### IN THE SUPREME COURT OF THE STATE OF DELAWARE

CALVIN B. THOMAS, § § No. 439, 2013 Defendant-Below, § Appellant, § § Court Below: v. § Family Court of the State § of Delaware, in and for STACEY L. THOMAS, § New Castle County § Plaintiff-Below, § File No. CN11-06308 Appellee. §

Submitted: September 17, 2014 Decided: October 1, 2014

Before STRINE , Chief Justice; HOLLAND , RIDGELY , and VALIHURA , Justices; and DAVIS , Judge ∗ 

### , constituting the Court en Banc

.

Upon appeal from the Family Court of the State of Delaware. AFFIRMED , in part, and REVERSED , in part, and REMANDED

.

Gary L. Smith, Esquire, Gary L. Smith, Attorney A t Law, Newark, Delaware, Attorney for Defendant-Below, Appellant.

David J. J. Facciolo, Esquire, Minster & Facciolo LLC, Wilmington, Delaware, Attorney for Plaintiff-Below, Appellee.

HOLLAND , Justice:

∗ Sitting by designation under Del. Const. art. IV, § 12.2



### On December 15, 2011, Stacey L. Thomas (the “Wife”) petitioned the Family Court for a divorce from Calvin B. Thomas (the “Hus band”), which was granted on February 16, 2012. Thereafter, the Family Court re ndered final decisions on several ancillary matters. The Husband raises six issues i n this appeal: first, the Family Court erred by not equally dividing the marital property; second, the Family Court erred by determining that the Wife was dependent and therefo re entitled to alimony; third, the Family Court erred by applying a 2.5 percent intere st rate to calculate the Wife’s income from her inheritance, instead of some higher intere st rate; fourth, the Family Court erred when it refused to retroactively modify the amount of the interim alimony award; fifth, the Family Court imposed an impermissible punitive fine when it found the Husband in contempt of its interim alimony order; and sixth, t he Family Court erred when it awarded the Wife a portion of her attorney’s fees. We have concluded that the Family Court erroneously applied the alimony statute in making its final award. We have also determined that the other issues raised by the Husband are without merit. Therefore, the judgment of the Family Court is affirmed, in part, and reversed, in part. The matter is remande d to the Family Court for further proceedings in accordance with this opinion.

Facts The Husband is an independent contractor for Schmid t Baking Company, with an income that the Family Court found to be approximat ely $60,000 per year. The Wife works two part-time jobs at an hourly wage, with a total income of $16,700 per year. On3



### March 8, 2012, the Wife filed a motion for interim alimony. In her motion, the Wife acknowledged that she had inherited $450,000. The parties agreed that the inheritance was conside red to be separate property

under 13 Del. C. § 1513(b)(1) and it was not divided as a marital a sset. On that basis, the Husband argued, in his answer, that the Wife’s moti on for interim alimony should be denied because “[the Wife] is not dependent upon re spondent for support when she has $500,000 in the bank that could be used for that pu rpose.” On April 30, 2012, the Family Court awarded the Wife interim alimony of $2,018 pe r month, a calculation that was based, in part, on interest income earned on an inh eritance valued at $450,000 at an interest rate of 2.2 percent. The Husband filed a motion for reargument on May 7, 2012. In the motion, the Husband pointed out that when the Wife filed her Ru le 16(c) financial report, she disclosed that she actually had $629,359 in that ac count, as well as $5,115 in a different account. The Husband requested, among other things , that the Family Court recalculate the interim alimony based on this new amount, becau se the additional $184,474 would generate more interest income. The Family Court den ied the motion on May 30, 2012, noting that “[t]his figure was not available to the Court at the time the Order was issued” and that “the Court has no information regarding th e source of these funds.” On August 23, 2012, the Wife filed a rule to show c ause petition because the Husband stopped making his interim alimony payments . The Family Court held a hearing on the final distribution of marital assets and the rule to show cause petition on February 7, 2013. Both the Husband and the Wife te stified at the hearing. During his4



### testimony, the Husband admitted that he was living with and paying all of the expenses for his girlfriend, who had been out of work. Thes e expenses included the mortgage, utilities, and the cost of five cats. The Family Court entered its final order on alimony and the division of marital property on May 6, 2013. The Family Court divided the marital property 60/40 in favor of the Wife, because the marital residence was a gi ft from the Wife’s parents and the Husband had a higher income. The Family Court also determined that — despite her sizeable inheritance — the Wife was dependent on th e Husband, and ordered the Husband to make alimony payments of $949 per month. The money from the inheritance was in a money market account, so the Family Court used a 2.5 percent interest rate to calculate that the Wife would receive $15,725 in in terest income each year from the inheritance, or about $1,310 per month. The Family Court also held the Husband in contempt of the April 30, 2012 order and ordered the Husband to pay the Wife the outstan ding balance of $10,126. The Family Court refused to retroactively modify the am ount of the temporary alimony award, even though it determined in the final order that the amount of the interim award was more than the Husband was able to pay. Finally , the Family Court ordered the Husband to pay the Wife’s attorney’s fees and costs associated with the April 30, 20125



### order. 1 

### The Husband filed a motion for reargument on May 16, 2013, which the Family Court denied on July 22, 2013. Marital Property The Family Court has broad powers under 13 Del. C. § 1513 to distribute property following a divorce, and under 13 Del. C. § 1512 to determine what, if any, alimony is to

be awarded. 2 

### The usual standard of review of an alimony award is whether the Family

Court abused its discretion. 3 

### The scope of the review “extends to a review of t he facts

and law as well as to a review of the inferences an d deductions made by the Trial Judge.” 4 

### The Family Court’s rulings “will not be disturbed on appeal if: (1) its findings of fact are supported by the record; (2) its decisi on reflects due consideration of the statutory factors found in section 1512; and (3) it s explanations, deductions and inferences are the product of a logical and deducti ve reasoning process.” 5 

### In the Family Court, the Wife argued that the marit al property should be divided 70/30 in her favor, and the Husband argued that the marital property should be divided 60/40 in his favor. The parties’ principal asset w as their marital residence, which was worth $221,000. The Wife’s father purchased the ma rital residence in 1990, and initially, the deed was in the Wife’s parents’ names and the p arties’ names. The Wife’s parents transferred the property to the Wife and the Husban d in 1996, and then it was deeded

1 Including the Wife’s motion for temporary alimony, her response to the Husband’s motion for reargument, her response to the Husband’s motion to stay, her response to the Husband’s application for certification of interlocutory appe al, and her petition for rule to show cause. 2 R. E. T. v. A. L. T. , 410 A.2d 166, 168 (Del. 1979). 3 Gray v. Gray , 503 A.2d 198, 201 (Del. 1986) (citing R. E. T. , 410 A.2d at 168). 4 Gray , 503 A.2d at 201 (quoting Wife (J.F.V.) v. Husband (O.W.V., Jr.) , 402 A.2d 1202, 1204 (Del. 1979)). 5 Id

.6



### jointly. The parties never had to make mortgage pa yments on the property. Because of the Wife’s parents’ contribution to the purchase of this asset and because of the Husband’s greater income, the Family Court determin ed that a fair and equitable division of the marital property, including the marital resi dence, would be 60/40 in the Wife’s

favor. 6 

### On appeal, the Husband argues that the Family Court abused its discretion and should have divided the marital property equally. The Husband argues that the Wife’s parents’ contribution of the marital residence was not a reason to depart from a 50/50 split because it was gifted to them both equally or , alternatively, that the Husband’s higher income was not a reason to depart from a 50/ 50 split because of the Husband’s inferior economic position once the Wife’s inherita nce is taken into account. 7 

### Section 1513 of Title 13 excludes certain property from the definition of marital property that is subject to equitable distribution, but the statute does not exclude property that was jointly acquired by gift. 8 

### Because the home was jointly gifted to both the

6 The Family Court stated that “[g]iven the disparit y in income, the Court finds that Husband enjoys opportunity for greater earnings than Wife a nd, therefore, this factor favors granting Wife a slightly larger percentage of the marital estate. ” Family Court’s Decision on Alimony (May 6, 2013). The Family Court also stated that “the Cour t finds that it is fair that Wife receives a disproportionate percentage of the former marital h ome in light of her family’s contribution.” Id

. 7 The Husband does not cite any cases to support his position, but merely cites the statute governing disposition of marital property, 13 Del. C. § 1513. 8 13 Del. C. § 1513(b) provides that: “For purposes of this cha pter only, “marital property” means all property acquired by either party subsequ ent to the marriage except: (1) Property acquired by an individual spouse by be quest, devise or descent or by gift, except gifts between spouses, provided the gifted p roperty is titled and maintained in the sole name of the donee spouse, or a gift tax re turn is filed reporting the transfer of the gifted property in the sole name of the donee s pouse or a notarized document, executed before or contemporaneously with the trans fer, is offered demonstrating the nature of the transfer.7



### Husband and the Wife, the home was held as a tenanc y by the entirety. Generally, upon the dissolution of a marriage, a tenancy by the ent irety devolves as a matter of law into a tenancy in common between the former spouses, with each owning a one-half interest. 9



### But 13 Del. C. § 1513(a) provides that “upon request of either pa rty, [the Family Court shall] equitably divide, distribute and assig n the marital property between the parties without regard to marital misconduct, in su ch proportions as the Court deems just.” 10 

### “Under [13 Del. C. § 1513(c)], the Family Court is empowered to divid e and assign marital property regardless of how title is held . . . .” 11 

### The Family Court is instructed to consider “all relevant factors,” incl uding eleven that are specifically listed. 12 

### Thus, the Family Court is not required to award hal f of the marital property to each party, and may determine that it is more equitable to divi de the marital property in unequal (2) Property acquired in exchange for property acqu ired prior to the marriage; (3) Property excluded by valid agreement of the par ties; and (4) The increase in value of property acquired prio r to the marriage.” 9 Mitchell v. Wilmington Trust Co. , 449 A.2d 1055, 1059 (Del. Ch. 1982), aff’d sub nom. Wilmington Trust Co. v. Mitchell , 461 A.2d 696 (Del. 1983); Wife W. v. Husband W. , 307 A.2d 812 (Del. Super. 1973), aff’d. , 327 A.2d 754 (Del. 1974). 10 13 Del. C. § 1513(a). 11 Husband R.T.G. v. Wife G.K.G. , 410 A.2d 155, 159 (Del. 1979). 13 Del. C. § 1513(c) provides that “[a]ll property acquired by either pa rty subsequent to the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in c ommon or tenancy by the entirety.” 12 13 Del. C. § 1513(a). Those factors are: “(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 need s 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 m arital property, including the contribution of a party as homemaker, husband, or wife; (7) The value of the property set apart to each party; (8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding t he family home or the right to live therein for reasonable periods to the party with whom any child ren of the marriage will live; (9) Whether the property was acquired by gift, except those gif ts excluded by paragraph (b)(1) of this section; (10) The debts of the parties; and (11) Tax consequ ences.” Id.8



### percentages, so long as its decision is supported b y the factors contained in § 1513(a) and any other relevant factors. 13



### One of the factors listed in the statute that the F amily Court is directed to consider when it is deciding how to equitably distribute pro perty is “[w]hether the property was acquired by gift.” 14 

### The statute does not provide any additional guida nce about whether or how to consider the identity or intent of the gi ver, or even whether the gift was given jointly such that it immediately became marital pro perty or separately such that it only later became marital property through transmutation

. 15 

### When determining the equitable distribution of marital assets, Delaware courts hav e given extra weight to the party whose family contributed the gift, including by increasin g the percentage of the asset that is allocated to that party. 16 

### Because the statute instructs the Family Court to consider “all

13 Wife (L. R.) v. Husband (N. G.) , 406 A.2d 34, 35 (Del. 1979) (“To the extent that the Trial Court’s order takes away any such interest and assi gns it to the husband, then the Court’s reason for doing so must be supported under the criteria s tated in § 1513.”). 14 13 Del. C. § 1513(a)(9); A RNOLD H. R UTKIN , 3 F AMILY L AW AND P RACTICE § 37.04(3)(b)(ii) (2006) (noting that “one factor that a court must c onsider in making equitable distribution is whether property was acquired by gift”). 15 Transmutation is the process whereby parties can m odify the status of the property they own from separate property into marital property. 16 See, e.g. , L.M. v. R.M. , 2007 WL 3202334, at *8 (Del. Fam. Ct. Aug. 3, 200 7) (“The Court also took into consideration that Wife’s father pro vided the mortgage for the marital home and ultimately forgave the principal on the mortgage. T his significant gift now accounts for 78% of the marital estate and is a major reason for Wife r eceiving 57% of said estate despite the parity in the parties’ receipt of pension benefits.”) (intern al citations omitted); Ercole v. Ercole , 1998 WL 918823, at *2 (Del. Fam. Ct. July 30, 1998) (“[S]in ce the gifts were made to both Husband and Wife, the Court will consider the $30,000 as jointl y-owned marital property subject to equitable division. Since the funds came from Husband’s famil y, however, the Court will take that fact into consideration in allocating the percentage dis tribution.”) (internal citations omitted); Hanley v. Hanley , 1993 WL 777367, at *3 (Del. Fam. Ct. Dec. 16, 199 3) (“The important fact is that this major contribution to the marital estate came from one of Husband’s parents. . . . Wife will now share substantially in the equity in this property and receive a major benefit from this money which she would receive no benefit from if it had i t been strictly inherited, the Court balances this significant financial contribution from Husban d’s side of the family with Wife’s extra9



### relevant factors” and then explicitly instructs the Family Court to consider “whether the property was acquired by gift,” and because Delawar e courts have routinely made similar considerations in the past, the Family Court did no t abuse its discretion by considering the fact that the marital residence was a gift from the Wife’s parents when determining how to equitably divide the marital property. Alth ough the Family Court should not reflexively look behind the titling of a joint gift to spouses, here, the relevant factual record supported the Family Court’s decision to mak e a moderate adjustment in favor of the Wife because the gift seemed to have been motiv ated primarily by the desire of the parents of the Wife to help her spend more time on her own parental duties and to help their grandchildren live in better circumstances. And by making only a moderate adjustment, the Family Court gave heavy weight to t he joint nature of the gift. Alimony Award The Husband also argues that the Family Court shoul d not have determined that the Wife was entitled to alimony, because she does not meet the statutory requirement of dependency. The Husband notes that the Wife posses ses more than $629,000 in liquid assets from an inheritance. The parties agree that the inheritance itself is not a marital asset that should be equitably distributed, but the y disagree about whether the inheritance disqualified the Wife from dependency for alimony p urposes. The Husband phrased this issue as “not the amount or duration of alimony Wif e may be entitled to but whether she

entitlement in the marital estate due to her inferi or health condition.”); Voss v. Voss , 1992 WL 120270 (Del. Fam. Ct. Apr. 28, 1992) (“In allocatin g marital property, the Family Court is required to give special consideration to property which one spouse has received in the form of gifts or inheritance. . . . [T]he Family Court, in the exercise of discretion, may favor one party by recognizing that certain property has its origin in a gift . . . .”) (internal citations omitted).10



### is entitled to any alimony at all, given the fact t hat she has a bank account that contains $629,000 that is available to her for her own suppo rt.” 17 

### In order to be awarded alimony, the Wife must demon strate by a preponderance of

the evidence 18 

### that she “[i]s dependent on the [Husband] for supp ort” and that she “[l]acks sufficient property, including any award o f marital property made by the Court, to provide for [her] reasonable needs.” 19 

### The Wife bears the burden of proof to show that she is dependent and that she is unable to support herself. 20 

### Dependency is not defined by the statute, but it “has been defined as a relat ive matter.” 21 

### We have also interpreted dependency to mean “more than a minimal existence o r subsistence level.” 22 

### The meaning of dependency must be “measured against the standard of living established by

17 Husband’s Motion for Interlocutory Appeal (May 7, 2012). 18 Martin v. Martin , 857 A.2d 1037, 1049 (Del. Fam. Ct. 2004); Gregory J. M. v. Carolyn A. M. , 442 A.2d 1373, 1375 (Del. 1982) (citing Husband B. v. Wife B. , 295 A.2d 701 (Del. 1972)).. 19 13 Del. C. § 1512(b) provides that: “A party may be awarded a limony 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 a nd the other party is not contractually or otherwise obligated to provide tha t 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 circumstanc es make it appropriate that he or she not be required to seek employment.” 20 Ann Marie H. v. Joseph J.H. , 456 A.2d 1233, 1234 (Del. 1983); A RNOLD H. R UTKIN , 2 F AMILY L AW AND P RACTICE § 11.03(1)(a) (2006) (“The spouse seeking a mainte nance award has the burden of demonstrating the need for support. If a spouse cannot make an adequate showing of need, support will be denied.”). 21 Adelaide A.G. v. Peter W.G. , 458 A.2d 702, 705 (Del. 1983) (internal citation omitted) (noting that “Wife’s assets (§ 1512(b)(2)) and employabilit y (§ 1512(b)(3)) are clearly and expressly relevant to a determination of her dependency. How ever, wife’s assets and income must then be related to husband’s and their respective needs and goals of self-sufficiency.”); R UTKIN , at § 11.03(1) (“The relative economic circumstances of t he parties and the ability to pay maintenance are the primary considerations when setting interim spousal support.”). 22 Gregory J. M. , 442 A.2d at 1375.11



### the parties during their marriage.” 23 

### The Family Court found here that “[t]he parties enjoyed a middle class standard of living during th eir marriage.” 24 

### When setting an order for alimony, 13 Del. C. § 

### 1512(c) instructs the Family Court to consider “all relevant factors,” including “[t]h e 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 or part of his or her reaso nable needs independently.” 25 

### The Family Court is also instructed to consider “[a]ny other factor which the Court expressly finds is just and appropriate to consider.” 26 

### Therefore, “[e]vidence that the spouse

23 Id . (quoting Husband J. v. Wife J. , 413 A.2d 1267, 1269 n.2 (Del. Fam. Ct. 1979)). 24 Family Court’s Decision on Alimony (May 6, 2013), B218 at *14. 25 13 Del. C. § 1512(c)(1); see also Martin v. Martin , 857 A.2d 1037, 1049 (Del. Fam. Ct. 2004) (“In making that threshold determination of depende ncy, the Court views the petitioning party’s circumstances in light of the specific factors set forth in Title 13, Section 1512(c). The first (1st) of those factors involves a review by the Court of the financial resources of the party seeking alimony, as well as their ability to meet all or pa rt of their reasonable needs independently.”). 26 13 Del. C. § 1512(c) provides that: “The alimony order shall be in such amount and for such time as the Court deems just, without regard to mar ital misconduct, after consideration of all relevant factors , including, but not limited to: (1) The financial resources of the party seeking alimon y, including the marital or separate property apportioned to him or her, and hi s or her ability to meet all or part of his or her reasonable needs independently ; (2) The time necessary and expense required to acqu ire sufficient education or training to enable the party seeking alimony to fin d appropriate employment; (3) The standard of living established during the m arriage; (4) The duration of the marriage; (5) The age, physical and emotional condition of bo th parties; (6) Any financial or other contribution made by eit her party to the education, training, vocational skills, career or earning capa city of the other party; (7) The ability of the other party to meet his or h er 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 m arriage; and (10) Any other factor which the Court expressly fin ds is just and appropriate to consider.”12



### seeking support has independent resources adequate to maintain his or her lifestyle can

demonstrate the absence of a need for maintenance.” 27 

### Section 1512(c) does not define what “financial res ources” are to be considered when determining dependency, beyond broadly stating that it includes “the marital or separate property apportioned to him or her.” This includes an inheritance, which is defined as separate property under § 1513(b). 28 

### Nevertheless, the Family Court decided in this case that it would not require the Wife to dissipate the inheritance, and therefore it would not count the principal of the inheritance to ward the Wife’s financial resources. Instead, the Family Court only included the interes t income from the inheritance toward the Wife’s financial resources when calculating whe ther the Wife was dependent. 29 

### In doing so, the Family Court committed legal error by adding an exception to the statute

that does not exist.

The fact that inheritances were carved out of the m arital property subject to equitable division in § 1513(b) demonstrates that t he General Assembly treats inheritances differently when it so desires. But t he General Assembly did not craft any provisions that would remove certain assets from th e “financial resources” that should be included when calculating alimony under § 1512. As other cases have recognized, Delaware courts may consider “both the principal an d income of such inheritances under various provisions of § 1512(c) in fixing the amoun t of alimony” because § 1512(b)(2)

27 R UTKIN at § 11.03(1)(a)(iii). 28 13 Del. C. § 1513(b) provides that: “For purposes of this cha pter only, ‘marital property’ means all property acquired by either party subsequ ent to the marriage except: (1) Property acquired by an individual spouse by b equest, devise or descent or by gift . . . .” 29 Family Court’s Decision on Alimony (May 6, 2013).13



### and (c)(1) do not draw a distinction between princi pal and income. 30 

### Indeed, Delaware

courts have included the full value of an inheritan ce when calculating whether a party is dependent and entitled to receive alimony. 31 

### Moreover, Delaware courts have not

excluded the full value of an inheritance when calc ulating a party’s ability to pay alimony. 32 

### The relationship between the two provisions further illustrates that it is important not to extend the exception for inheritances contai ned in the provisions regarding distribution of marital property in § 1513 to the a limony calculations in § 1512. “Generally equitable distribution should be conside red [before alimony]. It would be difficult to determine the needs of the recipient-s pouse or child and the supporting spouse’s ability to pay before a tentative equitabl e distribution award has been

determined.” 33 

### The $600,000 inheritance was not equitably distri buted because it was not considered to be marital property subject to divisi on under § 1513. In other words, the Husband already was not entitled to receive a 50/50 share of the inheritance equal to

30 In re Marriage of Tweedale v. Tweedale , 1996 WL 861492 (Del. Fam. Ct. Dec. 17, 1996), aff’d sub nom. Tweedale v. Tweedale , 703 A.2d 645 (Del. 1997) (citing Grant v. Grant , File No. CN88-9362, Wakefield, J. (Del. Fam. Ct. Dec. 15, 19 89)). 31 T.L. D. v. K.J.D. , 2007 WL 4793914 (Del. Fam. Ct. June 27, 2007) (no ting that the “Wife has liquid assets available to her to assist her with h er monthly needs” that were partially from an inheritance, despite Wife’s argument “that she shou ld not have to use her inherited and premarital funds to pay for day-to-day living expen ses”); In re Marriage of Suloff , 1996 WL 798763, at *2 (Del. Fam. Ct. Sept. 17, 1996) (where Wife used inheritance to purchase a sports car, the court noted that “[h]ad Wife . . . purchas ed a car for $11,000 (rather than one for almost $21,000), she would have $10,000 or approximately $ 278 per month over the three years during which she is eligible for alimony to (in part) meet her claimed expenses of $1,108 per month” and counted that $278 toward the wife’s income when determining dependency). 32 D.E. v. D.E. , 2012 WL 4857191, at *8 (Del. Fam. Ct. Aug. 17, 20 12) (recognizing that an inheritance could be used to pay alimony obligation s and including it in the analysis of whether a party could pay alimony under § 1512(b)(7)). 33 A RNOLD H. R UTKIN , 3 F AMILY L AW AND P RACTICE § 38.06.14



### $300,000, or even a 60/40 share equal to $240,000 — money that the Husband could have used to pay alimony. But for the Family Cour t to extend that exclusion of the inheritance through the alimony calculations perfor med under § 1512 would essentially apply the exclusion a second time, because that inh eritance also would not be counted toward the Wife’s financial resources, which she co uld use to support herself. Moreover, when dependency is examined as a relative matter, the Wife appears to have sufficient property to meet her needs independ ent of alimony from the Husband. The Wife earns an annual income of $16,700 and the Family Court found that she had annual expenses of approximately $36,050. A 50-yea r-old woman is expected to live for 33 years, or until age 83. 34 

### If the Wife, who is currently age 50, withdrew $1 9,350 per year from her inheritance to make up the difference , the principal would last over 32.5 years, even if she earned no interest at all. With interest included, even at only the 2.5 percent interest it is currently earning in a money market account, her inheritance would last even longer. It would be inequitable to requi re the Husband to pay alimony to the

Wife while those assets remain untouched. This is particularly true where those alimony payments put the Husband in a situation where he ca n barely cover his own expenses. 35 

### The statutory rationale for considering the full amount of the inheritance — not merely the interest income —in the dependency calcu lation is amplified by the record in this case, where the inheritance consists of liquid assets in a money market account. If

34 Actuarial Life Expectancy Table , S OCIAL S ECURITY A DMINISTRATION , http://www.ssa.gov/OACT/STATS/table4c6.html (2009). 35 Family Court’s Decision on Alimony (May 6, 2013), (noting that “[a]n alimony award set at this amount leaves Husband with no excess income; h owever, it does not require Husband to suffer a monthly shortfall for his expenses”).15



### the inheritance had been set up as a trust, under t erms where the Wife was only to receive the interest income during her lifetime, then it wo uld be logical not to include the principal in the dependency calculation, because th e Wife would not be able to access it. But here, the Wife has ready access to over $629,00 0 in cash. The Family Court improperly excluded any consideration of the principal of the

inheritance from the Wife’s financial resources. T he complete exclusion of those

substantial funds from the calculation of the Wife’ s dependency was contrary to the alimony statute and constituted an error of law. T herefore, this matter must be remanded to the Family Court for further proceedings in acco rdance with this Court’s opinion. 36 

### Contempt Sanction On April 30, 2012, the Family Court ordered the Hus band to make interim alimony payments of $2,018 to the Wife. The Husban d paid the full amount from May 2012 through July 2012. After that time, the Husba nd paid $1,000 37 

### in some months, but nothing for at least three months. 38 

### On August 23, 2012, the Wife filed a rule to show cause petition. The Family Court held a hearing on both the final distribution of marital assets and the rule to show cause petition on Febru ary 7, 2013. The Husband claimed that he could not afford to make the payments. But during his testimony, the Husband admitted he was living with and paying all of the e xpenses for his girlfriend, who had

36 If the Family Court determines that the Wife is not dependent on the Husband on the basis of her substantial inheritance, then the interest rate earned on the inheritance is no longer a relevant issue in the case. The interest rate was only used to calculate the Wife’s income for the purpose of determining her monthly shortfall, which was the n used to calculate the amount of alimony the Husband would be required to pay. 37 These months included August 2012, September 2012, November 2012, and January 2013. 38 These months included October 2012, December 2012, and February 2013.16



### been out of work. These expenses included the mort gage, utilities, and the cost of five cats. The Family Court issued a final order on May 6, 2013, that found the Husband to be in contempt and determined that the Husband owed the wife $10,126 in total. The Husband argues that he should not be held in co ntempt because he was not able to pay the full amount of the alimony payments . The Husband notes that the final alimony order determined that he was only able to p ay $948 per month, or a total of $8,532. Because the Husband paid more than $8,532 in interim alimony, he argues that he was not in contempt of the order. The Husband a lso argues that the Family Court should have retroactively modified the interim alim ony order to match the final alimony order, so that he would not be in contempt of the o rder. This Court has explained that “[t]hree criteria mus t be met to support a finding of contempt: 1) there must exist a valid . . . order; 2) the [respondent] must have had the ability to abide by the valid . . . order; and, 3) the [respondent] must have, in fact, disobeyed the . . . order. . . . [The petitioner] m ust show a violation . . . by clear and convincing evidence.” 39 

### In this case, it is undisputed that the Family Co urt entered an interim alimony order on April 30, 2012. It also i s undisputed that the Husband failed to make sufficient alimony payments to the Wife as of the date of the hearing. Thus, the only question is whether the Husband had the abilit y to abide by the order. This Court

39 Sparks v. Matthews , 2013 WL 6870007 at *1 (Del. Dec. 31, 2013) (quot ing Watson v. Givens , 758 A.2d 510, 512 (Del. Fam. Ct. 1999) (citations o mitted)).17



### has noted that “inability to pay may be a defense, but that the respondent has the burden of proving his inability to pay.” 40 

### Furthermore, the Husband’s argument that the interi m order was incorrect because the payments were too high is unavailing. “[T]he c ourt will not listen to an excuse for the contemptuous action based upon an argument that the order in question was imperfect or

erroneous.” 41 

### In other words, the Husband cannot simply stop ma king payments because he thought that the payments were too much—especial ly where he stopped making payments before the Family Court made a final deter mination of the amount that would

be due. Rather, if he genuinely could not pay, the Husband should have informed the court of that, made an appropriate motion to modify, and paid as much as he was able. The Husband appears to have met part of this responsibi lity by moving to modify the interim order, but was unable to get that motion considered by the Family Court before the hearing on the final award itself. 42 

### The Husband also seems to have tried to pay what he

40 Id

. 41 Mayer v. Mayer , 132 A.2d 617, 621 (Del. Ch. 1957) (“No person may with impunity disregard an order of the court having jurisdiction over the subject matter and of the parties.”). 42 In addition to filing a motion for reargument and an interlocutory appeal to the Supreme Court, both of which were denied, the Husband requested a hearing before the Family Court to reconsider the amount of alimony on June 12, 2012, during the period of time he was still paying the required amount. The Family Court scheduled a hearing for Sept. 5, 2012. But the Wife filed a motion to remove that hearing because a sep arate ancillary hearing had been scheduled to determine the final distribution of assets and fina l award of alimony on Dec. 11, 2012. The court granted the Wife’s motion, noting that it would con sider the Husband’s request to retroactively modify the alimony order at the December hearing. The Wife then requested a continuance, which the court also granted. The Husband’s motion to modify the alimony award was thus not considered until Feb. 7, 2013, when the ancillary h earing took place. By that point, the Husband had ceased to maintain his alimony obligations: he made payments of $1,000 in August, September, November, and January, but no payments i n October, December, and February.18



### could for some time after arguing to the Family Cou rt that he could not afford to pay the full amount the Family Court ordered as interim mon thly alimony. But rather than continue to pay what he could, the Husband failed to pay anything at all for three months. Although a different judg e might have concluded otherwise, the Family Court was within its discretion to conclude that this self-help was inconsistent with the Husband’s responsibilities to honor a cour t order. Accordingly, the Family Court properly exercised its discretion when it fou nd that the Husband was in contempt of the interim alimony order, refused to retroactiv ely modify the award, and required the Husband to pay the Wife the overdue payments. The record reflects that the Family Court ordered t he Husband to pay the $10,126 in interim alimony that was owed to the Wife. The Husband argues that this sanction for civil contempt was an impermissible punitive fine. This Court has explained that “whether a contempt is civil or criminal turns on t he ‘character and purpose’ of the

sanction involved.” 43 

### “[A] contempt is civil in character when ‘institu ted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer t he remedies to which the court has

found them to be entitled.’” 44 

### Here, the sanction was not a fine but was the amo unt due to the Wife under the interim alimony order. Contr ary to the Husband’s arguments, the Although the court did modify the alimony award at the February hearing, it did not grant retroactive relief to the Husband. 43 DiSabatino v. Salicete , 671 A.2d 1344, 1349 (Del. 1996) ( quoting United Mine Workers v. Bagwell , 512 U.S. 821 (1994)). 44 City of Wilmington v. Gen. Teamsters Local Union 32 6 , 321 A.2d 123, 125 (Del. 1974); see also DiSabatino , 671 A.2d at 1350 ( quoting United Mine Workers v. Bagwell , 512 U.S. 821 (1994) (“A fine is ‘considered civil and remedial’ if it either ‘coerce[s] the defendant into compliance with the court’s order, [or] ... compens ate[s] the complainant for losses sustained.’”).19



### sanction was not designed to “punish” him for his f ailure to pay, but rather, it was only intended to compel him to obey the order, make the payments, and bring the account

current. Attorney’s Fees Award The Family Court ordered the Husband to pay the Wif e’s attorney’s fees and costs associated with the April 30, 2012 interim alimony order. 45 

### The Husband argues that the Family Court abused its discretion when it ordered him to pay the Wife’s legal fees because it did not properly consider the Wife’s fin ancial resources, including her

substantial inheritance. The Family Court has broad discretion in deciding w hether to award attorney’s

fees and costs. 46 

### 13 Del. C. § 1515 provides:

The Court from time to time after considering the financial resources of both parties may order a party to pay all or part of the cost t o the other party of maintaining or defending any proceeding un der this title and for attorneys’ fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceedin g or after the entry of judgment. 47 

### The purpose of §1515 is “to provide a financially d isadvantaged spouse with the financial resources to prosecute or defend a [divorce] action .” 48 

### The Family Court will consider whether a party’s excessively litigious conduct had an adverse financial effect on the

45 Including the Wife’s motion for temporary alimony, her response to the Husband’s motion for reargument, her response to the Husband’s motion to stay, her response to the Husband’s application for certification of interlocutory appe al, and her petition for rule to show cause. 46 Julin v. Julin , 787 A.2d 82, 84 (Del. 2001); Wheeler v. Wheeler , 636 A.2d 888, 892 (Del. 1993); Lynam v. Gallagher , 526 A.2d 878, 885 (Del. 1987); Gray v. Gray , 503 A.2d 198, 204 (Del. 1986). 47 13 Del. C. § 1515. 48 Mays v. Mays , 1988 WL141148, at *2 (Del. Nov. 23, 1988) (citing Gray , 503 A.2d at 204).20



### other party. 49 

### Family Court Civil Rule 88 also permits the Famil y Court to assess a party the reasonable counsel fees of any other party “whe re there is a legal or equitable basis

therefor.” 50 

### An award of attorney’s fees and costs “must not b e made arbitrarily and must be supported by the evidence. 51 

### In this case, the Family Court ordered the Husband “to pay Wife’s counsel fees and court costs associated with Wife’s requests for interim alimony and enforcement

thereof.” 52 

### But in that same paragraph, the Family Court stat ed: “[a]s to the balance of Wife’s legal fees, she has substantial assets out o f which she can pay those expenses.” 53



### In Mays , this Court upheld an award of attorney’s fees bec ause the Family Court had determined that the “excessively litigious conduct” of one spouse had an “adverse

financial effect” on the other. 54 

### In this case, as in Mays , the Family Court looked to the litigious aspects of the Husband’s conduct that led to the finding of contempt for failing to pay interim alimony 55 

### but determined that the Husband and Wife would pay their own attorney’s fees for the remaining aspects of the li tigation. 56 

### This reasoning reflects that the Family Court properly exercised its discretion in awarding the Wife a portion of her attorney’s fees and costs.

49 Id

. 50 Fam. Ct. Civ. R. 88 (“In every case where there is a legal or equitable basis therefor the Court may assess a party the reasonable counsel fees of a ny other party.”). 51 Lynam , 526 A.2d at 885. 52 Family Court’s Decision on Alimony (May 6, 2013), B218 at *21. 53 Family Court’s Decision on Alimony (May 6, 2013), B218 at *21. 54 Mays v. Mays , 1988 WL 141148, at *2 (Del. Nov. 23, 1988). 55 Id. 56 Id.21 

### Conclusion The judgment of the Family Court is affirmed, in p art, and reversed, in part. This matter is remanded for further proceedings in accor dance with this opinion.