the court ruled that the non-pension retirement benefits would be divided
50/50. When Wife brought the matter to the court’s attention in a motion for
reargument, the court corrected and modified the December 30, 2013 order
to provide that Husband’s non-pension retirement accounts would be divided
70/30, in accordance with the parties’ agreement”

(7) _ In his first claim on appeal, Husband takes issue with the 70/30
division and contends that the Family Court did not properly assess Wife’s
earning capacity under 13 De/. C. 1513. Husband’s claim is without merit.
When arriving at the 70/30 division, the court found that “[t]he length of the
parties’ marriage, high disparity in the parties’ income, and disparity in
future earning potential warrant[ed] Wife receiving a significantly greater

percentage of the marital estate.”!”

The court’s ruling reflects due
consideration of the factors under 13 De/. C. § 1513(a). On appeal, Husband
has failed to identify any factual findings or inferences that are clearly
wrong or any errors of law.

(8) In his second claim on appeal, Husband contends that, when the

Family Court modified the division of his non-pension retirement accounts,

he “was subjected to [a] major financial loss” that the court should have

° 7S. v. BS., 2014 WL 4267441, at *4 (Del. Fam. Ct. April 16, 2014).
78. v. BS., 2013 WL 9605961, at *9 (Del. Fam. Ct. Dec. 30, 2013).

5


(18) Husband requested attorneys’ fees and costs relating to his
motion to terminate alimony. Wife sought attorneys’ fees and costs that she
accrued over the course of the ancillary proceeding. In its April 16, 2014
order, the Family Court ruled that Wife was responsible for Husband’s
attorneys’ fees and costs related to prosecuting the motion to terminate
alimony and awarded Husband $26,608.75. The court further ruled that
Husband was responsible for Wife’s attorneys’ fees and costs, excluding
those related to Wife’s defense of the motion to terminate alimony, and
awarded Wife $41,240.67.

(19) Husband challenges the Family Court’s determination of
attorneys’ fees and costs in three respects. First, Husband claims that Wife’s
counsel did not submit an “itemized statement of services rendered,” as
required by Family Court Civil Rule 88(2).'7 Second, Husband claims that
he should not have to pay the attorneys’ fees and costs that Wife incurred
when opposing his motions to compel cohabitation-related discovery. Third,
Husband identifies a math error in the Family Court’s calculation of the
amount of attorneys’ fees and costs that Wife owes Husband.

(20) Husband is correct that the Family Court made a math error

when totaling $13,230, $3,500 and $11,875.73, the fees and costs the court

'7 See Del. Fam. Ct. Civil R. 88 (governing allowance of attorneys’ fees; expenses and
services).

10


of the child.'' The criteria for determining the best interests of a child are set
forth in 13 Del. C. § 722.'? In this case, when making its custody and
visitation determination, the Family Court concluded as follows:

After considering all relevant factors, the Court
finds that it is in the best interest of the children for
Husband and Wife to have joint legal custody of
the children and for primary residence of the
children to be with Wife. While it is clear that
both parents love and nurture the [cJhildren, factor
three (3) of 13 Del. C. § 722 favor[s] Wife’s
position to maintain [the] status quo in custody and
visitation. Accordingly, the custody and visitation
schedule shall continue as outlined in [the] August
1, 2012 Temporary Stipulation. Father shall enjoy
two consecutive overnight visitation days per week
on days he is off from work."

(12) On appeal, Husband “questions” the Family Court’s placement
of the children with Wife, alleging that Wife’s “drug offense,” “adjustment
disorder,” and live-in boyfriend’s “criminal history,” warranted Husband
having shared placement. We disagree. The record reflects that the Family
Court thoughtfully and thoroughly considered the best interest factors and

made appropriate findings as to each. Husband has failed to identify any

"" Friant y. Friant, 553 A2d 1186, 1190 (Del. 1989) (“The long established rule in
Delaware is that the best interests of the child is the primary concern in matters of
custody.”).

2 13 Del. C. § 722(a) (listing best interest factors).
81S. v. B.S. 2013 WL 9605961, at*16 (Del. Fam. Ct. Dec. 20, 2013).

7


corrected. Husband’s claim is without merit. Husband had agreed that his
non-pension retirement accounts should be divided as the court determined
for all other marital assets.

(9) | Husband’s third claim on appeal concerns the Family Court’s
rulings on custody and visitation. The parties litigated custody and visitation
on the last day of the ancillary hearing and called a total of seven witnesses,
including the children’s therapist and a licensed clinical social worker who
conducted court-ordered co-parenting sessions with the parties.

(10) The record reflects that the parties entered into a temporary
stipulation and order of custody on August 1, 2012 (hereinafter “temporary
stipulation”). Under the temporary stipulation, the parties agreed to joint
legal custody of the children, primary placement with Wife and weekly
overnight visitation with Husband. The temporary stipulation also included
a holiday and school break custody schedule. At the ancillary hearing, Wife
testified that she wanted to continue, and to make permanent, the order of
custody and visitation under the temporary stipulation. Husband testified
that he wanted to have shared residential placement of the children with
holiday and school breaks as provided under the temporary stipulation.

(11) Under Delaware law, the Family Court is required to determine

legal custody and residential placement in accordance with the best interests


alimony “effective November 1, 2012, as the evidence clearly show[ed] that
Wife was cohabiting by this point in time.”"

(16) On appeal, Husband claims that the Family Court erred when it
terminated alimony “effective November 1, 2012” when the court had found
that “Wife began cohabiting with [her boyfriend] during the summer and fall
of 2012.” The Court agrees that Husband is entitled to credit for any
alimony paid after Wife began cohabiting. In its December 30, 2013 order,
the Family Court found that Wife’s cohabiting began “during the summer . .
. of 2012.” Therefore, to the extent the Family Court terminated alimony
“effective November 1, 2012,” the court’s ruling is reversed. This matter
will be remanded to the Family Court to determine when, during the summer
of 2012, Wife began cohabiting, and to credit Husband for alimony paid
after that date.

(17) Husband’s fifth claim on appeal concerns the Family Court’s
determination of the parties’ requests for attorneys’ fees and costs. The

Family Court has broad discretion when deciding whether to award

attorneys’ fees and costs.'°

'S 1S. v. BS. 2013 WL 9605961, at *14 (Del. Fam. Cl. Dec. 30, 2013).
'6 Thomas v. Thomas, 102 A.3d 1138, 1150 (Del. 2014).

9


IN THE SUPREME COURT OF THE STATE OF DELAWARE

Pet. Nos. 11-14734, 12-06308,
12-06917, 12-18101, 12-32576,
13-01977, 13-17820

Petitioner Below,
Appellee.

BRETT SULLIVAN, §
§ No. 258, 2014
Respondent Below, §
Appellant, § Court Below—Family Court of
§ State of Delaware in and for
v. § New Castle County
§
JANET SULLIVAN, § File No. CN11-02708
§
§
§

Submitted: February 6, 2015
Decided: April 21, 2015

Before STRINE, Chief Justice, VALIHURA and VAUGHN, Justices.
ORDER

This 21° day of April 2015, upon consideration of the parties’ briefs
and the Family Court record, it appears to the Court that:

(1) | The parties, Brett Sullivan (hereinafter “Husband”) and Janet
Sullivan (hereinafter “Wife”) were divorced in September 2011 after a
marriage of nearly thirteen years. The Family Court retained jurisdiction to
decide ancillary issues, conducting a hearing on October 1, 2012, February
22 and 25, 2013, and August 13, 2013. At the conclusion of the four-day

hearing, the court directed the parties to submit post-hearing memoranda on

' By Order dated May 20, 2014, the Court sua sponte assigned pseudonyms to the parties.
Del. Supr. Ct. R. 7(d).


found were reasonably related to Husband’s motion to terminate alimony.
In its April 16, 2014 order, on pages 15 and 18, the court erroneously stated
that the total is $26,608.75. The correct total is $28,605.72. This matter
will be remanded to the Family Court for correction of the total amount Wife
owes Husband for attorneys’ fees and costs. In all other respects, however,
the Court concludes that the Family Court properly determined the parties’
requests for attorneys’ fees and costs.

NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED in part, REVERSED in part, and REMANDED
to the Family Court for further proceedings consistent with this Order.
Jurisdiction is not retained.

BY THE COURT:

(e (AL

Jpsti£e


basis upon which to disturb the factual findings of the Family Court and no
errors of law.

(13) Husband’s fourth claim on appeal concerns the Family Court’s
ruling on his motion to terminate alimony. Husband sought to terminate
alimony on the basis of Wife’s alleged cohabitation. Under 13 Del. C. §
1512(g), “the obligation to pay future alimony is terminated upon the . . .
cohabitation of the party receiving alimony.”"*

(14) The record reflects that Wife filed a motion for relief seeking
interim alimony in February 2012. The Family Court granted Wife’s motion
in March 2012 and ordered that Father make monthly interim alimony
payments to Wife beginning in April 2012. In October 2012, Husband filed
a motion to terminate the interim alimony claiming that Wife was
“cohabiting with her boyfriend” and had been doing so since early 2012,
before she filed the motion for relief.

(15) The parties litigated the cohabitation issue on the second, third
and fourth days of the ancillary hearing and called a total of seven witnesses.
In its order of December 30, 2013, after concluding that the evidence was

“overwhelming that Wife began cohabiting with [her boyfriend] during the

summer and fall of 2012,” the Family Court terminated Wife’s interim

13 Del. C. § 1512(g).


(5) The record reflects that, at the outset of the ancillary hearing,
the parties’ counsel discussed with the court the matters upon which the
parties agreed, including the division of deferred marital assets, namely
Husband’s non-pension retirement accounts and pension benefits. Through
their respective counsel, the parties agreed that Husband’s non-pension
retirement accounts should be divided as the court determined for all other
marital assets, and that Husband’s pension benefits should be divided 50%-
50% using the Cooper formula.*

(6) In its order of December 30, 2013, the Family Court determined
that a “fair and equitable division” of the parties’ assets was 70%-30% in
Wife’s favor, and that the parties’ debts should be divided in the reverse
percentage of 30%-70%. However, the court did not include Husband’s
non-pension retirement benefits in the 70/30 division of assets, as the parties

had agreed at the outset of the ancillary hearing on October 1, 2012. Rather,

(8) The economic circumstances of each party at the time
the division of property is to become effective, including
the desirability of awarding the family home or the right to
live therein for reasonable periods to the party with whom
any children of the marriage will live;

(9) Whether the property was acquired by gift, except
those gifts excluded by paragraph (b)(1) of this section;

(10) The debts of the parties; and

(11) Tax consequences.
® The method of dividing pension benefits referred to as the Cooper formula was
approved by this Court in Jerry L.C. v. Lucille H.C., 448 A.2d 223, 225-26 (Del. 1982).

4


custody and visitation; fourth, the Family Court did not credit Husband for
alimony payments; and fifth, the Family Court erred when determining
attorneys’ fees and costs. For the reasons that follow, we affirm in part,
reverse in part, and remand to the Family Court for further proceedings
consistent with this Order.

(4) Husband’s first and second claims on appeal concern the
Family Court’s division of the parties’ assets and debts. When determining

how to divide marital property, the court considers factors enumerated in 13

Del. C. § 1513.”

713 Del. C. § 1513 states in pertinent part:

(a) In a proceeding for divorce or annulment, the Court shall, upon
request of either party, equitably divide, distribute and assign the marital
property between the parties without regard to marital misconduct, in such
proportions as the Court deems just after considering all relevant factors
including:

(1) The length of the marriage;
(2) Any prior marriage of the party;

(3) The age, health, station, amount and sources of income,
vocational skills, employability, estate, liabilities and needs
of each of the parties;

(4) Whether the property award is in lieu of or in addition
to alimony;

(5) The opportunity of each for future acquisitions of
capital assets and income;

(6) The contribution or dissipation of each party in the
acquisition, preservation, depreciation or appreciation of
the marital property, including the contribution of a party as
homemaker, husband, or wife;

(7) The value of the property set apart to each party;
3


Wife’s alleged cohabitation. Thereafter, by orders dated December 30, 2013
and April 16, 2014, the Family Court divided the parties’ assets and debts
and ruled on matters of alimony, custody and visitation, child support, and
attorneys’ fees and costs.” Husband appealed.

(2) In an appeal from the Family Court, this Court reviews the facts
and the law as well as the inferences and deductions made by the court? We
review conclusions of law de novo, but if the court has correctly applied the
law our standard of review is abuse of discretion.’ When the Family Court’s
determination of facts turns upon the credibility of witnesses who testified
under oath, this Court will not substitute its opinion for that of the trial
judge.” Moreover, we will not disturb findings of fact unless they are clearly
wrong and justice requires that they be overturned.°

(3) | Husband has raised the following five claims on appeal: first,
the Family Court did not properly assess Wife’s earning capacity; second,
the Family Court erred when modifying the division of Husband’s non-
pension retirement accounts; third, the Family Court erred when determining

? JS. v. B.S. 2013 WL 9605961 (Del. Fam. Ct. Dec. 30, 2013); JS. v. B.S, 2014 WL
4267441 (Del. Fam. Ct. April 16, 2014).

3 Forrester v. Forrester, 953 A.2d 175, 179 (Del. 2008).
"Id.
5 Wife (J.F.V.) v. Husband (O.W.V.), 402 A.2d 1202, 1204 (Del. 1979).
6 Forrester v. Forrester, 953 A.2d 175, 179 (Del. 2008).
2