Reed v. Reed

• Decision Date: 26 June 1970
• Parties: Clyde W. REED, Appellant, v. Jean Moore REED (L. M. Tipton Reed and William E. Scent, Her Attorneys), Appellees.
• Court: Kentucky Court of Appeals

457 S.W.2d 4

Clyde W. REED, Appellant, v. Jean Moore REED (L. M. Tipton Reed and William E. Scent, Her Attorneys), Appellees.

Court of Appeals of Kentucky.

December 12, 1969.

As Modified on Denial of Rehearing June 26, 1970.

Raymond B. Dycus, Smithland, Clifford E. Smith, Clifford E. Smith, Jr., E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, for appellant.

L. M. Tipton Reed, Neely & Reed, Mayfield, William E. Scent, Reed, Scent & Reed, Paducah, for appellee.

STEINFELD, Judge.

This is a contest over an alimony award, disallowance of a part of fees and litigation expense, maintenance for children and matters related to the foregoing. The husband has appealed and the wife has attempted to cross-appeal. We affirm the judgment in part, reverse it in part and sustain the motion to dismiss the cross-appeal.

Only three contentions and questions are submitted to this court. They are as follows:

"I. Jean Reed is Entitled to No More Than Maintenance and Support From Clyde Reed.

II. Jean Should Pay Her Attorneys and Expert Witnesses.

III. A Father's Obligation to Support His Child Does Not Extend Beyond the Age of Eighteen."

"STATEMENT OF QUESTIONS PRESENTED

1. Is a wife who wrongfully abandons her husband of twenty years, takes their children away from him and refuses to make them obey the orders of the Court, entitled to anything more from him than adequate maintenance and support for life or until she remarries?

2. Is such a wife with a separate estate in excess of $110,000 (all but $500 of which was acquired by reason of the marriage) entitled to require her abandoned husband to contribute $20,000 toward her attorneys' fees, pay one-third of her expert witnesses' fees and all of the Court costs?

3. Does a father have any legal obligation to support his children after they become 18 years of age?"

When Clyde and Jean were married Clyde's property was worth $50,000 and Jean's $500. The chancellor opined "From that modest beginning, through industry, foresight — and perhaps an uncanny sense of imagination and management — the net worth of the husband as of the date of submission of this case is between $4,761,000 and $7,132,500; the lower figure being the net worth established by the husband's appraisal testimony; the higher figure being the value fixed by the wife's appraisers." Through property given to Jean by Clyde her estate then was approximately $110,000.

Their daughter, Marilyn, was born January 31, 1953, and their son, David, on August 15, 1954. Clyde devoted almost all of his waking hours to his businesses and Jean looked after the home and raised the children admirably. They lived frugally. This routine continued from the time of the marriage until some time in 1966 when Jean and the children left the home and shortly thereafter Jean sued for a divorce.

In 1964 the Internal Revenue Service asserted a claim for additional income taxes which eventually resulted in a settlement whereby Clyde and his corporations paid approximately $1,000,000. to the federal and state governments. Depressed by worry over raising the funds to meet the income tax demands Clyde secluded himself almost nightly during 1965 and 1966 from Jean and the children. He retired to a darkened room and remained there from the conclusion of the evening meal until bedtime. During that period rumors were brought to Jean that Clyde was having an "affair" with an office employee. These rumors were never substantiated with proof to Jean and the court said they were "* * completely unfounded so far as the record discloses * * *". In December 1964 Jean suffered a nervous breakdown, spent considerable time in hospitals and after her release in March 1965 moved from their home and later sought the divorce on the ground of cruel and inhuman treatment. KRS 403.020(3) (b). Before the decree was granted Clyde tried unsuccessfully to reestablish the marriage. Clyde denied the allegations and counterclaimed on the basis that she was guilty of cruelty (KRS 403.020(4) (d)) but later he amended and charged that she had abandoned him and that the abandonment had continued for more than one year. KRS 403.020(2) (a). There was litigation over the property, alimony, and maintenance for the children, but on Jean's claim for their custody Clyde did not resist.

The lower court adjudged that Clyde, rather than Jean, be granted the divorce on the abandonment charge but gave her the children. It awarded to Jean lump sum alimony in the amount of $500,000., credited by her present estate, giving her a net of approximately $390,000. Additionally, it ordered Clyde to pay periodic alimony at the rate of $25,000.00 per year for 10½ years but made provisions with respect to the death of either of the parties during those years. It also held that he should pay to his wife's attorneys $20,000. on account of their $60,000. fee, one-third of the cost of appraiser Waldrop whose total charge was $9,400. and the same proportion of the $1,200. charge of accountant Nale. Waldrop and Nale were engaged by Jean to assist in presenting her evidence. The court directed that Clyde pay all of the court costs of the action.

Although he insists that he is being required to pay far more than he should, the appellant approves the statement made by the chancellor that Jean is "* * * entitled to alimony in an amount that will be amply sufficient to provide her with financial independence for as long as she can expect to live; but she is not entitled to have this amount based on any certain percentage of the wealth that has been accumulated during this marriage." He contends that she should not have been given a lump sum award although he offered to set up a trust which would provide her an income of $1,000. per month for her remaining unmarried life. Upon her remarriage or death the children would receive the income and corpus of the trust. Also he offered to buy or build her a home and furnish it at a total cost not exceeding $35,000. He also offered to support and educate the children. Clyde notes that the uncontradicted evidence shows that for the five years immediately preceding the separation the expenses for the maintenance of the home and all other normal living expenses averaged less than $1,000. per month. He considers it significant that the court found $625. per month alimony pendente lite as reasonable and that it is paradoxical for the court to make such a generous award at the conclusion of the litigation. He attacks both the amount of the lump sum award and of the annual allowance.¹

Appellant takes issue with the finding of the chancellor as to the value of his estate contending that it is worth not more than $3,782,000. He says that even if it be worth $5,000,000. there is nothing shown to justify an allowance based upon the size of the estate. We find sufficient evidence to support the conclusion of the court as to value, but even if the correct amount was $3,782,000. the amount of the allowance would be justified.

Appellant's counsel concede that other cases offer little guidance, but they call our attention to Chastain v. Chastain, Ky., 405 S.W.2d 758 (1966). However, there it was found, as here, that the wife was at fault but alimony was allowed to her in the absence of proof of immorality. No claim has been made of immorality on the part of Jean. They note that the experience of the wife in investing funds and taking care of financial matters was a factor properly considered in Holder v. Holder, Ky., 424 S.W.2d 600 (1968), and say that Jean has had no experience in investing money. Clyde is quite concerned that the allowance to Jean of a substantial lump sum is putting her in possession of wealth with which she is incapable of dealing. Lump sum alimony awards are favored by this court. Broida v. Broida, Ky., 388 S.W.2d 617 (1965).

KRS 403.060(1) authorizes an award of alimony to the wife if she has insufficient estate of her own, and she obtains a divorce. Coleman v. Coleman, 164 Ky. 709, 176 S.W. 186 (1915). "It is well established by judicial interpretation that a needy wife may receive alimony on a divorce granted to the husband where she is not entirely to blame for breaking up the marriage and is free from moral delinquency." 54 Ky.Law Journal 222. Many of our decisions are cited in support of this statement. Clyde does not rely on the denial of the divorce to the wife. We interpret that statute to mean that "* * * the wife's estate must be of such character and amount as will yield income or profits sufficient for her comfortable maintenance in a style suitable to her social standing, without her being required to consume the principal." Scott v. Scott, Ky., 433 S.W.2d 631 (1968). Clyde says that Jean was guilty of misconduct in breaking up the home and that Scott stands for the proposition that she should not profit by her misconduct. Also argument is made that Jean's $110,000. estate would produce in excess of $550. per month and that it would take only another $5,400. annually to provide her $1,000. per month, the amount on which the entire family had lived. One answer is that while the trial court found that she was at fault, which finding we do not disturb, nevertheless, it appears to us that he sacrificed his marriage to his business. The habits of Clyde in substantially ignoring his family were compelling influences on her actions. Cf. Cawood v. Cawood, Ky., 329 S.W.2d 567 (1959).

Although Jean worked little in the various business ventures she ran the home at such a minimum expense, commensurate with the family income and wealth, that we cannot say she did not assist in creating that wealth. In speaking of restoration of property we said in Cooke v. Cooke, Ky., 449 S.W.2d 216 (1969), that where "* * * property has been accumulated in the course and by virtue of the joint efforts of husband and wife as a marital unit, one carrying out his responsibilities and the other carrying out hers. * * * upon dissolution of the marriage, the...