39 A.3d 812 (Del.Fam.Ct. 2010), CS08-02347, Winder v. Kleinfeld

Docket Nº:File CS08-02347.
Citation:39 A.3d 812
Opinion Judge:HENRIKSEN, J.
Party Name:In re the Matter of Janice WINDER, Petitioner, v. Carl KLEINFELD, Respondent.
Attorney:Ancillary Decision and Order— Property Division, Alimony, Costs, and Attorney's Fees.Ashley Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Janice Winder. Manaen Robinson, Esquire, Law of Office of Kim DeBonte, Georgetown, DE, Attorney for Carl Kleinfeld.
Case Date:January 13, 2010
Court:Family Court of Delaware

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39 A.3d 812 (Del.Fam.Ct. 2010)

In re the Matter of Janice WINDER, Petitioner,


Carl KLEINFELD, Respondent.

File No. CS08-02347.

Family Court of Delaware, Sussex.

January 13, 2010

Submitted: Aug. 12, 2009.

Ancillary Decision and Order— Property Division, Alimony, Costs, and Attorney's Fees.Ashley Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for Janice Winder.

Manaen Robinson, Esquire, Law of Office of Kim DeBonte, Georgetown, DE, Attorney for Carl Kleinfeld.



On August 12, 2009, the Court held a hearing to consider the remaining matters ancillary to the above-named parties' divorce, namely property division, alimony, attorney's fees and costs.1 A prior Order of this Court issued April 07, 2009, ordered Husband to pay interim alimony in the amount of $1,100.00 per month. In coming to its decision, the Court heard the testimony of both of the parties. The parties submitted post-trial memorandums setting forth their proposed findings of fact and order, together with supplementary exhibits concerning expenses and credit card bills.


In a proceeding for divorce, the Court is directed to equitably divide, distribute, and assign the marital property between the parties without regard to marital misconduct in such proportions as the Court

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deems just after considering all relevant factors, including those factors specifically set forth in 13 Delaware Code Section 1513.

The length of the marriage:

The parties were married September 29, 1974, separated June 01, 2006, but with an actual physical separation from the home in April 2008, and were divorced on October 23, 2008, thereby concluding a lengthy marriage of 34 years and 3 weeks.

Any prior marriage of the party:

Both parties were previously married, and both prior marriages ended in divorce. Husband had no children by his prior marriage. Wife had a son by her prior marriage, who is now 40 years of age. By the Court's calculations, the son lived as a minor with the couple during their marriage from about age 5. Wife received no support from the son's natural father during the roughly 13 years of the child's minority from age 5 to age 18. Husband will therefore receive 5 percentage points in the Court's overall distribution of property based upon his providing support for Mother's son not supported by the biological father.

The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties:

Wife is 68 years old, having been born February 18, 1941. She is presently unemployed, has seldom been employed during the marriage, and the Court certainly would not expect her to be employed at this time given her age and multiple medical conditions. Wife suffered a double mastectomy during the marriage. She has bleeding ulcers, irritable bowel syndrome, cervical spondoliosis, Epsteins Bar, and rheumatoid arthritis. Wife has minimal if any vocational skills, noting that she does not know how to operate a computer or even a cell phone. Wife has a Master of Arts in the area of art history and art criticism. However, she has not utilized this degree since she received it in 1964. Wife's sole income is from dividends of approximately $2,000.00 to $2,500.00 per year from stocks she inherited from her father. As of December 31, 2008, those stocks had a value of $97,592.00. Wife also has an IRA Account which, pursuant to the agreement of the parties, was initiated during the marriage in May 2007. The parties agreed that Wife could take $200.00 from the parties' joint bank account and apply it to Wife's separate IRA each month. The record indicates that Wife placed considerably more money than the $200.00 per month in the account. By the parties' agreement, $2,400.00 of that amount (12 months x $200.00 per month) would be Wife's sole property. At one time the account had a balance of approximately $8,865.95. Wife, however, has used $2,200.00 of that amount, withdrawn in separate withdrawals of $1,000.00 and $1,200.00 for her living expenses, repairs she agreed to make for her son's home which Wife rents, and in part for Wife to be able to pay her son $300.00 per month rent.

Husband is 64 years old, having been born December 07, 1944. He makes between $80,000.00 and $83,000.00 per year. However, in order to make that income, Husband has for the past many years worked 80 hours per week. He makes approximately half his income working at Christiana Care, and he makes the other half of his income working for the State of Delaware. Husband is a social worker with a Master's Degree in community counseling. Husband is in good health, except having recently been diagnosed with some skin cancer. It is critical in this case to note that Husband would like to

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retire at age 65. There were times during the marriage he told Wife that he would like to work until 70. The Court does not find it unusual that as Husband approaches his possible retirement age of 65, he is giving greater consideration to retiring at age 65, or at least cutting back his hours. Husband's employment at Christiana Care has existed over the past 10 years. Husband's only other major asset, which is a marital asset, is his 401k Associated Pension Plan with Christiana Care. The December 31, 2008 statement for Husband's plan shows a balance of $25,094.48.

Husband will also qualify for a State of Delaware pension. Wife's share in Husband's pension will be recognized pursuant to a Qualified Domestic Relations Order, Allocation Order, or similar type of Order paying Wife her share if, as, and when Husband receives his share using a Cooper Formula with a 50% multiplier.2

Given the considerable difference in the parties' present income abilities, along with Husband's excellent health condition as compared to Wife's terrible health condition, it would not be unusual for the Court in many cases to consider balancing this disparity by awarding wife 30 percentage points in the overall distribution of assets.

Wife provided case law to the Court in support of her position for such a 70/30% property division split. Wife argues I.H. v. G.H., a case in which both parties were in good health, and the husband earned ten times the wife's income, the Court awarded a 70/30% property division split.3 Wife notes In re the Marriage of S.L.S, a case in which the husband earned ten times Wife's income and the husband was in good health and the wife was in poor health, the Court awarded a 70/30% property division split.4 Wife also points out R.H. v. A.R.H., a case in which the husband, who was in good health, had an earning capacity almost 9 times as much as the wife, who was in poor health, the Court awarded a 70/30% property division split.5 Finally, Wife cites F.W. v. D.W., a case in which the husband had a higher earning capacity than Wife and the husband was in good health and the wife was in poor health, and the Court awarded a 70/30% property division split. 6

The Court has reviewed these cases and finds the instant case to be distinguishable. In the current case, Husband is 64 years old and nearing retirement age. In the cases Wife cites, the ages of the husbands are 44 years old,7 50 years old,8 59 years old,9 and 51 years old 10 respectively. Husband in the case sub judice does not have the same future earning capacity length of time as the individuals in the cases cited by Wife. The case where Husband was 59 years old is also distinguishable because the Court gave considerable weight to the

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" significant contributions" of Wife.11

In this case the Court cannot ignore the advanced age of both parties and the reasonable expectation that Husband should not be required to work 2 jobs for a total of 80 hours per week until he is 70. Wife's poor health limits, if not prevents, any options to her. Husband's good health at least gives him a choice of working and making more money or not. Given all of these factors, the Court is not inclined to award Wife 30 percentage points. However, the Court finds it equitable to award Wife 20 percentage points in the overall distribution of assets.

Whether the property award is in lieu of or in addition to alimony:

The award will be in addition to alimony.

The opportunity of each for future acquisitions of capital assets and income:

Wife has non-marital property consisting of stocks. As previously mentioned, these stocks had a value as of December 31, 2008, of $97,592.00. If need be, Wife can invade this asset to help provide for her necessary needs, although Wife indicated a desire to not invade these assets because she would like to keep them for her son and/or her grandson's college education. Husband has no such asset upon which he can draw upon or invest other than his 401 retirement plan already accounted for in the division of marital assets with a balance of $25,094.48. Between these two parties, the only party with any appreciable savings, except for what the parties will receive upon the sale of their marital real estate, is Wife with her stocks. Again, Husband has the good fortune of having good health. With that good health, Husband can continue to work and build upon his savings, while Wife has no such opportunity to build upon her account. Considering these trade-offs, the Court is not inclined to favor either party with additional percentage points.

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:

Although Wife would argue that Husband has dissipated assets over the period of...

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