Wright v. Wright

• Decision Date: 12 July 1983
• Parties: Fred L. WRIGHT, Petitioner, v. Dolores WRIGHT, Respondent. . Submitted:
• Court: Delaware Family Court

Page 803

469 A.2d 803

Fred L. WRIGHT, Petitioner, v. Dolores WRIGHT, Respondent.

Family Court of Delaware,

New Castle County.

Submitted: July 12, 1983.

Decided: Sept. 15, 1983.

Gerald Z. Berkowitz, Wilmington, for petitioner.

Charles K. Keil, Wilmington, for respondent.

GALLAGHER, Judge.

I. INTRODUCTION

Before the court for decision are the prayers of the parties for ancillary relief. ¹ Both parties are seeking division and allocation of marital property. Wife is also seeking alimony, counsel fees and costs. There are several large issues:

(1) How to value husband's dental practice;

(2) How to value husband's profit sharing and pension plan (3) Whether the $26,000 received by husband from his parents was a gift or a loan; and

(4) Whether wife is entitled to "reimbursement alimony".

Husband is now seeking a 50-50 division of marital assets. He argues that the marriage was of short duration, that the value of the dental practice should be determined and measured by a recent purchase and sale of the same practice, that he was able to complete his education mainly because of the financial contributions made to him by his parents, that wife will be awarded a substantial sum of money in these proceedings which she could not have earned herself, that wife is employed and is not entitled to alimony, that husband should be permitted to purchase wife's interest in the marital home after deducting a 7% real estate commission and 1% real estate transfer tax ², and that the $26,000 received from his parents was a loan and not a gift.

Wife wants a 75-25 split favorable to her. She argues that the parties were married for 8 1/2 years, that she worked to maintain the home and put husband through dental school, that she was the only wage earner while husband went through dental school, that she cosigned an educational loan with husband to help finance his education, that husband has greater ability to acquire future assets and income, that her labors allowed him to obtain his professional degree and that she should get more than two years of alimony but is limited to a two year period unless the court allows her "reimbursement alimony". Wife wants alimony of $1,500 a month which is the same sum now being paid by husband on the home mortgage, counsel fees and costs and that the court declare the dental license to be a marital asset. With respect to the marital residence, wife wants it sold to a third party because she "couldn't handle" husband living in the house with a new wife.

I have relied upon my trial notes, the exhibits, the pre-trial order and memoranda and other submissions of counsel in making my rulings.

II. FACTUAL BACKGROUND

The parties were married on June 1, 1974, separated on January 1, 1982, and divorced on July 1, 1982.

Husband was born on March 19, 1951. He suffers from no physical or emotional disability. He is a graduate of college and dental school. He is currently a self-employed dentist. His net spendable income for 1979 was $31,000, 1980, $39,000 and 1981, $49,000. He expects to receive $70,000 in 1983. His gross monthly income is $5,000 and his net monthly income is $3,000. He takes no income tax exemptions. There are no payroll deductions. His monthly expenses appear in the pre-trial order. By orders of this court dated June 29 and August 2, 1982, husband has been paying the monthly mortgage payment.

Husband and wife were married when each was age 24. At the time of the marriage, husband was in his first year of dental school and wife was employed as a secretary by Hercules, Incorporated. At that time, husband had $7,000 in savings and owned an automobile. Husband's parents were supporting him. He was the recipient of an $800 scholarship from the State of Delaware and a student loan. Husband's parents were paying his tuition, other educational expenses and providing him with an allowance of $100 per week.

After husband graduated from dental school he spent two years in the United States Army. During this time wife did not work. He was grossing $15,000 a year plus benefits. He also did work "moonlighting" with two local dentists. Wife returned to work in May of 1979. Husband left the service in June, 1979.

Wife was born on August 2, 1950. She suffers from hypoglycemia. She is a graduate of business college and has been employed as a secretary by Hercules for seven and one-half years. In 1982 her gross income was $15,264. She expects to receive $15,600 in 1983. Her gross monthly pay is $1,291 and her net monthly pay $937.30. She claims one income tax exemption. There are no unusual payroll deductions. Wife's expenses appear in the pre-trial order. Wife has paid a $500 retainer to her attorney on account of counsel fees.

III. ALIMONY

(1) Conventional Alimony

In order to determine whether wife is entitled to conventional alimony I must consider the factors set forth in 13 Del.C. § 1512(c). I am persuaded from the evidence that wife's own financial resources, even without regard to marital property apportioned to her, will ultimately be sufficient to meet her needs independently, that she does not need additional education having obtained her associate degree in business from Goldey Beacom College in April of 1974, less than 2 months before the marriage, that she cannot expect to enjoy the same standard of living that she enjoyed with husband who is now achieving success as a dentist, that the marriage was not of particularly long duration, that wife is relatively young and in reasonably good physical and emotional condition, that husband could afford to pay alimony to wife and that any alimony paid by husband to wife would be tax deductible.

I am satisfied that wife meets the dependency tests set forth in 13 Del.C. § 1512(a) and is partially dependent now on husband for support. Significantly, wife's income is insufficient now, short term, to cover the mortgage payment of $1,500 heretofore paid by husband pursuant to court order. Husband shall continue to pay this sum as alimony to wife on the first day of each month with the last payment being due and payable June 1, 1984.

(2) Reimbursement Alimony

Wife contends that the court should award her "reimbursement alimony". She argues that when the parties were first married she was earning $7,200 per year and now earns approximately $15,600. She declares that husband, on the other hand, earns about $100,000 per year plus pension and profit sharing and husband's second wife earned $21,000 last year and may receive $24,000 in 1983 plus pension and profit sharing. Based upon these facts and the decision in Mahoney v. Mahoney, N.J.Supr., 91 N.J. 488, 453 A.2d 527 (1982), wife argues that the court should declare husband's doctor of dental surgery degree received by him in 1977 as a marital asset and allow her to receive her share of that marital asset in the form of alimony payments labeled "reimbursement alimony".

Husband, in response, suggests that reimbursement alimony is not allowable under Delaware law but spends most of his time arguing that the facts in Mahoney are distinguishable from the facts of the case sub judice. Husband questions whether wife's monetary contributions were made with the "... mutual and shared expectation that both parties to the marriage would derive increased income and material benefits." Husband also questions whether wife's monetary contributions did more than support herself since all the payments for husband's education were provided by his parents, savings from his pre-marital funds and miscellaneous employment.

Since, at the time, wife was only earning $400 per month it really is questionable whether she did more than provide her own support. Further, husband was already attending dental school at the time the parties were married and there is no evidence of any conscious decision by the parties to sacrifice income that they would otherwise have enjoyed in order to permit husband to pursue a professional course of study. Neither did wife sacrifice her own career in order to make it possible for husband to achieve his career goal. Finally, it is true that wife will receive substantial assets in these proceedings so that it cannot be said that wife failed to share in any of the the benefits derived from husband's professional education.

Even if the facts of the case at bar were essentially the same facts as were considered by the New Jersey court in Mahoney, and they are not, I would not hold that an award of reimbursement alimony is allowable under Delaware Law. Delaware has only one statute dealing with alimony and it does not provide for reimbursement alimony. See, 13 Del.C. § 1512(a). Even though Family Court has considerable discretion in awarding alimony it must still derive its power and authority from statute and without statutory authorization it cannot act. Husband C. v. Wife C., Del.Supr., 391 A.2d 745 (1978); William H.L. v. Virginia L.L., Del.Supr., 457 A.2d 327 (1983). In an order entered by the Supreme Court of Delaware in M v. M, Del.Supr., 414 A.2d 821 (1980), it was held that alimony awarded under 13 Del.C. § 1512 or former 1518 is not marital property within the meaning of 13 Del.C. § 1513 and that the trial court impermissibly included the amount of such an award ($24,000 payable in equal monthly installments over a two year period) in determining the value of marital assets assigned to wife.

It is my conclusion that an award of reimbursement alimony is impermissible under Delaware Law. Therefore, I cannot classify the DDS degree as a marital asset and then distribute to wife her interest in that degree in equal monthly installments of alimony over a defined period of time.

Accordingly, no reimbursement alimony allowance will be made to wife in these proceedings.

IV. PROPERTY DIVISION

There is surprisingly little difference between the parties with respect to the identity and valuation of marital property. However, sharp disagreement exists with respect to the valuation and...