Glanden v. Quirk , 128 A.3d 994 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
GARY GLANDEN, 1 §
§ No. 145, 2015
Petitioner Below, §
Appellant, §
§ Court Below – Family Court
v. § of the State of Delaware, in
§ and for New Castle County
TERRY QUIRK, §
§ File No. CN12-06151
§ Petition No. 12-35958
Respondent Below, §
Appellee. §
Submitted: October 28, 2015
Decided: December 7, 2015
Before HOLLAND, VAUGHN, and SEITZ, Justices.
Upon appeal from the Family Court of the State of Delaware. AFFIRMED.
Curtis P. Bounds, Esquire, Bayard, P.A., Wilmington, Delaware, for Petitioner
Below, Appellant, Gary Glanden.
Bonnie Egan Copeland, Esquire, Staci J. Pesin, Esquire, Cooch and Taylor, P.A.,
Wilmington, Delaware, for Respondent Below, Appellee, Terry Quirk.
SEITZ, Justice:
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
I. INTRODUCTION
Husband appeals from a Family Court order dividing marital property and
granting alimony to Wife following their divorce after twenty-two years of
marriage. The court divided the non-retirement assets 65% in Wife’s favor, and
divided the remaining marital property equally. The court awarded alimony for an
indefinite period.
Husband contends the trial judge erred by including in the marital estate part
of a January 2013 payment from his law firm received after the couple separated.
Husband also claims that the court abused its discretion by dividing the couple’s
assets favorably to Wife, and in awarding Wife alimony. We find that Husband’s
argument about his law firm payment is at odds with the plain language of his
employment agreement, where the disputed payment represented “the balance of
[Husband’s] prior year’s base compensation,” and therefore was partially
includable in the marital estate. We also find that Husband’s other arguments
essentially ask this Court to re-consider decisions within the Family Court’s
discretion, which are supported by the evidence established over the course of five
hearings. Accordingly, we affirm the judgment of the Family Court.
II. FACTS AND PROCEDURAL BACKGROUND
Husband and Wife were married for twenty-two years. They separated in
September 2012, and their divorce became final in 2013. The couple had over $6
2
million in assets, including a $1.5 million house, investment accounts, retirement
accounts, and other property.
Husband worked as an associate and then as a partner in a major law firm,
earning a substantial income. In May 2011, Husband transferred to another major
law firm, signing an employment agreement on May 12, 2011. By the end of the
marriage, Husband was earning over $3 million per year. While married, the
couple lived a wealthy lifestyle, with an expensive home, multiple country club
memberships, private school for their children, and expensive vacations.
Wife stopped working after the birth of their second child and did not work
for the next two decades. Although she did not work outside the home for most of
the marriage, the Family Court considered her contributions no less valuable than
those of Husband. She took care of the children, the household, and Husband’s
elderly mother, while he worked long hours as an attorney. She was also involved
with numerous charitable organizations. Following their divorce, she was able to
find a job managing a start-up non-profit paying $40,000 per year, with the
potential to earn bonuses of up to $35,000 per year.
After granting the divorce decree, the Family Court retained ancillary
jurisdiction to divide the couple’s property. The court settled on a 65% division in
Wife’s favor for the non-retirement marital assets, and an equal division of the
remaining marital property, including retirement assets, debts, and travel award
3
points. The court also determined that a $2.7 million payment from Husband’s law
firm in January 2013 was earned in 2012, and thus part of the payment was marital
property. This finding resulted in a net of $900,000 2 being included in the marital
estate.
The court awarded Wife alimony of $13,643 per month. 3 In arriving at this
amount, the court considered the couple’s standard of living and Wife’s earning
potential, including a 4.5% investment return she might earn on a portion of the
investable assets she received in the property division. The court then awarded her
the difference between those amounts and her projected expenses. The court also
excluded Wife’s cost to buy a house from Wife’s assets when it calculated her
investment income. Finally, the court ordered Husband to maintain insurance
policies with Wife as the beneficiary to act as security in the event of his death and
termination of alimony.
III. ANALYSIS
Although Husband raised a host of issues on appeal, they can be reduced to
the following claims of error: (1) legal error when the Family Court misinterpreted
Husband’s employment agreement to require inclusion of a January 2013 payment
2
The parties stipulated to this amount. It reflects the disputed amount after accounting for taxes
and proration for the nine months of marriage before their legal separation in September 2012.
3
No. CN12-06151, at 7, 12 (Del. Fam. Jan. 9, 2015) [hereinafter Opinion II]. The Family Court
issued the first opinion on September 19, 2014. No. CN12-06151 (Del. Fam. Sept. 19, 2014)
[hereinafter Opinion I]. After hearing reargument, the court issued Opinion II on January 9,
2015, to correct errors pointed out on reargument.
4
as income earned in 2012 for marital property purposes; and (2) abuse of discretion
when the Family Court: (a) awarded Wife 65% of the non-retirement assets; (b)
found that Wife was dependent and entitled to alimony; (c) excluded the cost of
housing from the assets wife would be able to invest; (d) used a 4.5% rate of
investment return; and (e) ordered Husband to maintain life insurance with Wife as
beneficiary.
We review the Family Court’s legal determinations de novo. 4 Where the
Family Court correctly applied the law, we review only for abuse of discretion. 5
We will disturb the Family Court’s factual determinations only if they are clearly
wrong. 6
A. The January 2013 Payment
Husband and Wife separated in September 2012. Husband received a $2.7
million payment from his new law firm in January 2013. He argues that the
payment falls outside the marital estate because the law firm made the payment in
2013 after the couple separated, and Husband and his law firm treated the payment
as 2013 income for tax purposes. Wife claims in response that the payment was
partially marital property because it was compensation Husband partially “earned”
during the marriage according to the terms of his employment agreement. The
4
Roberts v. Roberts, 19 A.3d 277, 280 (Del. 2011).
5
Id.
6
Id.
5
Family Court determined that part of the payment was marital property because
Husband earned the payment in 2012, and the tax treatment of the payment was
irrelevant for purposes of the marital property determination.
Under 13 Del. C. § 1513(b), “marital property” means “all property acquired
by either party subsequent to the marriage” unless it falls under one of the four
statutory exceptions, none of which apply here.7 There is a presumption that all
property acquired during the marriage is marital property, and therefore subject to
division upon divorce. 8 Accounting and tax designations are not controlling when
making marital property determinations.9 Instead, the Family Court must consider
when a spouse’s income was actually earned, rather than when it was received, for
marital property purposes.10
7
13 Del. C. § 1513(b). “Subsequent to the marriage” means after the date of marriage, not after
the divorce.
8
Id. § 1513(c).
9
Lynam v. Gallagher, 526 A.2d 878, 881 (Del. 1987) (“[Though certain distinctions may be
meaningful from a corporate accounting perspective,] they should not be determinative as
between the parties to a marital property dispute . . . .”).
10
Forrester v. Forrester, 953 A.2d 175, 186 (Del. 2008) (property interest acquired during
marriage even if not realized as cash until after marriage is marital property); Gregg v. Gregg,
510 A.2d 474, 480 (Del. 1986) (“Property interests not yet reduced to possession can be acquired
during marriage within the meaning of § 1513, and if such an interest still exists at the time of a
divorce, the interest is to be regarded as marital property.”); Sayer v. Sayer, 492 A.2d 238, 241
n.4 (Del. 1985) (“[A]lthough [pension amounts] are not presently possessed they are presently
earned [and] pension amounts attributable to the periods prior to or subsequent to the marriage
are separate property while those rights earned during a marriage are proportionally distributable
to the parties.”); N.P. v. J.L.P., 2008 WL 1952968, at *4-5 (Del. Fam. Mar. 11, 2008) (pro rata
portion of retention bonus received after marriage was marital property because interest was
acquired during marriage); Dowd v. Dowd, 1992 WL 69317, at *8 (Del. Fam. Feb. 25, 1992)
(year-end bonus paid in January of following year is marital property because based on work
performed in the prior year).
6
Husband’s employment agreement states: “We do not pay monthly draws in
January of each year, but during January . . . you will receive the balance of your
prior year’s base compensation . . . in excess of previously received draws.” 11
This payment scheme is consistent with the firm’s partnership agreement, which
also provides that the January payment is “earned” the preceding year. 12 Where
the terms of a contract are clear on their face, there is no need to resort to extrinsic
evidence to aid in interpretation. 13 Both the employment agreement and the
partnership agreement plainly state that the January payment represents the balance
of Husband’s base compensation from the preceding year and is earned in the
preceding year.
11
App. to Opening Br. at 255 (Emp’t Agreement) (emphasis added); see also id. (“The final
distribution for each year is on or about January 13 of the following year and includes a
distribution of all remaining net income not previously distributed . . . .”).
12
Id. at 267 (P’ship Agreement) (“After the close of each fiscal year, any excess of each
Partner’s share of the Net Income for such fiscal year over his or her Draws and other charges to
his or her capital account during or in respect to such fiscal year . . . shall be paid to such
Partners as soon as practicable after the end of such fiscal year . . . .”); see also App. to
Answering Br. at 88 (Husband’s 2012 Fin. Info. Memo) (“The aggregate of your 2012 gross
distributions is $[x], which is comprised of[, among other sums,] today’s gross distribution of
$[y].”). . Husband points to the third party beneficiary disclaimer in the Partnership Agreement,
and argues that the Partnership Agreement should not be considered when interpreting the
Employment Agreement. His argument, however, ignores the Partnership Agreement language
where the two documents were intended to be read together. See id. at 254 (Emp’t Agreement)
(“Compensation: In accordance with and subject to our Partnership Agreement . . . .) (emphasis
added). Further, a third party beneficiary is “an individual who is not a party to a contract [but]
can nevertheless enforce it under certain circumstances.” 13 WILLISTON ON CONTRACTS § 37:1
(4th ed.). Wife is not seeking to enforce the Partnership Agreement. Instead she is using the
agreement as an interpretive aid, as contemplated by the language in the agreement.
13
Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006).
7
Husband argues that this interpretation ignores other language in the
employment agreement, where Husband and his new law firm agreed as follows
for the January 2012 payment:
As a result of your admission to the Firm in 2011, a significant portion
of the revenue from clients generated by you and/or your work during
the balance of 2011 will necessarily fall into 2012, and accordingly,
all of the amount paid to you in 2012 constituting the balance of your
2011 base compensation and/or constituting a bonus (if any) payable
respecting your 2011 performance, will be treated by the Firm and
you as 2012 income for all financial and tax reporting purposes. 14
According to Husband, even though the foregoing language addressed the January
2012 payment, it supports his interpretation that the January 2013 payment was in
anticipation of revenues the firm would receive in 2013, and therefore when his
income is matched with the tax year, the $2.7 million January 2013 payment is not
marital property. 15 This argument fails for several reasons. As Husband admitted
at trial, if he left the firm on February 1, 2013 after receiving his January payment,
the January payment would have been “earned” and owed to him regardless of his
14
App. to Opening Br. at 256 (Emp. Agreement).
15
Husband relies on the principle of contract construction that “[s]pecific language . . . controls
over general language, and where specific and general provisions conflict, the specific provision
ordinarily qualifies the meaning of the general one.” DCV Holdings, Inc. v. ConAgra, Inc., 889
A.2d 954, 961 (Del. 2005). According to Husband, applying this principle demands that the
provision treating the January payment as income for the year it is received “for all financial and
tax reporting purposes” be interpreted to negate the prior language in the employment agreement
making clear the January payment is for the previous year’s compensation. But these provisions
are not in conflict. The first explains what the January payment is—the balance of last year’s
compensation—and the second explains how it will be treated for accounting purposes—this
year’s income. The provisions address different issues and are not in conflict.
8
departure. 16 Further, although Husband concentrates on the tax treatment of the
payment, the employment agreement language relied on by Husband reinforces
Wife’s position that the payment was “earned” the year before. For Husband’s
January 2012 payment, the provision relied on by Husband states that “all of the
amount paid to you in 2012 constituting the balance of your 2011 base
compensation and/or constituting a bonus (if any) payable respecting your 2011
performance . . . .” 17 This language is consistent with Wife’s position, where the
January payment is “earned” in the year preceding the payment.
Husband’s argument is at odds with the express language of his employment
agreement and the partnership agreement. Husband’s position merely reflects the
special tax treatment of the January payment agreed to by Husband and his law
firm, rather than controlling when the payment was earned for marital property
purposes. The Family Court correctly decided that Husband’s January 2013
payment was earned in 2012 and therefore partially includable in the marital estate.
B. The Allocation Of Marital Property
Husband argues that the Family Court improperly weighed the relevant
statutory factors when it awarded Wife 65% of the non-retirement assets and 50%
16
App. to Opening Br. at 737 (Hr’g Tr., Jan. 17, 2014):
The Court: If you drop dead on the 14th of any given year and they’ve already
given you whatever amount of money that they have given you, how do they get
their money back?
[Husband]: They don’t.
17
App. to Opening Br. at 256 (Emp’t Agreement) (emphasis added).
9
of the retirement assets. Under 13 Del. C. § 1513(a), the Family Court is required
to consider a list of at least eleven factors as it deems just when exercising its
broad discretion to divide marital property in an equitable manner.18 This Court
will not disturb the Family Court’s consideration of these factors and the resulting
division of marital property unless it abused its discretion.19
The Family Court painstakingly weighed the evidence and concluded, based
on the factors set forth in § 1513, that Wife was entitled to a larger share of the
marital estate than Husband. The court’s determination rested heavily on
Husband’s ability to earn annually fifty times what Wife might earn, as well as the
fact that both parties had contributed equally, though in different ways, to the
marriage.20 The weighing of the various factors is uniquely within the province of
the Family Court, and after reviewing the court’s analysis, it is clear that it did not
abuse its discretion or fail to support its reasons for the final division percentages.
C. Wife’s Dependency And The Alimony Award
Husband next argues that the Family Court erred by not considering the
substantial assets allocated to Wife when determining dependency. According to
18
Gately v. Gately, 832 A.2d 1251 (Del. 2003) (Table); Linder v. Linder, 496 A.2d 1028, 1030
(Del. 1985); see also Olsen v. Olsen, 971 A.2d 170, 178 (Del. 2009) (“[The Family Court] is not
required to place equal weight on each factor, it is simply required to analyze and balance the
factors in reaching a conclusion as to the division of property between the spouses.”).
19
Wife (L. R.) v. Husband (N. G.), 412 A.2d 333, 334 (Del. 1980) (“If there was no abuse of
discretion, we must affirm even if we would have reached different conclusions had we been the
trier of fact.”).
20
Opinion I at 31-36.
10
Husband, the Family Court allocated to Wife substantial marital assets, and Wife
should be required to exhaust those assets before being eligible for alimony. Wife
states in response that the Family Court considered the marital assets allocated to
Wife when it reduced her alimony award based on the income those assets might
produce, and properly determined that Wife was dependent based on the couple’s
standard of living during the marriage.
Under the alimony statute, 13 Del. C. § 1512, the Family Court must
consider “all relevant factors,” including the enumerated statutory factors, when
determining dependency and calculating alimony if dependency is found. The
dependency determination and alimony award are relative, and based on the
standard of living established during the marriage. 21 As one of the factors, the
Family Court must consider the assets allocated to a spouse in the property
division.22 “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 section 1512; and (3) its
explanations, deductions and inferences are the product of a logical and deductive
reasoning process.’” 23
21
Id. at 1145-46.
22
13 Del. C. § 1512(b)(2); § 1512 (c)(1). Assets can be allocated in the property division in lieu
of alimony. 13 Del. C. § 1513(a)(4).
23
Thomas v. Thomas, 102 A.3d 1138, 1142 (Del. 2014) (citing Gray v. Gray, 503 A.2d 198, 201
(Del. 1986)).
11
Where the Family Court finds a deficit exists between spouses based on the
couple’s standard of living during the marriage, and the supporting spouse has the
financial resources to pay alimony, as a general rule the dependent spouse is not
required to liquidate marital assets allocated in the property division before
qualifying as dependent.24 This rule reflects the equitable nature of both property
division and alimony awards, and the support obligations that marriage creates. It
would in many cases be unfair for the less pecunious spouse to have to liquidate
marital assets while the supporting spouse keeps his or her allocated marital assets
and maintains the marital standard of living. If the supporting spouse has the
ability to pay alimony, the dependent spouse should be able to maintain the same
24
27B C.J.S. Divorce § 621 (2015); Marian F. Dobbs, Determining Child & Spousal Support §
3:64 (2015); see, e.g., In re Marriage of Drury, 740 N.E.2d 365, 369 (Ill. Ct. App. 2000) (“A
spouse seeking maintenance should not be required to sell assets or impair capital to maintain
herself in a manner commensurate with the standard of living established in the marriage as long
as the payor spouse has sufficient assets to meet both his needs and the needs of his former
spouse.”); Wright v. Wright, 135 So. 3d 1142, 1145 (Fla. Dist. Ct. App. 2014) (“In determining
the need for alimony, the trial court should be mindful that the former wife is not required to
liquidate and deplete her assets to provide for her living expenses.”); Ashlock v. Ashlock, 154
S.W.3d 419, 421 (Mo. Ct. App. 2004) (“[A] person seeking maintenance is not required to
consume or deplete his or her marital property to meet his or her expenses before being entitled
to maintenance.”); In re Marriage of Bounds, 60 P.3d 1090, 1093 (Or. App. 2003) (affirming an
award of spousal support despite the fact that dependent spouse received a lump-sum cash award
of $400,000 and allegedly would be able to earn investment income from the award); Perrine v.
Christine, 833 S.W.2d 825, 827 (Ky. 1992) (“The circuit court order does not require Patricia to
liquidate, it merely concludes—and reasonably so—that she possesses sufficient property to
provide for her reasonable needs and to continue the standard of living established during her
marriage, all while maintaining an undisturbed investment principal of $533,000.”); In re
Marriage of Kerber, 574 N.E.2d 830, 832 (Ill. App. 1991) (“A spouse need not be reduced to
poverty before maintenance is appropriate. Further, a spouse is not required to sell off his or her
assets or capital in order to maintain the standard of living established during the marriage.”); In
re Marriage of Smith, 471 N.E.2d 1008, 1017 (Ill. App. 1984) (“Even where a spouse is awarded
sufficient marital property to pay her own fees, the other spouse can be ordered to pay them so
that she is not required to deplete her capital assets.”).
12
standard of living enjoyed during the marriage without liquidating marital assets.25
The Family Court has previously followed this rule. 26
In this case the Family Court considered the marital assets awarded to Wife,
the couple’s standard of living during the marriage, Wife’s relative economic
disadvantage following the divorce, and Husband’s stipulation that he could afford
to pay alimony. The court properly exercised its discretion and did not require
Wife to exhaust those assets before qualifying as dependent.
Husband argues that our decision in Thomas v. Thomas 27 requires that Wife
exhaust the substantial marital assets allocated to her in the divorce before she can
be considered dependent. In Thomas, the husband earned approximately $60,000
per year, and would be “barely able to cover his own expenses” if required to pay
alimony, despite the wife having $629,000 in assets after accounting for a separate
25
See Thomas, 102 A.3d at 1145-46 (“The meaning of dependency must be ‘measured against
the standard of living established by the parties during their marriage.’”) (quoting Gregory J. M.
v. Carolyn A. M., 442 A.2d 1373, 1375 (Del. 1982)); Kelly v. Kelly, 925 So. 2d 364, 368 (Fla.
Dist. Ct. App. 2006) (“A spouse of a relatively long-term marriage is entitled to maintain the
style or standard of living enjoyed during marriage if possible. And a spouse is not required to
deplete her capital assets to maintain the standard of living she enjoyed during the marriage.”);
De Cenzo v. De Cenzo, 433 So. 2d 1316, 1318 (Fla. Dist. Ct. App. 1983) (“[P]ermanent periodic
alimony is used to provide the needs and the necessities of life to a former spouse as they have
been established by the marriage of the parties. The two primary elements to be considered
when determining permanent periodic alimony are the needs of one spouse for the funds and the
ability of the other spouse to provide the necessary funds.”).
26
See, e.g., G.W.S. v. J.M.G., 2000 WL 1658414, at *4 (Del. Fam. Ct. July 20, 2000) (Wife not
required to deplete investments to meet recurring monthly expenses when Husband “can well
afford to meet his needs and assist Wife with hers.”).
27
Thomas, 102 A.3d at 1148.
13
inheritance. 28 The Family Court found that Wife was dependent, and excluded the
approximately $500,000 inheritance from its dependency determination. 29 On
appeal we recognized that while an inheritance is excluded from marital property
for purposes of property division under § 1513,30 this exclusion did not apply to
alimony awards under § 1512. We reversed, and found that the Family Court erred
by not considering the wife’s inheritance when determining dependency. 31
Our decision in Thomas is not controlling in this case. In Thomas, the
spouse seeking support had independent resources adequate to maintain her
lifestyle, while the husband would barely be able to cover his expenses. Here,
Wife did not have independent financial resources. Her assets following divorce
came from the division of shared marital assets, which neither party would have to
liquidate to maintain their affluent lifestyle during marriage. Husband also
stipulated that he could afford alimony. 32 The Family Court found that Husband
will be able to maintain a comfortable lifestyle and high income, and maintain the
assets allocated to him in the divorce. The Family Court also determined that,
given the couple’s wealthy standard of living before divorce, and Wife’s relatively
28
Id.
29
Id. at 1145-48.
30
13 Del. C. § 1513(b)(1).
31
Thomas, 102 A.3d at 1147-48.
32
App. to Answering Br. at 15 (Husband’s Resp. to Mot. to Compel) (“[Husband] is not
contesting his ability to pay . . . reasonable alimony should the Court find that [Wife] is eligible
for the same.”).
14
limited earning capacity after divorce, Wife was at a significant economic deficit
compared to Husband. 33
The Family Court applied the required statutory factors before determining
dependency, awarding alimony, and fixing the amount. The court did not abuse its
discretion when it found Wife dependent and awarded Wife alimony without
requiring her to exhaust assets allocated to her in the property division.
D. Excluding The New Home Cost From Wife’s Investment Assets
Husband argues that the Family Court erred by subtracting the cost to buy a
new home from Wife’s assets when it determined which assets Wife could expect
to derive income from, and thus how much investment income she could expect to
earn when calculating alimony. The parties argue over whether this was equitable.
The Family Court has the discretion to formulate an alimony award considering all
of the relevant factors, provided it follows a logical deductive process.34 The court
decided to make this allowance after reasoned consideration of the parties’ relative
resources and needs, and therefore did not abuse its discretion.
33
Wife testified to expenses not covered by alimony including legal fees, college expenses for
the children, and out-of-pocket costs for medical care for one of the children. App. to Answering
Br. at 173-77, 179, 195-98 (Hr’g Tr., Apr. 16, 2014). The court found that “based upon the
parties’ affluent standard of living, the Court finds the case herein is distinguishable from
Thomas and Wife does not have sufficient funds to meet her reasonable monthly expenses and is
dependent upon Husband for support.” Opinion II at 12.
34
Thomas, 102 A.3d at 1142 (“The Family Court’s rulings will not be disturbed on appeal if . . .
its explanations, deductions and inferences are the product of a logical and deductive reasoning
process.”).
15
E. The Rate Of Return On Wife’s Investment Assets
Husband also argues that the Family Court erred as a matter of law when it
found, based on expert testimony, that Wife could reasonably expect a 4.5% annual
rate of return from her investment assets. The rate of return affected how much
income the court attributed to Wife, and thus affected her alimony. Husband
claims that the Family Court arrived at 4.5% by selecting the mid-point between
Husband’s expert’s projected rate of investment return and Wife’s expert’s
projected safe withdrawal rate. The withdrawal rate is the rate at which Wife could
withdraw assets from her investment portfolio without the risk of depleting her
principal. Husband argues that the two rates reflect distinct concepts, and the
Family Court erred by taking an average of the two percentages.
The Family Court “use[d] the middle point of [the experts’] projections.”35
It is not entirely clear how the “middle point” was chosen, but the court
appreciated the distinction between rates of return and withdrawal rates. The
Family Court recognized that the experts’ “respective analysis was [sic] quite
different.”36 When the court discussed rates of return, it clearly identified them as
35
Opinion I at 29-30.
36
Id. at 29.
16
such and discussed what they were. 37 When it discussed withdrawal rates, it did
the same. 38
Husband’s expert testified that Wife could expect a cumulative rate of return
on her assets of between 6 and 8% per year, and even possibly 10 to 12%. 39
Wife’s expert was unwilling to state with the same level of certainty what Wife
could reasonably expect to earn, 40 but Wife’s expert provided projected rates of
return for certain specific investments that she would recommend for Wife. These
varied, though they were all lower than Husband’s projected cumulative rate. 41
Husband’s expert calculated an average of Wife’s expert’s projected rates, and
37
Id. at 23 (“[Husband’s expert] testified that he believed Wife could earn at minimum a [6%]
rate of return on her investments.”) (emphasis added); id. at 26-27 (“[Wife’s expert’s] analysis
provided that one and three year return on the Ultra Conservative Growth and Income strategy
was 4.13% and 4.19%. The benchmark yield on the portfolio was 1.82% and the risk based
return for the strategy since its inception in 2009 was 7.29%. A management fee for the strategy
would generally be 1.0%. [Wife’s expert] also included an analysis of the Intermediate Fixed
Income Strategy to indicate how the 70% of the assets invested in fixed income securities in the
Ultra Conservative Growth and Income Strategy could be expected to perform. The benchmark
for returns for 1 and 3 years was .086% and 2.91% respectively and the annualized five year
return is 3.96%.”) (emphasis added); id. at 28 (“[Husband’s expert] interprets [Wife’s expert’s]
report to suggest an annualized rate of return of approximately 4.311% and a sustainable
withdrawal rate of 2.8% annually.”) (emphasis added).
38
Id. at 27 (“[Wife’s expert] also testified as to the rate Wife could safely withdraw from her
investments each year while continuing to retain enough principal to grow her assets.”)
(emphasis added).
39
App. to Opening Br. at 670 (Husband’s Expert Report).
40
App. to Answering Br. at 124 (Hr’g Tr., Apr. 16, 2014).
41
For example, Wife’s expert noted a .086% return benchmark after one year for her
Intermediate Fixed Income Strategy to a 4.19 % annual return for her Ultra Conservative Growth
& Income Strategy after three years. App. to Opening Br. at 675 (Wife’s Expert Report).
17
arrived at an annualized aggregate return of 4.3%.42 The experts also seemed to
agree that 2.8% per year was a reasonable safe withdrawal rate. 43
The rate of return is a factual determination which this Court will not disturb
unless it is clearly wrong or otherwise demonstrates that the Family Court abused
its discretion.44 In this case, the Family Court used a 4.5% annual rate of return on
investment. This rate was well within the experts’ range, from negligible returns
predicted by Wife’s expert for certain investments, to Husband’s expert’s 4.3%
aggregate rate of return derived from Wife’s expert’s projections, to Husband’s
expert’s own projections of at least a 6% and up to (an improbable) 12% rate of
return. The court’s number was thus not clearly wrong and supported by the
ranges predicted by the experts.
Husband also argues that the court erred in selecting a 4.5% rate of return
because the couple had been earning between 5% and 6% rates of return on certain
riskier Wells Fargo investments before their divorce, and should have used those in
its alimony calculation. But Wife no longer has the security of Husband’s income,
and so is likely to be more risk averse than she was during their marriage. 45 As a
result, the court did not abuse its discretion in refusing to consider higher-yielding
but riskier investments.
42
Id. at 826 (Hr’g Tr., Apr. 15, 2014).
43
Opinion I at 28.
44
Roberts v. Roberts, 19 A.3d 277, 280 (Del. 2011).
45
Opinion I at 24-25 (“[W]omen in Wife’s situation [are] generally very risk [averse] . . . .”).
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F. The Insurance Policies
Husband argues the court erred by requiring him to maintain certain life
insurance policies, originated during the marriage, with Wife as beneficiary. He
claims that the court did not give sufficient consideration to the present value of
Wife’s alimony award or tax consequences when it reasoned that these policies
were meant to be guarantees for the alimony award. The relevant statute, 13 Del.
C. § 1512(e), expressly authorizes the Family Court to “direct the continued
maintenance and beneficiary designations of existing policies insuring the life of
either party.” This Court has sustained other orders to maintain insurance policies
as security for alimony awards. 46 Requiring the maintenance of life insurance
policies was within the court’s discretion.
G. Attorney’s Fees
In the “Nature and Stage of Proceedings” section of her answering brief,
Wife requests that this Court award her fees as she believes Husband’s appeal was
meritless and lodged to harass her. Wife did not file a motion or otherwise argue
the claim in her briefing. “Although we have authority under Supreme Court Rule
20(f) to award attorneys’ fees in the case of a frivolous appeal, we will not
consider an informal request in the absence of a formal motion made and presented
46
See Norris v. Norris, 808 A.2d 758, 761 (Del. 2002); see also Jerry L. C. v. Lucille H. C., 448
A.2d 223, 226 (Del. 1982).
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in accordance with the Supreme Court Rules.” 47 Accordingly, Wife’s informal
request is denied.
IV. CONCLUSION
Because the Family Court committed no legal error and did not abuse its
discretion, the judgment of the Family Court is affirmed.
47
Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d
665, 688 (Del. 2013) (emphasis omitted) (citing Gatz Props., LLC v. Auriga Capital Corp., 59
A.3d 1206, 1222 n.96 (Del. 2012)).
20