Fletcher v. Feutz ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
WILLIAM A. FLETCHER, JR.1, §
§
Petitioner-Below, § No. 566, 2019
Appellant, §
§
v. § Court Below – Family Court
§ of the State of Delaware
MELISSA N. FEUTZ, §
§
Respondent-Below, § File No. CK05-02113
Appellee. § Petition No. 18-01135
§
§
§
Submitted: October 28, 2020
Decided: January 22, 2021
Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES, Justices.
Upon appeal from the Family Court of Delaware. AFFIRMED IN PART, REVERSED
IN PART, and REMANDED IN PART.
Bonnie Egan Copeland, Esquire, COPELAND TAYLOR LLC, Wilmington, Delaware; for
Appellant William A. Fletcher
Gretchen S. Knight, Esquire and R. Eric Hacker, Esquire, MORRIS JAMES LLP,
Wilmington, Delaware; for Appellee Melissa N. Feutz.
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
MONTGOMERY-REEVES, Justice:
William A. Fletcher, Jr. challenges the Family Court’s denial of his petition to modify
or terminate alimony payments to his ex-wife, Melissa N. Feutz. Fletcher argues that the
Family Court erred by ruling that (i) Feutz was appropriately employed; (ii) there was not a
substantial change in circumstances that warranted the termination or modification of
alimony; (iii) Feutz was not cohabitating with her paramour; and (iv) Feutz was entitled to
the attorney’s fees awarded.
Having reviewed the parties’ briefs and the record on appeal, this Court holds that the
Family Court did not err in finding that Feutz was properly employed and that she was not
cohabitating with her paramour. This Court remands the issue of whether there was a
substantial change in circumstances. Finally, this Court holds that the Family Court erred in
awarding Feutz attorney’s fees for the defense of Fletcher’s Motion to Modify or Terminate
Alimony.
I. BACKGROUND
Fletcher and Feutz divorced on September 29, 2005, after twenty-nine years of
marriage, and signed a Consent Order and Agreement (the “Agreement”) dated January 22,
2007, to resolve matters ancillary to the divorce.2
2
Appendix to the Opening Br. 262 (hereafter “A __”).
1
Under the terms of the Agreement, Fletcher retains the marital residence in Smyrna,
Delaware while Feutz retains the property in Rehoboth, Delaware.3
The Agreement also compels Fletcher to pay Feutz alimony in the amount of
$2,250.00 per month.4 But, the Agreement provides three means by which Fletcher may
seek to modify or terminate his alimony obligation. First, Paragraph 18(a) provides that “[i]f
not terminated earlier, [Fletcher’s] alimony obligation to [Feutz] shall terminate upon the
death of either party or the remarriage or cohabitation of [Feutz] as provided in 13 Del. C. §
1512(g).”5 Second, Paragraph 18(b) specifies that Fletcher can seek to modify or terminate
his alimony obligation in a future proceeding based on the appropriateness of Feutz’s
employment, as defined in 13 Del. C. § 1512(e).6 Third, the Agreement states that “the
alimony obligation provided for herein shall be subject to modification or termination as
provided in 13 Del. C. § 1519(a)(4)[,]” which relates to a real and substantial change of
circumstances.7
Fletcher filed his petition in January 2018, and Feutz answered in March 2018.8 The
Family Court held trial on April 8, June 7, and June 25, 2019. The pertinent facts warrant a
breakdown focused on testimony from key witnesses.
3
A263.
4
A100.
5
Id (emphasis added).
6
A101.
7
A100.
8
Opening Br. 12.
2
A. Melissa N. Feutz
Feutz is a certified teacher, and she taught for two years, from 2002-2004; however,
she spent the bulk of her career (twenty-five plus years) employed in an administrative
capacity.9 At the time the parties entered into the Agreement, Feutz was earning $24,432 per
year as a secretary with the Capital School District and had $4,128 in monthly expenses.10
Feutz was promoted to senior secretary in 2006, which included additional responsibilities
such as speaking to visitors, planning events, assisting with enrollment, and working closely
with the principal.11 Feutz testified that she received above-average performance
evaluations.12 In 2010, she received a pay increase of $13,981, which brought her yearly
earnings to $42,921.13 While she was employed, Feutz did not alert Fletcher of any increase
in her income.14
On June 30, 2016, Feutz retired from her employment with the school. At the time
she earned $1,808.31 biweekly, which equates to $47,016 annually.15 Feutz was 57 at the
time of retirement with 20.4 years of service.16 She was entitled to a monthly pension
payment of $1,096.16.17
9
A227; A234.
10
A263.
11
A162-63.
12
A170.
13
A240 (Feutz’s taxable earnings were $28,940 in 2009 and $42,921 in 2010).
14
A484.
15
A264.
16
A169.
17
Id.
3
Feutz cites serious fatigue due to chronic insomnia and anxiety as the reason for her
early retirement.18 She experienced numerous traumatic events in a short amount of time,
namely the death of her son (which resulted from an opioid overdose), the loss of her
marriage, and the death of her father.19 Feutz attended counseling from 2004-2008 and took
medication for depression and anxiety. She stopped taking this medication and refused other
medicinal treatment due to the fear of dependence caused by her son’s opioid overdose.20
Feutz continued to build a productive career, but her symptoms persisted. Feutz
testified that her insomnia began to affect her work by inhibiting her ability to handle her
duties, especially in the afternoon. For example, Feutz testified about an incident where, due
to her symptoms, she accidentally released a child into the custody of the wrong parent in
violation of a Family Court order.21 She also testified about having to pull off the road during
her commute due to her fatigue.22
Feutz also had thyroid cancer and, as a result, had her thyroid removed. She takes
Synthroid or the generic equivalent.23 But, she has declined to attend routine follow-up
18
A171-73; A457.
19
Appendix to the Answering Br. 025-26 (hereafter “B__”).
20
B034.
21
B036-37; see also A346-48.
22
B035.
23
A478.
4
appointments or see any doctor because she “[does not] go to the doctors hardly ever for
anything.”24 Feutz had resumed therapy as of the time of the trial.25
Feutz offered no objective corroborating medical evidence regarding her mental or
physical health.26 Instead, she proffered testimony of her former boss at Capital School
District, Kevin Brown,27 and of her sister-in-law, retired Superior Court Judge Jane Brady.28
Both testified about witnessing Feutz’s struggles with insomnia and anxiety. And both
corroborated Feutz’s details about the effects of the insomnia on her, especially with the
performance of her job and her commute. But neither witness had a medical background.
After her retirement, Feutz had a job offer closer to her home, but it fell through before
she began working. She did not seek other employment in 2016. She began babysitting for
a family friend in 2017, but she refused pay and only accepted gift cards. Feutz did not seek
other employment until April 2018, after she filed her Answer to Fletcher’s Petition.29 In
May 2018, Feutz received an offer from Troop 7 in Lewes, Delaware for a seasonal part-
time clerical position earning $13.43 per hour.30 She works on average 29.5 hours each week
24
A476.
25
A479.
26
A172.
27
A353; A359; A398.
28
A402-16.
29
A180-82.
30
A264.
5
and receives biweekly paychecks of $792.76.31 In addition to this income, Feutz receives
her monthly pension.32
Feutz also had a tenant from May 2018 to April 2019, who helped around the house
but did not pay rent.33 Feutz planned to have another tenant reside with her beginning in
June 2019 and expected to have the same arrangement.
Feutz testified that even though she tried to live within her means, money was still
tight.34 Feutz claims her current expenses total $4,047.64.35 To meet her financial needs in
2017, she withdrew approximately $12,365.97 from her investment account.36 In 2018, she
had to rely on a partial disbursement of her IRA and her new position with Troop 7.37 Feutz
acknowledged that working, instead of withdrawing these sums, would have been the
prudent course of action.38 Concerning the $150,000 dollar lump sum payment she received
under the Agreement, Feutz testified that she used this money primarily for home
improvements and maintenance.39 She states her current living standard is below the
standard of living she enjoyed while married to Fletcher.40
31
Id.
32
A098-99; A235-36.
33
A204-05.
34
A458-59.
35
A255.
36
Opening Br. Ex. C, at 9.
37
Id.
38
A207.
39
A206.
40
A458-59.
6
Regarding her paramour, Feutz and her partner began an exclusive relationship in
2007 or 2008. They often go out together publicly and hold themselves out as a couple.41
They began spending the night together in 2010.42 Both maintain separate residences as
Feutz resides in Rehoboth while her partner lives and works in Dover. Due to her partner’s
demanding work schedule, and being on call every sixth or seventh weekend, the couple
typically spends free weekends together at either house.43 They typically spend Saturday
afternoon or evening to Sunday morning or afternoon together. Both partners have keys to
the other’s house, and either partner will use the key if the other cannot answer the door.44
However, neither partner will enter the other’s residence without permission.45
The couple enjoys bike riding, going to the movies, attending auctions, cooking, and
entertaining family and friends.46 They have gone on numerous vacations and have spent
holidays together.47 Feutz’s partner helps with errands and helps pay when they go out to
eat.48 But, the partner does not pay any portion of the utilities or mortgage for the Rehoboth
residence. Feutz’s burial policy lists her partner as the beneficiary.49
41
A265 (the parties stipulated to this fact).
42
A210-11.
43
Id.
44
A213.
45
A285-86.
46
A486.
47
A214-15.
48
A213-18; A221.
49
A216.
7
B. William A. Fletcher Jr.
In 2006, Fletcher owned Fletcher Funeral Directors (“FFD”); his annual income was
between $90,000 and $100,000; and his monthly expenses were $6,221.50 When he filed
the Petition to Terminate or Modify, Fletcher still owned and operated FFD.51 In 2017,
Fletcher’s annual income consisted of a $140,362 salary plus $18,000 in rent and $11,687 in
business income, totaling $170,049.52
Fletcher sold FFD to his niece and her husband in June 2018 for $3,177,824.25 and
received a promissory note of $300,000 payable on November 9, 2021.53 Fletcher decided
to sell the business due to a change in the business and personal health issues.54 Fletcher
continues to work as a consultant at FFD and earns $2,500 per month.55 FFD also covers
Fletcher’s gas expenses, health insurance, and funds due to Fletcher’s mother from the
business which he receives and then transfers after taxes to his mother.56 Fletcher’s total
income for his consultant work is $76,180.56.57
50
A263.
51
A311; A264.
52
A264.
53
A265.
54
A314 (Fletcher suffers from severe back pain and has trouble ambulating or lifting anything
heavier than 25 pounds. He also suffers from carpal tunnel syndrome).
55
Id.
56
Id.
57
Id.
8
Fletcher remarried on March 10, 2010. His wife is currently on disability due to
cancer and is unable to contribute to household expenses.58 Fletcher is the primary caretaker
for his wife.
Fletcher’s investments total approximately $2,400,000. He also owns numerous
recreational vehicles, such as boats and four-wheelers, a car, an SUV, and a Ram Rebel. He
and his wife recently purchased a new beach house.
Fletcher testified that he knew in 2016 that Feutz retired early because he began
receiving his share of her pension. Fletcher stated that Feutz never contacted him concerning
her retirement or any change in position or income.59 Fletcher also acknowledged that he
never reached out to inquire why he began to receive these payments. Fletcher testified that
he did not file a Petition to Terminate or Modify Alimony earlier due to his time-consuming
commitment to his wife.60 Fletcher testified in his deposition, however, that he was advised
to wait until he had a substantial change in circumstances. He indicated at the deposition
that his recent beach house purchase was one reason for the purported substantial change in
circumstances.61
58
A325.
59
A331-32.
60
A332.
61
Opening Br. Ex. C, at 16.
9
C. Additional Testimony
In support of his case, Fletcher called a vocational expert, Jose Castro. Castro is a
certified rehabilitation counselor.62 He utilized Feutz’s resume, deposition transcripts, data
from Capital School District, wage statements, online job-hunting software, and in-person
interviews to complete his report.63 After his evaluation of Feutz, Castro opined that Feutz
was capable of working and earning more.64
Castro stated that he typically examines a subject’s earning capacity based on full-
time employment unless he is presented with evidence that indicates the person cannot work
full time.65 Castro examined full-time secretarial and clerical jobs in both the Rehoboth and
Dover areas.66 Castro concluded that Feutz should be earning in the $45,000 to $47,000
range.67 Castro admitted that he did not identify any full-time position in the Rehoboth area
that would meet Feutz’s qualifications or that paid in that range.68
Castro admitted that his report discounted Feutz’s tiredness and whether she was
merely tired of the commute or was tired to the point she could not handle the commute.69
62
A131.
63
A132-33.
64
A233.
65
A135.
66
Id.
67
A233.
68
A156.
69
A146.
10
Castro emphasized that he had no medical information to verify Feutz’s claims of insomnia
and anxiety.70
D. The Family Court’s Ruling
After trial, the Family Court held that: (1) Feutz’s part-time clerical work for Troop 7
was appropriate employment; (2) there was not a substantial change in circumstances; and
(3) Feutz and her paramour were not cohabiting. The Family Court also granted Feutz
attorney’s fees for her defense of the Petition to Terminate or Modify Alimony. Fletcher
appeals these rulings.
II. 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. We review rulings
of law de novo.71 We conduct a limited review of factual findings of the Family Court to
confirm that they are supported by the record and are not clearly erroneous.72 This Court
will not disturb inferences and deductions that are supported by the record and that are the
product of an orderly and logical deductive process.73 If the Family Court correctly applied
the law, our review is limited to determining if there was an abuse of discretion.74
70
A149-56.
71
Brown v. Div. of Fam. Servs., 14 A.3d 507, 509 (Del. 2011) (citing Powell v. Dep’t of Servs. for
Child., Youth & their Families, 963 A.2d 724, 730 (Del. 2008)).
72
Stewart v. Stewart, 41 A.3d 401, 404 (Del. 2012).
73
Id.74
Stearns v. Div. of Fam. Servs., 23 A.3d 137, 141 (Del. 2011); Hitchens v. Hitchens, 1991 WL
165556, at *2 (Del. Aug. 9, 1991).
11
III. ANALYSIS
The Agreement at issue sets alimony but provides three means by which Fletcher may
seek to modify or terminate his alimony obligation: (1) Fletcher may seek to modify or
terminate his alimony obligation based on the appropriateness of Feutz’s employment, as
defined in 13 Del. C. § 1512(e);75 (2) Fletcher may seek to modify or terminate his alimony
obligation due to a real and substantial change of circumstances, as set forth in 13 Del. C. §
1519(a)(4);76 and (3) Fletcher’s alimony obligation terminates upon the cohabitation of Feutz
with another adult, as provided in 13 Del. C. § 1512(g).77
Fletcher argues that the Family Court erred in concluding that Fletcher was not
entitled to a modification or termination of his alimony obligations under either of these three
circumstances and that Feutz was due attorney’s fees. We address each argument in turn.
A. Appropriate Employment
Permanent alimony, once established, remains effective for so long as the alimony
recipient remains dependent and unable to support himself or herself through appropriate
employment.78 Recipients of alimony have a continuing affirmative obligation to make a
good faith effort to seek appropriate employment unless the court finds, after a hearing, that
it would be inequitable to do so due to a severe and incapacitating physical or mental
75
A101.
76
A100.
77
Id.
78
13 Del. C. § 1512(b)(3).
12
illness.79 However, this statute does not require full-time employment, and there is no rule
that in every case it is appropriate to impute to a spouse full-time employment when part-
time employment is the best that can be done.80
Fletcher argues that the Family Court erred in finding that Feutz has a severe and
incapacitating illness and therefore is appropriately employed because: (i) Feutz failed to
provide any medical evidence to support her claim that medical issues prevented her from
working full time, and (ii) the court disregarded unrefuted expert testimony from a vocational
evaluator that Feutz could work full time and make $45,000-47,000 a year.
1. Evidence of Mental or Physical Impairment
Fletcher contends that the Family Court erred in finding Feutz suffered from a severe
and incapacitating mental or physical illness or disability. Specifically, Fletcher contends
that “[m]edical testimony or objective evidence is necessary to prove a severe or
incapacitating illness or disability.”81 Fletcher identifies at least two cases that decline to find
a severe and incapacitating mental or physical impairment absent medical evidence
confirming the same at the time of the hearing.82 But Fletcher fails to identify a case
prohibiting the Family Court from making such a finding in the absence of medical evidence.
79
13 Del. C. § 1512(e).
80
Macintosh v. Macintosh, 2018 WL 1747798, at *4-5 (Del. Apr. 11, 2018).
81
Opening Br. 11 (citing W.J.F. v. K.F., 2008 WL 2898764, at *4 (Del. Fam. Ct. Jan. 15, 2008));
CLJ v. BGJ, 2001 WL 493121, at *3 (Del. Fam. Ct. Jan. 29, 2001); Downing v. Downing, 2000 WL
33403043, at *3-4 (Del. Fam. Ct. Feb. 1, 2020).
82
Downing, 2000 WL 33404043, at *4; L.J. v. B.G.J., 2001 WL 493121, at *3 (Del. Fam. Ct. Jan.
29, 2001).
13
Here, the Family Court had before it: (i) testimony from Feutz that she received
medical treatment for four years for anxiety and depression and took medication for the same
immediately after her son’s death, her divorce, and her father’s death, but she quit taking the
medication for fear of addiction (her son died of an overdose) and eventually quit therapy as
well; (ii) testimony from Feutz that she suffered from anxiety and severe insomnia, which
caused her difficulty in doing her job and made her commute dangerous in the 2016
timeframe; (iii) testimony that Feutz continues to deal with insomnia and anxiety; (iv)
testimony that Feutz has resumed therapy; (v) testimony from Feutz’s former boss
corroborating her insomnia allegations in the 2016 timeframe; and (vi) testimony from
Feutz’s sister-in-law corroborating her insomnia and anxiety allegations. The Family Court
determined Feutz was impaired under 13 Del. C. § 1512(e) after weighing the evidence in
the record and assessing the credibility of the witnesses.
A review of Family Court cases addressing 13 Del. C. § 1512(e)(1) suggests that the
court typically requires objective medical evidence as proof of a severe and incapacitating
mental or physical illness or disability.83 We believe this reflects best practice, and nothing
in this opinion should be read to suggest otherwise. However, obtaining corroborating
83
Compare G.M.A. v. S.R., 2005 WL 3514310, at *1-2 (Del. Fam. Ct. Aug. 21, 2005); N.J.D. v.
C.A.D., 2001 WL 1857142, at *1 (Del. Fam. Ct. Dec. 5, 2001); Fessman v. Fessman, 2000 WL
1072477, at *6 (Del. Fam. Ct. Jan. 5, 2000); Reinholz v. Reinholz, 2000 WL 1693148, at *4 (Del.
Fam. Ct. Jan. 28, 2000); Downing, 2000 WL 33403043, at *3-4; with JPK v. JDK, 2011 WL
7789567, *6-12 (Del. Fam. Ct. Oct. 25, 2011); PA.M. v. R.L.M., 2007 WL 4793039 (Del. Fam. Ct.
Nov. 2, 2007).
14
objective medical evidence, while best practice, is not a prerequisite to a determination that
an individual suffers from a severe and incapacitating mental or physical disability. Although
we can envision scenarios in which accepting non-medical evidence alone as sufficient proof
of a severe and incapacitating mental or physical illness or disability might constitute a
reversible error, this Court is not willing to adopt a blanket rule that requires objective
medical evidence in all cases. Instead, we believe the Family Court should retain the ability
to weigh all evidence provided (medical or otherwise) to determine whether a severe and
incapacitating mental or physical illness exists. Stated differently, the Family Court should
have leeway to make those determinations based on the evidence before it.
After sitting through a three-day trial, observing the witnesses, assessing their
credibility, and examining the evidence, the Family Court determined the witnesses were
credible and the evidence was reliable and sufficient to establish that Feutz suffers from a
severe and incapacitating mental or physical disability. The live testimony from Feutz,
Brown, and Brady substantiates Feutz’s struggles, and Fletcher has not identified contrary
evidence. While we believe this evidence is thin, we do not believe the Family Court
committed reversible error in assessing the credibility, weighing the evidence, and
determining that Feutz was impaired under the circumstances of this case.
15
2. Vocational Expert Testimony
Fletcher next argues that the Family Court erred by disregarding the unrefuted expert
testimony of a vocational evaluator that Feutz could work full time and make $45,000-
47,000 a year.
“The law requires the trial judge to weigh the evidence, including the credibility of
live witness testimony.”84 This includes any report, testimony, or other evidence offered by
an expert.85 Here, the Family Court spent five pages of its Amended Final Order considering
Castro’s conclusions. After hearing the direct and cross examination of Castro, the Family
Court found that Castro’s conclusions were tainted by confirmation bias because Castro
admittedly excluded data that did not support his conclusions or Fletcher’s position.86 For
example, Castro’s report did not consider the lower rate of pay in the Rehoboth market or
the lack of full-time positions in the Rehoboth area. Castro only considered available full-
time jobs in Dover and Frederica. Castro discounted Feutz’s medical condition, stating that
84
Gatz Props, LLC v. Auriga Cap. Corp., 59 A.3d 1206, 1221 (Del. 2012); Hudak v. Procek, 806
A.2d 140, 150 (Del. 2002) (“Regardless of the applicable standard of proof at trial, this Court
regularly defers to the unique opportunity of the fact-finder, whether judge or jury, to evaluate the
live witnesses, to evaluate their demeanor and credibility and to resolve conflicts in the testimony . .
. .The weight to be given to evidence, however, is for the trier of fact to determine.” (footnotes
omitted)); Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 491 (Del. 2000) (“When factual findings
are based on determinations regarding the credibility of witnesses, however, the deference already
required by the clearly erroneous standard of appellate review is enhanced.” (citing Anderson v. City
of Bessemer, 470 U.S. 564, 575 (1985)).
85
Ng v. Heng Sang Realty Corp., 2004 WL 1192091, at *5 (Del. May 20, 2004) (“The Court is free
to accept, reject, or give whatever weight to expert opinion testimony that it deems appropriate.”).
86
Opening Br. Ex. C, at 35-36.
16
“if her symptoms were that bad why wouldn’t she have treated with someone.”87 Thus, the
record reveals multiple instances in which cross examination exposed gaps in Castro’s
analysis.88 The court’s “fact-finding role allows it to consider reliable and credible expert
testimony and to reject unreliable or incredible expert testimony.”89 The Family Court did
not err in finding that Castro lacked credibility and discounting Castro’s report and testimony.
3. Employment
Fletcher argues that Feutz is not appropriately employed because she is currently
working part time in Rehoboth making $13.43 an hour instead of working full time in Dover
making between $45,000 and $47,000 a year. We do not find this argument convincing.
As discussed above, the Family Court found credible Feutz’s testimony that she
retired from full-time employment because her persistent anxiety and insomnia prevented
her from commuting from Rehoboth to Dover and affected her performance in the
afternoons. The concurring testimony of Brown and Brady further bolstered Feutz’s
credibility.
Additionally, Castro admitted that he found no full-time positions available in the
Rehoboth area at her skill level. He only found “suitable” positions in Frederica and Dover,
each approximately an hour drive away. Castro also admitted on cross examination that the
87
A152.
88
A149-56.
89
Kruse v. Synapse Wireless, Inc., 2020 WL 3969386, at *8 (Del. Ch. July 14, 2020).
17
pay in the Rehoboth area is less, and what Feutz makes now is consistent with what is
available in that area.
Finally, the pay at Feutz’s part-time job is comparable to what Feutz was making in
2006. With her pension factored in, Feutz’s annual earnings are approximately $33,000.
Given the circumstances, the Family Court did not err in determining that Feutz had adequate
employment.
B. A Real or Substantial Change in Circumstances
Fletcher also argues that the Family Court abused its discretion in concluding that
there was not a substantial change in circumstances under 13 Del. C. § 1519(a)(4) because
the court failed to (i) account for an adult living in Feutz’s home and (ii) consider significant
reductions in Feutz’s expenses relative to increases in her income.
The Agreement states in Paragraph 18(a) that “the alimony obligation provided for
herein shall be subject to modification or termination as provided in 13 Del. C. §
1519(a)(4).”90 Under Section 1519(a)(4), the Court may modify or terminate an existing
alimony obligation if the moving party shows that there has been a real and substantial
change in circumstances. To determine whether a real and substantial change of
circumstances has occurred, the Court must measure the parties’ current economic
circumstances against the economic circumstances at the time the underlying order was
90
A100.
18
entered.91 “The showing of the substantial change of circumstances necessary to warrant
modification of the original award must be such as to convince the Court that to enforce the
award would produce an undue hardship to the obligor or an undue benefit to the obligee.”92
1. The Tenant
It is undisputed that a tenant resided with Feutz from May 2018 to April 2019.
Fletcher argues that rental income should have been attributed to Feutz, relying on multiple
Family Court cases that attribute rental income to the party who has an adult individual
residing with them.93 Feutz responds that no adjustment was necessary because the
tenant performed household duties in exchange for living with Feutz, which reduced
Feutz’s expenses. Further, Feutz argues that Fletcher failed to provide any evidence
during trial to support his proposed rent adjustment. 94 Finally, Feutz contends that
if the Family Court were required to undertake the sort of
granular analysis Ex-Husband suggests, it likely would
have been to Ex-Husband’s detriment. After all, Ex-
Husband’s expense sheet does not differentiate between
his expenses or his new wife’s expenses; nor does his
income include attribution for investment proceeds from
the sale of his business or for his wife’s “rent” for their
primary residence or their beach house.95
91
Husband, J. v. Wife, J., 413 A.2d 1267, 1270 (Del. Fam. Ct. 1979).
92
Id.93
Opening Br. 33-34 (citing A.G. v. B.G., 2018 WL 4177539, at *3 n.9 (Del. Fam. Ct. Apr. 17,
2018); B.O. v. S.O., 2007 WL 3171840, at *7 (Del. Fam. Ct. June 11, 2007); In re Marriage of
DeLuca, 1998 WL 668017, at *1-2, *5 (Del. Fam. Ct. Apr. 4, 1998)).
94
Answering Br. 32-34.
95
Id. at 34.
19
The Amended Final Order does not appear to address any of these
arguments.96 Therefore, we remand this dispute to the Family Court to resolve in
the first instance whether any rental income should be attributed to Feutz given her
arrangement with the tenant and the other arguments that Feutz raises in response to
Fletcher’s position. If the court attributes any income to Feutz, then the court should
also determine whether that income would constitute a real and substantial change
under 13 Del. C. § 1519(a)(4).
2. Reduced Expenses
Fletcher also argues that Feutz is substantially better off than she was at the time of
divorce because her income increased by 38% from $24,432 to $33,755 annually, while her
monthly expenses decreased by 13% from $4,128 to $3,557. Thus, he argues that the Family
Court erroneously concluded there has been no substantial change in Feutz’s
circumstances.97
Fletcher earns about 58% more than Feutz earns.98 Comparatively, at the time of
divorce, the disparity was approximately 72-75%.99 This represents a 14% to 17% decrease.
Family Court case law has established that a 17% change in the relative economic positions
of the parties does not amount to a substantial change in circumstances, even when the
96
Opening Br. Ex. C, at 40-44.
97
Opening Br. Ex. B, at 7-8.
98
Id. at 8.
99
Id.
20
alimony recipient enjoys a 98% increase in income.100 More recent Family Court case law
establishes that a 15% increase or decrease in either party’s income or expenses does not
amount to a real and substantial change in circumstances.101 The Family Court did not err
in this section of its analysis.
Fletcher argues, however, that the Family Court failed to adequately consider the
change in Feutz’s expenses and how that change affects her economic position when
compared to the increase in annual income.102 We agree.
As the Family Court has held, when determining whether a real and substantial
change of circumstances has occurred, the Family Court
must examine the respondent’s current economic status
measured against her economic status at the time of the original
order if one is to make a determination of substantial change. To
stop the inquiry at this point, however, is not satisfactory, for an
equally relevant inquiry is the relative economic circumstances
of the parties. For example, a substantial reduction in the
obligor’s income may not require a modification of the award
where there has been an increase in the obligee’s needs.
Similarly, an increase in the obligee’s income will not require a
modification of the award where the obligor’s income has also
increased or where the obligor’s collateral obligations have been
decreased.103
100
Husband, J., 413 A.2d at1270.
101
Forbes v. Forbes, 1998 WL 1035243, at *3 (Del. Fam. Ct. Dec. 2, 1998); Jones v. Jones, Del.
Fam. Ct., File No. CN92-8995, Ableman, J. (June 2, 1995), slip op.
102
Opening Br. 34-36.
103
Husband, J., 413 A.2d at 1270.
21
Here, the Family Court, in its Reargument Order, states that
Ex-Wife’s reasonable monthly expenses total $3,557.64. When
comparing this amount to her monthly expenses of $4,128.00 at
the time of divorce, there has been a 13% decrease in her
expenses. This decrease, however, is not a sufficient enough
change to warrant it being considered a real and substantial
change in circumstances. Family Court case law authority
establishes that a 15% increase or decrease in an alimony
recipient’s income does not amount to a real and substantial
change in circumstances. Ex-Husband’s claim that this
reduction in expenses amounts to a substantial change in
circumstances is without merit.104
However, in the Amended Final Order, the Family Court failed to correct the amount
of Feutz’s expenses. The Family Court’s Amended Final Order states,
In 2006, Ex-Wife was earning $24,432 annually and her
monthly expenses totaled $4,128. Ex-Wife earns about
$20,601.62 annually from her employment with Troop 7 and
$13,153.92 in annual pension income. Ex-Wife’s annual
income is about $33,755.54. Ex-Wife’s monthly expenses are
about $4,004.64. Ex-Wife experienced about a 38% increase in
her income and her expenses remained almost the same.
Despite an increase in Ex-Wife’s income, the parties’ relative
economic positions remain fairly similar. In 2007, Ex-Husband
was earning between $90,000 and $100,000, 72% to 75% more
than Ex-Wife was earning. Ex-Husband earns about
$80,144.28 in annual income from various sources, about 58%
more than Ex-Wife earns.
The Family Court has held that a 17% change in the
relative economic positions of the parties does not amount to a
substantial change in circumstances, even when the alimony
recipient enjoys a 98% increase in income. Similarly, the
Family Court has held that a 15% decrease or increase in an
alimony recipient’s income does not amount to a real and
104
Opening Br. Ex. B, at 7-8.
22
substantial change in circumstances. The evidence
demonstrates there has been almost no change in the parties’
relative economic circumstances, despite an increase in Ex-
Wife’s income. The Court finds that Ex-Husband has failed to
demonstrate there has been a real and substantial change in
circumstances. The Court also finds that Ex-Wife does not
receive an undue benefit from continuing Ex-Husband’s
alimony obligation because she is appropriately employed but
still unable to support herself.105
Thus, in the Reargument Order, the Family Court only considers the decrease in
expenses in a vacuum, failing to compare that decrease in expenses with Feutz’s increase in
income to determine her overall economic position. In the Amended Final Order, the Family
Court considers Feutz’s income and expenses together and analyzes the change in the relative
economic positions of the parties, but the court uses an incorrect amount for Feutz’s
expenses.
Therefore, we also remand this dispute to the Family Court to determine whether the
relative increase in Feutz’s income compared to her decrease in expenses constitutes a
substantial change in circumstances under 13 Del. C. § 1519(a)(4).106
C. Cohabitation
Fletcher argues that the Family Court erred in concluding that Feutz and her paramour
do not cohabitate because they spend every weekend together and share some household
chores.
105
Opening Br. Ex. C, at 43-44 (emphasis added).
106
We note that Feutz’s income could change if the Family Court attributes to her any rental income.
23
Paragraph 18(a) of the Agreement provides that Fletcher’s alimony obligations
terminate upon a showing that Feutz cohabitated as defined in 13 Del. C. § 1512(g).
Cohabitation means “regularly residing with an adult of the same or opposite sex, if the
parties hold themselves out as a couple, and regardless of whether the relationship confers a
financial benefit on the party receiving alimony.”107 The couple stipulated they hold
themselves out as a couple.108 The focus of this appeal is whether they regularly resided
together. Regularly residing has been defined as living together with some degree of
continuity.109 Two people may regularly reside together even though they maintain separate
residences.110
The Family Court held that the partners were in a committed dating relationship but
not legally cohabiting. The record shows that they routinely spent weekends together,
vacationed together, entertained, helped each other with household chores, have keys to each
other’s separate homes, and will enter the home if the other is not able to get the door.
Additionally, Feutz’s partner is named as a beneficiary for her burial policy. Conversely, the
partners do not contribute money to each other’s mortgage or utilities, spend the majority of
their non-working time apart, do not leave personal items at each other’s house, and ask
107
13 Del. C. § 1512(g).
108
A262.
109
Paul v. Paul, 60 A.3d 1080, 1083 (Del. 2012); cf, Andrews v. Andrews, 16 A.3d 937 (Del. 2011);
E.M. v. C.M., 2007 WL 5361877, at *4 (Del. Fam. Ct. Dec. 21, 2007).
110
Paul, 60 A.3d at 1083.
24
permission to visit the other’s home. The couple also lack any joint account, or shared
expenses, of any kind.
With these facts in mind, the Family Court’s holding that Feutz and her partner were
not cohabiting is sufficiently supported by the record. On balance, the court did not err in
determining that their conduct evidences a couple that enjoys short trips to each other’s
homes, rather than a couple that resides together. Thus, this Court affirms the Family Court’s
determination that Feutz and her paramour were not cohabitating.
D. Attorney’s Fees
Fletcher argues that both parties waived their rights to attorney’s fees under Paragraph
21 of the Agreement.111 That paragraph provides:
Each party accepts the terms of this Agreement as provided
herein in full settlement and satisfaction of any and all claims
and rights against the other whatsoever (including but not by
way of limitation, dower, curtesy, spousal support, alimony, suit
money, attorneys’ fees and all rights under the laws of testacy
and intestacy) which he or she had, now has or ever have,
against the other . . . by reason of their relationship as husband
and wife or otherwise.112
Agreements resolving ancillary matters to a divorce are controlled by contract
principles.113 “Delaware law adheres to the objective theory of contracts, i.e., a contract’s
construction should be that which would be understood by an objective, reasonable third
111
Opening Br. 46.
112
A101.
113
Rockwell v. Rockwell, 681 A.2d 1017, 1020 (Del. 1996).
25
party.”114 “When interpreting a contract, this Court ‘will give priority to the parties’
intentions as reflected in the four corners of the agreement,’ construing the agreement as a
whole and giving effect to all its provisions.”115 The terms of the contract control “when
they establish the parties’ common meaning so that a reasonable person in the position of
either party would have no expectations inconsistent with the contract language.”116
“[W]hen we may reasonably ascribe multiple and different interpretations of a contract, we
will find that the contract is ambiguous.”117 “The parties’ steadfast disagreement will not,
alone, render [a] contract ambiguous.”118
Paragraph 21 of the Agreement is clear and unambiguous. According to the plain
language of this paragraph, each party grants a broad and unqualified release of any and all
claims and rights (including the right to attorney’s fees) whatsoever which he or she had,
now has or ever have, against the other. The court identifies a whereas clause, which states
that “the parties intend this Agreement to be in full settlement and release of all ancillary and
other pending matters in the aforesaid divorce proceedings,” as evidence that the release
114
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
115
Salamone v. Gorman, 106 A.3d 354, 367-68 (Del. 2014) (quoting GMG Cap. Invs., LLC v.
Athenian Venture P’rs I, L.P., 36 A.3d 776, 779 (Del. 2012)).
116
Id. at 368 (quoting Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.
1997)).
117
Osborn ex rel. Osborn, 991 A.2d at 1159.
118
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992)
(“A contract is not rendered ambiguous simply because the parties do not agree upon its proper
construction.”).
26
relates only to the then pending divorce proceedings.119 “Generally, recitals are not a
necessary part of a contract and can only be used to explain some apparent doubt with respect
to the intended meaning of the operative or granting part of the instrument. If the recitals are
inconsistent with the operative or granting part, the latter controls.”120 But there is no
apparent doubt to explain in the operative or granting part of the contract at issue here. As
such, the whereas clause may not limit the operative, granting language of the contract.
Feutz next argues that Fletcher’s interpretation of Paragraph 21 is too broad when
considered with the clauses that preserve the right to seek modification or termination of the
alimony obligation based on Sections 1512 and 1519.121 By adopting the right to modify or
terminate alimony for reasons set forth in the statute, Feutz argues that the parties also
intended to adopt the right to seek attorney’s fees under Section 1515 in connection with
those applications.122 But this Court has warned that “[i]mplying terms into a written
contract should be a cautious enterprise.”123 “Further, the parties’ intentions as reflected in
the four corners of the agreement are given priority. Implying terms that the parties did not
expressly include risks upsetting the economic balance of rights and obligations that the
contracting parties bargained for in their agreement.”124 This reasoning is particularly
119
Opening Br. Ex. B, at 3.
120
Urdan v. WR Cap. P’rs, LLC, 2019 WL 3891720, at *13 (Del. Ch. Aug. 19, 2019), aff’d, 2020
WL 7223313 (Del. Dec. 8, 2020).
121
Answering Br. 46.
122
Id.123
Murfey v. WHC Ventures, 236 A.3d 337, 350 (Del. 2020).
124
Id. (citation omitted).
27
applicable here, where the parties expressly considered and incorporated numerous sections
of the Divorce and Annulment statute but did not include others. Thus, this Court reverses
the Family Court’s award of attorney’s fees.
IV. CONCLUSION
Based on the foregoing, the Family Court’s December 2, 2019 Amended Final Order
is AFFIRMED IN PART, REVERSED IN PART, and REMANDED IN PART. The Family
Court’s December 16, 2019 Order is REVERSED.
28