Husband B. v. Wife B.

• Decision Date: 02 November 1978
• Parties: HUSBAND B., Petitioner, v. WIFE B., Respondent.
• Court: Delaware Superior Court

Page 169

396 A.2d 169

HUSBAND B., Petitioner, v. WIFE B., Respondent.

Superior Court of Delaware, New Castle County.

Argued Aug. 30, 1978.

Decided Nov. 2, 1978.

Respondent's application for division of property, alimony, and legal expenses.

Joseph P. Hurley, Wilmington, for petitioner.

Roderick R. McKelvie, of Richards, Layton & Finger, Wilmington, for respondent.

BALICK, Judge.

This is the opinion on the respondent's application for division of property, alimony, and legal expenses.

The parties were married in 1951. The husband filed a petition for divorce on July 15, 1975, shortly after the parties separated. The final decree of divorce was entered on April 28, 1978, after the Supreme Court reversed this court's denial of the petition. The husband is 55 years of age and the wife is 48. He is an attorney employed by a local corporation at an annual salary of about $37,000 in 1977. On April 30, 1978 he was eligible to retire with a monthly pension of $804, but he intends to continue working until 1988. She received an Associate of Arts degree in 1949. After the parties' three children were old enough, she re-entered the job market in 1970. The most she has earned in a year is $7,000. Unable to find another job when her employer went out of business, she enrolled in the New York School of Interior Design, and expects to graduate with a Bachelor of Fine Arts degree in 1980 or 1981. With this degree, she expects to be in a better position to find a higher paying job as an interior decorator rather than as a salesman.

Although the parties have lived well, they do not have substantial marital property. They lived in an apartment. The wife now has most of the contents. Although the parties differed widely about the value of the property, they agreed to have it appraised. The appraised value of the property now in the wife's possession, after selling off some articles, is $12,000. The only other significant property is about $10,000 savings and stock. In addition to the husband's pension plan, there is a group life insurance plan which insures the husband's life at three times his annual salary, but this will be reduced in the future. When the divorce litigation began, he changed the beneficiary from the wife to one of the children.

In addition to normal living expenses, the wife has the expenses of school, which she has financed largely by loans from her family since the separation. Although the parties' three children are adults, one of them has a learning disability, and the husband will probably have to support her permanently.

The basic problem presented by this case is that although the parties enjoyed a high standard of living during the marriage, there is insufficient marital property to provide for the present needs of the wife and to enable her to become self-supporting at a standard of living as close as possible to that established during the marriage.

The respondent seeks interim alimony from the date that payments under a Family Court support order ended, March 15, 1978. The petitioner contends that interim alimony may not be ordered after the entry of the decree, but has been paying $150 a week since July 19, 1978 on the understanding that these payments would be credited to him in the property division hearing if the court agrees with his contention. The wife also contends that she is entitled to post-divorce alimony under a recent statutory amendment and that the husband's pension rights are subject to division as marital property.

I conclude that interim alimony may be continued after the entry of the decree where applications for division of marital property and post-divorce alimony are pending. This is consistent with the function of interim alimony and the purposes of the Delaware Divorce and Annulment Act, see § 1502(2) especially, and I find no provision inconsistent with continuing interim alimony after entry of the divorce decree in appropriate situations.

In most cases the main focus under the no-fault divorce law is no longer on whether the marriage should be dissolved but rather on disposition of marital property and other matters following dissolution. The normal practice is for these matters to be resolved as soon as possible after entry of the decree. Terminating interim alimony on the date of the decree thus leaves a dependent party without support until post-divorce alimony is ordered or the marital property divided. This is sometimes handled by voluntary payments on the understanding that they will be credited to the payor in the division of property. But this is unsatisfactory where the marital property is insufficient or the party with the means is unwilling to do so. Another method sometimes used is to delay the entry of the divorce decree until the other matters are resolved. Compare Husband S v. Wife S, Del., 336 A.2d 217 (1975). This method is unsatisfactory because it delays the finality of the dissolution, particularly where there is an appeal.

The next issue bears on post-divorce alimony. When the divorce petition was filed, there was a right to alimony only if the marriage was characterized by incompatibility or mental illness. On January 24, 1978, the statute was amended to permit alimony "without regard to the characterization of the marriage." 13 Del.C. § 1518(g). The issue presented is whether this amendment applies to pending actions.

When the Delaware Divorce and Annulment Act was enacted, there was a provision that it did not govern pending actions. 59 Del. Laws Ch. 350 § 2. There is no similar expression of legislative intent in the amendment under consideration. In the absence of an expression of legislative intent, judicial policy disfavors giving statutes retroactive effect when this will impair vested rights. 73 Am.Jur.2d, Statutes § 349.

I conclude that this judicial policy does not control the present case, because the rights of the parties with regard to post-divorce alimony were not fixed until the entry of the decree. It is true that when he filed the petition, the husband could expect to be free of the obligation of post-divorce alimony if the divorce were granted on the ground alleged,...