Opinion
File No. CS16-02824 Petition No. 17-12107
09-05-2019
ANA GILBERT, Petitioner, v. KEITH GILBERT, Respondent.
Petitioner Ana Gilbert, represented by Sean Lynn, Esquire. Respondent Keith Gilbert, represented by R. Eric Hacker, Esquire.
ANCILLARY MATTERS DECISION AND ORDER
Petitioner Ana Gilbert, represented by Sean Lynn, Esquire.
Respondent Keith Gilbert, represented by R. Eric Hacker, Esquire. Ryan, J.
I. INTRODUCTION
Pending before the Court are the ancillary matters of property division, court costs, and attorney's fees incident to the divorce of Ana Gilbert ("Wife") and Keith Gilbert ("Husband").
II. BACKGROUND
The parties were married on January 8, 2005, separated on November 15, 2016, and divorced on September 1, 2017, resulting in a marriage of 12 years and 8 months. The Court retained jurisdiction over the ancillary matters of property division, alimony, counsel fees, and court costs. Two children were born of the marriage, and the parties share joint legal custody, with Wife having primary physical placement. Husband and Wife are both 42 years old. Wife is currently employed as a nurse at Sun Behavioral Health in Georgetown and resides in Millville. Husband currently works full-time as a correctional officer with the Delaware Department of Corrections and lives in Dagsboro.
Petition for Divorce, D.I. 10; Answer & Request for Additional Ancillary Relief, D.I. 21; Final Divorce Decree, D.I. 27.
Matters Ancillary to Divorce, D.I. 23-26. At the commencement of trial, Husband's counsel indicated that Husband was no longer pursuing alimony, so that matter was dismissed.
The Court issued a decision and order following a custody trial in this case. See May 18, 2019 Decision and Order, D.I. 62.
With regard to property division, by the time of trial, the issues were limited to: (1) a determination of the value of one motor vehicle, and (2) whether Wife would be responsible for any portion of credit card debt in Husband's individual name. A final pretrial hearing was held on December 11, 2018 and trial was held on June 20, 2019. Both parties testified at trial and Wife presented an additional witness regarding the motor vehicle owned by the parties.
III. PROPERTY DIVISION
2006 Pontiac G6
After the parties separated, Wife retained one vehicle, a 2006 Pontiac G6, which she subsequently traded in to purchase a Toyota Sienna in April of 2018, when the Pontiac G6 had nearly 200,000 miles on the odometer. At trial, the parties presented conflicting evidence regarding valuation of this vehicle for property division purposes. Wife argued that the value should either be $1,500.00, the actual trade-in amount she received on April 26, 2018 when she purchased the Toyota Sienna, or $1,700.00, the "rough trade-in" NADA value she claimed on her Rule 16(c) Ancillary Financial Report form, completed shortly after the parties' divorce (September 2017), when the vehicle was still in her possession.
It is unclear whether the Pontiac G6 is a 2005 or 2006 year model. Both of Wife's NADA estimates are for a 2005 model. See Husband Exhibit 2 (Rule 16(c) Ancillary Financial Report); Wife Exhibit 3 (April 25, 2019 NADA Guides Value Report). However, a Meineke Car Care repair estimate and the sales and financing contract from when Wife traded in the vehicle indicate it is a 2006 model. See Wife Exhibit 1 (Meineke Car Care repair estimate); Wife Exhibit 2 (Hertrich Toyota sales and financing contract).
At trade-in on April 26, 2018, the odometer reading was 196,848 miles. See Wife Exhibit 2 (Hertrich Toyota sales and financing contract).
Wife Exhibit 2 (Hertrich Toyota sales and financing contract). See also Wife Exhibit 3 (NADA Guides Value Report April 25, 2019). Wife's Exhibit 3 purportedly gives the value of the Pontiac G6 with mileage of 210,000 miles, as of April 25, 2019, shortly before trial. This NADA Guides Value Report indicates a range of values as follows: $700.00 (rough trade-in); $1,350.00 (average trade-in); $1,875.00 (clean trade-in); and $3,575.00 (clean retail).
Husband Exhibit 2 (Rule 16(c) Ancillary Financial Report). Wife sent her portion of the Rule 16(c) Financial Report to counsel for Husband on or about October 30, 2017, with a NADAGuides.com printout indicating a range of values for a 2005 Pontiac G6 with mileage of approximately 192,000 miles. This October 2017 report estimated values for the G6 ranging from $1,700.00 at the lowest ("rough trade-in") to $4,900.00 at the highest ("clean retail"), with mid-range value estimates of $2,400.00 ("average trade-in") and $2,975.00 ("clean trade-in").
Wife called Donny Rogers ("Mr. Rogers"), the owner of Meineke Car Care, to testify as a witness with regard to a repair estimate done by his business on the Pontiac G6 on April 24, 2018. Mr. Rogers testified that one of his employees prepared the repair estimate, which indicated an approximate cost of $3,545.69 in parts and labor to get the vehicle in safe running condition. Mr. Rogers acknowledged that some of the repairs needed were for things that wear down over time, such as tires, tie rod, and alignment. Wife testified that she believed the Pontiac G6 had nearly 180,000 miles on it when the parties separated, and that at most, she may have put an additional 10,000 miles on the vehicle between the parties' divorce in September of 2017 and the date she traded it in for a new vehicle. Wife had an accident in the vehicle in January of 2018, when it slid off the road in a blizzard. However, Wife testified that she was still able to drive the car without any issues, and just thought she needed to get new brakes. When Wife took the vehicle in to Meineke, she learned the vehicle needed a lot more work than she anticipated, and she decided that it was not worth it to pay to repair the vehicle. On April 26, 2018, two days after receiving the repair estimate from Meineke, Wife traded in the Pontiac G6, with mileage of 196,848 miles, as part of her purchase of a new vehicle, which she still has in her possession.
Wife Exhibit 1 (Meineke Car Care repair estimate).
Id. at 2. The repair estimate included the following memo notation: "tech found vehicle is unsafe to drive, ball joints/control arms have unsafe amount of play and could separate - all tie rods very loose, physical damage found on passenger side outer, tires worn unevenly and in very poor condition, all need to be replaced, brake pads worn to 1-2mm below minimum lining spec. all should be replaced, cv axle boot torn exposing cv joint, even with most affordable parts and tire options vehicle is not worth repairing. Recommend replacing vehicle."
Wife testified that she was using the vehicle to drive back and forth to work in Baltimore and the District of Columbia, until it finally "died" when it had nearly 200,000 miles on it.
Husband argued that the value of the Pontiac G6 should be determined as of the date of the parties' separation in November of 2016, when Wife had sole possession and use of the vehicle. Husband testified that the parties purchased the Pontiac G6 in the fall of 2005, and Wife drove that vehicle primarily, while he drove a 1998 Camaro. Husband testified that the parties replaced the transmission and engine of the Pontiac G6 while they were living in Maryland in 2010, and maintained the vehicle appropriately. Husband testified that he was aware Wife had been in a minor accident during a blizzard in January of 2018, but he did not believe there was any significant damage to the vehicle as a result of that accident. Husband testified that even though the mileage was high, the vehicle was in good condition, with good interior, exterior, and paint conditions.
Although Husband argued that the Pontiac G6 should be valued as of the date of the parties' separation in November of 2016, he provided no evidence as to the vehicle's value on that date. Acknowledging that the value of the vehicle likely diminished between November of 2016 and the date of divorce (September 1, 2017), Husband testified that he believes the value of the Pontiac G6 should be $2,900.00, the "clean trade-in" value reflected on Wife's Rule 16(c) Financial Disclosure form, submitted in October of 2017.
Husband Exhibit 2.
Credit Card Debt
Both parties testified regarding their financial difficulties during the marriage. Both Husband and Wife obtained various undergraduate and graduate level degrees, resulting in both accumulating student loan debt. Wife testified that she finished her Bachelor's degree and boards and obtained her license in nursing, while Husband obtained a Bachelor's degree in business, and Masters degrees in Divinity and Theology during the marriage. Wife testified Husband also took classes to restructure his business degree to an accounting degree. Wife testified that she paid her own student loan debt, and was aware that Husband may have used credit cards to pay some of his student loan debt. Wife testified that having to pay her student loan debt was part of the reason for her high credit card debt, because she was only able to make the minimum payments on her credit cards while paying off her student loans. Wife denied that she was aware that Husband may have been using his student loan funding to pay off his individual credit card debt.
The parties previously resided in Maryland before moving to Delaware in 2011, and there were periods when they struggled financially, accruing significant credit card debt, and losing a home to foreclosure and a vehicle to repossession. Wife testified that she worked as a nurse throughout the marriage, sometimes earning more as a "per diem" nurse rather than a full-time nurse. Wife testified that when she met Husband, he was working as a counselor at a youth behavioral center, but he stopped working there in 2006 to pursue his various degrees. Husband then worked several part-time jobs, and there were periods when he was unemployed. Wife was unable to work during both of her pregnancies, as she was required to be on bed rest. Husband worked for the Dorchester County Sheriff's Department in Maryland for several years, and remained employed there even after Wife and the children moved to Delaware for educational reasons regarding their son.
Wife testified that she was able to earn more as a "per diem" nurse because there was no withholding for health insurance benefits, as with full-time employment. Wife testified that during the marriage, she and the children were covered under Husband's health insurance through his employer, or they purchased health insurance coverage themselves when Husband was unemployed or his employment did not include health insurance.
Husband testified that they refinanced their Maryland home after their son was born in September of 2005, as they had "gotten behind" on things while Wife was pregnant and on bed rest. Initially, Husband testified that he stayed at home with their son, because Wife earned more than he did. In 2006, the parties refinanced their mortgage, and Husband testified that they used the funds to pay off approximately $30,000.00 in credit card debt and their vehicle loans. Husband testified that he also "refinanced" his Camaro in 2010 to obtain a $5000.00 loan. Husband testified that they fell even further behind when Wife was pregnant with their daughter, because she was again on bed rest and could not work. In 2011, the parties lost their Maryland home to foreclosure, and Husband's Camaro was repossessed. Shortly thereafter, Wife moved to Delaware with the children, and Husband remained in Maryland and continued working with the Sheriff's Office. Husband would drive to Delaware on his days off, using his mother's vehicle or his patrol vehicle, with Wife meeting him at the state line to drive him into Delaware.
Each of the parties had credit cards in their own individual name during the marriage, and it appears that after their 2006 refinancing to pay off significant credit card debt, each of the parties then accrued additional debt on their respective credit cards. Husband testified that he left the Sheriff's Office in May of 2015, because his work schedule conflicted too much with Wife's schedule, and she wanted him to pursue a career in accounting. Husband testified that he cashed out his retirement account from the Sheriff's Office in June of 2015, obtaining approximately $20,000.00, and used $5,000.00 for his accounting classes and the rest of the money for credit card debt and various household expenses, including groceries, clothing, and items for the children. Husband testified that he paid household bills on his credit cards, including rent, telephone, cable and health insurance coverage. Husband testified that Wife paid the utility bills including water, electric, and garbage removal, but he was not certain whether she had paid these bills using her credit cards. Husband stated that by November 2016, his two Capital One credit cards acquired during the marriage were "maxed out" again. The first Capital One card (account ending in 1035) had a balance of $3,535.03 at the time of separation and the second card (account ending in 8637) had a balance of $8,078.64 at the time of separation. Husband asserts that his Capital One credit card balances are marital debt, and wants Wife to be responsible for half of this $11,613.67 in credit card debt.
See Husband Exhibit 5 (M&T Bank statements January 2015 - January 2016). Husband's bank statements for this period reflect deposits representing Husband's income from employment, tax refunds, and two large deposits in June/July of 2015 that coincide with Husband's cashing out of his retirement account. The bank statements also reflect expenditures for credit card monthly payments, automobile and life insurance, cell phone bills, amusement park passes, and transfers to Paypal, an online payment method.
Husband testified that he may have taken cash advances on his credit cards to pay rent on occasion.
See Husband Exhibit 4 (Capital One Statements, November/December 2016).
The Capital One credit card statements submitted by Husband do not reflect any recent charges; rather, they indicate previous balances with interest charged. On the parties' Joint Rule 16(c) Financial Report submitted to the Court on December 7, 2017, Husband claimed total debt of $11,500.00 on two Capital One credit cards. See D.I. 37. The Court will utilize the amounts presented at trial in Husband's Capital One credit card statements for two accounts, dated at or around the time of the parties' separation.
During these divorce and ancillary proceedings, Wife filed for Chapter 7 bankruptcy on or about August 28, 2017, four days before the parties' divorce was finalized. In the bankruptcy proceedings, Wife's individual credit card debt of over $35,000.00 was completely discharged, and this November 2017 discharge included the following debts in Wife's individual name: 1) Amazon Prime ($2,822.08); 2) Barclaycard ($1,279.40); 3) Capital One (account ending in ----) ($3,062.66); 4) Chase (account ending in ----) ($3,516.35); 5) Chase (account ending in ----) ($3,501.90); 6) JCPenney ($916.24); 7) Kohl's ($554.56); 8) Target ($1,503.44); 9) USAA (account ending in ----) ($3,998.16); 10) USAA (account ending in ----) ($7,392.45); 11) USAA (account ending in ----) ($7,194.93); 12) Bay Area Receivables ($306.00); and 13) Full Beauty ($538.05). Wife testified that she had the Kohl's and Target credit cards prior to the parties losing their Maryland home in foreclosure, and acquired the other credit cards after 2012, but still during the marriage. Wife claimed that Husband was the primary user of her Capital One card (account ending in ----), as she gave it to him to pay household expenses, and he even asked her at one point to request a credit limit increase on the card. Wife claimed that Husband also occasionally used her Amazon Prime, Chase, and USAA credit cards during the marriage.
Husband Exhibit 1 (Wife's bankruptcy filing).
The debt to Bay Area Receivables appears to be related to a medical bill, but there is no indication as to when this debt was incurred.
Wife acknowledged that Husband never used the Full Beauty credit card.
Husband acknowledged that he used Wife's Capital One credit card when he was in between jobs from November of 2015 to January of 2016.
Wife testified that she was unaware of Husband's two Capital One credit cards until she learned of this debt during the discovery process in litigation. When she learned of these credit cards, and that Husband was seeking for her to be responsible for a portion of this debt, she requested that her bankruptcy filing be reopened to add Husband as a creditor. The ancillary trial in this matter was continued from its original May 18, 2018 scheduled trial date, in order for the parties to attempt to address Husband's claimed marital credit card debt in Wife's bankruptcy proceedings, or otherwise resolve the ancillary matters. Wife filed to reopen her bankruptcy proceedings on October 9, 2018, and the bankruptcy case was reopened on November 6, 2018. The bankruptcy court docket reflects that the case was again closed on January 29, 2019.
Husband testified that Wife knew of his "Quiksilver" Capital One credit card, because he encouraged her to get her own Quiksilver card because of the favorable cashback feature of the card.
Husband Exhibit 3 (U.S. Bankruptcy Court docket).
The custody trial between these parties commenced on April 4, 2018, and resumed for a second day on May 18, 2018, the originally scheduled trial date for ancillary matters. See April 5, 2018 Order, D.I. 53. Counsel for the parties jointly requested that the ancillary final pretrial hearing on April 13, 2018 be cancelled, as the parties were working on a global resolution of the custody and ancillary matters, and requested to give the Court an update on the status by April 23, 2018. See April 11, 2018 Order, D.I. 54. On April 30, 2018, counsel jointly requested that the custody matter continue proceedings on May 18, 2018, and that the time set aside for the ancillary trial that afternoon be utilized as an ancillary pretrial hearing. See May 1, 2018 Order, D.I. 58-61. On May 18, 2018, the custody trial resumed and concluded, and the Court issued its ruling from the bench. See May 18, 2018 Order, D.I. 62. At the ancillary pretrial hearing on May 18th, counsel informed the Court that although Wife had filed for bankruptcy and had her debts discharged, she had not listed Husband as a creditor with regard to credit card debt in Husband's individual name which he claimed was marital in nature. See May 23, 2018 Order, D.I. 63-66. The Court scheduled another pretrial on ancillary matters for August 8, 2018. Id. On August 8, 2018, the Court issued a new ancillary scheduling order, and scheduled a final pretrial hearing on ancillary matters for December 11, 2018, and an ancillary trial date for January 29, 2019. See August 8, 2018 Order, D.I. 67-70. On December 11, 2018, counsel informed the Court that Wife's motion to reopen her bankruptcy and naming Husband as a creditor had been granted, but no meeting with creditors had been scheduled yet. See December 11, 2018 Order, D.I. 72-75. The Court granted counsel's joint request to reschedule the January 29, 2019 ancillary trial date to allow for the resolution of the reopened bankruptcy matter. Id. Trial on ancillary matters was rescheduled to June 20, 2019, and proceeded on that date.
Id.
Wife argues that because Husband did not participate as a creditor in her reopened bankruptcy proceedings, he has effectively waived his claim that she should be responsible for any portion of his credit card debt. However, Wife did not present any supporting statutory or case law to support this argument. These ancillary proceedings remained pending while the reopened bankruptcy proceeded, with Wife having ample notice of Husband's claim that she should be responsible for credit card debt in his individual name, in the event the bankruptcy proceedings did not resolve the issue. Husband's counsel argues that even though Wife added Husband as a creditor on her bankruptcy petition, she could not have a debt owed to a former spouse in the course of a divorce proceeding discharged in bankruptcy.
Husband cites 11 U.S.C. § 523(a)(15) for the proposition that Wife cannot not have a debt owed to a spouse discharged in bankruptcy. This statute provides that discharge in bankruptcy is not available for any debt "to a spouse, former spouse, or child of the debtor . . . that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit." The Court notes that Husband's Capital One credit card debt is in his individual name, owed to creditor Capital One. When Wife reopened her bankruptcy case, there had been no determination by this Court as to the nature of the parties' credit card debt (i.e. marital or not), nor had it been determined that Wife owed Husband any specific amount which could be consider a "debt" owed to Husband as a creditor. Even if Wife were supposedly able to have her unspecified "debt" to Husband discharged in her bankruptcy, the debt to the creditor, Capital One, would still exist. Capital One is a third party creditor whose rights to collect on a debt cannot be extinguished or diminished by ancillary proceedings between former spouses. The Court finds that the discharge of Wife's "debt" to Husband for his Capital One credit cards is an artificial construct that does not discharge this debt owed to the third party creditor, and does not remove this credit card debt from the Court's consideration in determining an equitable division of property and debt in this case.
The Court rejects Wife's argument that Husband waived his right to claim she should be responsible for a portion of his individual credit card debt, by not participating in the reopened bankruptcy proceedings. Even though neither party presented credit card statements reflecting the actual items charged on their credit cards during the marriage, both Husband and Wife claimed that they used their credit cards to pay household bills and expenses, as well as expenses for themselves and their children. Moreover, although each spouse claims to have been unaware of the other's specific credit cards and amount of debt on those cards, it is clear that both were well aware of their financial struggles during the entire marriage, and were equally involved in efforts to address their precarious financial situation. Moreover, they were both well aware of these efforts and their consequences, including: refinancing mortgages and car loans to pay off credit card and student loan debt; running up balances on credit cards during periods of unemployment; foreclosure on their Maryland residence; vehicle repossession; and ultimately for Wife, individual bankruptcy.
The Court finds that the credit card debt incurred by both parties in their individual names was marital in nature, subject to this Court's equitable division. The Court finds that the total marital credit card debt is $47,355.84: $35,742.17 in Wife's individual name, discharged in bankruptcy, representing 75% of the total marital credit card debt, and $11,613.67 in Husband's individual name, representing 25% of the total marital credit card debt.
The Court excludes Wife's discharged debts to Bay Area Receivables and Full Beauty from this total.
LEGAL STANDARDS AND FINDINGS
Upon the request of either party in a proceeding for divorce or annulment, the Court shall equitably divide, distribute, and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just. In making this determination, the Court must consider "all relevant factors" including those set forth in Title 13, Section 1513(a) of the Delaware Code.
The Court will address each of the § 1513(a) factors individually.
(1) The length of the marriage.
The parties were married on January 8, 2005, and divorced on September 1, 2017. Accordingly, the length of the marriage was 12 years and 8 months.
(2) Any prior marriage of the party.
This was the first marriage for both parties.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
Wife is 42 years old and is in good health. She is currently employed as a nurse at Sun Behavioral Health in Georgetown. Wife testified that she has a Bachelor's degree in nursing, and has been consistently employed as a nurse since June 2005, except when she was on bed rest during both of her pregnancies. Wife currently earns $68,000 to $70,000 annually, and testified that this is a typical amount for her full-time employment as a nurse. Wife testified that she had approximately $39,000.00 in credit card debt, which was completely discharged in her bankruptcy proceedings. In her bankruptcy petition, Wife indicated a total amount owed to creditors of $36,586.22. Wife testified that she purchased a Toyota Sienna in April 2018, trading in the Pontiac G6, and receiving $1,500.00 towards the cost of her new vehicle. Wife resides in a rented home in Millville, Delaware, and has primary placement of the parties' two children.
See Husband Exhibit 1 (Wife's Bankruptcy Petition); Husband Exhibit 3 (Wife's Bankruptcy Docket).
Id.
Husband is 42 years old and is in good health. He is currently employed as a correctional officer earning $42,978.00 annually. Husband testified that there were periods during the marriage when he was unemployed and stayed at home because Wife earned more from her employment as a nurse. Husband was employed at the Dorchester County Sheriff's Office until May 2015. In October 2015, he worked at Mattress Warehouse for 3 or 4 weeks, but left that position because his scheduled was changed frequently and conflicted with Wife's work schedule, requiring the parties to spend significant amounts on childcare. Husband worked for an accounting firm from late January to April 2016, and then began working for M&T Bank, where he was employed until he began working as a correctional officer with the Delaware Department of Corrections in January of 2019. Husband lives in a rented home in Dagsboro, Delaware.
See Rule 52(D) Ancillary Pretrial Stipulation, D.I. 80.
Husband testified that at the time of separation, he had two Capital One credit cards acquired during the marriage, with a total outstanding balance of $11,6 1 3.67. Husband testified that these cards were used to pay the parties' phone bill, cable and internet, health insurance, groceries, clothing, toiletries, and expenses for the children. During the marriage, Husband also cashed out his Dorchester County Sheriff's Office retirement account in June 2015, and used the approximately $20,000.00 in proceeds to pay for accounting classes, credit card debt, and household expenses. However, Husband testified that by November 2016, when the parties separated, his Capital One credit cards were maxed out again.
See Husband Exhibit 4 (Capital One Statements, November/December 2016).
(4) Whether the property award is in lieu of or in addition to alimony.
Husband withdrew his alimony claim; thus any property award is in lieu of alimony.
(5) The opportunity of each for future acquisitions of capital assets and income.
It appears that both Husband and Wife both have significant credit issues, with their financial histories including a home foreclosure, car repossession, Wife's bankruptcy, and maxed out credit cards. Each party is employed full-time, in positions appropriate to their training, background, and education. Neither party presented evidence regarding potential advancement in their respective careers.
Although both parties may be hampered by their negative credit histories, the Court finds that Wife and Husband have similar opportunities for future acquisitions of capital assets and income.
(6) The contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife.
Wife testified that she worked continuously during the marriage, except for periods of time on bed rest during both of her pregnancies. Wife testified that Husband was employed on and off throughout the marriage in various different jobs but never really had employment to utilize his business or Masters degrees. Wife testified that she earned higher income and carried the load of marital expenses, to explain why she incurred so much credit card debt. Wife acknowledged that most of the parties' credit card debt was incurred after their home was foreclosed upon in 2011. Wife acknowledged Husband's contribution to the household in 2015 when he cashed out $20,000.00 from his retirement account to help with expenses.
Husband testified that after the parties' first child was born, he stayed home because Wife earned more money. However, when Wife was on bed rest for both of her pregnancies, Husband was the wage earner for the household. Husband was employed in various positions during the marriage, often changing jobs because of the conflict with Wife's work schedule and childcare issues. During the marriage, Husband was employed by the Dorchester County Sheriff's Office, Mattress Warehouse, an accounting firm, and M&T Bank. Husband started his current position as a correctional officer with the Delaware Department of Corrections in January of 2019.
The Court finds that both parties equally contributed to, as well as equally dissipated, the marital estate. Both parties were employed in some capacity for most of the marriage, and both also had periods when they were not employed and earning income, but were at home providing for the care of their two children. Both parties struggled financially during the marriage, refinancing and obtaining loans to pay off their credit card and student loan debt, and having their Maryland home foreclosed upon and Husband's Camaro repossessed. Significantly, even after going through refinancing, significant prior credit card debt, home foreclosure, and vehicle repossession, both parties collectively incurred new credit card debt totaling over $47,000.00 by the time of their separation in November of 2016.
7) The value of the property set apart to each party.
At the time of trial, both Husband and Wife were each residing in rented homes. No evidence was presented regarding the parties' division of their personal and household marital property. The only other evidence presented concerning marital property was regarding the Pontiac G6, which Wife traded in on April 26, 2018, receiving $1,500.00 toward her purchase of a new vehicle. At trial, after initially arguing that the Pontiac G6 should be valued at $1,500.00, Wife ultimately conceded that the car should be valued at $1,700.00, the NADA "rough trade-in" value reflected on her Rule 16(c) Financial Report. Husband asserts that the value of the Pontiac G6 should be $2,975.00, the "clean trade-in" value reflected on Wife's Rule 16(c) Financial Report. Husband testified that when the parties separated in November of 2016, and Wife took sole possession of the Pontiac G6, the condition of the vehicle was good and it did not need the extensive repairs required in April of 2018, when Wife ultimately traded it in.
See Husband Exhibit 2.
Id.
Neither party presented evidence as to the estimated value of the Pontiac G6 as of November of 2016, when the parties separated and Wife took sole possession of the vehicle. The estimated values submitted with Wife's Rule 16(c) Financial Report were dated approximately a year later, in the fall of 2017. The $1,500.00 Wife actually received for the trade-in in April of 2018 likely reflected an additional six to eight months of wear and tear, including one minor accident. The Court finds that the appropriate value for the Pontiac G6 as of the date of separation is $2,400.00, the "average trade-in" value reflected in the NADA Guides attached to Wife's Rule 16(c) Financial Report. This estimate was done closer in time to the parties' separation, and more likely reflects the actual condition of the vehicle as "average" versus the extremes of "rough" and "clean" for trade-in purposes.
Id.
(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.
During their marriage, Husband and Wife had continuous financial struggles, incurring significant credit card debt that was paid off through refinancing, additional loans, and cashing out retirement accounts, only to be charged up again to over $47,000.00 by the time of their separation. In addition, during the marriage, the parties lost their Maryland home to foreclosure, and Husband's vehicle was repossessed.
At the present time, both Husband and Wife are employed full-time. While Wife has had over $36,000.00 of credit card debt discharged in bankruptcy and is no longer responsible for payment of that debt, Husband still apparently owes over $11,000.00 to creditor Capital One. It is likely that both parties' credit ratings have been negatively impacted by their repeated financial struggles.
(9) Whether the property was acquired by gift, except those gifts excluded by subsection (b)(1) of this section.
No evidence or testimony was provided regarding this factor.
(10) The debts of the parties.
Wife successfully discharged over $36,000.00 of marital debt in her personal bankruptcy proceedings. Husband still has two credit card debts, incurred during the marriage, and is seeking contribution from Wife for a portion of those debts. Husband's total debt as of the date of separation is $11,613.67.
(11) Tax consequences.
No evidence or testimony was provided regarding this factor.
CONCLUSION - PROPERTY DIVISION
With regard to the Pontiac G6, although the parties disagreed as to the value to be attributed to Wife for this vehicle, they both agreed that the amount should be split 50-50 between them. Therefore, as discussed above, the Court finds that Wife shall be attributed with receiving $2,400.00 worth of marital property ("average trade-in value"), at the time of separation.
Furthermore, as discussed above, the Court finds that at separation, the parties had a total amount of marital debt of $47,355.84, a combination of Wife's discharged debt of $35,742.17 (75% of total marital debt) and Husband's outstanding credit card debt of $11,613.67 (25% of total marital debt). Having determined that this debt was marital in nature, the Court notes that had Wife not obtained relief through bankruptcy, the Court would have been tasked with equitably dividing that entire amount of debt. Thus, both parties benefitted from Wife's bankruptcy discharge, as 75% of the total marital debt was discharged and neither party is now responsible for paying off this debt, either directly to creditors or to the other party as part of property division. Therefore, the Court finds that the remaining 25% of the total marital debt ($11,613.67), owed to creditor Capital One in Husband's individual name, is the amount which must be equitably divided in these proceedings.
Upon consideration of the evidence presented, and the factors set forth in Title 13, § 1513(a) of the Delaware Code, the Court finds that the remaining marital debt in the amount of $11,613.67 shall be allocated 75% to Husband and 25% to Wife. Thus, Wife shall be responsible for $2,903.42 of the remaining marital debt, and Husband shall be responsible for $8,710.25.
ATTORNEY'S FEES AND COSTS
The Court has the authority to order a party to pay all or part of the costs of the other party in maintaining or defending any proceeding under Title 13 of the Delaware Code. The purpose of Title 13, Section 1515 is to equalize the parties' positions by providing a financially disadvantaged party with the means to prosecute or defend a divorce action.
See DEL. CODE ANN. tit. 13, §1515 ("The Court from time to time after considering the financial resources of both parties may order a party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this title and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment.").
See Husband F. v. Wife F., 432 A.2d 331 (Del. 1981).
Both parties were represented by counsel during the entire course of these proceedings. The Court finds that no award of attorney's fees or court costs is appropriate in this case, given the financial struggles each party has endured during and after their marriage, and their current limited financial resources. Therefore, each party shall be responsible for paying his or her own attorney's fees and courts costs in connection with these ancillary proceedings.
See, e.g. Julin v. Julin, 787 A.2d 82 (Del. 2001) (§ 1515 is in derogation of "American Rule" which requires each part to bear its own litigation costs, including counsel fees) (citing Brice v. Dept. of Corrections, 704 A.2d 1176 (Del. 1998)). --------
The foregoing is hereby entered as an Order of the Court:
ORDER
(1) Wife shall be responsible for payment of $2,903.42, representing 25% of marital debt, currently in Husband's name and owed to creditor Capital One. Wife may pay her portion either to Husband directly, or to creditor Capital One for the benefit of Husband's account(s). If Wife chooses to pay Capital One, Husband must provide Wife with proof of the amount(s) owed on the account(s), and Wife must provide Husband with proof of payment of her portion as determined in this decision. Whether paid to Husband or to Capital One, this entire $2,903.42 amount must be paid by Wife by September 5, 2020.
(2) Wife shall pay to Husband a sum of $1,200.00, representing half of the value of the Pontiac G6 as determined in this decision. Wife must pay Husband this amount by March 5, 2020.
(3) Each party shall be responsible for paying his or her own attorney's fees and courts costs in connection with these ancillary proceedings.
IT IS SO ORDERED.
/s/ _________
Paula T. Ryan , Judge cc: Ana Gilbert
Sean Lynn, Esquire
Keith Gilbert
R. Eric Hacker, Esquire