Submitted: February 6, 2015.
Case Closed May 7, 2015.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below--Family Court of State of Delaware in and for New Castle County.
Before STRINE, Chief Justice, VALIHURA and VAUGHN, Justices.
James T. Vaughn, Jr., Justice.
This 21st 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 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 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.
(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, 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 ...