IN THE SUPREME COURT OF THE STATE OF DELAWARE
LESLIE H. LANKFORD,* §
§ No. 473, 2016
Petitioner Below, §
Appellant, §
§ Court Below:
v. § Family Court of the
§ State of Delaware
EVAN K. LANKFORD, JR., §
§
Respondent Below, § File No. CN15-01377
Appellee. § Petition No. 15-12254
Submitted: March 8, 2017
Decided: March 13, 2017
Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.
Upon appeal from the Family Court. REVERSED and REMANDED.
Peggy L. Ableman, Esquire, and Janine L. Faben, Esquire, McCarter & English, LLP,
Wilmington, Delaware for Appellant.
Jennifer A. Hartnett, Esquire, Hartnett & Hartnett, Hockessin, Delaware for Appellee.
VALIHURA, Justice:
*
By Order dated September 15, 2016, the Court assigned pseudonyms to the parties pursuant to
Del. Supr. Ct. R. 7(d).
Pending before this Court is Leslie H. Lankford‟s (“Wife”) appeal from the
Family Court‟s August 15, 2016 Letter and Order modifying its July 1, 2016 Ancillary
Order awarding alimony to Wife.1 In the Ancillary Order, the Family Court found that
Wife was dependent on her ex-husband, Evan K. Lankford, Jr. (“Husband”), and
therefore entitled to alimony.2 On reargument, the Family Court recalculated Wife‟s
income and expenses and determined that Wife was not dependent on Husband for the
purposes of alimony based solely on Wife‟s monthly surplus of $260.
For the reasons set forth below, we hold that the Family Court abused its
discretion by basing its dependency determination solely on one of the statutory factors
provided in 13 Del. C. § 1512(c). Accordingly, we REVERSE and REMAND this matter
to the Family Court for reconsideration of dependency in light of all relevant factors
enumerated in Section 1512(c).
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
Husband and Wife married in 1993 after Wife immigrated to the United States
from Hong Kong for the purpose of marrying Husband. Husband and Wife had three
children, two of whom were minors at the time of the Ancillary Order.3 Throughout the
marriage, the family lived with Husband‟s mother in Husband‟s mother‟s home. Wife‟s
1
See In re Marriage of [Lankford] and [Lankford] (Ancillary Order), No. CN15-01377 (Del.
Fam. Ct. July 1, 2016), available at App. to Opening Br. at A23-51, modified on reargument,
[Lankford] v. [Lankford] (Reargument Order), No. CN15-01377 (Del. Fam. Ct. Aug. 15, 2016),
available at App. to Opening Br. at A84-94.
2
See Ancillary Order at 15, 20 (A37, A42).
3
Ancillary Order at 2 (A24). Although Husband and Wife‟s second child is no longer a minor,
this Opinion refers to the two youngest children collectively as “the minor children.”
1
testimony suggests that she was encouraged (if not actually forced) to remain as
dependent as possible on Husband.4 At a minimum, Wife‟s testimony suggests that she
experienced a high level of dependence on Husband throughout their long marriage in a
manner that limited her ability to gain real-world skills. This circumstance is relevant to
the relative economic positions of the parties and Wife‟s ability to support herself.
After 22 years of marriage, Husband and Wife separated on January 29, 2015 and
divorced on January 6, 2016. Wife initially lived with friends until she secured an 890-
square-foot, two-bedroom apartment. The minor children “do not feel safe in the
apartment,” which they have stated “is not in a good area of town” and “is for „poor
people.‟”5 She has struggled to secure full-time employment due to her low skill level
and difficulty with the English language. Instead, she works three part-time, entry-level
jobs to “make ends meet.”6 Wife testified that she lived frugally following separation
4
According to Wife, who arrived in this country knowing very little English, Husband did not
permit her to obtain a driver‟s license for 14 years. App. to Opening Br. at A104-05. As a
result, during this period she was confined to the home unless her father-in-law agreed to
transport her to the grocery store or the children‟s school. Id. at A105. Wife was a stay-at-home
mother, but she also worked part-time during periods of Husband‟s unemployment. Ancillary
Order at 9 (A31). Even when she worked outside the home, however, Wife testified that she was
still solely responsible for the cooking, cleaning, and yard work. App. to Opening Br. at A105-
06. Wife‟s earnings were deposited directly to Husband‟s bank account, to which Wife did not
have access, though she was able to retain some of the cash she earned babysitting. Id. at A106.
Wife also testified that Husband hid her green card and refused to permit her to apply for
citizenship. Id. at A111. Husband denied some of these assertions. See id. at A190-92 (driver‟s
license). The Family Court‟s orders do not address Wife‟s claims, potentially because, as
discussed below, the court viewed its role as purely computational. See id. at A109.
5
Ancillary Order at 2 (A24); App. to Opening Br. at A125-26.
6
Ancillary Order at 2 (A24). Specifically, Wife works 6 hours per week at a health club, 20
hours per week at a library, and an average of 15-20 hours per week babysitting. Wife testified
that the babysitting hours are “unpredictable.” App. to Opening Br. at A105-06, A108.
2
from Husband because she was “scared to death to spend every penny[.]” 7 Most of her
possessions, including her furniture and vehicle, have been donated by members of her
church community.
Husband is currently unemployed and receives $330 per week in unemployment.
However, he has in the past achieved annual income approaching $60,000. During the
marriage, he made “upwards of $50,000 annually” while working for Comcast for ten
years.8 At the time the couple separated, Husband worked for the State of Delaware
earning $38,515 annually. He and the couple‟s two minor children continue to reside
rent-free in Husband‟s mother‟s home, a brick colonial that the record suggests
Husband‟s mother purchased for approximately $400,000.9
In the Ancillary Order, the Family Court noted that “Husband enjoys far better
economic circumstances than Wife” and “is significantly the economically stronger
spouse” with “the ability to maintain employment in a higher income bracket” despite his
current unemployment status.10
7
App. to Opening Br. at A127. Wife testified that she left the marital home only with her
clothes and some of her babysitting earnings. Id. at A111. Nevertheless, she avoided major
purchases, such as furniture and a television. See id. at A118, A125. She testified that she used
the money she had when she moved out to secure a replacement green card. Id. at A111.
8
Ancillary Order at 9 (A31).
9
See App. to Opening Br. at A124, A180, A182; see also Ancillary Order at 2 (A24). But see
App. to Opening Br. at A165-66 (testimony from Husband that in the early 2000s he “made
random payments” to his mother for rent); id. at A177-78 (testimony from Husband that he “just
started paying” rent but could no longer afford to do so).
10
Ancillary Order at 10 (A32); see also id. at 9 (A31) (finding that “Husband has a solid work
history” and “is in the better position to earn a higher income and he possesses the skillset to
obtain higher earning jobs”).
3
With respect to alimony, the Family Court discussed the factors provided in
Section 1512(c) to determine “the amount of alimony, if any, that should be awarded” as
follows:11
1) The financial resources of the party seeking alimony. The Family Court
observed that “Wife receives $1,639 per month from her three part-time jobs and from
government subsidies in the form of food stamps[,]” and that “[d]ue to Wife‟s lack of
formal, educational or vocational training as well as her limited skill set, the Court does
not attribute Wife with any additional earning capacity.” 12 It found that Wife had
reasonable monthly expenses of $1,870.23 and incurred a monthly deficit of $472.
Accordingly, the Family Court found that Wife was dependent upon Husband.
2) The time necessary and expense required to attain sufficient education or
training. The Family Court explained that “Wife testified that she has no vocational
training and currently has three entry level part-time jobs[,]” and that “[i]t is unlikely that
Wife will be able to obtain vocational skills or a higher education degree in the near
future given the fact that she works more than 40 hours per week to meet her living
expenses.”13
3) The standard of living established during the marriage. The Family Court
found that “[t]he parties enjoyed a decent standard of living during the marriage, as
Husband earned a healthy salary and the parties lived rent-free in Husband‟s mother‟s
11
Id. at 13-19 (A35-41).
12
Id. at 13 (A35).
13
Id. at 15 (A37).
4
home.”14 In addition, it found that “Husband was able to acquire a significant amount of
assets during the parties‟ marriage, and the parties have a minute amount of marital
debts.”15
4) The duration of the marriage. Because the couple had been married for 22
years, the Family Court found that Wife was entitled to alimony for life under 13 Del. C.
§ 1512(d).
5) The age, physical, and emotional conditions of the parties. The Family Court
stated that Wife is 44 years old and Husband is 52 years old. The parties did not provide
evidence of their physical or emotional conditions.
6) Any financial or other contribution made by either party to the education,
training, vocational skills, career or earning capacity of the other. The parties did not
present evidence pertaining to this factor.
7) The ability of the other party to meet his or her needs while paying alimony.
The Family Court found:
Based on [Husband‟s] $17,160 current annual income and reasonable
monthly expenses of $1,556.18, the Fin Plan shows Husband that
Husband‟s reasonable monthly expenses exceed his monthly income and
Husband has a monthly shortfall of $78.00. Given Wife‟s reasonable
monthly expenses of $1,870.23, the Court finds that Wife is dependent
upon Husband for support. Wife, after paying her reasonable monthly
expenses, has a monthly shortfall of $472. Husband, however, also has a
shortfall of $78 per month after paying his reasonable monthly expenses.
The parties, therefore, must share the shortfall. Pursuant to the attached
alimony calculation, Husband shall pay Wife $224 per month in alimony.
The Court finds that Husband has an obligation to Wife to seek and obtain
14
Id.
15
Id.
5
full-time employment. Husband shall notify Wife if as and when such
employment is obtained so that Wife may file for an adjustment to her
alimony support payment.16
8) Tax consequences. The Family Court took judicial notice that alimony is tax
deductible to the payor and taxable income to the recipient.
9) Whether either party has foregone or postponed economic, education or other
employment opportunities during the course of the marriage. The Family Court
determined that:
Wife testified that English is her second language and that she possesses no
vocational skills. Additionally, Wife testified that while working part-time
during the parties‟ marriage, she was also responsible for the child-rearing
as well as the household responsibilities. Husband testified that he was the
primary financial provider for most of the parties‟ marriage.17
10) Any other factor that the court finds is just and appropriate to consider. The
Family Court observed that “Wife testified that she was limited in her employment search
during the marriage as she did not possess a driver‟s license, nor did she have a vehicle
available to her.”18
The Family Court concluded that Wife was dependent and entitled to alimony
because her reasonable expenses exceeded her income. It explained:
Based on Wife‟s inability to meet her reasonable needs independent of
Husband, and Husband‟s inability to meet his own needs while paying
alimony, the parties shall share shortfall in the interest of justice.
Therefore, Wife‟s Motion for Alimony is GRANTED. Alimony may only
be awarded to a party who “is dependent upon the other party for support.”
Because Wife‟s reasonable monthly expenses exceeds her monthly income,
she is dependent on Husband for support. Husband shall pay Wife the sum
16
Id. at 18-19 (A40-41).
17
Id. at 19 (A41).
18
Id.
6
of $224.00, subject to modification if as and when Husband obtains full-
time employment. Husband shall make the above referenced payment on
July 5, 2016, for the month of July, and on the first day of each subsequent
month thereafter, with no expiration date.
Husband shall pay retroactive alimony in the amount of $103.00,
representing the difference between his overpayment of $300.00 in May
2016 after he was laid off and his underpayment of $179.00 for the month
of June 2016. The $103.00 shall be paid within 45 days of the date of this
order.19
In a motion for reargument,20 Husband argued that the Family Court‟s calculation
of Wife‟s monthly income was inconsistent with Wife‟s undisputed testimony. The
Family Court agreed, recalculated Wife‟s income, and found that Wife had a monthly
surplus of $260.21 Specifically, the Family Court stated:
Husband argued that the Court conclusions regarding Wife‟s income were
not supported by the record. Specifically, Husband claims that at the
ancillary hearing held on June 14, 2016, Wife testified that she works a
minimum of 20 hours per week at the Hockessin Library at an hourly rate
of $10.85 per hour, as well as 6 hours per week at the Hockessin Athletic
Club at a rate of $8.25 per hour, and she works between 15-20 hours per
week babysitting at an hourly rate of $12 per hour. However, the Court
attributed Wife with an income of $1,639.00 per month which reflected
$1,300 in earned income and $339 in food stamps benefits. Husband
argues that based on Wife‟s testimony and the evidence presented, Wife
actually earns between $1,934.83 to $2429.91 per month. Husband further
argued that Wife‟s babysitting earnings should not be reduced by a tax
obligation since Wife did not previously pay taxes on said income until
June 2016.
* * *
19
Id. at 20 (A42) (citation omitted).
20
Both parties filed motions for reargument. See App. to Opening Br. at A52-56 (Wife‟s Motion
for Reargument); id. at A57-71 (Husband‟s Motion for Reargument). Only those portions of
Husband‟s motion relevant to this appeal are discussed herein.
21
See Reargument Order at 4-6 (A87-89).
7
The Court first calculated Wife‟s income at the maximum amount of hours
to which she testified as follows: 20 hours per week at $10.85 per hour, 6
hours per week at $8.25 per hour, and 20 hours per week at $12 per hour,
for a total of $506.50 per week, or $26,338 per year. Next the Court
calculated Wife‟s income with the least weekly hours for babysitting for 15
hours per week at $12 per hour for a weekly grand total of $446.50 per
week, or $24,778 per year. The average of the two above referenced annual
income totals is $25,558. Further, for simplicity purposes, the Court did
not attribute Wife with additional income for her food stamp benefits, as it
zeroed out her corresponding monthly expense for groceries. Wife testified
that her food stamps benefit carried over from month to month, indicating
that whatever benefit she does not spend in one month is available to her in
the next month.
After making the above referenced adjustment to Wife‟s income and
expenses, along with an adjustment for Husband‟s tax status as indicated
below, Wife shows a monthly surplus of $260.00. Therefore, the Court
finds that Wife is not dependent on Husband for purposes of Alimony. 22
Although the Family Court adhered to its finding that “Wife is clearly the more
economically disadvantaged spouse”23 in its reconsideration of the division of assets, it
reversed its dependency determination based solely on the $260 surplus. 24 It also
awarded a credit to Husband for a “total overpayment of interim alimony to Wife [of]
22
Id. Given the Family Court‟s apparent assumption that Wife could work full time for 52
weeks per year, a weekly wage of $446.50 translates to an annual income of $23,218. Averaging
$26,338 and $23,218 results in an average annual income of $24,778 (and not $25,558 as found
by the Family Court) and a monthly income of $2,065, which is lower than the monthly income
entered into the Family Court‟s FinPlan calculation. Accordingly, the Family Court mistakenly
attributed more income to Wife than it intended. Also, the Family Court‟s calculation of Wife‟s
income apparently did not consider the possibility that Wife, an hourly wage earner, will likely
be forced on occasion by illness, work closures, or other circumstances to work fewer hours than
those presently available to her. The Family Court‟s calculations appear to assume that Wife
would be provided with work and would be physically capable of working over forty hours per
week for all 52 weeks in the year. This appears to be an aggressive assumption for imputing
income to a non-salaried person who testified that her hours could be “unpredictable.” On
remand, recalculation of Wife‟s income will be necessary to correct the computational error
described above and to fairly account for the realities of hourly employment.
23
Id. at 9 (A92).
24
Id. at 6 (A89).
8
$5,694” to be deducted from his property division obligation.25
On appeal, Wife contends that the Family Court incorrectly calculated her monthly
income and expenses, failed to consider Husband‟s earning potential, and disregarded the
standard of living she and Husband enjoyed prior to separating. She further asserts that
the Family Court erred by ending its inquiry before reaching the statutory factors in
Section 1512(c). She urges this Court to remand for reconsideration of dependency based
upon the standard of living established by the parties during the marriage and Husband‟s
reasonable future earning capacity and, if needed, recalculation of Husband‟s credit for
alimony overpayments. She seeks full consideration of the Section 1512(c) factors on
remand, even if the result is only a modest or even nominal award of alimony.
II. SCOPE AND STANDARD OF REVIEW
“On appeal from a Family Court decision awarding alimony, we review the facts
and the law, as well as the inferences and deductions made by the trial judge.” 26 “If the
law was correctly applied, we review the decision for an abuse of discretion.”27 “The
standard of review for an abuse of discretion is whether the Family Court‟s decision was
arbitrary or capricious.”28 “The Family Court‟s rulings will not be disturbed on appeal if:
(1) its findings of fact are supported by the record; (2) its decision reflects due
consideration of the statutory factors found in [S]ection 1512; and (3) its explanations,
25
Id. at 8 (A91).
26
Wright v. Wright, 49 A.3d 1147, 1150 (Del. 2012) (citing Olsen v. Olsen, 971 A.2d 170, 174
(Del. 2009)).
27
Id. (citing Olsen, 971 A.2d at 174).
28
Id. (citing Olsen, 971 A.2d at 174).
9
deductions and inferences are the product of a logical and deductive reasoning process.”29
III. ANALYSIS
“The Family Court has broad discretion in determining an alimony award.”30
Section 1512 sets forth the Family Court‟s analysis in determining whether a spouse is
dependent and, if so, the amount and duration of alimony that is appropriate:
(b) A party may be awarded alimony only if he or she is a dependent party
after consideration of all relevant factors contained in subsection (c) of this
section in that he or she:
(1) Is dependent upon the other party for support and the other party
is not contractually or otherwise obligated to provide that support
after the entry of a decree of divorce or annulment;
(2) Lacks sufficient property, including any award of marital
property made by the Court, to provide for his or her reasonable
needs; and
(3) Is unable to support himself or herself through appropriate
employment or is the custodian of a child whose condition or
circumstances make it appropriate that he or she not be required to
seek employment.
(c) The alimony order shall be in such amount and for such time as the
Court deems just, without regard to marital misconduct, after consideration
of all relevant factors, including but not limited to:
(1) The financial resources of the party seeking alimony, including
the marital or separate property apportioned to him or her, and his or
her ability to meet all of part of his or her reasonable needs
independently;
(2) The time necessary and expense required to acquire sufficient
education or training to enable the party seeking alimony to find
appropriate employment;
29
Glanden v. Quirk, 128 A.3d 994, 1002 (Del. 2015) (quoting Thomas v. Thomas, 102 A.3d
1138, 1142 (Del. 2014)) (internal quotation marks omitted).
30
Wright, 49 A.3d at 1153 (citing Olsen, 971 A.2d at 178).
10
(3) The standard of living established during the marriage;
(4) The duration of the marriage;
(5) The age, physical and emotional condition of both parties;
(6) Any financial or other contribution made by either party to the
education, training, vocational skills, career or earning capacity of
the other party;
(7) The ability of the other party to meet his or her needs while
paying alimony;
(8) Tax consequences;
(9) Whether either party has foregone or postponed economic,
education, or other employment opportunities during the course of
the marriage; and
(10) Any other factor which the Court expressly finds is just and
appropriate to consider.31
This Court has held that “consideration of all the relevant elements set out in
[Section 1512(c)] is required to reach a threshold determination of dependency as well as
a later determination of amount of an alimony award.”32 “There is no requirement that
the Family Court equally weigh each factor. Instead, the Family Court must analyze and
balance the factors to reach a prudent alimony award that is fair to both parties.”33
The party seeking alimony bears the burden of demonstrating by a preponderance
of the evidence that he or she is dependent and unable to support himself or herself.34
31
13 Del. C. § 1512(b)-(c).
32
Adelaide A.G. v. Peter W.G., 458 A.2d 702, 705 (Del. 1983).
33
Wright, 49 A.3d at 1153.
34
Thomas, 102 A.3d at 1145.
11
“Dependency is not defined by the statute, but it „has been defined as a relative
matter.‟”35 This Court has “interpreted dependency to mean „more than a minimal
existence or subsistence level.‟”36 Additionally, “[t]he meaning of dependency must be
„measured against the standard of living established by the parties during their
marriage.‟”37 This Court has also stated that the term “support” in Section 1512(b) is to
be construed broadly to “include[] all such means of living as would enable one to live in
the degree of comfort suitable and becoming to his station of life.”38
In this case, the Family Court abused its discretion by making a dependency
determination based solely on one statutory factor—Wife‟s financial resources.
Although the Family Court discussed all statutory factors in its Ancillary Order, at the
ancillary hearing, the Family Court stated, “[w]e‟re here to basically see what money she
makes, what her expenses are, and put the numbers into a calculation. I don‟t care
whether she‟s dependent or not.”39 On reargument, the Family Court reversed its
dependency finding after considering only Wife‟s nominal monthly surplus.40
35
Id. (quoting Adelaide A.G., 458 A.2d at 705) (additional citation omitted).
36
Id. (quoting Gregory J.M. v. Carolyn A.M., 442 A.2d 1373, 1375 (Del. 1982)).
37
Id. at 1145-46 (quoting Gregory J.M., 442 A.2d at 1375).
38
Adelaide A.G., 458 A.2d at 704-05 (quoting Black’s Law Dictionary (5th ed.)).
39
App. to Opening Br. at A109; see also id. at A114-15 (Family Court stating that evidence of
Wife‟s treatment by Husband would not “come into [its] decision” because “Delaware is a no-
fault state” and that any resulting dependency “reflects in what her earnings are and what her
expenses are”).
40
Reargument Order at 6 (A89).
12
Section 1512(b) and this Court‟s precedent require the Family Court‟s analysis to
“reflect[] due consideration” of the factors enumerated in Section 1512,41 including “all
relevant factors contained in subsection (c)[.]”42 By basing its dependency determination
solely on Wife‟s income and expenses, the Family Court gave undue weight to the first
factor, and disregarded the other factors in Section 1512(c), including its previous
findings regarding the relative economic potential of the parties, their standard of living
during marriage, and the temporary nature of the parties‟ financial positions. Although
Husband‟s unemployment has resulted in some shortfall in his ability to cover his
expenses, his shortfall is minimal and has not adversely affected his living arrangements.
However, Wife is working long hours, relying on food stamps, and deferring household
purchases in an effort to support herself in an apartment that she and her children
consider to be undesirable. The result of the Family Court‟s analysis was an injustice to
Wife, whose modest monthly savings were the product of significant post-divorce
lifestyle sacrifices. On remand, the Family Court should recalculate Wife‟s monthly
surplus43 and balance the result with these considerations and all other relevant factors.44
IV. CONCLUSION
Because the Family Court‟s decision on reargument does not reflect due
consideration of all relevant statutory enumerated factors, the Family Court abused its
41
Glanden, 128 A.3d at 1002 (quoting Thomas, 102 A.3d at 1142).
42
13 Del. C. § 1512(b); see Adelaide A.G., 458 A.2d at 705.
43
See supra note 22.
44
Cf. J.J.C. v. M.M.C., 2002 WL 1929500, at *3 (Del. Fam. Ct. Feb. 22, 2002) (“[W]here an
alimony recipient is found not dependent at the time of divorce but would be dependent but for
the recipient‟s circumstances, an award of nominal alimony is allowed.” (citation omitted)).
13
discretion in determining that Wife is not dependent on Husband. For the foregoing
reasons, we REVERSE and REMAND for reconsideration of dependency in light of all
relevant statutory factors enumerated in Section 1512(c). Jurisdiction is not retained.
The period for filing any motion for reargument is shortened to five days.
14
Lankford v. Lankford
Combined Opinion