Opinion
FILE NO.: CN16-05060 CPI NO.: 17-09575
07-30-2018
R----- R-----, Petitioner, v. T--- R-----, Respondent.
Mr. R----- R-----, Self Represented Alfred J. Lindh, Esquire, Attorney for Respondent
ANCILLARY MATTERS Mr. R----- R-----, Self Represented
Alfred J. Lindh, Esquire, Attorney for Respondent Ranji, J.
INTRODUCTION
This is the Court's decision on the ancillary matters of property division, counsel fees, and costs incident to the separation and divorce of Petitioner, R----- R----- ("Husband"), pro se, and Respondent, T--- R----- ("Husband"), represented by Alfred Lindh, Esquire. The parties married July 23, 2004, separated August 19, 2016, and were divorced by Order of this Court on September 18, 2017.
PROCEDURAL HISTORY
Husband filed a Petition for Divorce on March 29, 2017 requesting equitable distribution of the marital property and attorney's fees and costs. Wife filed an Answer to Husband's Petition for Divorce on May 1, 2017, requesting equitable distribution of the property and debts. The parties were divorced by Order of this Court on September 18, 2017.
The parties filed their Financial Disclosure Form on November 20, 2017. A Pre-Trial Conference was held by the Court on May 1, 2018, at which time the parties' agreements were noted on the Ancillary Pretrial Stipulation and signed as an Order of the Court.
Husband called Wife, himself, and D---- R-----, Husband's brother, as witnesses. Wife testified on her own behalf.
BACKGROUND
Although there is some disagreement as to how long the parties dated prior to their marriage, the parties agree that they were together as a couple for at least two years, and that they lived together for at least one year prior to their marriage, with some of that time in a rental property. They also agree that the property at issue in this matter, which is located at 154 M----- Road in T-------, Delaware, was purchased in February 2004, at least 7 months after the parties had been living together in the rental property and approximately 5 months before the parties were married. The parties' daughter A---- was born November 24, 2004.
The parties and A---- lived together with in the home until late 2005 or early 2006, when Wife was involved in a car accident that rendered her temporarily unable to work. At that time, the parties left the Delaware house vacant and moved to Virginia so that Husband could increase his income through working at his family's business. While in Virginia, the parties initially rented a house and then rented an apartment. Husband's employer paid all of the rent and utilities for the parties' first rental, and paid $1,000 per month towards the $1,300 monthly rent for the second property.
After several years, the parties decided to return to Delaware. Wife and A---- returned to Delaware initially, estimated around 2013, and lived at Wife's parents' home for approximately a year. They did not live at the 154 M----- Road home because there was no electric or water at the time, and someone had broken into the home and ransacked it. During this time, Husband was periodically returning to the 154 M----- Road home, approximately every other week, during which he was fixing issues with the home to make it habitable. Upon completion of the home projects, Wife and A---- returned to the 154 M----- Road home and Husband returned as well, taking employment in Delaware. The parties remained in that property thereafter.
In February 2016, Husband had back surgery due to a skiing accident that rendered him unable to work for several months. According to Husband, at this same time the parties began having problems, and they agreed that he would return to Virginia to work for the family business for a year, during which Husband was to return to stay in Delaware with Wife and A---- on the weekends and he was to pay for Wife to stay in a hotel in Virginia so that they could work on their marriage and attend therapy. Based on the testimony of the parties, it appears Husband began staying near his place of employment in Virginia during the week in approximately June 2016. A---- primarily resided in Delaware with Wife during this time, but she frequently saw Husband. Husband avers the parties were still a couple during this time, but they were living apart for financial reasons and to work on their marriage.
On August 19, 2016, A---- contacted Husband from the 154 M----- Road home and told him that he needed to come and get her immediately, due to an incident with Wife that was addressed in prior custody proceedings. Husband drove to Delaware on that date and retrieved A---- and returned to Virginia with her. A---- and Husband have remained in Virginia since that time, and Wife has remained in the M----- Road property. The parties agree that August 19, 2016 was their date of separation.
DISCUSSION
At the start of trial, the parties agreed Husband would keep the 2003 Volvo S80 and Wife would keep the 2005 Hyundai Elentra. The parties agreed that the outstanding issues in dispute are: (1) Whether the 154 M----- Road home is marital; (2) If marital, the division of the equity in the home; (3) Husband's earning potential; and (4) How to treat debts that Husband asserts Wife owes to his family.
Assets in Dispute
I. 154 M----- Road, T-------, DE 1
Husband requests that the Court deem the 154 M----- Road property a marital residence such that any equity in the home is a marital asset. Wife requests that the Court find that the property is non-marital, as it was purchased in her name prior to the marriage. In the event that the Court deems it marital property, Wife requests credit for solely paying the mortgage from the August 2016 separation to present.
The parties agree that they were already living together when the property was purchased in February 2004 and that they were married approximately 5 months later. The parties also agree that Wife's name is the sole name on the deed and mortgage and that Husband never asked throughout the marriage to have his name added to either.
Husband testified that the house was not purchased in both parties' names because he had poor credit. The Court notes that both parties agreed that Husband was in arrears to his first wife in the amount of $25,000 for child support when the parties were married, which would lend credence to Husband's claim regarding his credit. Husband further testified that although the parties discussed adding his name to the property later, they never moved forward with it because it "didn't matter" to him and was "not a big deal" as far as he was concerned.
According to Husband, although his name was not on the mortgage or deed, he and Wife had jointly contacted a realtor, they both went and viewed potential homes, and they ultimately decided on the 154 M----- Road home in part because it is a farm style home, and Husband wished for his son to grow up in such a home. Husband also testified that he attended the closing along with Wife.
Husband has a son from a prior marriage.
Wife testified that although the parties had been dating and living together, there had been no commitments to marry by either party at the time the property was purchased. She further avers that she decided to purchase the 154 M----- Road home after traveling frequently for her work as a travel nurse at Kent General Hospital, stating she no longer wanted to rent and she desired to own real estate.
Wife also claimed that she was the only one who made payments on the home. Wife agrees, however, that the parties had a joint account out of which the mortgage and joint expenses were paid, and that Husband's paycheck was deposited directly into that account.
Pursuant to 13 Del. C. § 1513 (b) & (c), marital property is property acquired by either party after marriage, with few exceptions. However, under Delaware law, property purchased prior to marriage may be deemed marital property if purchased "in contemplation of marriage." In recent years, this Court has applied a case-by-case analysis to determine whether property was purchased in contemplation of marriage. The analysis includes consideration of the following factors: (1) whether the parties were residing together before purchase of the home; (2) whether the parties moved into the home at the same time and married shortly thereafter; (3) each party's involvement in selecting the house; (4) considerations in selecting the home; (5) whether each party attended the closing; (6) reasons why either party's name is not on the deed or mortgage; and (7) whether the parties resided in the home for the entirety of the marriage and through separation.
Battaglia v. Battaglia, 2005 WL 2149337, at *1 (Del. 2005) citing Wilson v. Lynn, 1993 WL 331899, at *2 (Del. Fam. Ct. 1993).
See McNulty v. McNutly, 45 A.3d 149, at *2 (Del. 2012).
Here, the parties had been dating for 1-2 years prior to purchasing the home, they were residing together prior to purchasing the home, moved into the home together, and continued to live together in the home for the five months thereafter leading up to their marriage and for years after. Husband testified that he and Wife jointly contacted a realtor, were involved in viewing different homes, and picked the 154 M----- Road home at least in part based on Husband's preference. Each party attended the closing for the home. Husband claimed that his name is not on the deed or mortgage because he had poor credit. Finally, although Husband was working in Virginia prior to the parties' separation, his testimony that he was still returning to the M----- Road home with Wife and A---- on a weekly basis, contributing to the home's upkeep, and that the parties continued to be a couple throughout that time, was not disputed.
The only factual assertion Husband made that Wife disputes is the reason for Husband's name not being on the mortgage or deed. Husband avers that his name was not put on the documents because he had poor credit, while Wife avers that she simply wanted to own her own home. As to this factor, the Court finds it unlikely that after being in a relationship with Husband for years, having cohabited with him for months, and just 5 months prior to their marriage, Wife would have simply decided that she individually wished to own a single family home, with no anticipation that this would be the parties' marital property. This is particularly hard to believe when considering that Wife became pregnant with A---- at approximately the same time that the property was purchased. The Court therefore finds Husband's reasoning for his name not being on the mortgage or deed to be more credible than Wife's assertion that he was left off intentionally so that she would be the sole property owner. Furthermore, all of the remaining factors indisputably weigh in favor of a finding that this was a property purchased in anticipation of marriage.
As noted above, the Court does not find that Husband's Virginia employment, which required him to stay in Virginia during the week, amounts to a finding that Husband no longer resided in the home. Even were that the case, the circumstances surrounding that decision and the remaining factors weigh in favor of this Court's holding.
The Court finds that the property located at 154 M----- Road is a marital asset that was purchased prior to but in anticipation of marriage.
Wife argues that if the house is deemed marital property, she should receive credit for paying the mortgage and upkeep of the home since the August 2016 separation. Wife testified that Husband had made no financial contributions to the home since said date, and claims she has been paying "four or five thousand dollars per month" towards the home, citing the mortgage of $1,641, electric of $200, a storage unit for Husband's belongings of $97, and Husband's car insurance of $99. The Court is unsure where Wife obtained the figure of "four or five thousand dollars" given that the listed expenses total $2,037. Even accounting for groceries, her own car payments and insurance, and other reasonable living expenses, the Court cannot find her claim to have been paying "four or five thousand dollars" a month to be reasonable. More importantly, however, Wife has lived has had exclusive use and enjoyment of this property since the parties' separation. Wife agrees that she had the locks changed and she alone has been living in the property. The Court therefore cannot find that Wife is owed any credit for her payment of the mortgage and utilities during this time, as Wife has chosen to live in the property and these are reasonable housing expenses that would have been incurred by Wife regardless of where she lived. Wife will be credited for the monies paid to store Husband's belongings and for his car insurance.
Personal Property
Husband avers that his belongings, including clothes, shoes, computers, golf cart, four wheelers, and various other personal items, were left at the 154 M----- Road address. Husband claims he requested post-separation that he be allowed to retrieve his items from the home. The parties testified to two occasions when Wife and Husband spoke about his belongings. Once, Husband asked if he could retrieve his belongings and Wife responded that he could, but she would need a list of the items he wanted. Husband then told Wife to leave his items outside the home such that he could retrieve them, to which Wife responded she needed an "invoice." Wife testified Husband then said "never mind," and has not since requested retrieval of his belongings. On the second occasion, in October 2016, the parties agreed to meet at a Cracker Barrel along with A----, so that Husband could retrieve his belongings. Husband testified that A---- refused to see Wife, such that he was unable to retrieve his belongings on this occasion. Husband agrees he made no further requests for the belongings. Husband further claimed that he was, for a period of time, unable to contact Wife to retrieve his belongings because there was a Protection from Abuse Order in effect.
The Court indicated to Husband that because the PFA was against Wife, Husband was in fact, able to contact Wife. He indicated that he was unaware of such.
Within 30 days of this Order, Wife shall provide Husband with a list of the property in storage or in the marital home that belongs to Husband. If Husband is aware of items not on the list that belong to him and that he would like returned, he shall notify Wife within 5 days of receiving the list. If Wife agrees that those items are to be returned to Husband, she shall notify him within 5 days of receiving his supplements to the list. Wife shall then arrange with Husband for his property to be transferred to him, upon Husband coming to Delaware to retrieve same.
If the parties cannot agree as to the additional items that Husband requests in addition to those listed by Wife, then the parties shall proceed via the two list method, with Wife developing the two lists within 60 days of this Order and Husband choosing a list within 5 days of receiving the two lists from Wife.
Debts in Dispute
I. Alleged Debts for Down Payment and Monies to get Home out of Foreclosure by Husband's Family
Husband alleges that Wife owes a debt to his family members due to loans she received for the down payment on the 154 M----- Road home and later to get the marital home out of foreclosure. Notwithstanding his claim that the home is marital property, Husband avers that these payments were loans to Wife for which she is solely responsible. Wife does not deny receiving these funds from Husband's family, but avers that the monies were a gift.
Regarding the Foreclosure Claim, Husband testified that while at a birthday party for himself in Virginia, around October 13, 2007, he received a phone call from their neighbor at the Delaware residence. The parties were maintaining the Delaware residence, although living in Virginia at that time. The neighbor indicated that some people were robbing the Delaware home, at which point the police were contacted. Upon arrival, the police confronted the individuals, who indicated that they worked for a company that empties foreclosed homes, and they provided the police with proper documentation of such. Husband avers he indicated to the police that he was unaware that payments on the home had not been made, that the home was in his Wife's name, and that "come Monday morning" the payments would be caught up. The police then stopped the individuals from taking anything from the home. Husband testified that once his father and brother found out, they had a "powwow," spoke to Wife about how far behind the mortgage was, and that Husband's brother then obtained a certified check in the amount of approximately $15,000 to get the home out of foreclosure. Husband stated that they all then went to his father's office, and that Wife then signed a document that his father had drawn up, indicating that the monies were a loan. Husband did not produce the noted document.
On cross-examination, Husband claimed that the document only had Wife's signature because his name is not on the mortgage. He avers that at the time the parties were living in Virginia, it was Wife's "sole purpose" to continue to pay the mortgage on the 154 M----- Road home, noting that his employer was paying their rent at their Virginia residence to "alleviate strain" on having to pay for two residences.
Husband also called D---- R----- ("D----"), his brother, as a witness. D---- testified that on a day when he was going to a party to celebrate Husband's birthday, he and the family learned that the Delaware 154 M----- Road home was behind on payments and at risk of foreclosure. He stated that he went to the bank, got a certified funds check in the amount of approximately $15,000, had a meeting in his and his father's office, where Wife signed a document indicating that she would pay back the $15,000. D---- claims the alleged loan was under the name of his company, Total Accessory Center, that Wife had a copy of the document, and that she has paid $20 back to him to date. D---- testified that a copy of the document exists in Virginia, but he did not provide the Court with said document. He also agrees that Mr. Lindh requested a copy of the document multiple times, and he refused to provide a copy.
G---- R-----, or Husband's Father.
Wife responded that Husband's family gifted her and Husband money in 2004 towards a down payment of the home and in 2007 towards a threatened foreclosure of the Delaware home. Wife could not recall the amount of the 2004 payment, but stated that Husband indicated to her it was a gift from his family for the down payment on the house, although the parties ended up spending the money elsewhere, including to catch Husband up on child support arrears, because they were able to get the home for 0% down. Upon questioning by the Court, Husband agreed that he and Wife "blew" the $4,500, stating when they were looking at purchasing the home they believed they would need a down payment, but when it came time to close, they did not need to as they received the home with 0% down.
Regarding the 2007 monies, Wife testified that the home did not go into foreclosure, but that the mortgage on the home had not been paid for two months and there was a threatened foreclosure. She agrees that the parties received a call from a neighbor worried that the home was being burglarized, at which point Husband indicated his family was gifting her the money to get the home out of foreclosure. Wife stated that she signed an "IOU", and that Husband's Father also signed the document, but that she does not have, and never received, a copy of the document. She remembers signing this document in relation to Husband's parents, but not his brother. Wife also does not recall ever sending D---- $20. Wife testified in February 2017 she received a letter from Husband's family requesting the money back, outlining various fees and interest amounts. Wife indicated that through Mr. Lindh, she tried to obtain the underlying document multiple times, to no avail.
Wife, at a differing part of her testimony, also averred that there was never any foreclosure issue at all, and that people were merely robbing the home under the guise of being from a mortgage foreclosure company.
See Respondent's Exhibit 2, G---- R----- letter to Wife. Letter is dated September 20, 2016, though Wife claims she received the letter in February 2017.
The Family Court does not have jurisdiction to determine the existence of, or claims related to, disputed third party debts. If Husband's family wishes to recover the monies averred, they may do so in the appropriate forum. The Court finds unavailing Husband's argument that the home should be considered marital property and split accordingly, but the associated debt should not, and therefore, if, as, and when a debt is determined to be owned, it will be treated as a marital debt and split according to the percentage of all other marital property, as discussed below.
See Mahmoud v. Al-Naser, 850 A.2d 302 (Del. 2004).
Percentage Distribution/Multiplier to be Applied to the Marital Estate
The parties disagree regarding the percent distribution. Husband's Ancillary Pretrial Stipulation requested a 70% / 30% distribution in Husband's favor. Wife's Stipulation argued the property should be distributed 50% to Wife and 50% to Husband. The Court, in dividing the marital property, considered the factors enumerated in 13 Del. C. § 1513.
See Ancillary Pretrial Stipulation at p. 2.
(1) The length of the marriage.
The parties were married March 23, 2004 and divorced September 18, 2017 for a total length of marriage of thirteen (13) years, one (1) month, and twenty-six (26) days.
(2) Any prior marriage of the party.
This was the first marriage of Wife. Husband has two prior marriages.
(3) The age , health , station , amount and sources of income , vocational skills , employability , estate , liabilities and needs of each of the parties.
Wife is forty-three (43) years old and did not testify to any health concerns. Wife is a Travel Registered Nurse, presently working as a Senior Clinical Document Consultant at e4 Services in West Chester, Pennsylvania. Wife worked as a travel nurse until a car accident in late 2005 or early 2006. When the parties moved to Virginia, Wife began working as a nurse again, approximately in mid-2006. She was unable to do bedside work, however, and did clinical document review. Upon returning to Delaware, Wife worked as a clinical document specialist at AI Dupont, later moving to e4 Services. Aside from the brief lapse in employment during 2006, Wife has worked for the duration of the marriage. Wife presently earns $100,675 annually and she averred in the Pretrial Stipulation that she believes she has reached her earning capacity.
Husband is forty-nine (49) years old and did not testify to any health concerns. Husband also worked through almost the entire marriage, but he changed jobs multiple times. In 2004, Husband was working for himself in Smyrna, running an auto business. Husband testified that at some point this business shut down, after which the parties moved to Virginia so that he could work at his family's business. Husband continued to work at his family's business even when he returned to Delaware to do renovations and repairs on the Delaware home, in approximately 2013. Once Wife and A---- moved back into the home, Husband testified he then worked at A--- Z--- in Delaware for approximately six months, and then as a manager at G------- Car Wash until February 2016. Husband testified that in February 2016, he had a skiing accident that required surgery on his back. He stated he was out of work and receiving disability until May or June of 2016, at which point he resumed working at his family's business and commuted to and from Delaware and Virginia regularly. Husband stated that from June 2016 onwards, he was working at his family's business, T---- A-------- C-----, in Virginia. Husband presently earns $28,000 annually in addition to which his employer pays approximately $6,600 per year towards his rent, for a total salary of $34,600. Father is also to receive $1,527 per month in child support from Mother pursuant to a consent Order, as Father has full custody of A----, and A---- has minimal to no contact with Mother.
See Support Consent Order, May 30, 2017.
Although Husband works for a family owned business, no evidence was presented to show that he could earn more than he is currently, and the Court notes that Husband worked for the family business several years ago when the parties were still together and living in Virginia. Therefore, it seems likely that if Husband could make considerably more than he currently does from the family business, he would have done so then. No evidence of same was presented. The Court will therefore not impute Husband with a higher salary than the $34,600 compensation he currently earns.
(4) Whether the property award is in lieu of or in addition to alimony.
The property award is not in lieu of alimony. Neither party requested an award of alimony.
See Ancillary Pretrial Stipulation at p. 6.
(5) The opportunity of each for future acquisitions of capital assets and income.
As noted above, Husband currently earns $34,600 per year including his housing stipend, while Wife earns $100,675. Wife earns approximately three times more than Husband, and she does so based on a college degree and work that appears to have progressively built upon her education and experience. Husband's employment has been in varied positions that do not rely on a college degree, nor was there testimony that Husband has a higher education degree or any indication that Husband has a significantly higher earning capacity.
Based on the parties' experience and education and the testimony presented, the Court finds that Husband has some likelihood of increased earnings, as he is likely working at the lower end of his capacity given his management experience and prior salary, but the Court does not have evidence to support a likelihood of a significant increase in salary. The Court also cannot find that Wife has a likelihood of a significantly higher salary in her profession. Nonetheless, even if Wife's salary stays the same and Husband's increases to $45,000, Wife will still be earning well over double what Husband would be earning, and there is no reason to think that Wife will not continue to maintain at least her current earnings level. As such, this factor favors Wife having a stronger opportunity for future acquisition of 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.
As described above, the parties' Date of Separation was August 2016. Both parties were employed for the vast majority of the marriage, with each having a brief period of unemployment due to a physical injury. During those times, the couple relied on one party's income and/or depended on marital savings or incurred marital debt. Both parties testified to their non-financial contributions to the marriage. Husband testified that he did home maintenance, grocery shopping, cooking, cleaning, and laundry. Wife testified that she also contributed to these responsibilities, as well as being primarily responsible for transporting A---- to various appointments, attending parent/teacher conferences, and assisting her with homework.
The parties agree that Wife primarily handled the parties' finances and that she alone had a bank account during the marriage. Additionally, only Wife had a card linked to the account. Both parties agree, however, that Husband's paycheck was direct deposited into Wife's bank account, from which all household obligations were paid. While Wife argued that she paid the mortgage, as noted above, the home is a marital asset and both parties contributed to the overall marital expenses.
Wife argued that she should be credited for the mortgage and other house-related expenses she made from March 2016 to their separation in August 2016, noting that March 2016 is the last time Husband deposited his paycheck into their joint account.
First, March until August 2016 was prior to the parties' date of separation, and therefore no credit is due to either party for payments on marital assets or debts. Husband was maintaining some residence in Virginia for the work week while Wife lived in the marital home with A---- by agreement of the parties. The Court sees no reason for Wife to be credited with her portion of the payment on the house, when the parties were not yet separated and each was contributing in some way to the financial needs of that marital arrangement. Additionally, for at least 3 of those months, Husband was out of work due to his ski injury, during which the parties had to live on one income in the same way that they did so during the period when Wife was unemployed due to her car accident. The Court does not find a basis for Wife to be credited for the mortgage payments during that time period.
Wife also testified that Husband paid his first wife child support arrears throughout the marriage. On cross-examination, Husband agreed that during the marriage he owed approximately $25,000 in arrears and he believes his current obligation has been reduced to approximately $4,000. Wife testified that payments were made from the parties' joint account during the marriage, which she averred were $100 per month. These numbers do not appear to be consistent, as the parties were married for approximately 12 years, and if the payments were $100 per month, the total paid would be well under the $21,000 reduction in arrears that Husband alleges. Regardless of the exact amount, however, the parties are in agreement that Husband's non-marital debt was paid from marital assets throughout the marriage, in an amount somewhere between approximately $15,000 and $21,000 over the course of the marriage.
The Court finds that both parties contributed significantly, financially and otherwise, to the marriage. Both parties were out of work for periods of time, but both parties worked through almost the entirety of the marriage. While Wife earns more than Husband, there is no evidence that Husband was not working to his earning capacity. Furthermore, when the parties were having difficulty following Wife's car accident, it was Husband who gained employment through his family business to help them in getting back on their feet and Husband who repaired their home to make it habitable again after it was ransacked. At the same time, Wife lived in and performed day to day upkeep on the home when Husband was working in Virginia, just prior to the parties' separation.
The Court does find that this factor weighs slightly in favor of Wife, given the reduction of Husband's non-marital debt through the use of marital assets.
(7) The value of the property set apart to each party.
There are no claims as to significant non-marital property retained by either party, and the value of any marital property that is retained by Husband or Wife shall be accounted for in the final distribution and noted in the Wright chart.
(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 herein for reasonable periods to the party with whom any children of the marriage will live.
Each party has full-time employment, and A---- resides solely with Husband in Virginia, in housing partially paid for by Husband's employer. Wife continues to reside in the marital home at 154 M----- Road, and has done so since the August 2016 separation. Husband's testimony did not indicate an intention to move back to Delaware, such that awarding him the marital home to live therein for a reasonable period of time would not be necessary.
Wife stated that the balance of the mortgage is presently at $154,000. Wife represented in her Financial Disclosure Form that the value of the home is maximum $175,000. According to Husband, he had the home appraised "four or five" years ago, at which time the home was found to be worth $230,000 to $240,000.
If Wife wishes to retain the property, she must have an appraisal performed at her cost. Wife will then have 3 months to pay Husband for his portion of the equity in the home, based on the percentage split of marital assets noted below. If Wife does not wish to retain the property, she must list the property within 45 days of this Order. Wife must pursue the sale of the property with appropriate adjustments in price as recommended by a real estate agent, such that the property will be sold within 6 months of this Order. Wife shall then pay Husband his portion of the equity in the home immediately upon completion of settlement.
(9) Whether the property was acquired by gift.
Neither party identified any significant property acquired by gift. Although Husband alleged Wife obtained a loan from his family and Wife responded that the money was a gift, the Court does not view this as an asset to divide, and has furthermore addressed the allegation at length above. As such, this is not a factor for consideration.
(10) The debts of the parties.
The marital mortgage debt was discussed above and shall be resolved through distribution pursuant to the percentages established by this opinion.
(11) Tax consequences.
Neither party presented evidence of tax consequences otherwise.
Conclusion
Based upon the evidence provided and having considered the Section 1513 factors, the Court finds that the marital assets and debts shall be split 60/40 in Husband's favor.
Husband requested attorney's fees and court costs associated with this matter. Husband appeared self-represented at both the pretrial conference and at the ancillary hearing, and therefore his request would apply to fees incurred in the earlier stages of this proceeding.
The Court considers the financial circumstances of the parties in determining any award of fees and costs. The Court must provide its reasoning for any award of fees. The Court is also guided by Delaware Family Court Civil Procedure Rule 88, and Rule 1.5 of the Delaware Lawyers' Rules of Professional Conduct.
Husband B.W.D. v. Wife B.A.D., 405 A.2d 123, 125 (Del. 1979).
Julin v. Julin, 787 A.2d 82, 84-85 (Del. 2001)("[A]n award of fees may not be made arbitrarily and a statement as to the reasons for an award of costs and fees should appear in the record.")
DEL. FAM. CT. R. CIV. P. 88 states in pertinent part:
In every case where there is a legal or equitable basis therefore the Court may assess a party the reasonable counsel fees of any other party. Where counsel fees are requested the attorney shall submit to the Court an affidavit stating the following:
(1) time and effort expended;
(2) an itemization of services rendered;
(3) relevant hourly rates;
(4) itemization of disbursements claimed;
(5) any sums received or that will be received with respect to legal services and/or disbursements; and
(6) any information that will enable the Court to properly weight the relevant factors set forth in the Rules of Professional Conduct, Rule 1.5.
Rule 1.5 states in pertinent part:
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
--------(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyers performing the service; and
(8) whether the fee is fixed or contingent.
The Court cannot find a sufficient basis for an award of attorneys' fees in this matter. As such, Husband's request for said fees is denied.
ORDER
1. Marital assets and debts shall be divided 60/40, with Husband receiving 60% of any assets and being responsible for 40% of any marital debts.
2. The 154 M-----f Road residence is deemed marital property. Wife shall either sell the property or buy Husband out, as described above, with Husband receiving 60% of the equity therein.
3. If, as, and when the existence of a loan made by Husband's family for purposes of the house down payment and/or mortgage debt is proven, the debt shall be split as noted in Paragraph 1.
4. Within 30 days of this Order, Wife shall provide Husband with a list of the property in storage or in the marital home that belongs to Husband. If Husband is aware of items not on the list that belong to him and that he would like returned, he shall notify Wife within 5 days of receiving the list. If Wife agrees that those items are to be returned to Husband, she shall notify him within 5 days of receiving his supplements to the list. Wife shall then arrange with Husband for his property to be transferred to him, upon Husband coming to Delaware to retrieve same. If the parties cannot agree as to the additional items that Husband requests in addition to those listed by Wife, then the parties shall proceed via the two list method, with Wife developing the two lists within 60 days of this Order and Husband choosing a list within 5 days of receiving the two lists from Wife.
5. Husband shall reimburse Wife the $97 per month in storage fees, as well as $99 per month for his car insurance, for the period of time from August 2016 to the present. This debt shall be taken from Husband's portion of the home equity once the property is sold or Wife buys Husband's share.
6. Husband's claim for attorney's fees and costs is hereby DENIED.
IT IS SO ORDERED.
/s/ _________
JENNIFER B. RANJI, Judge JPH/mmjr
cc: Counsel/Parties
Date mailed: