which are 5% of Father's gross earnings, disability and life insurance contributions, to establish Father's earnings available to support Children. The Court will attribute Mother with an annual earning commensurate with her earning capacity as set forth above, less taxes, at a defined tax rate extrapolated from Mr. Patterson's testimony, a 5% retirement contribution (commensurate with Father's), and Mother's actual health insurance deductions. The parties have a total net disposable income available for child support of $1,148,599.68. As Father's earnings account for 87% of the parties' combined net disposable income, the Court applies a 0.87 multiplier to Children's total expenses in Mother's household to calculate Father's child support obligation to Mother.
Respondent's Exhibit 2.
$1,003,456.70 [$2,028,229.86 (gross) - $920,829.67(total taxes) - $101,411.49 (401k-5% of gross - deducted before and after taxes) - $1,824.00 (Disability insurance) - $708.00 (Life insurance)].
Respondent's Exhibit 3.
Mother contributes approximately 15% of her gross earnings to her retirement; however, the Court deems a 5% retirement contribution credit is in line with Father's contribution and earmarks adequate funds to assist in supporting Children.
$145,142.98 [$216,850.00 (gross) - $10,848 (403b - 5% of gross) - $7,176.00 (health insurance) - $53,683.02 (total taxes at 27% of taxable wages extrapolated from Respondent's Exhibit 3)].
Father's net income - $1,003,456.70 plus Mother's net income - $145,142.98.
$1,003,456.70 divided by $1,148,599.68.
$7,342.92 x .087.
Father suggested the parties use the Philadelphia area Consumer Price Index to adjust expenses for inflation moving forward. To the extent the parties' choose to use this index for future review, they are free to do so. However, absent evidence and further argument, the Court cannot determine how this index should be applied and whether it would, in fact, be equitable.
Although Mother earns significantly less than Father, the Court declines to order Father to pay Mother's attorney's fees. The Court accepted Father's argument to rebut the application of the Melson Formula, which formed the basis for extensive hearings in this matter. In addition, Mother significantly impacted the Court's ability to conclude these hearings in a timely fashion, resulting in multiple additional hours of testimony.
Considering Father's net semi-monthly take home pay of $5,102.93, and his significant year-end-compensation bonus, which accounts for approximately 90% of Father's gross earnings, the Court finds merit with Father's original request that he pay a portion of his child support obligation to Mother, monthly or semi-monthly, and the remainder in one lump sum payment at the beginning of each calendar year. The Court will fashion Father's child support payments to reflect Father's pay structure. Finally, as Father's annual child support obligation to Mother exceeds $50,000.00, the Court will order a lump sum payment for Father's 2019 obligation, as required by the Ancillary Order.
Respondent's Exhibit 29.
Based on the foregoing, IT IS SO ORDERED this day of May, 2022:
1. Effective January 1, 2020, Father's monthly child support obligation to Mother is $6,388.00.
2. Father shall remain financially responsible for payment of Children's private school tuition until Children are no longer eligible for child support.
3. Father shall continue to cover Children on his health insurance plan.
4. Father shall be responsible for Children's unreimbursed health care expenses in even-numbered years.
5. Mother shall be responsible for Children's unreimbursed health care expenses in odd-numbered years.
6. Father shall pay Mother $3,000.00 child support monthly, in keeping with his obligation under the Interim Order. This will result in an annual shortfall of $40,656.00, which will be paid in full on or before January 6th of the following year, each year.
7. Father's total back support is $127,475.00 calculated as follows:
• 2019 - $26,656.00. This shall be paid in full to Mother within thirty (30) days of the date of this Order.
• 2020 - $42,866.00. This shall be paid in full to Mother within thirty (30) days of the date of this Order.
• 2021 - $40,908.00. This shall be paid in full to Mother within one hundred twenty (120) days of the date of this Order.
• January 1, 2022 - May 31, 2022 - 17,045.00. This shall be paid in full to Mother within one hundred twenty (120) days of the date of this Order.
$6,388.00 x 12 = $76,656.00 less $50,000.00 (per Ancillary Order).
$76,656.00 less $33,790.00 ($2,979.00 x 10 plus $2,000.00 x 2).
$76,656.00 less $35,748.00.
$31,940.00 ($6,388.00 x 5 months) less $14,895.00 ($2,979.00 x 5 months).
8. Mother shall be responsible for her attorney's fees associated with this petition.
This is a Final Order.