Opinion
File No. 16-14824
07-14-2017
L--- H---, Petitioner, v. A----- H---, Respondent.
Petition No.
ORDER
ANCILLARY
This is the Court's decision concerning matters ancillary to the divorce of L--- H--- ("Husband") and A----- H--- ("Wife").
BACKGROUND
The parties were married on June 15, 2013, separated on May 16, 2015, and divorced on July 8, 2016.
The parties submitted a Rule 52(D) Ancillary Pretrial Stipulation on June 23, 2017. No issues were listed as being in agreement.
On June 26, 2017, the Court held a hearing on the parties' ancillary matters. Husband appeared represented by Dean Betts, Jr., Esq., Wife appeared represented by Thomas E. Gay, Esq. The evidence presented at the hearing is discussed below.
DISCUSSION
Jurisdiction was retained over the matters of property division, alimony, counsel fees and court costs.
Initially, jurisdiction was only retained over counsel fees and court costs because Wife failed to pay appropriate fees for retention of jurisdiction over alimony and property division. On September 20, 2016, the Court granted Wife's Motion to Reopen which allowed for the retention of jurisdiction over all ancillary matters.
A. Property Division
In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors outlined in Title 13, Section 1513(a) of the Delaware Code. With several exceptions, all property and debts acquired by either party subsequent to the marriage are considered "marital property" and subject to equitable distribution. The factors laid out in Section 1513(a) include: (1) the length of the marriage; (2) any prior marriage of the party; (3) the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (4) whether the property award is in lieu of or in addition to alimony; (5) the opportunity of each for future acquisitions of capital assets and income; (6) the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife; (7) the value of the property set apart to each party; (8) the economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live; (9) whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section; (10) the debts of the parties; and (11) tax consequences.
See 13 Del. C. § 1513(b).
The Court now turns to the factors of Section 1513(a), as follows:
(1) The length of the marriage;
The parties were married on June 15, 2013 and divorced on July 8, 2016. Thus, the parties were married three years.
(2) Any prior marriage of the party;
Neither party was previously married.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;
The Court did not receive evidence as to the age or health of either party. However, the parties' 52(D) Ancillary Pretrial Stipulation indicates that both parties are young and healthy.
Husband is employed by the United States Navy. Husband has been employed with the Navy for six years. According to Husband's April and May 2017 Earnings Statements, Husband earns a net pay of approximately $3,965.37 per month. Husband's gross monthly pay is approximately $4,832.89. This figure includes his gross base pay of $2,856.60, plus a BAS payment of $368.29, plus a BAH pay of $1,608.00. Husband's BAS and BAH earnings are provided to him from the Navy for the purposes of helping Husband pay his rent and purchase food. The Court finds it appropriate to include Husband's BAS and BAH earnings as income, as those monies are directly deposited into his checking account with his base pay and Husband is thereafter free to use those monies however he pleases. After Husband's tax, health insurance, and other deductions, which total $867.52, Husband's net monthly pay is approximately $3,965.37. Husband receives a mid-month check for approximately $1,977.76 and an end of the month check for approximately $1,987.61. These checks total $3,965.37.
See Pet'r's Ex. 7.
$4,832.89 minus $867.52 equals $3,965.37.
See Pet'r's Ex. 7.
The Court did not receive evidence regarding any special vocational or technical skills that Husband may have. Further, the Court did not receive any evidence indicating that Husband has completed any college or other post-secondary education.
Husband's monthly expenses total $2,807.97. Included among those expenses is Husband's $500.00 per month child support payment to Wife for the parties' minor child, M------- H--- (DOB: ).
See infra pg. 12-13
Wife is currently employed by . Wife earns a net monthly income of approximately $1,669.85. Wife has a bachelor's degree in liberal studies. However, Wife testified that her degree did not help her get her current job. In addition to her income from her job at , Wife is currently receiving $500.00 in child support from Husband. Wife's monthly expenses total $2,234.53.
See Pet'r's Ex. 8. Wife's bi-weekly income is $770.70. $770.70 times 26 weeks is $20,038.20. $20,038.20 divided by 12 months is $1,669.85 per month.
See infra pg. 10.
Wife is seeking alimony because she is unable to support herself based on her income alone and is dependent upon Husband for that support.
(4) Whether the property award is in lieu of or in addition to alimony;
Any property awarded pursuant to this Order will be in addition to alimony.
(5) The opportunity of each for future acquisitions of capital assets and income;
The Court did not receive evidence of either party's expectation to acquire any future capital assets or 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;
During the parties' marriage, the parties had three bank accounts. Husband had an active duty checking account which his Navy pay was directly deposited into; the parties shared an everyday checking account which consisted of money from Husband's active duty checking account and was used for everyday expenses; and the parties had a membership savings account which consisted of money from Husband's active duty checking account.
According to Husband, his pay was deposited into his active duty checking account. Then, he would transfer money from that account into the parties' everyday checking and membership savings accounts. Those accounts were then used to pay the parties' marital bills and debts. The money transferred between these accounts consisted almost entirely of Husband's income from the Navy. Wife testified that during the parties' marriage she worked at during the periods of time that Husband was deployed. Wife's earnings during that time consisted of $3.50 per hour plus cash tips.
Wife testified that in June 2014, Wife and M------- moved to Spain where Husband was stationed. Wife and M------- resided with Husband in Spain for approximately four months. Then, Husband was stationed to "undisclosed areas" at which time Wife and M------- returned to the United States and resided with Wife's mother. Wife stated that M------- and she returned to Spain in March 2016, but only stayed for approximately twenty days, before again returning home to the United States. During the time that Wife was living in Spain with Husband, Wife was not employed and was a homemaker and took care of M-------. While Husband was deployed, though, Wife was working, and Husband's income continued to cover the expenses related to the parties' home and bills. Husband testified that none of the money Wife earned working at went toward the parties' marital bills or debts.
Following the parties' separation, Husband continued to ensure that approximately $800.00 per month was in the everyday checking account for Wife to use for herself and M-------. In April 2016, Husband began to transfer $500.00 per month rather than $800.00 per month into the everyday checking account. Husband characterized this $500.00 as "child support."
Wife testified that Husband did not transfer $800.00 every month into that account but rather, the account was "topped off" at $800.00. The Court interprets this to mean that each month, money was transferred from the active duty checking account into the everyday checking account in an amount that would put the everyday checking account's balance at $800.00.
A formal child support order was not entered by the Court until June 21, 2017. Until that date, Husband was voluntarily paying Wife $500.00 per month in child support. Though the current child support order directs that Husband pay Wife $452.00 per month, Husband testified he plans to continue paying $500.00 per month.
Wife contends that, prior to the parties' separation, Husband withdrew approximately $17,000.00 of marital funds from the parties' bank accounts. Wife asserts that these funds were marital and requests that the Court order Husband to pay her 55% of the $17,000.00.
The parties continued to refer to this contentious withdrawal as a withdrawal in the amount of $17,000.00. However, according to the bank statements the actual amount of the withdrawal was $17,070.00.
Husband testified that he did not withdraw and pocket $17,000.00 in marital funds. Rather, Husband testified that, as indicated on his April 2015-May 2015 bank account statement, $5,095.08 was deposited into his active duty checking account. Husband then transferred $4,875.08 from the active duty account. He transferred $2,520.02 of the $4,875.08 into the everyday checking account and $2,859.74 of the $4,875.08 into the membership savings account. The money transferred into the everyday checking account was used by the parties for their everyday spending. The money transferred into the savings account was used to pay the parties' rent and utilities. The remaining $250.00 left in the active duty checking account was used to pay a car payment. This same process was done the following month and is evidenced by Husband's May 2015-June 2015 bank statement which indicates he withdrew a total of $10,306.84.
See Pet'r's Ex. 3.
See Pet'r's Ex. 4.
Wife testified that she did not have access to any of the money in Husband's active duty account or the membership savings account. According to Husband, Wife had access to the money in the membership savings account and Wife's name was on that account. Wife responded that she did not have access to that account because the password was continuously changed.
Husband testified that, following the parties' divorce, there was roughly $4,000.00 in the membership savings account. Husband gave Wife approximately $2,000.00 as her half of those funds. Wife agreed that the $2,000.00 she received from Husband represented half of what was left of the parties' marital funds. However, Wife remains unclear as to what the $17,000.00 in withdrawals from April 12, 2015 to May 11, 2015 was used for.
Wife also requests that the Court award her 50% of the contributions made to Husband's Thrift Savings Plan during the marriage. Husband contributed approximately $142.00 per month to that plan during the marriage. Husband contends that the plan is a military retirement plan subject to the 10/10 Rule and is the only pension that he will receive from the Navy upon retirement. It is Husband's position that because the parties were not married for ten years, Wife is not entitled to any portion of the plan. As of December 31, 2016, the Plan was valued at $9,546.06.
See Pet'r's Ex. 2.
(7) The value of the property set apart to each party;
The parties have no marital home or land at issue. Further, the parties have divided their personal property.
Documentation that Husband has, as of June 30, 2015, $7,540.49 in a Navy Federal Credit Union IRA account was presented. Wife did not request that any portion of these funds be awarded to her, and Husband testified that these are pre-marital funds not subject to division.
See Pet'r's Ex. 5.
Both parties appear to agree that Wife received her 50% share of the money remaining in the parties' membership savings account post-divorce. However, as indicated above, Wife believes that the $17,000.00 in withdrawals prior to the parties' separation was marital property withdrawn by Husband, which was not used for marital expenses and thus, Wife requests 55% of that figure.
(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;
Wife has primary placement of M-------. The Court received no evidence of any marital home aside from the home in Spain the parties rented from 2014-2016.
Wife and M------- currently reside with Wife's mother and her mother's boyfriend. Wife is seeking 55% of the $17,000.00 in withdrawals from the parties' marital funds. Additionally, Wife is seeking 50% of Husband's Thrift Savings Plan. Wife currently earns a net monthly income of approximately $1,669.85, plus $500.00 in child support. Wife suffers a deficit each month as her reasonable monthly expenses total $3,634.53.
See supra pg. 3.
See infra pg. 11.
Wife testified that she is unable to afford her own home or pay for child care for M-------.
Husband currently resides with his fiancé. Husband earns a net monthly income of approximately $3,965.37. Husband's reasonable monthly expenses total $2,807.97. Husband retains a surplus each month of approximately $1,157.40.
See supra pg. 3.
See infra pg. 12-13.
See infra pg. 13.
(9) Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;
No evidence was presented on this issue.
(10) The debts of the parties; and
As stated above, Wife received a bachelor's degree in liberal studies. Evidence was presented that Husband paid for three of Wife's classes. However, Wife testified that she still has student loan debt which she is currently making monthly payments towards. The majority of Wife's student loan debt was incurred prior to the parties' marriage. Wife is not requesting that Husband pay any portion of her student loan debt.
The parties incurred a $10,000.00 debt from a loan they obtained to pay for their honeymoon. Husband testified that the loan was paid off with money from the parties' joint accounts during the marriage.
(11) Tax consequences.
No evidence was presented on this issue.
Conclusion
The Court declines to find that Husband withdrew and pocketed $17,000.00 in marital funds prior to the parties' separation. The bank account statement, along with Husband's testimony, indicates that from April 12, 2015 through May 11, 2015, $4,875.08 was withdrawn from Husband's active duty checking account. This left a $250.00 balance in the active duty checking account, which Husband testified was used to make a car payment. Husband testified that the $4,875.08 was then deposited between the everyday checking account and the membership savings account. The account statement reflects that $2,520.02 was deposited into the everyday checking account and $2,859.74 was deposited into the membership savings account. Husband indicated that the $9,775.26 withdrawn during that month from the membership savings account went toward the parties' rent and bills. Specifically, Husband indicated that he had to pay three months of back rent for the time he was deployed. The $2,419.66 in the everyday checking account was spent by both parties on everyday purchases.
$2,520.02 plus $2,859.74 equals $5,379.76, more than the $4,875.08 that was withdrawn from the active duty checking account.
Furthermore, to hold that Husband withdrew and retained $17,070 from the parties' accounts for himself, would lead to the conclusion that the $10,306.84 in withdrawals the following month were also cash withdrawals. However, the statements clearly show that the amounts listed under the active duty checking withdrawal columns were then deposited into the other two accounts. No other money was coming into the everyday checking and membership savings accounts except for the money transferred from the active duty checking account. Therefore, the $4,875.08 withdrawn from the active duty checking account from April to May 2015 was not a cash withdrawal but a transfer. The money placed in the membership savings and everyday checking accounts was then used for marital expenses. There is simply insufficient evidence to support Wife's position that Husband took $17,070.00 in marital funds.
Following the parties' separation, Husband and Wife continued to have access to the everyday checking account until April 2016 when Husband stopped using the account. At that time, Wife continued to have access to that account until April 2017 when she opened her own bank account. The ending balance in the membership savings account on May 11, 2015, was $4,089.48. Husband paid Wife her half of that balance.
See Pet'r's Ex.3.
The Court declines to award Wife any percentage of the $17,000.00 in withdrawals used for marital purposes from April 2015 to May 2015.
The Court finds that the $142.00 per month contributed to Husband's Thrift Savings Plan during the parties' marriage is marital property subject to division.
The Former Spouses Protection Act ("the Act") authorizes state courts to treat military retiree's "disposable retired or retainer pay" as community property. This Court, along with other state courts, has determined that the ten-year clause contained under that Act refers only to the method by which the pension payments are to be made. The ten-year clause "does not preclude the division of military pensions where the 10-year requirement has not been met." There is nothing in the language of the Act that limits the authority of a state court to divide amounts or allocate percentages of "disposable pay." Thus, the fact that the parties in this case were not married for ten years does not preclude Wife's ability to receive her equitable share of the marital portion of Husband's Thrift Savings Plan.
Geesaman v. Geesaman, No. CK92-3641, 92-7-30-DIV, 1993 WL 777094, at *4-5 (Del. Fam. Ct. Jul. 21, 1993).
A.C.L. v. W.K.L., No. CN00-10411, 2002 WL 31451324, at *4 (Del. Fam. Ct. Apr. 16, 2002).
However, under the payment section of the Act, also referred to as the 10/10 clause, the Federal Government will only make direct payments to former spouses who were married to the military spouse for at least ten years. Therefore, though the Court is not precluded from awarding Wife a portion of Husband's Thrift Savings Plan, Wife is unable to receive direct payments from the service finance center because the parties' marriage did not last ten years. Rather, Wife would have to receive payment from the Plan directly from Husband.
Geesaman, No. CK92-3641, 92-7-30-DIV, 1993 WL 777094, at *4-5.
For the aforementioned reasons, the Court concludes that the marital portion of Husband's military pension is subject to division. The retirement plan, as of December 31, 2016, is worth approximately $9,546.06. Both parties stipulated in the Rule 52(D) Ancillary Pretrial Stipulation that they were married for three years. Husband contributed $142.00 per month to the retirement plan during the marriage. Therefore, Husband contributed $5,112.00 to the retirement plan during the marriage.
Wife testified that she was not seeking any portion of Husband's "pension." Rather, she was seeking a portion of his Thrift Savings Plan which she interpreted as his military retirement. However, Husband testified that the Thrift Savings Plan is his military pension and is the only retirement asset he has. The Court interprets Husband's Thrift Savings Plan as his military retirement pay, a portion of which was acquired during the marriage, and is subject to division.
See Pet'r's Ex. 2.
$142.00 times thirty-six months equals $5,112.00.
The Court finds that Wife's requested 50% allocation of Husband's Thrift Savings Plan to be appropriate in this case. The parties were married for a relatively brief time; the parties have equal opportunity for acquisition of future assets and earning potential, as Wife has a bachelor's degree and the Court received evidence that Husband's rank in the military has increased; during the time that the parties resided in Spain, Wife was unemployed and remained at home caring for the parties' daughter which enabled Husband to focus entirely on his duties with the Navy. The Court finds a 50/50 division to be appropriate. Thus, Husband shall pay Wife $2,556.00 as her 50% share of the marital portion of the Thrift Savings Plan within ninety days from the date of this Order.
B. Alimony
A party is only entitled to permanent alimony when the parties have been married for 20 or more years. Therefore, the Court will consider Wife's claim for alimony as a claim for temporary alimony. Temporary alimony is alimony awarded after divorce and ancillary proceedings have concluded. The alimony award "shall be in such amount and for such time as the Court deems just." However, temporary alimony may be awarded for a period of time not to exceed 50% of the term of the marriage. Pursuant to 13 Del. C. § 1512(b), the Court may grant an award of alimony to a dependent party after consideration of all relevant factors contained in 13 Del. C. § 1512(c). A party is deemed to be dependent if he or she:
DeShields v. Harris, No. 532, 1999 WL 1504962, at *2 (Del. 2000).
1. Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment;The party seeking alimony must prove by a preponderance of the evidence dependency upon the other party.
2. Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and,
3. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.
13 Del. C. § 1512(b)(1-3).
Gregory J.M. v. Carolyn A.M., 442 A.2d 1373, 1375 (Del. 1982).
The Court now turns to the factors contained in 13 Del. C. § 1512(c).
(1) The financial resources of the party seeking alimony, including the marital or separate property apportioned to him or her, and his or her ability to meet all or part of his or her reasonable needs independently;
Wife is currently employed by . Wife earns a net monthly income of approximately $1,669.85. Wife has a bachelor's degree in liberal studies. However, Wife testified that her degree did not help her get her current job. In addition to her income from her job at , Wife is currently receiving $500.00 in child support from Husband. Hence, Wife's total net monthly income is $2,169.85.
See Pet'r's Ex. 8. Wife's bi-weekly income is $770.70. $770.70 times 26 weeks is $20,038.20. $20,038.20 divided by 12 months is $1,669.85 per month.
Husband currently pays $500.00 per month in child support. See Tribitt v. Tribbitt, 963 A.2d 1128, 1132 n.18 (Del. 2008) (holding that "the amount of child support received by the Wife is, likewise, relevant to the calculation of her income for purposes of her entitlement to alimony"); see also Pan v. Shak, No. CN06-01520, 2008 WL 2898669, at *2-3 (Del. Fam. Ct. May 6, 2008) (holding that child support was properly considered in alimony determination).
Wife's monthly income is her net income of $1,669.85 plus $500.00 in child support.
Wife testified that her current monthly expenses total $2,234.53 as follows:
| Rent: | |
| Utilities: | |
| Cell phone: | $200.00 |
| Groceries: | $150.00 |
| Clothing (Wife and daughter): | $100.00 |
| Out-of-pocket medical and dental expenses for self: | $0.00 |
| Child care: | $0.00 |
| School tuition: | $135.00 |
| Toys and presents: | $25.00 |
| Cosmetics and toiletries: | $25.00 |
| Barber and hairdresser: | $95.00 |
| Vacation: | |
| Entertainment/miscellaneous: | $0.00 |
| Automobile payment: | $458.00 |
| Automobile insurance: | $92.53 |
| Gas (automobile): | $160.00 |
| Car repairs and maintenance: | |
| Invisalign: | $210.00 |
| Student loan payment: |
Wife does not currently have a monthly rent obligation because she lives with her mother and cannot afford to pay rent elsewhere.
Wife testified that she pays her mother $100.00 per month for all utilities.
Wife currently has no vacation expense because she cannot afford to go on vacation.
Wife testified that her current monthly automobile repair and maintenance expense could be up to $600.00 per month but that it is currently approximately $100.00 per month.
Wife testified she has two monthly student loan payments. One payment is $142.00 per month and the other payment is $242.00 per month. $242.00 plus $142.00 equals $384.00 per month.
After considering the evidence presented, the Court finds Wife's reasonable monthly expenses total $3,634.53 as follows:
Wife's reasonable expenses listed include expenses for the parties' daughter as well.
| Rent: | |
| Utilities: | $100.00 |
| Cell phone: | $200.00 |
| Groceries: | |
| Clothing (Wife and daughter): | $100.00 |
| Out-of-pocket medical and dental expenses for self: | |
| Child care: | |
| School tuition: | $135.00 |
| Toys and presents: | $25.00 |
| Cosmetics and toiletries: | $25.00 |
| Barber and hairdresser: | $95.00 |
| Vacation: | $75.00 |
| Entertainment/miscellaneous: | $75.00 |
| Automobile payment: | $458.00 |
| Automobile insurance: | $92.53 |
| Gas (automobile): | $160.00 |
| Car repairs and maintenance: | $100.00 |
| Invisalign: | $210.00 |
| Student loan payment: | $384.00 |
Though Wife currently has no rent obligation, her updated expense list on the parties' 52(D) indicates that she anticipates a monthly rent obligation of $500.00 per month. The Court finds this amount to be reasonable.
Wife testified that her monthly grocery expense is actually $300.00 per month. However, she only pays $150.00 per month currently because that is all that she is able to afford. Her mother helps her with the remaining $150.00.
Wife is currently unable to afford medical insurance. She testified that if she obtained insurance through her employer it would cost her approximately $500.00 per month. It remains unclear to the Court if this expense includes medical coverage for M------- or not. However, Wife further testified that Husband provides medical insurance for M-------. Therefore, the Court finds that the $300.00 figure represented on the 52(D) for Wife's monthly health insurance to be reasonable.
Wife testified that she does not currently have a child care expense because her mother and grandmother provide care for M-------. However, Wife's mother and grandmother have stated that they would charge Wife $300.00 per month if she could afford it. Until she is able to afford $300.00 per month, they will not charge her for this expense. The Court finds $300.00 per month to be a reasonable anticipated monthly child care expense.
Hence, with a net monthly income of $2,169.85, including child support payments received, and reasonable monthly expenses totaling $3,634.53, including expenses for the parties' daughter, Wife has a monthly deficit of $1,464.68.
(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
Wife currently works forty hours per week. Wife obtained a bachelor's degree in liberal studies. However, she did not need her degree to obtain her current job. The Court did not receive evidence on the type of employment or amount of income Wife could receive if she obtained employment related to her degree.
(3) The standard of living established during the marriage;
The Court received limited evidence regarding the standard of living during the marriage. The parties were married for three years. During that time, Husband was stationed overseas. The parties had a home in Spain and during Husband's deployments Wife moved back to the United States and resided with her mother. Though the parties appeared to live a comfortable lifestyle, as their monthly expenses the month prior to separating totaled $12,194.92, the Court was presented with insufficient evidence to ultimately conclude the standard of living the parties enjoyed during the marriage. Wife was either unemployed or working at earning $3.50 per hour plus tips during the marriage. Husband's income alone covered the parties' marital bills and debts.
Husband testified that the $2,419.66 in withdrawals from the everyday checking account was used for the parties' everyday expenses, and the $9,775.26 was used to pay the parties' rent and other bills.
(4) The duration of the marriage;
The parties were married on June 15, 2013, and divorced on July 8, 2016. Thus, the parties were married for three years.
(5) The age, physical and emotional condition of both parties
The Court did not receive evidence on the age, physical or emotional condition of the parties. The parties' Rule 52(D) indicates that the parties are young and healthy.
(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
Husband paid $2,700.00 for three courses that Wife took toward receiving her bachelor's degree.
Wife testified that Husband paid approximately $900.00 per class for three classes.
During the time that Wife was in Spain with Husband, Wife did not work and instead stayed at home and took care of the home and M-------. Wife was in Spain, not working, for approximately five months of the parties' three year marriage.
(7) The ability of the other party to meet his or her needs while paying alimony;
Husband earns a net income of approximately $3,965.37 per month. Husband's monthly expenses total $2,807.97, as follows:
See supra pg. 3.
| Rent: | |
| Electric: | $50.00 |
| Cable Television: | $50.00 |
| Telephone: | $98.97 |
| Groceries: | $220.00 |
| Clothing: | $30.00 |
| School tuition for children of parties: | |
| Toys and presents: | $50.00 |
| Cosmetics and toiletries: | $30.00 |
| Barber/Hairdresser: | $40.00 |
| Monthly payment (automobile): | $464.00 |
| Car insurance: | $216.00 |
| Gasoline: | $250.00 |
| Child Support: |
Husband's 16(c) indicates his monthly rent expense is $500.00. However, Husband testified that currently his rent is $700.00.
Both Husband and Wife claimed M-------'s school tuition cost as an expense. Because no evidence was presented on this expense, it is unclear to the Court who is paying the tuition or if both parents are paying a portion of the tuition. On their 16(c) reports, both parties indicated that the monthly tuition expense was $109.00. However, Wife testified that the current expense is $135.00. Again, it is unclear if both parents are making monthly payments toward the tuition or if one of them is paying the tuition, yet both have claimed it as an expense. The Court finds it appropriate to attribute Wife with the $135.00 monthly tuition payment she testified to and to attribute Husband with the $109.00 payment he placed on his 16(c). $244.00 in school tuition per month does not seem unreasonable to the Court.
Husband's 16(c) does not list his child support payments as an expense. However, the Court finds it appropriate to calculate Husband's child support payments as an expense when determining his ability to pay alimony. See Tribbitt, 963 A.2d at 1132 (holding that "the amount of the Husband's child support obligation is relevant under the statute for purposes of calculating the amount of his income and, therefore, the amount of his alimony obligation"). In addition, these child support payments were considered as part of Wife's income.
After considering the evidence presented, the Court finds Husband's monthly expenses to be reasonable.
Therefore, with a monthly income of $3,965.37 and reasonable monthly expenses totaling $2,807.97, Husband has a monthly surplus of $1,157.40.
(8) Tax consequences;
Alimony would be taxable income to Wife, and a deduction for Husband from his taxable income.
(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage;
The Court did not receive evidence on this issue. It appears that both parties were able to pursue and obtain the educational and employment opportunities they desired. Wife stayed at home for approximately five months with the parties' daughter. However, she was able to go back to working at and subsequently thereafter obtained her current employment.
(10) Any other factor which the Court expressly finds is just and appropriate to consider.
There are no other factors the Court finds just and appropriate to consider.
Conclusion
Based on the foregoing, the Court finds by a preponderance of the evidence that Wife is a dependent party pursuant to Section 1512. Wife is dependent upon Husband for support, and Husband is not contractually or otherwise obligated to provide that support. Wife is working forty hours per week at the , is residing with her mother, and continues to maintain a deficit each month. Throughout the parties' marriage, Husband's income covered the parties' expenses and debts. Though Wife was employed the majority of the marriage, there was a brief time of approximately five months where Wife was not employed and stayed at home taking care of the home and the parties' daughter. Further, Wife's income was, and continues to be, significantly less than Husband's income.
Therefore, Husband shall pay Wife temporary alimony in the amount of $981.34 per month for one year, and six months beginning on August 1, 2017. This will decrease Wife's $1,464.68 deficit by two-thirds and leave Husband with a $176.06 surplus. Though the Court recognizes that Wife suffers a deficit of $1,464.68 per month, pursuant to the Court's analysis of the 13 Del. C. § 1512, the Court finds that awarding Wife temporary alimony in the amount of $981.34, two-thirds of her deficit, is appropriate. Specifically, Wife has chosen not to utilize her bachelor's degree to the fullest extent and there is no evidence that she plans to do so in the future. Rather, throughout the parties' marriage, and since their divorce, Wife has been employed as a waitress and at the . While the Court recognizes the contribution that Wife made to the marriage as a homemaker, and by staying home to raise the parties' daughter rather than working, the period of time that Wife did so was short. The majority of the parties' marriage Wife was employed. The parties are both young and healthy and are equally capable of obtaining increased employment in the future. Furthermore, it is difficult for the Court to determine the standard of living the parties' enjoyed during the marriage because of the short duration of the marriage. The Court finds that the alimony figure awarded will enable Wife to obtain her own housing and obtain a comfortable standard of living. Finally, the relatively short duration of the parties' marriage supports awarding this amount. The parties were married for three years. However, the parties were together as a couple for an even shorter period of time, as they were only married for one year and eleven months prior to separating. Based on the foregoing, the Court finds it appropriate that Husband pay Wife $981.34 per month in temporary alimony.
Term of payment equals half the duration of the marriage.
Pursuant to 13 Del. C. § 1512, this award shall be terminable upon the death of either party or upon Wife's remarriage or cohabitation. In addition, either party may seek modification of this award upon a showing of real and substantial change of circumstances.
13 Del. C. § 1519(a)(4). --------
C. Attorney's Fees and Court Costs
Neither party made any request for attorney's fees or court costs.
D. CONCLUSION
The Court finds that Wife is entitled to a 50% distribution of Husband's Thrift Savings Plan. Accordingly, the Court ORDERS that Husband shall pay Wife $2,556.00 within ninety days from the date of this Order.
After review of the factors outlined in 13 Del. C. § 1512(c), the Court finds by a preponderance of the evidence that Wife is a dependent party upon Husband for support and Husband is not contractually or otherwise obligated to provide that support. Thus, Wife's request for alimony is GRANTED. Husband is hereby ordered to pay Wife $981.34 per month in temporary alimony for one year and six months beginning on August 1, 2017.
IT IS SO ORDERED this 14th day of July 2017.
/s/_________
PETER B. JONES, JUDGE PBJ cc: