Opinion
File No. 15-34890
07-12-2017
R----- M------, Petitioner, v. L---- M------, Respondent.
Petition No. ANCILLARY
ORDER
This is the Court's decision on the matters of property divison, alimony, attorney's fees, and court costs incident to the divorce of L---- M------ (“Wife”) and R----- M------ ("Husband").
I. BACKGROUND
The parties were married December 9, 1978 and separated on November 16, 2015. On or about January 14, 2016, the parties executed a Separation Agreement ("Agreement"). The Agreement was entered into with the intent that it would govern the parties' affairs during their separation pending a final order from the Court on the parties' ancillary matters. The Agreement stated, in pertinent part, that:
Wife will continue living in the family home at Dagsboro, Delaware 19939 indefinitely or until such time as sufficient alimony payments begin.
The house can remain in Husband's name and is his sole responsibility.
He has no desire to sell it.
Husband will pay all property taxes.
Husband will keep up minor maintenance both inside and outside of house as needed.
Husband will continue to pay mortgage payment and electric bill for said property. . .
Wife is willing to use ancillary benefits (if sufficient) to secure and maintain a place to live other than the [marital home].
The Agreement was submitted to the Court as an attachment to Wife's Answer to Petition for Divorce/Annulment on January 14, 2016.
On April 28, 2016, Husband filed a letter with the Court indicating that he was confused when signing the Agreement. Rather than what was contained in the Agreement, Husband stated that he told Wife that when she receives alimony she will have to find another residence. Also, Husband stated that if Wife receives "100% of what she is legally and morally entitled to from Husband," Husband will be left financially unable to pay his bills. Wife filed a response on June 2, 2016. Wife stated that she and Husband sat down together and crafted the Agreement. She said that Husband had ample time to read, discuss, and make changes to the Agreement. She alleged that Husband suggested to Wife that she continue to reside at the marital home while he continued to pay the mortgage and electric bill. Finally, Wife stated that Husband further stated to Wife that if he paid her alimony, she would have to move out and use the alimony to support herself elsewhere.
Both parties testified at the Ancillary hearing that they intended the Agreement to govern their separation until a final Court order on their ancillary matters was issued.
A final divorce decree was entered June 9, 2016. The Court held a Pre-Trial hearing on March 3, 2017. At that hearing, the parties communicated to the Court that they had reached an agreement on a number of issues and both parties submitted a Rule 52(D) Ancillary Pre-Trial Stipulation to the Court.
On March 27, 2017, Husband filed a letter with the Court detailing the issues which the parties had reached an agreement on prior to the Pre-Trial hearing, and which issues remained in dispute as discussed at the Pre-Trial hearing. Husband's letter indicated that it was sent to Wife and that if she did not agree with any of the issues listed in the letter she was directed to notify Husband by March 23, 2017. Wife did not communicate any disagreement to Husband by March 23. On March 28, 2017, Wife informed Husband that she did not agree with anything contained in the 52(D) Stipulation, which was discussed at the Pre-Trial hearing. Because of her untimely objection to Husband's letter, Husband took the position that Wife was bound to the terms of the letter to which they had previously agreed, and placed on the record, at the Pre-Trial hearing.
On April 5, 2017, the Court held a hearing on the parties' ancillary matters. Because the parties were unable to complete the presentation of evidence that day, a subsequent hearing was held on May 8, 2017. The evidence presented is discussed below.
The following matters remained in dispute and were the subject of the April 5, 2017 and May 8, 2017 Ancillary hearings:
1. Whether Husband was permanently and totally disabled.
2. Whether either party is entitled to alimony.
3. Whether Wife is entitled to Husband's Veterans' Affairs disability benefits.
4. How to handle the marital home. Specifically, any debt associated with the marital home, who shall reside in the marital home, who shall be responsible for the maintenance and upkeep of the marital home, and whether Husband is entitled to any credit for mortgage and electric payments he made since the date of separation.
5. The disposition of retirement assets. Specifically, each party's State of Delaware Pension and social security benefits.
6. How the parties' vehicles shall be valued. Specifically, whether NADA values shall be used. Wife requested that the value of the vehicles retained by each party be calculated in the overall property division.
7. Whether Husband shall maintain a $100,000 life insurance policy for the benefit of Wife.
8. Attorney's fees.
9. Court costs.
Husband indicated during the April 5 hearing that he no longer wished to litigate the issue of whether he was entitled to a credit for his payment of the electric bill at the marital home.
II. DISCUSSION
This Court has retained jurisdiction over the issues of property division, permanent alimony, attorney's fees, and court costs.
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 December 9, 1978 and divorced on June 9, 2016. Accordingly, the parties were married 37 years and 6 months.
(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;
Husband is sixty-nine years old and is currently retired. The Court received substantial evidence regarding Husband's physical and mental health.
A portion of Husband's income is obtained from the Commission of Veteran's Affairs ("VA"). Husband served in the United States Military from October 5, 1967 until May 14, 1969. As a result of his service, Husband has been diagnosed with prostate cancer, which the VA has determined was related to his exposure to Agent Orange, degenerative disk disease, and post traumatic stress disorder ("PTSD"). Therefore, Husband has received benefits from the VA since January 2011. Currently, Husband is paid $2,915.55 per month from the VA as compensation for these injuries/diseases caused by his service in the United States military. Husband's prostate cancer is currently in remission. However, the VA compensates Husband for the residual after-effects of the cancer. The VA has classified Husband as "totally and permanently disabled" and determined that Husband is 100% unemployable. If Husband were to obtain employment he would lose his VA benefits.
In addition to his VA benefits, Husband receives social security income in the amount of $949.00 per month. Husband also receives $1,372.34 per month through his State of Delaware pension. Prior to his retirement, Husband was employed at School as a janitor.
Husband is currently employed as a pastor at a church. Husband also drives a bus for church trips. He testified that he sometimes receives $100.00 per month for his services with the church.
Husband's highest level of education completed is twelfth grade. Due to the possibility that he could lose his VA benefits, Husband has no intentions of becoming gainfully employed in the future. Additionally, Husband's physical conditions and PTSD make him unable to work. As stated above, the VA has classified Husband as 100% "unemployable" due to his conditions.
Husband's total monthly income is $5,236.89. As described in further detail below, Husband's reasonable monthly expenses total $4,599.71.
Husband's total monthly income consists of $2,915.55 in VA benefits, $949.00 in social security, and $1,372.34 in pension. Though Husband sometimes receives approximately $100.00 for services he performs for the church, Husband stated that most of this income is placed back into the church. Because of the vague testimony and lack of evidence provided, the Court does not find it appropriate to include this amount in Husband's monthly income.
See infra pg. 20.
Wife is sixty-three years old and is retired. Prior to her retirement, Wife was employed with the School District as a paraprofessional for thirteen years. Before gaining employment as a paraprofessional, Wife stayed at home and was a homemaker for the first twenty-four years of the parties' marriage, aside from small part-time jobs she obtained sporadically. Currently, Wife works part-time as a substitute teacher. Wife's highest level of education is four years of college. Wife stated she has a Bachelor of Arts degree and is a certified English teacher. Wife receives $716.00 per month in the form of social security income and $444.34 per month from her State of Delaware pension. Wife receives $16.00 per month in the form of food stamp assistance.
Regarding her physical health, Wife testified that she has lumbar problems and a shoulder issue and cannot lift heavy objects. Wife is unable to walk up and down stairs without assistance and cannot bend down easily as she has issues with her knees. Wife stated that she was diagnosed with lung cancer in 2014 and has to travel to Chicago every four months for treatment. Wife also has vertigo which affects her equilibrium and balance.
Regarding her income from her substitute teaching jobs, Wife stated that she will not receive income from that job after June because school closes. Additionally, Wife is unable to calculate an average monthly income from her subbing jobs as they are not stable jobs and some days Wife is unable to accept a job due to her health conditions. Wife estimated that her substitute teaching income ranges from $48.00 per month to $200.00 per month. Wife stated she has an earnings limitation because if she begins to earn over a certain threshold she could lose her social security income.
Wife's total monthly income is approximately $1,360.34, plus $16.00 in food stamp assistance. As described in further detail below, Wife's reasonable monthly expenses total $3,607.56.
Wife's monthly income is $716.00 from Social Security plus $444.34 from her pension, plus $200.00 per month from substitute teaching. Wife testified that she can earn up to $200.00 per month substitute teaching. Thus, the Court finds it appropriate to attribute her with that amount.
See infra pg. 15.
(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;
Neither party anticipates the future acquisition of 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;
Husband testified that he acquired the marital home shortly before the parties' marriage. The home was placed in both parties' names. Neither party disputes that the home is a marital asset. Throughout the first thirty-seven years of the parties' marriage, Wife stayed at home, took care of the home, and raised the parties' children while Husband worked and paid the marital bills. Wife testified that during this time, she handled paying the bills and budgeting the parties' finances. However, she did not work, aside from small part-time jobs occasionally. Wife testified that the money she earned through her part-time jobs she used toward the smaller marital bills and she also used to purchase clothing and other necessities for the children. Wife never used any of the money she earned to pay the mortgage on the home.
An appraisal of the home was not completed. As of January 2017, the mortgage balance on the marital home was $117,413.76. Husband testified that he does not believe there is any equity in the home.
Wife testified that she does believe the home has some equity value. Wife feels the home is worth anywhere from $120,000.00-$130,000.00.
Based on both parties' testimony regarding the equity value of the home and the amount of work that has been performed, and continues to need to be performed, on the home, the Court finds Husband's testimony that there is no equity value in the home to be credible. Without additional proof to the contrary, the Court is unable to determine an equity value in the home.
Husband seeks to stay in the marital home, make improvements to the home, and continue to make the mortgage payments. It remains unclear to the Court if Wife wishes to remain in the marital home. However, Wife testified that if she remained in the home she would not be able to make the monthly payments on the home and she is currently unable to pay her bills while living in the home.
Regarding the mortgage payments on the home, Husband seeks a credit toward those payments. The Court declines to award Husband with any credit for his payment of the parties' mortgage. First, the parties have resided in the marital home since they were married over thirty-seven years ago. Since that time, the parties made a marital decision to use Husband's income to pay the mortgage payments on the home. Following the parties' separation, payment of the mortgage was governed by the Separation Agreement entered into by the parties. The Court finds that the parties' Agreement was a binding contract and thus, Husband's payment of the mortgage was his obligation under that contract.
The elements necessary to prove the existence of an enforceable contract are: (1) the intent of the parties to be bound, (2) sufficiently definite terms, and (3) consideration. The intent of the parties to be bound is evidenced by their signatures on the Agreement. Furthermore, the parties both testified that they intended for the Agreement to govern their affairs during the period of separation and pending a final order on their ancillary matters. The Court is able to conclude that the contract consists of sufficiently definite terms. Though the use of "sufficient alimony" is ambiguous, the parties described that the intention behind this phrase was that Wife would continue to reside in the home until she received enough alimony to permit her to move out and pay for her own residence. Finally, consideration is defined as "a benefit to a promisor or a detriment to a promisee pursuant to the promisor's request." Consideration exists when a promise is exchanged for another promise, action, or forbearance. In this case, consideration existed when Wife agreed to move out of the home in exchange for Husband's payments of alimony. However, because Husband did not pay interim alimony, Wife continued residing in the home while Husband paid the mortgage.
Otto v. Gore, 45 A.3d 120, 138 (Del. 2012).
Paoli v. Whispering Pines, C.A. No. 01-06-102, 2006 WL 2165690, at *2 (Ct. Com. Pl. Jul. 31, 2006).
Id.
Because Husband contracted to pay the mortgage payments on the home, the Court declines to award him any credit for those payments.
Both parties have a pension from which they are currently receiving income through their employments with the State of Delaware. Delaware Courts use the Cooper formula for determining the marital portion of a deferred compensation pension based on years of service. The formula is as follows:
The alternate payee—the non-retiree spouse—is entitled to a portion of the fraction composed of a numerator which shall be the number of months the pension plan participant was married to the non-retiree spouse while in the plan divided by a denominator which shall be the total number of months that the pension plan participant was in the plan. The resulting fraction is then multiplied by a percentage or "multiplier".
Simms v. Greene-Simms, 22 A.3d 727, 732 (Del. Fam. Ct. 2009).
The Delaware courts allow the multiplier to be flexible. However, generally a 50% multiplier is used unless there is evidence that "the employee spouse is likely to work many more years following the divorce, and where his income is likely to be much greater in those later years, the Court might find it more appropriate to reduce the multiplier to, say, 40%."
Id.
In this case, both parties have pensions. Husband's pension began prior to the parties' marriage. Wife's pension did not. Both parties agree to a 50% multiplier being used in this case and the Court finds a 50% multiplier to be appropriate.
Wife seeks a portion of Husband's VA disability benefits. Husband asserts that his VA disability benefits are not divisible marital property under 10 U.S.C. § 1408. He is correct. Though "disposable retirement pay" is a marital asset subject to division, disposable disability benefits do not classify as "disposable retired or retainer pay" subject to division under 10 U.S.C. § 1408. This Court has held that though the Court has the authority to award a percentage of a service member's military retirement benefit to their former spouse, the Court may not assign a marital interest in disposable military disability benefits. Additionally, the Court may not consider these benefits in dividing the marital estate. The Court is precluded from allowing a higher interest of marital property be awarded to the former spouse, essentially off-setting the military spouse's interest due to their receipt of disability benefits.
Geesaman v. Geesaman, No. CK92-3641, 92-7-30-DIV, 1993 WL 777094, at *4-*5 (Del. Fam. Ct. Jul. 21, 1993).
Id. at *5 (emphasis added).
Id.
Wife further seeks a portion of Husband's social security benefits. Husband claims that his social security benefits are also not divisible marital property. The Court agrees. Under 42 U.S.C. § 407, social security benefits are not "transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under [the Social Security Act] shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law." Further, the Delaware Supreme Court has held that social security benefits are not subject to division. However:
See also Short v. Armbruster, No. CN93-10814, 1994 WL 840621, at *3 (Del. Fam. Ct. Jul. 21, 1994)(holding that "social security benefits may be reached by a former spouse for alimony or child support, but not for property divison.")
Forrester v. Forrester, 953 A.2d 175, 180 (Del. 2008).
even though federal law preempts the direct division of Social Security proceeds, it does not preempt the Family Court from considering the existence and the amount of Social security benefits in the course of an equitable property division, even where that consideration might lead the Family Court to alter its division of the marital estate.
Id. at 185.
Therefore, unlike Husband's VA benefits, the Court may consider both Husband and Wife's receipt of social security benefits in determining how to equitably divide their marital estate.
Finally, Wife requests that Husband be required to obtain a life insurance policy on Wife's behalf. Because Husband does not currently have a life insurance policy listing Wife as the beneficiary, any such policy is not an existing asset and not subject to division. This issue is discussed in further detail below within the Court's alimony analysis.
(7) the value of the property set apart to each party;
The parties stipulated to a number of issues. The parties have agreed to the following:
1. Wife shall retain M&T Bank Account #
2. Wife shall retain M&T Bank Account #
3. Wife shall retain M&T Bank Account #
4. Wife shall retain M&T Bank Account #
5. Wife shall retain M&T Bank Account #
6. Husband shall retain PNC Bank Account #
7. Husband shall retain PNC Bank Account #
8. Husband shall retain Del-One FCU Bank Account #
9. Husband shall retain M&T Bank Account #
10. Husband shall retain M&T Bank Account #
11. Wife shall be responsible for M&T Auto Finance Loan, All State Car Insurance, Progressive Loan, Net Credit Loan, Avant Loan, Capital One credit card debt, and any other debt incurred in her name alone.
12. Husband shall be responsible for debt incurred in his name alone.
13. Each party shall provide and pay for his or her own health, dental and vision insurance. Each party shall be responsible for his or her own medical expenses.
14. Each party shall retain any life insurance policies currently in his or her own name.
15. Wife shall retain the parties 2010 Chrysler 300 and all debt associated with same.
16. Husband shall retain a 2013 Ford F-150, a 2002 Lincoln Towncar, a 2001 Hyundai Accent, and a 1993 Winnebago Motorhome and all debt associated with each vehicle.
17. Each party agrees that the household belongings have been divided and each party shall retain personal property currently in their possession, but Husband shall retain the shed and all contents of said shed located at , Dagsboro, Delaware .
18. Wife shall retain her business, , and all debt associated with same.
19. Husband and Wife shall dissolve , Inc. and all business bank accounts (M&T Bank Account # and # ) shall dissolve at the time the business is dissolved. All funds from said business accounts shall go to Husband's new business entity. , Inc.
Commercial loan of $48,266.98 at PNC Bank Account # shall be Husband's responsibility.
20. Husband shall be permitted to claim the mortgage interest deduction for the year 2016, which is $3,812.93.
21. Husband shall be entitled to a credit for payment of property taxes on marital home since date of separation which is $522.88.
22. Husband shall be entitled to a credit for payment of homeowner's insurance on marital home since date of separation, which is $470.00.
23. The party who resides in the marital home is responsible for the payment of the electricity bill and if Wife remains in the marital home, Wife shall put the electric bill in her name.
Though Wife initially objected to items 12 and 20-23, upon receipt of further explanation, Wife stated that she understood these stipulations and agreed.
As articulated in numbers 15 and 16, the parties have agreed to keep their vehicles. Wife requested that the Court consider the value of the vehicles in dividing the marital estate. However, the Court is unable to consider the equity value of the vehicles because the Court was not provided with any documentation as to the debt associated with any of the vehicles. Generally, the Court will use the National Automobile Dealers Association ("NADA") values of those vehicles to determine the amount of the marital estate each party will be receiving by keeping their respective vehicles. Wife stated that she did not agree to the Court using the NADA values of the vehicles. However, she provided no alternative valuations.
In determining the value of the vehicles the Court would subtract the debt associated with each vehicle from the NADA clean trade-in value of the vehicle.
This Court typically uses the clean retail value, rather than the clean trade-in value, when calculating the value of vehicles in property division proceedings. The parties are then "free to present evidence that another value would be more appropriate given the condition, mechanical fitness, collectability, or other evidence regarding the vehicle." Husband submitted documentation indicating the NADA values of the vehicles. Neither party presented evidence that the Court should use a different value rather than the clean retail value.
M.R. v. B.R., No. CN08-02462, 2012 WL 4863000, at *5 (Del. Fam. Ct. May 23, 2012).
Id.
According to the NADA values submitted by Husband, the clean retail value of Wife's 2010 Chrysler 300 is $11,950.00. The clean retail value of Husband's 2013 Ford F-150 is $17,650.00. The clean retail value of Husband's 2001 Hyundai Accent is $2,225.00. The clean retail value of Husband's 1993 Winnebago Motorhome was not provided. However, the average retail value is $4,000.00. Improper documentation regarding the 2002 Lincoln Towncar was admitted. The parties agreed that the Court would obtain the appropriate NADA value for that vehicle. Upon examination of the NADA website, depending on the model of the vehicle, the clean retail value of a Lincoln Towncar averages approximately $4,965.00.
However, again, because the Court was not provided with information regarding any of the debts associated with any of these vehicles, the Court is unable to determine the equity value of any of these vehicles. As a result, the Court declines to consider the value of these vehicles in dividing the marital estate. The parties have agreed to keep their respective vehicles and be responsible for the debts associated with them.
(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;
Both parties are retired. Husband's current monthly income is approximately $5,236.89. Wife's current monthly income is approximately $1,360.34, plus the $16.00 in food stamp assistance she receives each month. Husband currently resides at his mother's home and stated that he is able to pay his bills each month; however, at times he struggles. Husband wishes to retain the marital home and stated that he would be able to make the mortgage and utility payments there. Wife is currently residing in the marital home but is unable to comfortably pay her bills. Wife's expenses exceed her current income. Wife stated that if she remained in the marital home she would not be able to afford to pay the bills there.
(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
Though Husband initially requested a credit for the electricity payments he made while Wife resided in the home, Husband withdrew that request and indicated he did not wish to litigate that issue. However, Wife requests that Husband re-compensate her for her payment of the electric bills from the months of May 2016 until April 2017. Those bills indicate that Wife, and/or a third party agency, paid $2,403.21.
See Resp't's Ex. 4. The Court's calculation does not include any payments made for April 2017 as it is unclear from the documentation submitted if that bill was paid and how much of that bill was paid.
Through the parties' Separation Agreement, Husband contracted to be responsible for the payment of the electric bills pending a final order on the parties' ancillary matters. Husband's decision to stop paying those bills forms the basis of a breach of contract claim. Though Wife has not asserted a breach of contract action against Husband, the Court finds it equitable to hold Husband responsible to his contractual obligation in the parties' Agreement.
As described above, the parties owe approximately $117,413.76 on the mortgage of the marital home. The party who resides in the marital home shall be responsible for that debt.
No other marital debts were presented to the Court.
(11) tax consequences.
The Court did not receive evidence on this issue.
Conclusion
Based on an analysis of the factors detailed above, the Court finds it equitable to allocate the marital property as follows:
Husband shall receive title to the marital home, may reside in the marital home, and shall be responsible for the debt associated with the home, the bills incurred related to the home, and any maintenance/upkeep necessary to be performed on the home. The Court finds that the home has no equity. Therefore, Husband is not required to pay Wife any share of the value of the home. Husband is not entitled to a credit for his payment of the mortgage payments on the home as those payments were made pursuant to the parties' Separation Agreement.
The parties' pensions shall be divided pursuant to the Cooper formula with a 50% multiplier. Based on the Court's information, it appears that Wife will receive approximately $539.13 per month from Husband's pension. Further, it appears that Husband will receive approximately $222.17 from Wife's pension.
Wife shall not receive any share of Husband's VA benefits or social security income.
Husband is obligated to pay Wife $2,403.21 for her payment of the electric bills Husband contracted to pay from May 2016 until March 2017. However, Wife agreed to give Husband a credit toward the property taxes he paid during the parties' separation, totaling $522.88, and a credit toward his payment of the homeowner's insurance on the parties' home totaling $470.00. After deducting these credits, Husband shall pay Wife $1,410.33 as re-compensation for her payment of the electricity from May 2016-March 2017.
See supra pg. 10.
Furthermore, the parties shall comply with the stipulations which they have previously agreed to as articulated on pages 9-10 of this Order.
B. Alimony
A party is entitled to permanent alimony when the parties have been married for twenty or more years. In this case, Husband and Wife were married for thirty-seven years. Therefore, Wife is entitled to seek permanent alimony. Unlike temporary alimony, permanent alimony places no time limit on a recipient's eligibility. Thus, Wife could be entitled to alimony payments indefinitely, subject to the limitations in 13 Del. C. § 1512(g).
Id.
Though the parties indicated that the issue of whether either party is entitled to alimony is in contention, Husband made no argument or claim requesting alimony payments from Wife. Therefore, the Court analyzes only Wife's claim for alimony.
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:
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 does not find that Husband is currently under any contractual obligation to pay Wife alimony because the parties indicated to the Court that their Separation Agreement was created with the intent that it would govern the parties' affairs until such time as a Court order was issued. Therefore, any obligation by Husband to pay Wife alimony detailed in that Agreement is terminated following the issuance of this Order.
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 retired but sometimes works part-time as a substitute teacher. Prior to her retirement, Wife was employed with the School District as a paraprofessional for thirteen years. Wife testified that she receives $716.00 per month in the form of social security income and $444.34 per month from her State of Delaware pension. Wife receives $16.00 per month in the form of food stamp assistance. Wife is unable to calculate how much she earns each month from substitute teaching because the amount of substitute teaching she does each month varies. However, Wife stated that she may earn anywhere from $48.00-$200.00 per month. Wife's net monthly income is approximately $1,360.34. In addition, Wife receives $16.00 per month in food stamp assistance.
Wife's monthly income is $716.00 from Social Security plus $444.34 from her pension, plus $200.00 per month from substitute teaching. Wife testified that she can earn up to $200.00 per month substitute teaching. Thus, the Court finds it appropriate to attribute her with that amount.
Wife submitted an expense sheet detailing her monthly expenses. According to that sheet, Wife's monthly expenses total $2,707.89 as follows:
| Rent: | $0.00 |
| Electric: | $300.00 |
| Cable television: | $107.00 |
| Telephone: | $102.00 |
| Household items: | $45.00 |
| Groceries: | $250.00 |
| Clothing: | $0.00 |
| Health insurance: | $105.18 |
| Out-of-pocket medical and dental: | $170.00 |
| Laundry and dry cleaning: | $15.00 |
| Toys and presents: | $30.00 |
| Cosmetics and toiletries: | $25.00 |
| Hobbies: | $10.00 |
| Barber and hairdresser: | $40.00 |
| Charitable and/or religious donations: | $195.00 |
| Transportation: | $35.00 |
| Automobile payment: | $426.09 |
| Automobile repairs and maintenance: | $20.00 |
| Automobile insurance: | $155.12 |
| Automobile gasoline: | $150.00 |
| Life insurance: | $50.29 |
| Vision/glasses/exam: | $20.46 |
| Sirius xm radio: | $12.50 |
| Dental: | $35.86 |
| Net credit loan: | $187.44 |
| Avant loan: | $197.62 |
| Cancer Treatment Centers of America: | |
| John's Hopkins: | |
| Peninsula Regional: |
Wife testified that she owes Cancer Treatment Centers of America $220.00. The Court divided that number by 12 to determine what Wife's monthly expense on that bill would be over the course of one year.
Wife testified that she owed John's Hopkins $30 but that has been paid and she currently does not owe them a balance.
Wife testified that she currently owes Peninsula Regional $60.00. The Court divided this number by 12 to determine Wife's monthly payment.
After considering the evidence presented, the Court finds Wife's reasonable monthly expenses total $3,607.56 as follows:
The Court notes that Wife did not provide information regarding what she anticipates her water, sewer, gas, oil, or garbage expenses to be if she leaves the marital home and obtains a residence elsewhere. The Court will not speculate as to these potential costs. Therefore, the Court does not attribute Wife with incurring any of these expenses.
| Rent: | |
| Electric: | $300.00 |
| Cable television: | |
| Telephone: | |
| Household items: | $45.00 |
| Groceries: | |
| Clothing: | |
| Health insurance: | $105.18 |
| Out-of-pocket medical and dental: | |
| Laundry and dry cleaning: | $15.00 |
| Toys and presents: | $30.00 |
| Cosmetics and toiletries: | $25.00 |
| Hobbies: | $10.00 |
| Barber and hairdresser: | $40.00 |
| Charitable and/or religious donations: |
| Transportation: | $35.00 |
| Automobile payment: | $426.09 |
| Automobile repairs and maintenance: | |
| Automobile insurance: | $155.12 |
| Automobile gasoline: | $150.00 |
| Life insurance: | $50.29 |
| Vision/glasses/exam: | $20.46 |
| Sirius xm radio: | $12.50 |
| Dental: | $35.86 |
| Net credit loan: | $187.44 |
| Avant loan: | $197.62 |
| Cancer Treatment Centers of America: | |
| Peninsula Regional: | $0.00 |
Wife currently does not pay rent because she is still residing in the marital home. However, she anticipates her rent to be at least $1,000.00 per month.
Wife listed that her current monthly cable expense is $107.00. However, she estimates that expense to be $110.00. The Court finds $110.00 per month for cable television to be reasonable.
Wife listed her monthly telephone expense to be $102.00. However, she estimates that expense to be $82.00. The Court finds $82.00 per month for telephone to be reasonable.
Wife's grocery expense is approximately $250.00 per month. However, Wife receives $16.00 in food stamp assistance per month. Therefore, the Court finds that Wife's reasonable out-of-pocket grocery expense is $234.00, $250.00 minus $16.00.
Wife's expense sheet indicates that she currently spends $0.00 per month on clothing. However, she anticipates spending approximately $20.00 per month on clothing. The Court finds $20.00 per month for clothing to be reasonable.
Wife listed her out-of-pocket medical expenses to be $170.00 per month. However, Wife anticipates that expense to be $150.00 per month in the future. The Court finds $150.00 per month in out-of-pocket medical expenses to be reasonable.
Wife's current monthly charitable donation expense is $195.00 per month. However, she estimates that expense becoming $116.00 per month. The Court finds $116.00 to be reasonable.
Wife anticipates her monthly automobile repair and maintenance to be approximately $55.00 per month. The Court finds this to be reasonable.
Wife's bills to the Cancer Treatment Centers of America and Peninsula Regional are out-of-pocket medical care expenses. Therefore, those expenses are accounted for under Wife's out-of-pocket medical and dental expenses of $150.00 per month.
Wife shall receive approximately $539.13 from Husband's pension. Additionally, Wife shall pay approximately $222.17 to Husband from her pension income. Therefore, Wife's monthly income will be approximately $1,677.30.
Wife's monthly income is $716.00 from Social Security plus $444.34 from her pension plus $200.00 from substitute teaching plus $539.13 from Husband's pension minus $222.17 that will be deducted from her pension for Husband's benefit.
Hence, with a monthly income of $1,677.30, and reasonable monthly expenses totaling $3,607.56, Wife has a monthly deficient of $1,930.26.
(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment
Based on the testimony, Wife appears to be working to her maximum capacity given her age and health conditions. Wife stated that her health conditions limit her ability to work and limit the types of jobs she is able to perform. Wife is unable to lift heavy objects, walk up and down stairs without assistance, and cannot bend down easily. Wife stated that substitute teaching does not affect any of these issues. However, there are days where she declines to take a subbing position due to her health conditions. Additionally, Wife has an earnings limitation because if she earns more than a certain amount each month she will lose her social security benefits.
Wife stated that she accepted her previous job as a paraprofessional because she was unable to get a teaching position related to her English degree. Wife has a college degree so it is unlikely that she would need to acquire additional training if she needed to find additional employment in the future. Husband testified that Wife is struggling financially because she chose to retire early. According to Husband, Wife knew that she would need to organize her finances before she retired but she chose to retire anyway.
Given her age and physical health, the Court is satisfied that Wife is currently employed at her full potential.
(3) The standard of living established during the marriage
Neither party testified specifically as to the standard of living enjoyed during the parties' marriage. Based on the evidence that was presented, it appears that the parties enjoyed a comfortable standard of living. Wife was a homemaker and stayed at home throughout the majority of the thirty-seven year marriage, aside from working part-time jobs at times. Husband was employed throughout the marriage. Husband testified that in addition to his janitorial position at the high school he also worked one or two other jobs during the marriage. The parties were able to use the money from these additional jobs for things like vacations.
(4) The duration of the marriage
The parties were married for over thirty-seven years.
(5) The age, physical and emotional condition of both parties
Husband is sixty-nine years old. Husband was diagnosed with prostate cancer but his cancer is currently in remission. Husband suffers from degenerative disk disease of his lumbar spine and from PTSD. The VA has determined that all three of these conditions are related to Husband's service in the U.S. military from 1967-1969. The VA has classified Husband as "totally and permanently disabled."
Wife is sixty-three years old. Wife has lumbar problems and a shoulder issue and cannot lift heavy objects. Wife is unable to walk up and down stairs without assistance and cannot bend down easily as she has issues with her knees. Wife stated that she was diagnosed with lung cancer in 2014 and has to travel to Chicago every four months for treatment. Wife also has vertigo which affects her equilibrium and balance.
Wife does not agree that Husband is totally and permanently disabled and feels that Husband is able to obtain gainful employment. Wife feels that Husband is able to earn more money than he is currently earning and that the Court should attribute Husband with a higher income than he has.
Specifically, Wife has observed Husband engaged in a variety of tasks and activities which she feels evidence that Husband is not totally and permanently disabled. Wife has observed Husband play baseball, drive a coach bus for long hours, get in and out of his vehicle which requires him to step on a step first, operate a riding lawnmower, work on cars, wash the coach bus, and stand on his feet for approximately an hour and a half preaching at the church. Additionally, Husband performs work on the parties' home. Specifically, Wife testified that Husband has used a sledgehammer, dug a drain field, replaced shingles on the roof, and replaced a toilet in the home.
Husband testified that he has not played baseball in over thirty years, that he often has another driver with him when he drives the coach bus so that he does not have to drive the entire distance himself, that the step on his truck is to assist people who have physical handicaps that impede their ability to enter and exit the vehicle, that the lawnmower is a riding lawn mower and he uses a back brace when he operates it, that laying on his back to work on cars does not hurt him and actually helps his back, that he uses a power washer to wash the coach bus and waxes the floors with a mop, and that preaching at church causes no physical pain to him. Further, Husband feels that Wife mischaracterizes the work he does around the home and that she does not understand the work he is performing. Husband did assist another individual in using a sledgehammer to the parties' front porch. However, the other person performed the job. Husband did not dig a drain field; he simply dug a route to divert water until a drain field can be put in. Husband has not replaced shingles on the roof; rather, he put a tarp down to stop a sky light from leaking water. Husband's replacement of the toilet only required him to remove two bolts, take the toilet off, put another toilet in its place, and put the bolts back in.
Based on the testimony from the veterans' service officer, the Court finds that Husband is disabled as the Commission on Veterans' Affairs classifies him. Though Husband may be able to perform some tasks and is clearly not totally immobile, the medical professionals at Veterans' Affairs are satisfied that Husband's physical conditions impede his ability to obtain gainful employment. Therefore, the Court would not expect that Husband is able to work more than he does and the Court acknowledges that if Husband did obtain additional employment he may lose his current benefits. Therefore, the Court declines to attribute Husband with a greater income than he is earning.
(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party
Wife stayed at home and was a homemaker during the majority of the parties' marriage. Occasionally, Wife would obtain part-time work. When she did so, Wife stated that she would contribute some of her income toward the parties' marital expenses and also she would use her money for items for the parties' children. Wife cleaned, cooked, took care of the children, planned holidays and events for the family, budgeted the parties' money, and lowered their marital debt. After twenty-four years, the marriage became broken and Wife decided to obtain employment with the School District as a paraprofessional. According to Husband, after Wife obtained employment as a paraprofessional, she began to earn more money than him but chose to spend her money. Husband continued to pay the marital bills and obtained additional jobs, aside from his janitorial job, to ensure the bills were paid.
(7) The ability of the other party to meet his or her needs while paying alimony
Husband's current monthly income is approximately $5,236.89.
Husband's monthly income is derived from $2,915.55 in VA benefits, $949.00 in social security, and $1,372.34 in pension. Though Husband sometimes receives approximately $100.00 for services he performs for the church, Husband stated that most of this income is placed back into the church. Because of the vague testimony and lack of evidence provided, the Court does not find it appropriate to attribute Husband with earning this income.
Husband asserts that his VA disability benefits are not divisible marital property under 10 U.S.C. § 1408. Indeed, this Court has held that VA disability benefits are not subject to division and the Court may not assign a martial interest in a disposable military disability benefit. However, for the purposes of calculating alimony, Husband's VA benefits are considered income and this Court has included VA disability benefits as non-taxable income in calculating child support and alimony payments. Therefore, it is appropriate to include the $2,915.55 that Husband receives each month from the VA as non-taxable income attributable to him for purposes of calculating his ability to pay alimony.
Geesaman, WL 777094, at *5.
See V.A.O. v. L.S.O, CN11-04685, 2012 WL 5265789, at *5, *7 (Del. Fam. Ct. Jul. 25, 2012). See also K.S.B. v. F.J.B, No. CK06-02931, 2008 WL 1947871, at *6 (Del. Fam. Ct. Mar. 4, 2008)(including Husband's disability income from Veterans Affairs as income in calculating Husband's alimony payments to Wife).
Husband further claims that his social security benefits are not divisible marital property. As detailed above, Husband is correct. Pursuant to federal law, the Court is unable to award Wife any share of Husband's social security benefits. However, though 42 U.S.C. § 659 excludes "any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses," receipt of social security benefits is still income which the Court may consider in calculating Husband's ability to pay alimony.
See R.K. v. B.K., No. CN03-09085, 03-29989, 2005 WL 3514306 (Del. Fam. Ct. Aug. 24, 2005)(including Wife and Husband's social security benefits as income in alimony calculations); See also Smith v. Smith, No. 825-86, 1994 WL 814265 (Del. Fam. Ct. Feb. 24, 1994)(including both Husband and Wife's social security benefits as income in determining whether an alimony modification was appropriate).
Husband submitted an expense list with supporting documentation indicating that his monthly expenses total $4,924.71 as follows:
Additionally, the Court notes that Husband testified that his general monthly expenses fluctuate each month. Because it is unclear what Husband considers "general expenses" and general expenses are included within the detailed expenses in the expense list, the Court finds it appropriate to use the amounts included in the list to allocate Husband with a monthly expense.
| Mortgage: | $632.38 |
| Homeowner's insurance: | |
| Water: | $50.00 |
| Electric: | $250.00 |
| Gas: | $0.00 |
| Garbage: | $20.00 |
| Cable television: | $175.00 |
| Telephone: | $183.44 |
| Household maintenance: | |
| Groceries: | $400.00 |
| Clothing: | $100.00 |
| Out-of-pocket medical and dental: | $120.00 |
| Laundry and dry cleaning: | $50.00 |
| Cosmetics and toiletries: | $50.00 |
| Hobbies: | $100.00 |
| Barber and hairdresser: | $20.00 |
| Charitable and/or religious donations: | $500.00 |
| Vacation: | $0.00 |
| Entertainment/miscellaneous: | $50.00 |
| Automobile payment: | $419.86 |
| Automobile repairs/maintenance: | $75.00 |
| Automobile insurance: | |
| Automobile gasoline: | $200.00 |
| Life insurance: | $110.57 |
| Del-One signature loan : | $306.48 |
| Del-One signature loan : | $153.59 |
| Tombstone: | $100.00 |
| Visa credit card: | $50.00 |
| Daughter's debt associated with | |
| non-payment of rent | $200.00 |
Though not included in his expense sheet, Husband testified that he pays $470.00 per year in homeowner's insurance on the parties' home. $470.00 per year divided by 12 is $39.17 per month.
Husband's current household maintenance costs combine the costs for maintenance on his mother's home where he currently resides and the marital home where he continues to do repairs.
Though Husband testified that his car insurance fluctuates between $222.00-$315.00 per month, his expense sheet indicates that the insurance is $269.22 per month and that Court finds that amount to be reasonable.
After considering the evidence presented, the Court finds Husband's reasonable monthly expenses total $4,599.71 as follows:
| Mortgage: | |
| Homeowner's insurance: | $39.17 |
| Water: | $50.00 |
| Electric: | $250.00 |
| Gas: | |
| Garbage: | $20.00 |
| Cable television: | $175.00 |
| Telephone: | $183.44 |
| Household maintenance: | |
| Groceries: | $400.00 |
| Clothing: | $100.00 |
| Out-of-pocket medical and dental: | $120.00 |
| Laundry and dry cleaning: | $50.00 |
| Cosmetics and toiletries: | $50.00 |
| Hobbies: | $100.00 |
| Barber and hairdresser: | $20.00 |
| Charitable and/or religious donations: | |
| Vacation: | |
| Entertainment/miscellaneous: | $50.00 |
| Automobile payment: | $419.86 |
| Automobile repairs/maintenance: | $75.00 |
| Automobile insurance: | $269.22 |
| Automobile gasoline: | $200.00 |
| Life insurance: | $110.57 |
| Del-One signature loan 106: | $306.48 |
| Del-One signature loan 111: | $153.59 |
| Tombstone: | |
| Visa credit card: | $50.00 |
| Daughter's debt associated with | |
| non-payment of rent | $200.00 |
This amount is assuming Husband continues to reside in the marital home and make the mortgage payments as he indicated to the Court he would.
Though Husband listed that he currently has a $0.00 gas cost, his expense list indicates that he anticipates having a $75.00 per month gas cost. The Court finds this amount to be reasonable.
The Court has calculated Husband's household maintenance cost based on what he indicated he currently spends in household maintenance at the parties' marital home. This cost is assuming Husband continues to reside in the marital home and moves out of his mother's home where he currently resides.
Without supporting documentation, the Court does not find $500.00 per month in charitable donations to be a reasonable monthly expense. Therefore, the Court has modified this expense to $200.00 per month.
Husband indicated that he currently spends $0.00 per month in vacation expenses. However, he anticipates spending $100.00 per month on vacation expenses. The Court finds this to be reasonable.
Husband currently spends $100.00 per month on a tombstone payment. Husband testified that the cost of the tombstone was $300.00. Therefore, within three months that debt should be paid off. Husband did not list an estimated future expense for the tombstone.
Husband shall receive approximately $222.17 per month from Wife's pension. Additionally, Husband shall pay approximately $539.13 per month from his pension income to Wife. Therefore, Husband's monthly income will be approximately $4,919.93.
Husband's monthly income will be $2,915.55 from Veterans Affairs plus $949.00 from Social Security plus $1,372.34 from his pension plus $222.17 from Wife's pension minus $539.13 that will be paid to Wife from his pension.
Therefore, with a monthly income of $4,919.93 and reasonable monthly expenses totaling $4,599.71, Husband has a monthly surplus of $320.22.
(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
Wife was unemployed, aside from sporadic part-time jobs, for the first twenty-four years of the parties' marriage. However, the Court is unaware of any specific opportunities that Wife had to forego during this time. Wife obtained a Bachelor's Degree but has been unable to use her degree because she has been unable to find a job related to her degree.
(10) Any other factor which the Court expressly finds is just and appropriate to consider
The Court finds it necessary to analyze the impact of the parties' Separation Agreement on this Order. The Agreement indicates that Wife would remain in the parties' martial home indefinitely, or until such time as sufficient alimony payments are made. Based on the testimony of both parties, this Agreement was intended to last only the duration of the parties' separation. Following the issuance of this Order, the Separation Agreement was no longer intended to govern the parties' affairs, specifically Wife's receipt of any alimony. Pursuant to the Agreement, Husband continued to pay the monthly mortgage payments and property taxes and Wife continued to reside in the home. Additionally, Husband has continued to perform maintenance and upkeep on the home. Husband failed to continue making the monthly electricity payments and that issue is addressed above.
Wife did not file a claim for any spousal support or interim alimony pending the finalization of the parties' ancillary matters. Thus, in accordance with the Agreement Wife continued to reside in the marital home. The Court considers Husband's continued payment of the mortgage and property taxes on the home during the time Wife resided there to be a form of spousal support. This Order now provides Wife with reasonable permanent alimony to permit her to obtain alternative living arrangements.
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, Wife lacks sufficient property to provide for her reasonable needs, and Husband is not contractually or otherwise obligated to provide that support. Wife is working at her maximum capacity and maintains a deficit each month. Though Wife has received a higher level of education than Husband she has never used her degree to obtain employment and she remained essentially unemployed for the first twenty-four years of the parties' marriage. Twenty-four years after the parties were married Wife obtained employment, but given her age and physical health, eventually decided she should retire. The standard of living which Wife enjoyed for the majority of the past thirty-seven years consisted of her staying at home while Husband worked and paid the bills. The Court recognizes that Wife obtained employment twenty-four years into the marriage; however, both parties agreed that Wife never assumed responsibility of any significant marital expenses or debts. Specifically, Wife never made a mortgage payment out of the funds she earned from her paraprofessional job.
According to 13 Del. C. § 1512(d), if a party is married for twenty years or longer, there shall be no time limit as to her eligibility for alimony. Husband and Wife were married over thirty-seven years. Husband shall therefore make permanent alimony payments to Wife in the amount of $320.22 per month. This will decrease Wife's $1,930.26 deficit and leave Husband with neither a deficit nor a surplus.
Pursuant to 13 Del. C. § 1512(g), 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.
Though Wife's alimony award is terminable upon Husband's death, Wife further requests that Husband be required to obtain a life insurance policy in the amount of $100,000.00 for her benefit.
The Court declines to order Husband to obtain a life insurance policy for Wife's benefit. Under 13 Del. C. § 1513(e), the Court may "direct the continued maintenance and beneficiary designations of existing policies insuring the life of either party." However, "the Court's power under this subsection shall extend only to policies originally purchased during the marriage and owned by or within the effective control of either party." The Court interprets this statute, and its governing case law, to indicate that the Court's power to direct a former spouse to maintain a life insurance policy for the benefit of their former spouse extends only to policies already in existence during the course of the marriage. Wife has provided no legal basis indicating that the Court has the authority to order Husband to obtain a new life insurance policy with Wife as the beneficiary. The statute specifically states that the Court's power to order one spouse to hold a policy for the benefit of the other applies only to policies originally purchased during the marriage. Additionally, the Court may order a former spouse to reinstate their former spouse as the beneficiary of their life insurance when the holder of the policy had their former spouse removed from the policy following the parties' divorce. However, again, this would apply only to a policy originally purchased during the marriage.
Jerry L.C. v. Lucille H.C., 448 A.2d 223, 226 (Del. 1982). --------
In this case, the Court received information that both parties currently have existing life insurance policies. However, Husband testified that he does not have a life insurance policy with Wife listed as the beneficiary. It is unclear to the Court who each party has listed as the beneficiary of their life insurance policies or whether they ever had each other listed as the beneficiary of their respective policies at any point during their marriage. Without additional evidence that Wife was ever listed as the beneficiary of Husband's policy, the Court declines to order that Husband reinstate Wife as the beneficiary of his policy. Additionally, the Court declines to order Husband obtain a new policy with Wife as the beneficiary.
C. Attorney's Fees
Husband argues that attorney's fees are appropriate in this case. Husband did not provide legal argument for this request. However, in his Rule 52(D) Ancillary Pretrial Stipulation, Husband states that he is requesting attorney's fees arising from Wife's request for alimony and inability to provide accurate income proving that she is a dependent party. Wife testified as to her income at the ancillary hearing and the Court has determined that Wife is a dependent party entitled to permanent alimony. However, Husband's counsel may submit an application and affidavit indicating a more detailed basis pursuant to 13 Del. C. § 1515 and/or Rule 88 of the Family Court Rules of Civil Procedure for Husband's request for attorney's fees.
D. Court Costs
Husband asserted that both parties be responsible for their own court costs. Wife did not take a position as to court costs at the ancillary hearing. However, in her Rule 52(D) Ancillary Pretrial Stipulation filed March 29, 2017, Wife requested that Husband pay court costs for the "divorce that he filed and wanted." Also, Wife requested that she be repaid $255.00 for "property division, permanent alimony, and separation agreement. Documentation included." The Court is unclear as to what filings this refers to and no documentation is attached to Wife's Rule 52(D) supporting a $255.00 cost. Additionally, the Court finds no evidence that either party has been overly litigious or taken unreasonable positions. Therefore, the Court orders the parties be responsible for their own court costs.
III. CONCLUSION
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 $320.22 per month in permanent alimony. Wife's request that Husband obtain a life insurance policy for Wife's benefit is DENIED.
Upon review of the factors of 13 Del. C. § 1513, the Court ORDERS the following: (1) The parties shall comply with the stipulations which they have indicated agreement upon articulated on pages 9-10 of this Order; (2) Husband shall receive title to the marital home and shall be solely responsible for the debt associated with the home, any bills incurred related to the home, and any maintenance/upkeep required to be performed on the home; (3) the parties' State of Delaware pensions shall be divided pursuant to the Cooper formula with a 50% multiplier; (4) Husband shall be responsible for preparing the necessary documentation to transfer the marital home into his name and be responsible for preparing the necessary documentation to give effect to the division of the parties' pensions; (5) Husband shall pay Wife $1,410.33 for her payment of the electricity bills which Husband contracted to pay in the parties' Separation Agreement for the months of May 2016-March 2017, within 120 days from the date of this Order; (6) Husband's attorney, Melissa Lofland, Esq. may submit an application and affidavit in support of, and detailing the basis for, an award of attorney's fees within 20 days from the date of this Order; (7) Wife shall file a response within 20 days of the receipt of Ms. Lofland's application/affidavit; (8) both parties shall be responsible for their own court costs; and (9) both parties shall act in good faith regarding the preparation, exchange, and execution of any documents needed to give effect to the terms of this Order.
IT IS SO ORDERED this 12th day of July 2017.
/s/_________
PETER B. JONES, JUDGE PBJ cc: