68 A.3d 265 (Del.Fam.Ct. 2013), CS09-02606, A.C. v. E.C.

Docket Nº:File CS09-02606.
Citation:68 A.3d 265
Opinion Judge:JONES, Judge.
Party Name:In re the Matter of A.C.[1], Petitioner, v. E.C., Respondent.
Attorney:A.C., Newark, Delaware, pro se. E.C., Millsboro, Delaware, pro se.
Case Date:February 21, 2013
Court:Family Court of Delaware

Page 265

68 A.3d 265 (Del.Fam.Ct. 2013)

In re the Matter of A.C. 1 , Petitioner,


E.C., Respondent.

File No. CS09-02606.

Family Court of Delaware, Sussex County

February 21, 2013

Submitted: Jan. 8, 2013.

Page 266

A.C., Newark, Delaware, pro se.

E.C., Millsboro, Delaware, pro se.


JONES, Judge.


Pending before the Court is a Petition for Modification of Alimony filed by A.C. (" husband" ) through his guardian ad litem (" GAL" ) on June 1, 2012 pursuant to Title 13, Section 1519(a)(4) of the Delaware Code. Husband argues that a real and substantial change in circumstances exists to allow the Court to terminate husband's Court-ordered monthly alimony obligation to E.C. (" wife" ).


Husband and wife were divorced by final decree of this Court on February 3, 2010, and this Court retained jurisdiction over the ancillary matters of alimony, court costs, and counsel fees. Due to husband's failing health, the Court appointed husband's daughter as GAL for husband on July 8, 2010. Pursuant to a Court Order dated December 13, 2010, husband was ordered by this Court to pay wife alimony in the amount of $340 per month.

In November 2011, husband was admitted to the long-term care facility Millcroft in Newark, Delaware, and was approved for Medicaid under the Medicaid long-term care (" LTC" ) program to fund his residence in this facility. However, husband must pay a certain amount, as determined by the Delaware Division of Social Services (" DSS" ), each month to Millcroft for his residence there. As of February 1, 2012, husband's patient-pay liability as determined by DSS was $2,956.96 per month. DSS arrived at this amount by taking husband's monthly pension and Social Security Income of $3,018.46 per month, and deducting a protected income deduction in the amount of $17.50 per month for husband's medical insurance and a personal needs deduction of $44.00 per month. 2

Husband, through his GAL, requested a fair hearing of DSS' determination of husband's patient-pay liability. Husband

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argued that his Court-ordered monthly alimony payments should have been deducted from husband's available income that DSS used to calculate husband's patient-pay liability. DSS issued its fair-hearing decision on April 14, 2012, and affirmed its inclusion of husband's Court-ordered alimony payments in husband's available income for the purposes of determining husband's patient-pay liability. In support of its determination, DSS explained that Delaware's Medicaid LTC program does not allow for a deduction from available income of an alimony obligation.3

On June 1, 2012, husband, through his GAL, filed the pending Petition for Modification of Alimony (" Petition" ). Husband argues that because his Court-ordered alimony payments were not deducted from his available income when DSS calculated his patient-pay liability to Millcroft under the Medicaid LTC program, he is unable to both make his monthly alimony payments to wife and pay what he is required to pay each month to Millcroft. A Pre-Trial Hearing on husband's Petition was held before this Court on November 2, 2012. At this Hearing, it was determined that husband was current on his alimony obligations through July 2012. The Court issued an order dated November 13, 2012 which temporarily suspended husband's alimony obligations pending a full hearing on the Petition.

On January 8, 2013, husband's GAL and wife appeared before this Court for a hearing on the Petition. At this hearing, husband, through his GAL, presented evidence that husband's patient-pay amount at Millcroft, effective January 1, 2013 is now $2,982.06.4

Applicable Law

1. Delaware's Medicaid LTC Program

Medicaid is a cooperative federal-state endeavor designed to provide health care to needy individuals.5 A state is not required to participate in Medicaid, but once it chooses to do so, the state must " create a plan that conforms to the requirements of the Medicaid statute and the federal Medicaid regulations." 6 The Federal Medicaid Act provides that in administering its Medicaid program, a state " must set forth reasonable standards for assessing an individual's income and resources in determining eligibility for, and the extent of, medical assistance under the program." 7 In light of this statute, courts have determined that there is no relevant distinction between the determination of available income both for the purposes of determining...

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