Klotz v. Klotz

• Court: Virginia Supreme Court
• Writing for the Court: CARRICO
• Citation: Klotz v. Klotz, 203 Va. 677, 127 S.E.2d 104 (1962)
• Decision Date: 31 August 1962
• Docket Number: No. 5440,5440
• Parties: , 1 A.L.R.3d 118 FRANCES KLOTZ v. ALEX KLOTZ. Record

Page 104

127 S.E.2d 104

203 Va. 677, 1 A.L.R.3d 118

FRANCES KLOTZ v. ALEX KLOTZ.

Record No. 5440.

Supreme Court of Appeals of Virginia

August 31, 1962.

DuVal Q. Hicks and Griffin T. Garnett, Jr. (Edmund D. Campbell, on brief), for the appellant.

William J. Gibson and S. Bernard Coleman, for the appellee.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

On September 5, 1960, Frances Klotz, the complainant, filed a bill of complaint against her husband, Alex Klotz, the defendant, seeking a divorce on the ground of desertion and praying for the allowance of alimony and the partition of personal property.

The court heard the evidence ore tenus and by its decree of May 20, 1961, awarded the complainant a divorce from the bonds of matrimony and the sum of $290.00 per month as permanent alimony. The decree also awarded certain items of personal property to the complainant and other items to the defendant.

The complainant, on this appeal, alleges that the court erred in two respects in its decree:

1. In refusing to award the complainant more than $290.00 per month as permanent alimony.

2. In awarding any personal property to the defendant.

The complainant was 58 years of age at the time of the hearing and the defendant was 66. They had been married for many years and their children were grown and self-sustaining.

The parties lived in comfort, in an expensive home, were members of two country clubs and expended approximately $20,000.00 each year for living expenses.

Prior to their separation in 1958, the complainant and defendant, as partners, operated a profitable junk business in the city of Fredericksburg, from which they each drew a weekly salary. This business had returned an average net income of $30,000.00 annually, for more than ten years.

Following their separation, Mr. Klotz filed a bill in equity against Mrs. Klotz seeking a dissolution of the partnership and a determination of the proper amount to be paid by him for her maintenance and support. He was ordered to pay $290.00 per month for her temporary maintenance and this issue was not further litigated until the present suit was filed.

The partnership was dissolved and the share of Mrs. Klotz in the partnership's assets was fixed by a decree of the trial court at $51,768.00, for which she received from the defendant a sum in cash, a parcel of commercial property valued at $20,000.00, the defendant's interest in the family home valued at $37,500.00 and his interest in a rental dwelling valued at $14,000.00. Thus, at the time of the hearing in the present suit, considering the $51,768.00 received in the partnership suit, together with her own interest of $18,750.00 in the family home and $7,000.00 in the rental dwelling, Mrs. Klotz had received assets totalling $77,518.00. She testified that she was indebted in the sum of $25,000.00.

The decree in the partnership dissolution suit was appealed by Mrs. Klotz, and in an opinion handed down subsequent to the chancellor's decision in the present suit, this Court increased the interest of Mrs. Klotz in the partnership's assets to $92,140.19, or an increase of $40,372.19, Klotz v. Klotz, 202 Va. 393, 117 S.E.2d 650, which, as she concedes in her brief, has been paid in full.

The complainant resides, alone, in the home formerly occupied by the parties. Neither this property nor the commercial land she owns produces any income. She receives $90.00 per month from the rental dwelling. She testified that she had no income from any other source, except the $290.00 per month paid to her by the defendant as temporary maintenance. She stated that she had unsuccessfully sought employment.

There was introduced into evidence a list of expenses which showed the complainant's estimated financial needs to be $750.00 per month.

Following the dissolution of the partnership, the defendant incorporated the junk business and became the sole owner of all of the corporate stock. This stock had a value, at the time of the hearing of the present suit, of $193,541.77. The defendant owned other assets worth $133,006.98, or total assets of $326,548.75. He owed $113,000.00 in debts, leaving him a net worth of $213,587.75, which does not reflect the payment by him to Mrs. Klotz of $40,372.19, ordered by this Court in the partnership dissolution suit, Klotz v. Klotz, supra.

As has been noted, the average annual net income of the partnership, in the ten year period prior to dissolution, was $30,000.00. In 1958, the defendant's income, before taxes, was $2,451.67. In 1959 it was $32,206.75, composed of the income from his business, $2,200.00 in net stock dividends, $647.07 in interest and $5,233.46 in rentals.

The corporation was formed November 1, 1959, and the defendant's rental property was conveyed...