Opinion
File No.: CN19-01356 Petition No.: 19-02589
04-30-2019
Re: J. L. M. v. J. J. M.
Michelle R. Skoranski, Esquire
Gonser & Gonser, P.A.
3411 Silverside Road
Springer Building, Suite 203
Wilmington, DE 19810 Bonnie E. Copeland, Esquire
Copeland Taylor, LLC
3801 Kennett Pike
Building D, Suite 300
Wilmington, Delaware 19807
LETTER DECISION AND INTERIM ALIMONY ORDER
Motion for Interim Alimony Dear Counsel:
On March 31, 2019, J. L. M. ("Wife") filed a Motion for Interim Alimony through her counsel, Michelle R. Skoranski, Esq. On April 3, 2019, J. J. M. ("Husband") filed a Response to the Motion for Interim Alimony through his counsel, Bonnie E. Copeland, Esq., opposing Wife's Motion. This is the Court's decision regarding Wife's Motion for Interim Alimony.
FACTUAL BACKGROUND
The parties were married on October 27, 2013, and separated on August 1, 2018. Wife filed a Petition for Divorce on January 23, 2019. In her Petition, Wife requested that the Court retain jurisdiction over ancillary matters for property division, alimony, attorney's fees, Court costs, and name change. Husband filed an Answer and Counterclaim on March 5, 2019. No Final Decree of the Court has been issued. The parties have two children in common, R. M. , born on , 2012, and E. M. , born , 2017. There is currently a child support petition pending as well.
LEGAL STANDARD
Pursuant to 13 Del. C. § 1512(a), this Court may award interim alimony to a dependent party during the pendency of an action for divorce. Either party in the petition for divorce may file a motion for temporary alimony. The motion must be accompanied by an affidavit setting forth the factual basis for the motion and any amounts of money requested. It is the burden of the requesting party to prove that an alimony award is needed and the alimony award cannot be based on speculation or conjecture.
See Olsen v. Olsen, 971 A.2d 170 (2009).
The parties must both bear in mind that this is only an Interim Order pending a final hearing on alimony and, as such, the Order can be modified retroactively if the Court determines that the interim amount is either excessive or insufficient. In this case, Wife claims she is dependent, while Husband claims that she is not. Further, Husband disputes Wife's income and expenses. Either party may, after receipt of this Order, request a hearing on interim alimony pursuant to Eberly . However, a hearing on this Motion would not likely be scheduled for a number of months and probably not before the Ancillary Hearing. Should the party requesting the hearing fare worse at the hearing than in this Order, he or she may bear the costs of the other party's fees for having to prepare for and attend the Eberly hearing.
Eberly v. Eberly, 498 A.2d 433 (Del. 1985)
WIFE'S INCOME AND EXPENSES
Income
According to Wife's Motion for Interim Alimony, Wife claims to be in an apprenticeship program for hair stylists that requires "more time than regular full-time employment" and that she works through M. 's Salon. During the apprenticeship program, Wife claims to have a salary of $15,000 including tips. Wife claims that she earns $12,000.00 annually from wages and $3,000.00 annually from tips at the salon. Wife submitted documentation explaining the apprenticeship program, however, the apprenticeship program documentation makes no mention of classes being required, and if classes are required when those classes meet. The documentation provided simply states that to be licensed in the State of Delaware, that an apprentice must complete 3000.00 hours of training under an appropriate supervisor within 18 months to 36 months of beginning the apprenticeship program.
See Wife's Motion for Interim Alimony Exhibit A
Since the Court has no documentation if or when Wife is in class, there is not enough evidence to properly support Wife's claim that she works full-time and only receives $15,000 in salary. Wife submitted a bi-weekly paystub with a pay period from November 18, 2018, through December 1, 2018. The paystub indicates that she only worked 22.87 hours. Based on the first pay stub, Wife only worked about 11.00 hours per week. The second paystub Wife submitted had a pay period from December 16, 2018, through December 29, 2018. On the second paystub, Wife worked 29.00 hours. The second paystub also indicated that her year to date gross earnings were $12,152.30. Based on the second paystub, Wife only worked 14.50 hours per week.
See Wife's Motion for Interim Alimony Exhibit B
Based on the documentation of the apprenticeship program and paystubs provided, the Court finds Wife's overall claims to be insincere. First, Wife and Husband did not separate until August of 2018, and the paystubs submitted would not accurately reflect her earnings since separation because most of Wife's 2018 earnings in her year to date statement would be from before she needed to support herself. Second, it is not credible to believe that 14.50 hours per week is full-time work. Third, the paystubs provided do not indicate what Wife currently makes and whether she is currently dependent because the paystubs submitted are approximately six months old. It would have been more helpful to the Court to have more recent paystubs and then the Court could annualize her current income.
Wife also alleges that since she is working "more time than regular full-time employment" at M. 's Salon through the apprenticeship program, she cannot have any other employment. However, Husband provided documentation showing that Wife makes substantial money doing make-up for weddings. Wife's earnings from each wedding can range from $50.00 to $715.00 per wedding according to Husband's supporting documentation. Wife's Facebook page also clearly indicates that she has been published as a model. While Husband quantified these earnings as "freelance work" at $12,000 to $20,000, the Court has no way of accurately attributing Wife with this income. Wife made no mention of her obvious freelance work, and made no attempt to quantify that substantial extra income for the Court to provide a more accurate picture of her overall income.
See Respondent's Response to Motion for Interim Alimony Exhibit D and Venmo transactions.
See Respondent's Response to Motion for Interim Alimony Exhibit B
Therefore, the Court cannot appropriately attribute income to Wife for the purposes of interim alimony. Wife's Motion for Interim Alimony was not reflective of her true income, and did not provide sufficient evidence for the Court to rely upon in order to attribute Wife with income. The Court believes that Wife's income is significantly higher than reported, but it is unclear as to what extent Wife's income is higher.
Expenses
As the Court finds that Wife's income cannot properly be attributed for purposes of interim alimony, the Court does not need to discuss or evaluate the expenses presented. The Court also does not need to discuss or evaluate Husband's income or expenses.
ANALYSIS
In order to make an interim alimony calculation, the Court must first find that the requesting party is dependent. To make a dependency finding, the Court first looks to whether the requesting party has enough income to cover their expenses. Here, the Court could not make a threshold finding of what Wife's income should be attributed as. First, Wife claimed to be in her apprenticeship program more than full-time, but provided no supporting documentation about a class schedule. The only documentation provided shows that Wife only worked 10.00 to 15.00 hours per week in November and December 2018. Then, Husband provided compelling documentation that Wife has substantial income from freelance work. Wife did not mention any income from freelance work or quantify her salary from freelance work in her motion. Based on Wife's inconsistent assertions in her motion, the lack of current salary projections, and Husband's documentation of Wife's freelance work, the Court does not find Wife's presentation of the facts credible.
Further, it is the burden of the requesting party to prove that an alimony award is needed even on a temporary basis and an alimony award cannot be based on speculation or conjecture. As the Court believes that Wife is hiding substantial freelance income, the Court could not properly calculate Wife's income. Accordingly, Wife did not carry her burden at this preliminary stage to show that she is dependent.
See Olsen v. Olsen, 971 A.2d 170, 175-176 (2009)(Where the Supreme Court of Delaware affirmed the Family Court's determination to deny alimony to a spouse when the spouse's income could not properly be attributed. The Supreme Court also stated that it is acceptable for the Family Court to deny alimony when the requesting spouse obfuscates, leading to a lack of credibility before the Family Court.). --------
ORDER
IT IS HEREBY ORDERED this 30th day of APRIL, 2019:
1. Wife's Motion for Interim Alimony is DENIED.
IT IS SO ORDERED.
/s/ _________
NATALIE J. HASKINS, Judge NJH/jw
Date emailed: