A K v. A K

Decision Date28 January 2021
Docket NumberPetition No.: 19-26651 (Ancillary Matters),File No.: CN17-01480,Petition No.: 20-04887 (Child Support)
PartiesA K , Petitioner, v. A K , Respondent.
CourtDelaware Family Court
ORDER

On January 8, 2020, the Court conducted a hearing regarding matters ancillary to divorce. Present in Court1 were A K ("Wife"), represented by Megan M. Mahle, Esquire ("Ms. Mahle"), and A K ("Husband"), represented by Thomas D. Shellenberger, Esquire ("Mr. Shellenberger") participated. The Court heard testimony from both parties, as well as M K (Father's "Sister-in law"), and C S ("Mr. S "), the parties' tax preparer, on the issue of marital property distribution and valuation. This is the Court's ancillary disposition.

Procedural History

The parties were married on July 11, 2000 and separated on July 28, 2019. They have five children together, one of whom has reached the age of majority: K K (born 8/25/2001); K K "K ") born / /2004; K K ("K ") born / /2005; K K ("K ") born / /2008; and K K ("K ") born / /2014. On September 16, 2019, Husband filed a Petition for Divorce,2 On October 9, 2019, Wife filed an Answer.3 Both parties requested that the Court retain jurisdiction over ancillary matters incident to the divorce.

On November 13, 2019, Wife filed a Motion for Interim Alimony/Spousal Support seeking $6,200 per month.4 On November 26, 2019, Husband filed a Response to Wife's Motion seeking an order requiring Husband to pay $2,050 per month. Husband requested an evidentiary hearing on the Motion pursuant to Eberly v. Eberly, 498 A.2d 433 (Del. 1985).5

On January 10, 2020, the Court conducted a hearing on the Motion for Interim Alimony/Spousal Support. On January 14, 2020, the Court issued an Order findingthat Wife was dependent upon Husband and was entitled to spousal support.6 The Court ordered that Husband continue to pay: (i) the mortgage loan on the marital residence; (ii) the electric bill, water bill, sewer bill, natural gas bill, and cable television bill up to $140.00 per month; (iii) all car payments, car insurance bills, and unreimbursed medical expenses for the children; and (iv) to provide Wife with $350.00 each week for household expenses.7

On August 19, 2020, the Court resolved the parties' custody petition with Husband being awarded primary residential placement of K , K , and K , and Mother being awarded primary residential placement of K .8

On August 26, 2020, Husband filed a Motion for Interim Relief.9 Husband sought access to the marital home to retrieve the children's personal belongings and suspension or substantial reduction of Husband's financial obligations to Wife for preservation of the marital home. On September 8, 2020, Wife filed a Response to Husband's Motion.10 On September 9, 2020, the Court granted Husband's Motionfor Interim Relief and reduced Husband's weekly payment to Wife from $350.00 to $240.00.11 Husband's request with respect to the children's personal items was denied as moot.

On February 19, 2020, Wife filed a Petition for Child Support.12 On October 7, 2020, the Court conducted a hearing on the Petition for Child Support. On October 13, 2020, the Court consolidated the Petition for Child Support with the Ancillary Matters incident to the divorce.13

Husband filed a request for finalization of divorce on July 2, 2020, just nine calendar days before the parties' twentieth anniversary. The parties were divorced by a Final Decree of this Court on August 7, 2020 and ancillary matters were retained.14 The Ancillary Financial Disclosure Report was filed with the Court on October 16, 2020. A case management conference was held on October 28, 2020. As a result, the Court scheduled the Pretrial Conference for December 11, 2020, and the ancillary hearing for December 21, 2020.

On December 11, 2020, the Court conducted a Pretrial Conference. Mother's Counsel informed the Court that they would not be prepared for trial on December 21, 2020. Father had failed to produce requested documents and to disclose certain alleged retirement information to Wife and Ms. Mahle. The Court rescheduled the final ancillary hearing for January 8, 2021,15 and entered the Pre-Trial Stipulation Order16.

The Court incorporates the Pretrial Stipulation and Order as part of this Order (Exhibit "A"). The Court will address each matter either in agreement or dispute when it defines the marital estate. The main issues in dispute are the equitable division, distribution, and assignment of the parties' marital assets and debts, and Wife's request for alimony. Both parties have requested attorneys' fees and costs. Two corollary issues were Wife's request to retain the marital home for two additional years, and amounts owed between the parties from prior Court Orders.

On January 8, 2021, the parties appeared with Counsel for the final hearing and informed the Court that they had come to an agreement on the valuation and disposition of the parties' three vehicles. The Court requested that Counsel submitby January 22, 2021, a stipulation on the amounts owed by each party from prior Court Orders.

Issues in Agreement

Based on the parties' representations at the time of the Pretrial Conference and the day of the ancillary hearing, the parties agree upon the disposition of the following marital property:

1. 2017 Ford Expedition: The parties agree that Wife will retain possession of this vehicle with a value of $28,100 which shall be assigned to her on the Wright Chart.

2. 2012 Volkswagen CC: The parties agree that Husband will retain possession of this vehicle with a value of $2,825 which shall be assigned to him on the Wright Chart.

3. 2015 Ford F350: The parties agree that Husband will retain possession of this vehicle with a zero net value which shall be assigned to him on the Wright Chart.

4. Husband's Local 401 Ironworkers Union Pension: The parties agree that this pension shall be divided by the Cooper Formula.

5. Mr. Cooper Mortgage Loan: The parties agree that the outstanding loan balance as of separation was $274,621.17

6. Ally Financial Loan on Ford Expedition: The parties agree that the loan balance on the Ford Expedition was $22,946 as of November 7, 2020 which shall be included in Wife's column of the Wright Chart.

Issues in Dispute
A. Former Marital Residence ( M Street, Townsend, DE)

Husband left the marital residence on July 28, 2019 in connection with a Consent Order of Protection From Abuse. Wife has remained in the home while Husband has been ordered to make the monthly mortgage loan payment. The residence was purchased in 2014 when the parties moved to Delaware. The five-bedroom residence is located in southern New Castle County. Husband testified that a $180,000 settlement received from a worker's compensation case was put towards the marital home to upgrade the house and purchase new furniture. Wife testified that she applied $25,000 in gifts toward the purchase.

The parties owed $274,621 on the mortgage loan as of the date of separation. The estimated value, created by averaging the values provided by four onlineestimators of the marital home, is $387,205. Equity in the marital residence is the parties' major, and essentially sole, asset.

The marital residence currently needs repairs from a flood. Husband testified that he had not signed the insurance checks because he had not been able to see the damage for himself. The checks have been signed and sent to the mortgage company for countersignature. Wife testified that Husband has been able to inspect the damage. The marital home currently needs repairs from a flood. Husband testified that he has not signed the insurance check because he has not been able to see the damage for himself. Wife testified that Husband has been able to inspect the damage. Husband feels that the home should be sold as is and Wife feels that repairs need to be completed first. Wife will be awarded the insurance checks and can decide whether to perform the repairs prior to sale of the residence. This issue is discussed in Section K, below.

Husband argues that the residence should be sold in order to pay overdue marital taxes and outstanding marital debts. Wife argues that she should be permitted to retain the home for two years until Kiara has graduated from High School.18

B. Funds Withdrawn from Husband's IRA Rollover Account

Husband claims that Wife withdrew $13,900 from his IRA Rollover Account. Wife disputes the claim and testified that the funds were withdrawn during the marriage to cover household expenses as the couple had done throughout the marriage. Wife testified that Husband had withdrawn $15,000 from the account for his attorney's fees.

Husband's Trial Exhibit 3 documents account activity from January 1, 2015 through January 27, 2020. The parties separated on July 28, 2019. The only activity in the account since separation was Husband's withdrawal of $15,000.19

This issue is discussed in more detail in Section D, below.

C. Stimulus Payments Received by Wife

Husband argues that any Stimulus Payments received by Respondent should be documented and divided. Wife argues that she should retain the Stimulus Payment that she received as it was for one person and, in Wife's case, was a tax credit for 2020. There was no evidence introduced that supports either Husband or Wife's claim. The Stimulus tax credit was a post-separation asset of Wife and shall not be included in division of the marital estate.

D. Balance in Husband's IRA at LPL Financial

The evidence at trial indicated that Husband's retirement funds fromemployers prior to his current union were rolled over to an LPL account managed by a family friend. Wife has access to the account and managed virtually all of the transfers into and out of the account other than the $15,000 withdrawn by Husband in August 2019. Between August 2018 and August 2019, Wife rolled over $96,350.91 of retirement funds into the account. Wife also withdrew $50,900 between August 12, 2015 and July 8, 2019,...

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