               IN THE SUPREME COURT OF THE STATE OF DELAWARE

    ALEXANDER JONES,1                            §
                                                 §     No. 541, 2015
          Petitioner Below,                      §
          Appellant/Cross-Appellee,              §     Court Below—Family Court
                                                 §     of the State of Delaware
          v.                                     §
                                                 §     File No. CN12-04851
    ADRIANA JONES,                               §     Petition Nos. 14-17806 and
                                                 §     15-09995
          Respondent Below,                      §
          Appellee/Cross-Appellant.              §

                                Submitted: May 6, 2016
                                Decided: August 2, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

Upon Appeal from the Family Court of the State of Delaware: AFFIRMED in part and
REMANDED.

Alexander Jones, Franklinville, New Jersey, pro se, Petitioner Below, Appellant.

Gary L. Smith, Esquire, Newark, Delaware, for Respondent Below, Appellee, Adriana
Jones.



SEITZ, Justice:




1
    The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
                                   I.     Introduction

       Alexander Jones (“Husband”) filed this appeal from a July 29, 2015 Family Court

order that entered the parties’ stipulation on property division, awarded Adriana Jones

(“Wife”) alimony, and ordered Husband to pay Wife an additional monthly amount for

unpaid interim alimony. Husband also appeals from the Family Court’s September 9,

2015 order denying the parties’ motions for reargument. We find most of Husband’s

arguments on appeal to be without merit and affirm, but remand for further proceedings

on Husband’s claims regarding Wife’s medical and health insurance expenses.

                       II.    Facts And Procedural Background

       The parties were married on November 24, 1997, separated on July 1, 2012, and

divorced on December 9, 2014. They are the parents of three children. The Family

Court required Husband to pay $2,697 in interim child support, which was later reduced

to $1,667 per month in the permanent award retroactive to June 26, 2014. The Family

Court also granted Wife’s motion for interim alimony and ordered Husband to pay

$1,555 per month, effective January 1, 2015. At Husband’s request, the Family Court

ordered Wife to provide Husband with documentation of her health insurance expense,

estimated to be $700 per month, within thirty days.

       The Family Court conducted a hearing on matters ancillary to the divorce. Before

the hearing, the parties resolved the division of their property, leaving only alimony to be

decided at the hearing. Both Husband and Wife were represented by counsel at the

hearing. The Family Court heard testimony from Husband, Wife, Wife’s landlord, and

Wife’s former brother-in-law.


                                             2
       In a July 29, 2015 decision the court ordered Husband to pay Wife monthly

alimony of $1,748. The Family Court also found that Husband had failed to pay interim

alimony as required by the court’s earlier order, and ordered Husband to pay $200 per

month until the owed amount was paid in full. The court denied the parties’ cross-

motions for reargument in a letter and order dated September 9, 2015.

       Husband filed a pro se appeal from the Family Court’s July 29, 2015 and

September 9, 2015 orders. Wife filed a cross-appeal, but did not make any arguments in

her answering brief for reversal of any of the Family Court’s rulings.

                                III.    Standard Of Review

       This Court’s review of a Family Court decision includes a review of both the law

and the facts.2 We review conclusions of law de novo.3 We will not disturb factual

findings on appeal unless they are clearly erroneous.4 The Family Court’s decision on

alimony “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 13 Del.

C. § 1512; and (3) its explanations, deductions and inferences are the product of a logical

and deductive reasoning process.”5 We will not substitute our opinion for the inferences

and deductions of the trial judge if those inferences are supported by the record.6




2
  Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
3
  Id.
4
  Id.
5
  Castle v. Castle, 2013 WL 2722185, at *2 (Del. Jun. 11, 2013).
6
  Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).



                                               3
                                       IV.    Analysis

         Husband’s arguments on appeal are summarized as follows: (i) Wife’s

cohabitation barred her from collecting alimony; (ii) Wife’s medical and health insurance

expenses were unreasonable and unsupported by the record; (iii) Wife has not maximized

her earnings; (iv) the duration of Husband’s alimony obligation was unreasonable; (v) the

Family Court erred in treating the Wife’s bachelor’s degree as irrelevant; and (vi) the

Family Court miscalculated Husband’s earnings.

         Turning to the first issue on appeal, Husband argues that the Family Court erred in

ordering alimony because Husband offered evidence at the ancillary hearing that Wife

cohabitated with another man during the summer of 2014. The alimony statute, 13 Del.

C. § 1512, provides as follows:

         Unless the parties agree otherwise in writing, the obligation to pay future
         alimony is terminated upon the death of either party or the remarriage or
         cohabitation of the party receiving alimony. As used in this section,
         “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. Proof of sexual relations is admissible but not required to prove
         cohabitation. A party receiving alimony shall promptly notify the other
         party of his or her remarriage or cohabitation.7
         The Family Court concluded it was unnecessary to decide if Wife had cohabitated

in 2014 because:

         [e]ven if she had, the Court finds that she has not resided with him since
         August 2014, or eleven months prior to the alimony hearing. The
         dissolution of Wife’s relationship with Mr. [] was clearly not an attempt to
         deceive the Court for the purposes of her alimony claim. The Court finds

7
    13 Del. C. § 1512(g).



                                               4
       that Wife’s alimony claim is not precluded and Wife may be awarded
       alimony if the Court finds her to be a dependent party and after considering
       the relevant statutory provisions enumerated in 13 Del. C. § 1512(c).8

In its later order denying Husband’s motion for reargument, the Family Court held that

“at the time Wife cohabitated with Mr. [], she was not an ‘alimony recipient’ and she did

not terminate the relationship in an effort to deceive the Court in order to be awarded

alimony.”9

       On appeal Husband relies on Hubbs v. Hubbs10 and other Family Court cases

where a spouse was denied alimony due to cohabitation at the time of the alimony

hearing.11 In Hubbs, the Family Court held that the wife, who had cohabitated with

another man until one week before the alimony hearing, could not receive alimony

because “[o]nce an alimony applicant is found to have cohabitated with another adult,




8
  Jones v. Jones, Order at 5 (Del. Fam. Ct. July 29, 2015).
9
  Jones v. Jones, Letter and Order at 5 (Del. Fam. Ct. Sept. 9, 2015). The Family Court awarded
Wife interim alimony from January 1, 2015 and awarded her permanent alimony from August
15, 2015. For purposes of terminating alimony under § 1512(g), this Court has not drawn a
distinction between interim alimony and permanent alimony. See, e.g., Sullivan v. Sullivan, 2015
WL 1880383, at *3 (Del. Apr. 21, 2015) (holding that § 1512(g) required the Family Court to
determine when the wife, who cohabitated with a boyfriend while receiving interim alimony,
began the cohabitation and to credit the husband for all alimony paid after the start of the
cohabitation). In any event for the reasons explained in this opinion the distinction is irrelevant
here because the cohabitation was alleged to have occurred and to have ceased before the award
of interim alimony.
10
   1993 WL 331916 (Del. Fam. Ct. May 4, 1993).
11
   See, e.g., J.C. v. S.C., 2005 WL 3514308, at *1 (Del. Fam. Ct. Aug. 31, 2005) (denying wife’s
request for alimony where wife was cohabitating with boyfriend at time of ancillary hearing);
K.A.M. v. D.G.M., 2005 WL 3593579, at *3 (Del. Fam. Ct. June 13, 2005) (denying wife’s
request for interim alimony where wife was cohabitating with boyfriend at time of hearing); Eric
S.W. v. Stacey E.W., 1997 WL 878700, at *2 (Del. Fam. Ct. May 9, 1997) (granting husband’s
petition to terminate interim alimony obligation where wife began cohabitating with boyfriend
after interim alimony was awarded).



                                                5
that person is barred from receiving alimony thereafter.”12 The Hubbs court also held

that the “fact that the cohabitation may have ceased is irrelevant under the wording of”

the alimony statute.13 The Family Court distinguished the case before it from Hubbs,

noting that Wife had not resided with her boyfriend until just before the alimony hearing

and was not attempting to deceive the Family Court.                     The Family Court also

distinguished the other cases cited by Husband because they involved spouses who were

cohabitating with others at the time of the alimony hearings.14

       The Family Court relied instead on Sylvester v. Monroe15 and In re Pizzichili,16

where spouses were not barred from receiving alimony under the alimony statute. In

Sylvester, the husband argued that § 1512(g) barred his wife from receiving alimony

because she had cohabitated with him after their divorce, but before the Family Court

awarded her alimony.17 This Court disagreed, and held that under the plain language of

§ 1512(g), alimony is terminated only when a “party receiving alimony” begins to

cohabitate or is cohabitating when applying for alimony.18 Because the wife in Sylvester

was not a “party receiving alimony” when she was cohabitating, and stopped cohabitating

before alimony was ordered, § 1512(g) did not apply.19 In Pizzichili, the Family Court

relied upon Sylvester and held that § 1512(g) did not bar the wife from receiving alimony
12
   Hubbs, 1993 WL 331916, at *4; id. at *5 (“As harsh as this result is in this particular case, this
Court must apply the law and give effect to the intent of the legislature.”).
13
   Id. at *4.
14
   See supra note 11.
15
   1995 WL 319183 (Del. May 19, 1995).
16
   1999 WL 33100141 (Del. Fam. Ct. Nov. 17, 1999).
17
   1995 WL 319183, at *1.
18
   Id. at *2.
19
   Id.



                                                 6
where the wife was not a “party receiving alimony” when she was cohabitating and the

cohabitation ended two months before the alimony hearing.20

       As the foregoing discussion shows, there is some confusion in the Family Court

decisions applying § 1512(g). To resolve the conflicting cases, we turn to the express

language of the statute and our decision in Sylvester. Both the statute and the Sylvester

decision require that a spouse be receiving alimony before alimony can be terminated due

to cohabitation. Also, the spouse cannot be involved in “an attempt to deceive the Court

for the purpose of her alimony claim.”21

       The Family Court in this case correctly applied the statute and our decision in

Sylvester. The court found that Wife was not a “party receiving alimony” at the time of

her alleged cohabitation, the cohabitation ended months before the alimony hearing, and

Wife was not attempting to deceive the court by terminating cohabitation shortly before

the alimony hearing.      Thus the Family Court properly found that Wife was not

disqualified from receiving alimony due to cohabitation.22


20
   Pizzichili, 1999 WL 33100141, at *3; see also M.O. v. J.C.C., 2010 WL 4278285, at *1–2
(Del. Fam. Ct. Aug. 24, 2010) (holding wife’s previous cohabitation did not bar her from
receiving alimony under § 1512(g) because cohabitation ended before she received alimony and
ending of cohabitation was not effort to deceive court).
21
   Pizzichili, 1999 WL 33100141, at *3. As a technical matter, the statutory language does not
preclude a spouse from receiving alimony if she is cohabitating at the time of the interim or
permanent alimony hearing. But as a practical matter, on day one after the alimony order is
entered, she would be precluded from receiving “future” alimony as a recipient of alimony.
22
   States vary in their treatment of the effect of cohabitation on alimony:
        Some treat cohabiting relationships as the equivalent of marriage for this purpose.
        These states terminate the award when the obligee shares living quarters with a
        person of the opposite sex, just as prevailing law terminates alimony when the
        obligee remarries. Other states treat cohabitation relevant only as evidence, not
        necessarily dispositive, of the obligee’s financial needs. This second group



                                              7
       Husband’s remaining arguments relate to the Family Court’s calculation of

alimony.    A party may be awarded alimony if the Family Court determines she is

dependent upon the other party after consideration of the factors set forth in § 1512(c).23

Husband contends that the Family Court erred in its consideration of Wife’s ability to

meet her financial needs because her monthly medical expenses of $300 and health

insurance of $715 were unreasonable and unsupported by the record. As to the medical

expenses, Wife testified she had previously taken medications for high blood pressure

and cholesterol, but that she was not currently buying any medications because she could

not afford to do so. Wife did not know the cost of the medications. As to the health

insurance expense, Wife submitted a form showing the monthly premium for COBRA

benefits would be $715.       Wife testified, however, that she had no current monthly


        divides further between the states willing to presume that cohabitation reduces the
        obligee’s financial need, and those requiring evidence that the cohabiting oblige
        in fact derives such financial benefits before terminating the award.
PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION § 5.09 cmt. a (2002); see also Steven K.
Berenson, Should Cohabitation Matter in Family Law?, 13 J. L. & FAM. STUD. 289, 303–04
(2011); Evan J. Langbein, Post-Dissolution Cohabitation of Alimony Recipients: A Legal Fact of
Life, 12 NOVA L. REV. 787, 788 (1988). Whether Delaware’s current statute strikes the correct
balance between the competing public policy concerns raised by alimony, remarriage, and
cohabitation is a matter for the General Assembly.
23
   13 Del. C. § 1512(b). The factors are: (1) The financial resources of the party seeking
alimony, including the marital or separate property apportioned to him or her, and his or her
ability to meet all or part of his or her reasonable needs independently; (2) The time necessary
and expense required to acquire sufficient education or training to enable the party seeking
alimony to find appropriate employment; (3) The standard of living established during the
marriage; (4) The duration of the marriage; (5) The age, physical and emotional condition of
both parties; (6) Any financial or other contribution made by either party to the education,
training, vocational skills, career or earning capacity of the other party; (7) The ability of the
other party to meet his or her needs while paying alimony; (8) Tax consequences; (9) Whether
either party has foregone or postponed economic, education or other employment opportunities
during the course of the marriage; and (10) Any other factor which the Court expressly finds is
just and appropriate to consider.



                                                8
insurance expenses because she was still waiting to receive paperwork from Husband’s

employer. Husband argued at the ancillary hearing that it was unknown whether Wife

had declined COBRA coverage or whether Husband’s employer had failed to provide the

necessary paperwork.

       In its decision awarding alimony, the Family Court accepted Wife’s claimed

monthly medical expenses of $300 and health insurance of $715 without addressing the

parties’ arguments regarding the reasonableness of those expenses.24 Based upon our

review of the record, we cannot determine the basis for the Family Court’s conclusion

that these expenses were reasonable. We therefore remand this matter to the Family

Court to explain how it concluded that Wife’s monthly medical expenses of $300 and

health insurance of $715 were reasonable, or to make a determination of the

reasonableness of the claim based upon an expanded record.

       Husband next claims that Wife, who has a bachelor’s degree in education and is

pursuing a master’s degree, is underemployed and has failed to maximize her earnings.

The Family Court attributed Wife with income of $29,508 per year based on her thirty

hour a week job at Head Start and the unemployment she collects over the summer. The

Family Court acknowledged Wife’s educational history, while noting that Wife had not

passed the exam for her teacher’s certification. Based upon Wife’s testimony that it was

difficult for her to find a flexible job giving her the availability to meet the needs of the

parties’ child with Down Syndrome, the Family Court concluded that Wife had

24
  The Family Court did reduce Wife’s claimed monthly expenses by $865 after concluding that
other expenses were overly inflated or should be reduced in light of Wife’s large car expense.



                                              9
maximized her earnings. Husband does not dispute that the parties’ eldest child has

Down Syndrome and requires care. The Family Court did not err in concluding that Wife

had maximized her earnings.

          Husband next argues that it was unreasonable for the Family Court to conclude

that Wife was eligible for alimony for eight years, six months, and seven days because

Wife was employed as a teacher and earning a master’s degree. A dependent person shall

be eligible for alimony for a period not to exceed 50% of the term of the marriage.25 The

parties were married for seventeen years and fifteen days.            The Family Court’s

determination that Wife was eligible for alimony for eight years, six months, and seven

days falls within the time period set forth in § 1512(d) and is supported by the record.

          Husband next claims that the Family Court erred in concluding Wife’s bachelor’s

degree, which was earned during the marriage, was irrelevant to its determination of

alimony. In considering whether either party made a financial or other contribution to the

other party’s education or earning capacity under § 1512(c)(6), the Family Court found

this factor irrelevant because neither party alleged that they contributed to the other

party’s education or training. There is no evidence that Husband contributed to Wife’s

bachelor’s degree. Accordingly, the Family Court did not err in finding this factor

irrelevant. We note that the Family Court did consider Wife’s bachelor’s degree in

considering whether Wife had maximized her earnings.




25
     13 Del. C. § 1512(d).



                                             10
       Husband also argues that the Family Court erred in its consideration of his ability

to meet his needs while paying alimony because it considered his past earnings as well as

his current earnings. The Family Court averaged Husband’s anticipated income for 2015

($51,840 based upon paystubs for the first three months of 2015) and his earnings from

2014 ($72,282) and 2013 ($100,832) to calculate earnings of $74,985 for Husband.

Wife’s undisputed testimony was that Husband always worked overtime during the

marriage and had not earned less than $85,000 a year since 2009. Husband earned

$102,150 in 2012. Husband testified that he could no longer work overtime due to mass

hiring by his employer, but did not offer any evidence in support of this claim.

       As the Family Court explained in its order denying Husband’s motion for

reargument, it averaged Husband’s earnings because Husband had a history of making

substantially more than his projected earnings for 2015, he did not offer any evidence to

support his claim that he could no longer work overtime, and he could easily go back to

earning twice his current income as soon as the Family Court entered the alimony order.

The Family Court’s decision to average Husband’s earnings is supported by the record.

                                    V.     Conclusion

       We find all of Husband’s arguments on appeal to be without merit, except for his

claims relating to Wife’s medical and health insurance expenses. The judgment of the

Family Court is thus affirmed in part. We remand this matter to the Family Court for an

explanation as to how it concluded that Wife’s monthly medical expenses of $300 and

health insurance of $715 were reasonable, or to make a determination of the

reasonableness of the claim based upon an expanded record. Jurisdiction is retained.


                                            11
