Jacobs v. Jacobs

• Decision Date: 20 April 1979
• Docket Number: No. 770869,770869
• Citation: Jacobs v. Jacobs, 219 Va. 993, 254 S.E.2d 56 (1979)
• Court: Virginia Supreme Court
• Parties: Alan Leonard JACOBS, Sr. v. Marjorie Weisel JACOBS. Record

Page 56

254 S.E.2d 56

219 Va. 993

Alan Leonard JACOBS, Sr. v. Marjorie Weisel JACOBS.

Record No. 770869.

Supreme Court of Virginia.

April 20, 1979.

W. Griffith Purcell, Richmond, for appellant.

William W. Muse, Richmond (Blanton & Muse, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

This appeal questions the authority of a chancellor to enter a divorce decree fixing a future increase in a spousal support award, contingent upon an increase in the obligor's income.

The decree, entered March 1, 1977, granted Marjorie Jacobs (wife) a final divorce from Alan Leonard Jacobs, Sr., (husband) on the ground of adultery. In a lengthy letter opinion, the chancellor found that the standard of living during coverture was "modest"; that husband gave wife "around $650 per month apparently for food, clothing . . . and running the house, which at that time involved two growing boys"; that the $18,000 in net proceeds from the sale of the $30,000 marital residence had been divided equally; that wife was 48 years of age, suffered "a number of physical ailments," and because of her "lack of skills" was "unable to engage in any significant gainful employment"; that wife's statement of monthly expenses of $1,733.75 "shows some rather high items" and other items which "may be desirable, but do not seem essential"; that husband's statement of monthly expenses of $1,791.74 included some items which "are not properly available to him"; that husband's average gross annual income for the last six years was $39,146; that husband owned 45% Of the $337,950 stockholders' equity in a retail clothing corporation; and that husband's deceased mother had created a $200,000 testamentary trust under which the trustees "have '. . . absolute and uncontrolled discretion . . .' to pay income or principal to (husband) as they 'deem appropriate . . .' (and to) . . . terminate the trust at any time during (husband's) lifetime and pay the entire amount over to him." The mother's will, introduced as an exhibit, further granted husband a testamentary power of appointment of the trust corpus and provided that, if he failed to exercise the power, the corpus would pass to his children.

The wife was awarded attorneys' fees of $7,500, costs of $1,121.18, and "$800 per month as support, beginning January 1, 1977". The decree then provided the following which the parties refer to as the "escalator clause":

Further as support, it is ADJUDGED and ORDERED that the defendant pay 25% Of all income received by...