v. B G

JANELL S. OSTROSKI, Judge

Nature of Proceeding
Alimony
Date Mailed/emailed: 4/17/18 Petitioner Attorney
Self-represented
Respondent Attorney
Self-represented
ORDER- ALIMONY

Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the ancillary matter of alimony incident to the separation and divorce of A----- G----- (herein "Wife"), self-represented, and B---- G----- (herein "Husband"), self-represented. The Court held a hearing on March 8, 2018, and heard testimony from the parties.

PROCEDURAL HISTORY

Husband and Wife were married on December 17, 1994. On February 16, 2017, Wife filed a Petition for Divorce and requested that ancillary jurisdiction be retained for property division, alimony, and court costs. Husband filed an Answer to the Petition and requested that ancillary jurisdiction be retained for counsel fees. The parties were divorced on August 9, 2017. On January 8, 2018, the Court scheduled a Case Management Conference (herein "CMC") to address the ancillary matters. Wife failed to appear for the CMC and based upon Wife's failure to appear and the information the Court learned from Husband, the Court dismissed the parties' ancillary matters. On February 6, 2018, Wife filed a Motion to Reopen Alimony. The Court granted the Motion to Reopen and scheduled an alimony hearing.

LEGAL STANDARD

Pursuant to 13 Del. C. § 1512, the Court may award alimony to a dependent party. In order to be awarded alimony, Wife must prove that she is dependent upon Husband for support. The Court must also find that Wife lacks sufficient property to provide for her reasonable needs and that Wife is unable to support herself through appropriate employment.

13 Del. C. § 1512 states in pertinent part:

(a) The Court may award interim alimony to a dependent party during the pendency of an action for divorce or annulment.
(b) A party may be awarded alimony only if he or she is a dependent party after consideration of all relevant factors contained in subsection (c) of this section in that 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;
(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.

(c) The alimony order shall be in such amount and for such time as the Court deems just, without regard to marital misconduct, after consideration of all relevant factors, including, but not limited to:

(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;
(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;
(3) The standard of living established during the marriage;
(4) The duration of the marriage;
(5) The age. physical and emotional condition of both parties;
(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;
(7) The ability of the other party to meet his or her needs while paying alimony;
(8) Tax consequences;
(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and
(10) Any other factor which the Court expressly finds is just and appropriate to consider.

13 Del. C. § 1512(e) provides: Any person awarded alimony has a continuing affirmative obligation to make good faith efforts to seek appropriate vocational training, if necessary, and employment unless the Court specifically finds, after a hearing, that it would be inequitable to require a person awarded alimony to do so:

(1) At any time, due to

a. A severe and incapacitating mental or physical illness or disability or
b. His or her age, or

(2) Immediately, after consideration of the needs of a minor child or children living with him or her.

DISCUSSION OF § 1512 FACTORS
(I) 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;

The ancillary issue of property division was dismissed when Wife failed to appear for the hearing. Husband reported to the Court at that time that the marital residence was foreclosed upon, there were no assets to divide, and he would accept responsibility for the debts.

(a) Wife's Income

Wife is employed as a waitress at A Pizza History. She works Monday through Friday from 9:00 a.m. until 1:00 p.m. Wife indicated that she earns $4.50/hr. and is working only 20 hours per week. She also receives around $30/week in tips. Wife explained that she cannot work more during the week as the parties have an adult son who is mentally handicapped and cannot be left alone. The parties have agreed that Wife will care for their son from the time he gets out of school at 2:00 p.m. until 5:30 p.m. when Husband picks him up from Wife's home. The parties alternate caring for him every other weekend.

One of the factors that the Court uses to determine if alimony is appropriate is whether or not the party seeking alimony "[i]s 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." "The burden is on the spouse seeking alimony to prove dependency and an inability to gain support through appropriate employment."

13 Del. C. § 1512(b)(3).

Gregg, 510 A.2d at 483.

The parties agree that their son needs full time care. Therefore, the Court understands that Wife is unable to work during the time she has their son. However, Wife could be working evenings after her son leaves her home and on the weekends when she does not have him. Wife provided no reasonable explanation as to why she is not working more than 9:00 a.m. through 1:00 p.m. Monday through Friday. As such, the Court will attribute her with full-time income of $18,283/year based on the entry level rate of a waitress according to the Delaware Wage Survey.

The Court calculated Wife's income based upon the 2016 Delaware Wage Survey line 35-9021. An entry level waitress in New Castle County can expect to earn $8.79/hr. Therefore, the Court calculated Wife's annual income as $8.79/hr multiplied by 40hrs/week multiplied by 52 weeks/year.

(b) Wife's Expenses

Wife contends that she is unable to meet her monthly expenses. Wife alleges that her reasonable monthly expenses are as follows:

Mortgage (including Tax,Insurance, Escrow)

Water

Sewer

Electric

Gas

Oil

Garbage

Cable Television

Telephone

Household Items

Household Maintenanceand Repairs

Groceries

Clothing

Health Insurance (COBRA)

Out-of-pocket medical anddental expenses for self

Medical and dentalexpenses for children

Work-related child care

School tuition for childrenof parties

EXPENSE	ALLEGEDEXPENSE	ALLOWEDEXPENSE	FINDINGS
Rent	$750	$750
		$0	$0
		$0	$0
		$0	$0
		$50	$50
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$50	$50
		$60	$60
		$0	$0
		$450	$450
		$130	$130
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0

School tuition for otherchildren

Laundry and dry cleaning

Toys and presents

Cosmetics and toiletries

Hobbies

Barber and Hairdresser

Newspaper, magazinesubscriptions

Charitable and/or religiousdonations

Vacation

Entertainment andmiscellaneous

Transportation (other thanauto)

Automobile payment

Automobile repairs andmaintenance

Automobile insurance

Automobile gasoline

Life Insurance

TOTAL

		$0	$0
		$0	$0
		$0	$0
		$60	$60
		$20	$20
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$150	$150
		$0	$0
		$207	$207
		$130	$130
		$0	$0
		$2,057.00	$2,057.00

Husband objects to Wife's expenses as he believes she does not actually incur the expenses. Husband believes Wife is living for free at her brother's home. Wife asserts that these are her expenses in her brother's home but that her brother has been paying her expenses until the alimony issue is resolved. Husband conceded that if a person did have the above listed expenses, he would consider them to be "reasonable". The Court finds Wife's explanation that she is being support by her brother on a temporary basis to be credible. The Court further finds that Wife's reasonable monthly expenses total $2,057. Pursuant to the alimony calculation (or "FinPlan") attached as Exhibit "A", after consideration of the income the Court attributed Wife and her reasonable monthly expenses, Wife has a monthly deficit of $749/month. Thus, Wife lacks sufficient resources to provide for her reasonable needs and is dependent on Husband for support.

See Cash Over/Under Budget, line 33.

(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

Wife is working as a waitress Monday through Friday from 9:00 a.m. until 1:00 p.m. Wife is capable of working more hours, but is not. She provided the Court with no reasonable explanation of why she cannot work when she does not have the parties' son in her care.

(3) The standard of living established during the marriage;

The Court has no evidence of this factor.

(4) The duration of the marriage;

Husband and Wife were married on December 17, 1994, and divorced on August 9, 2017. As the parties were married for twenty-two (22) years, if dependent, there is no time limit to Wife's eligibility for alimony.

13 Del. C. § 1512(d) provides: A person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility; however, the factors contained in subsection (c) of this section shall apply and shall be considered by the Court.

(5) The age , physical and emotional condition of both parties;

Wife is thirty-eight (38) years old and Husband is forty-six (46) years old. Neither party presented evidence of their health. The Court will assume that both parties are in good health.

(6) Any financial or other contribution made by either party to the education , training , vocational skills , career or earning capacity of the other party;

Neither party presented evidence of this factor.

(7) The ability of the other party to meet his or her needs while paying alimony;

Husband is currently employed by Puz's Body Shop. According to his 2017 W-2 form, Husband had a gross annual income of $48,801.76. Wife did not dispute Husband's income. The parties' adult daughter, her boyfriend, their child, and the parties' mentally handicapped son all reside with Husband. Husband admits that their daughter and her boyfriend are working adults but do not contribute to the monthly expenses of the household with the exception of buying some groceries for themselves. Pursuant to 13 Del. C. § 505, the duty to support one's spouse has higher priority over anyone, with the exception of one's minor child. Therefore, Husband has a greater duty to support Wife than to support his adult daughter. He has no obligation to support his daughter's boyfriend or their child. Furthermore, there is well settled case law that in similar cases the Court reduces expenses of or attributes income to the household of the party who has adult members living with him or her. The Court will take this issue into consideration in its analysis herein.

See Respondent's Exhibit 2.

See e.g., N. v. N., Del.Fam. Ct., No. CN01-06726, Kuhn, J. (Dec. 20, 2001) (attributing self-support allowance to petitioner's income as petitioner's two adult children resided with petitioner); In re J.C.B., 2001 WL 1671030 (Del.Fam.Ct.) (imputing one-half self support allowance for each adult child living with alimony recipient); In re Marriage of Joslin, 1999 WL 1457216 (Del.Fam.Ct.) (adding partial self-support allowance to petitioner's income as parties' adult child lived with petitioner and adult child should contribute to household expenses); In re Marriage of DeLuca, 1998 WL 668017 (Del.Fam.Ct.) (attributing self-support allowance to petitioner's income as parties' adult son lived with petitioner). E.J.D. v. L.M.D., No. CN97-09762, 2002 WL 31450942, at *1 (Del. Fam. Ct. May 30, 2002).

Husband asserts that he incurs the following monthly expenses:

Mortgage (including Tax.Insurance, Escrow)

Water

Sewer

Electric

Gas

Oil

Garbage

Cable Television

Telephone

Household Items

Household Maintenanceand Repairs

Groceries

Health Insurance (COBRA)

Out-of-pocket medical anddental expenses for self

Medical and dentalexpenses for children

Work-related child care

School tuition for childrenof parties

School tuition for otherchildren

Laundry and dry cleaning

Toys and presents

Cosmetics and toiletries

Hobbies

Barber and Hairdresser

Newspaper, magazinesubscriptions

Charitable and/or religiousdonations

EXPENSE	ALLEGEDEXPENSE	ALLOWEDEXPENSE	FINDINGS
Rent	$1,455	$1,455
		$0	$0
		$0	$0
		$0	$0
		$200	$200
		$0	$0
		$0	$0
		$0	$0
		$142	$142
		$100	$100
		$0	$0
		$0	$0
		$400	$400	Husband testified that thisexpense includes everyone in thehome. But asserted that the two(2) other adults in the home buygroceries as well. Husband didnot provide the Court with anamount that they spend.
Clothing	$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$0	$0
		$50	$50
		$0	$0
		$0	$0
		$0	$0
		$0	$0

Vacation

Entertainment andmiscellaneous

Automobile payment

Automobile repairs andmaintenance

Automobile insurance

Automobile gasoline

Life Insurance

TOTAL

		$0	$0
		$200	$200	Husband testified that this amountis for the tools he must buy for hisjob and this amount is notreimbursed by his employer.Wife did not dispute this amount.
Transportation (other thanauto)	$0	$0
		$428	$428
		$0	$0
		$132	$132
		$80	$80
		$0	$0
		$3,187.00	$3,187.00

The Court finds that Husband's reasonable monthly expenses total $3,187. Pursuant to the alimony calculation attached as Exhibit "A," after consideration of Husband's income and reasonable monthly expenses, Husband has a deficit of $45/month before considering additional income of the adult members of his household or reducing his expenses to account for the adult members of his household.

See Cash Over/Under Budget, line 33.

(8) Tax consequences;

If awarded, alimony will be taxable income to Wife and tax deductible by Husband.

(9) Whether either party has foregone or postponed economic , education or other employment opportunities during the course of the marriage; and

Neither party presented evidence of this factor.

(10) Any other factor which the Court expressly finds is just and appropriate to consider.

The Court was not provided any other relevant information.

CONCLUSION

As demonstrated by the FinPlan attached hereto as Exhibit "A", Wife has a deficit of $749/month which indicates that her reasonable monthly expenses exceed the amount of monthly income the Court attributed to her. As such, she is dependent upon Husband for alimony as defined in 13 Del. C. § 1512(b). Said FinPlan does not consider income or expenses of the adult members of Husband's household. As Husband has a no duty to support his adult daughter, her boyfriend, and their child and he does have a duty to support his ex-wife of more than twenty (20) years, the Court finds it appropriate to attribute Husband with income of $749. Said an amount is equivalent to Wife's need and a reasonable amount to expect two (2) adults in Father's household to contribute toward Father's expenses. The FinPlan attached hereto as Exhibit "B" includes said amount as income to Husband and the same amount as alimony income to Wife and indicates Wife would then have a deficit of $143 and Husband would have a surplus of $112. The alimony will be taxable to Wife and deductible to Husband. After considering the tax consequences of alimony, the FinPlan attached hereto as Exhibit "C" shows each party having a similar deficit when Husband pays Wife $910/month in alimony.

Id.

13 Del. C. § 1512(b) provides: A party may be awarded alimony only if he or she is a dependent party after consideration of all relevant factors contained in subsection (c) of this section in that 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;
(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.

--------

WHEREFORE
, Wife's request for Alimony is GRANTED. Beginning May 1, 2018, Husband shall pay Wife $910/month in alimony. Pursuant to 13 Del. C. § 1512, this award shall terminate upon the death of either party or upon Wife's remarriage or cohabitation. Either party may seek modification of this award upon a showing of real and substantial change of circumstances pursuant to 13 Del. C. § 1519.

IT IS SO ORDERED this 17^th day of April , 2018.

/s/ _________

JANELL S. OSTROSKI
, Judge cc: Parties, File

Exhibit A AFTER-TAX CASH & SUPPORT (Annual Amounts)

B

1 Salary

2 Self-Employment Income

3 Social Security Income

4 Interest and Dividends

5 Other Taxable Income

6 Misc Taxed CS Income

7 Tax Exempt Interest

8 Other Nontaxable Cash

9 Cash Perks

10 Other Deductions from Gross

11 Support Previous Marriage

12 Alimony-Current Divorce

13 Non-Tax Maintenance (cur div)

14 Gross Cash for Support

15 Payor's % 72.75%

LESS: CASH FLOW DEDUCTIONS

16 Federal Income Tax

17 State Income Tax

18 Soc Sec/Self-Employment Tax

19 Local Income Tax

20 Cash Deduction

21 Mandatory Pension

22 Other Net Deductions

23 Total Deductions

24 Cash Before Support

PER MONTH

28 Other Cash Item (Addition)

29 Voluntary Pension

30 Cash to Meet Living Expenses

31 Monthly Cash

32 Required Cash - Budget

33 Cash Over/Under Budget

34 % Share Cash

35 Filing Status

36 Children Age 17 & Over

37 Children Under Age 17

38 Value Child Dep Exemption

39 Value Under 17 Child Credit

40 Value of Both

41 Children Residing With

42 Marginal Federal + State Tax %

43 Tax Impact-Alimony

Last Name: G	2017
		A	Total
		48,801	18,283
		0	0
		0	0
		0	0
		0	0
		0	0
		0	0
		0	0
		0	0
		0	0
		0	0	PER MONTH
		0	0	0
		0	0	0
		48,801	18,283	67,084
		5,339	788
		2,032	393
		3,734	1,399
		0	0
		0	0
		0	0
		0	0
		11,105	2,580
		37,696	15,703	53,399	Spt as % of
25 Payor's % 70.59%			Net Cash Both
26 Child Support	0	0	0	0%
27 Cash After Support	37,696	15,703
		0	0
		0	0
		37,696	15,703	53,399
		3,142	1,308	4,450
		3,187	2,057	5,244
		(45)	(749)	(794)
		70.6%	29.4%	100%
		Single	Single
		0	0
		0	0
		0	0	0
		0	0	0
		0	0	0
		0	0
		30.6%	14.8%
		0	0	0

April 17, 2018 08:37 AM
© 2017 Thomson Reuters. All rights reserved.

Exhibit B AFTER-TAX CASH & SUPPORT (Annual Amounts)

B

1 Salary

2 Self-Employment Income

3 Social Security Income

4 Interest and Dividends

5 Other Taxable Income

6 Misc Taxed CS Income

7 Tax Exempt Interest

8 Other Nontaxable Cash

9 Cash Perks

10 Other Deductions from Gross

11 Support Previous Marriage

12 Alimony-Current Divorce

13 Non-Tax Maintenance (cur div)

14 Gross Cash for Support

15 Payor's % 64.15%

LESS: CASH FLOW DEDUCTIONS

16 Federal Income Tax

17 State Income Tax

18 Soc Sec/Self-Employment Tax

19 Local Income Tax

20 Cash Deduction

21 Mandatory Pension

22 Other Net Deductions

23 Total Deductions

24 Cash Before Support

0

28 Other Cash Item (Addition)

29 Voluntary Pension

30 Cash to Meet Living Expenses

31 Monthly Cash

32 Required Cash - Budget

33 Cash Over/Under Budget

34 % Share Cash

35 Filing Status

36 Children Age 17 & Over

37 Children Under Age 17

38 Value Child Dep Exemption

39 Value Under 17 Child Credit

40 Value of Both

41 Children Residing With

42 Marginal Federal + State Tax %

43 Tax Impact-Alimony

Last Name: G	2017
		A	Total
		48,801	18,283
		0	0
		0	0
		0	0
		0	0
		0	0
		0	0
		8,988	0
		0	0
		0	0
		0	0	PER MONTH
		(8,988)	8,988	749
		0	0	0
		48,801	27,271	76,072
		3,946	2,064
		1,533	840
		3,734	1,399
		0	0
		0	0
		0	0
		0	0
		9,213	4,303
		39,588	22,968	62,556	Spt as % of
25 Payor's % 63.28%			PER MONTH	Net Cash Both
26 Child Support	0	0	0	0%
27 Cash After Support	39,588	22,968
		0	0
		0	0
		39,588	22,968	62,556
		3,299	1,914	5,213
		3,187	2,057	5,244
		112	(143)	(31)
		63.3%	36.7%	100%
		Single	Single
		0	0
		0	0
		0	0	0
		0	0	0
		0	0	0
		0	0
		20.6%	20.2%
		1,892	(1,723)	169

April 17, 2018 08:46 AM
© 2017 Thomson Reuters. All rights reserved.

Exhibit C AFTER-TAX CASH & SUPPORT (Annual Amounts)

Last Name: G 2017 B A Total 1 Salary 48,801 18,283 2 Self-Employment Income 0 0 3 Social Security Income 0 0 4 Interest and Dividends 0 0 5 Other Taxable Income 0 0 6 Misc Taxed CS Income 0 0 7 Tax Exempt Interest 0 0 8 Other Nontaxable Cash 8,988 0 9 Cash Perks 0 0 10 Other Deductions from Gross 0 0 11 Support Previous Marriage 0 0 PER MONTH 12 Alimony-Current Divorce (10,925) 10,925 910 13 Non-Tax Maintenance (cur div) 0 0 0 14 Gross Cash for Support 46,864 29,208 76,072 15 Payor's % 61.60% LESS: CASH FLOW DEDUCTIONS 16 Federal Income Tax 3,655 2,355 17 State Income Tax 1,425 944 18 Soc Sec/Self-Employment Tax 3,734 1,399 19 Local Income Tax 0 0 20 Cash Deduction 0 0 21 Mandatory Pension 0 0 22 Other Net Deductions 0 0 23 Total Deductions 8,814 4,698 24 Cash Before Support 33,050 24,510 62,560 Spt as % of 25 Payor's % 60.82% PER MONTH Net Cash Both 26 Child Support 0 0 0 0% 27 Cash After Support 38,050 24,510 28 Other Cash Item (Addition) 0 0 29 Voluntary Pension 0 0 30 Cash to Meet Living Expenses 38,050 24,510 62,560 31 Monthly Cash 3,171 2,042 5,213 32 Required Cash - Budget 3,187 2,057 5,244 33 Cash Over/Under Budget (16) (15) (31) 34 % Share Cash 60.8% 39.2% 100% 35 Filing Status Single Single 36 Children Age 17 & Over 0 0 37 Children Under Age 17 0 0 38 Value Child Dep Exemption 0 0 0 39 Value Under 17 Child Credit 0 0 0 40 Value of Both 0 0 0 41 Children Residing With 0 0 42 Marginal Federal + State Tax % 20.6% 20.6% 43 Tax Impact-Alimony 2,291 (2,118) 173 April 17, 2018 08:55 AM © 2017 Thomson Reuters. All rights reserved.