Ross v. Ross
| Decision Date | 26 May 1970 |
| Docket Number | No. 3,Docket No. 6688,3 |
| Citation | 24 Mich.App. 19,179 N.W.2d 703 |
| Parties | Victoria Ann ROSS, Plaintiff-Appellant, v. Harry Stewart ROSS, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
J. D. Hartwig, Hartwig, Crow & Jones, Benton Harbor, for plaintiff-appellant.
Paul A. Taglia, Killian, Spelman & Taglia, St. Joseph, Frederick G. Buesser, Jr., Buesser, Buesser, Snyder & Blank, Detroit, for defendant-appellee.
Before HOLBROOK, P.J., and DANHOF and ROOD, * JJ.
This is an appeal by plaintiff, Victoria Ann Ross, wife, from the alimony, children's support, property settlement, and attorney fees provisions contained in a judgment of divorce granted her from defendant husband, Harry Stewart Ross.
Both plaintiff and defendant were residents of Berrien county before their marriage, and were members of very fine families. They were married in 1954 while they were studying in England. Both parties have enjoyed the benefits of higher education, the husband being an ordained minister, and the wife having graduated from college and having been awarded a Fulbright scholarship for study at the Old Vic Theatre school in London. Before their marriage, defendant's father gave him 3,500 shares of the common stock of Clark Equipment Company which has appreciated over the years and through stock dividends the number of shares have multiplied several times.
There are four children of the marriage, Sarah C. B., Deborah H. (St. Andrew), Harry Beach and James Patrick Stewart respectively, 12, 10, 9 and 7 years of age.
In 1959 defendant's father deeded to defendant six acres of valuable land on Lake Michigan together with a very fine house situated thereon. This has been their family homestead since that time.
The defendant husband held the important position of pastor of one of the churches in St. Joseph, and because of his health and the publicity occasioned by the divorce proceedings, he resigned that position. His salary and expenses while serving in that capacity amounted to $725.00 per month. Since the divorce defendant has not been employed. The wife has not actively been engaged in her profession of acting, but did accept a contract for a few weeks in 1966 and received $650.00 as salary.
The father of defendant husband during the marriage and until his death in 1966 was very kind to all members of the family. Unknown acts of kindness may have been many, but those brought to light in this case include gifts of life insurance policies and payment of premiums to the son; gift of stocks and three $50,000 life insurance policies on the life of defendant assigned to the wife, including the payment of premiums to the extent that the cash values of the policies at the time of the divorce were worth more than $32,000 (defendant's mother paid premiums on these policies subsequent to defendant father's death); gifts of stocks, cash, life insurance policies, including payment of premiums to each of the grandchildren, and an irrevocable Trust for each of the grandchildren consisting of substantial stocks and cash. The proceeds of the Trusts are payable to the children as they arrive at age 21 with the provision that the proceeds may be used if needed before that time. The defendant father and a bank in Benton Harbor are at the present time co-trustees of these Trusts.
The assets owned by the children in their own right and the holding of the Trusts are substantial and assure the caring for the needs of the children if other sources fail.
The assets of the defendant husband as of May 24, 1968 and shown in plaintiff's Exhibit 1 are as follows:
Stocks and Cash $677,614.70
Real Estate (including
house and 6 acres of land) $122,500.00
Cash surrender value of life
insurance policies $ 35,000.00
Other receivables $ 11,000.00
-----------
$846,114.70
with liabilities of $100,790.78 made up of loans from banks, leaving net assets of $745,323.92.
The assets of plaintiff, Victoria Ann Ross, were automobile $1,500.00 (estimated), stocks and bonds $7,600.00, cash value of three $50,000 life insurance policies on life of defendant husband $32,563.00, for a total of $42,663.00. The net assets of both plaintiff and defendant together totaled $788,149.92.
The trial court granted plaintiff a judgment of divorce on the grounds of extreme cruelty which provided in part for plaintiff to have custody of the children and for defendant to pay for children's support $600.00 per month ($150.00 per month for each child) and, in addition to pay any extraordinary educational expenses (including, but not limited to, costs of private schooling) and/or medical expenses (including, but not limited to, costs of neurological treatment and orthodontia) incurred for and on behalf of said minor children. The court reserved all questions relating to the payment of costs and expenses incidental to the college education of the children for determination upon application of either party at the proper time therefor.
The court awarded alimony to plaintiff wife in the sum of $400.00 per month, such payments to be terminated upon the death or remarriage of the plaintiff, and should defendant predecease plaintiff and she is not remarried the award shall be a claim and lien against the estate of the defendant.
The court in providing for the property settlement and provision in lieu of dower awarded to plaintiff wife the family homestead located on 6 acres and household goods and furniture (mutually agreed to be of the value of $100,000.00); an automobile; $85,000.00 cash; three life insurance policies on the life of defendant, each in the face value of $50,000.00 and stocks and bonds of the value of $7,600.00.
The trial court further required defendant husband to place marketable assets of the value of One Hundred Thousand ($100,000.00) Dollars in escrow with a bank in Niles, Michigan. The purpose of said escrow account being to secure alimony and support payments to said plaintiff and to provide for payment to said plaintiff by the escrow agent out of the escrow account any sum or sums of money in default for more than thirty (30) days. The balance of the assets were awarded to the defendant husband. Attorney fees were awarded to the plaintiff in the sum of $5,000.00, together with costs of $602.50.
The trial judge in his written opinion stated in reference to these provisions:
'The Court sincerely feels that the above provisions made for the Plaintiff, Mrs. Ross, and for the children will give the family the security that it needs and will not substantially alter the standard of living that the family has enjoyed.'
Plaintiff raises three issues for determination on this appeal.
1. Did the court abuse its discretion in awarding plaintiff $400.00 per month as alimony and $150.00 per month (total $600.00) for each of their four children as support?
2. Did the court abuse its discretion in awarding attorney fees to the wife of $5,000.00 plus costs of $602.50?
3. Did the court abuse its discretion in awarding to plaintiff for a property settlement the award of the automobile, the family homestead including household goods and furniture, stock and life insurance policies held in her own name, and $85,000.00 in cash for a total value of $227,663.00?
The alimony and support payments for the children are to assure suitable support and maintenance of herself and the children of the marriage, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case. M.C.L.A. § 552.23 (Stat.Ann.1970 Cum.Supp. § 25.103).
Plaintiff asked the trial court to award $300.00 per month alimony and $2,600.00 per annum for each child for support until age 14 and then $4,200.00 per child. Had the court so ordered as requested it would have ordered a total of $14,000.00 per annum instead of the $12,000.00.
The income for 1967 of defendant as shown on his income tax return is as follows: dividends, $26,718.00; salary as pastor $5,500.00; interest, $1,612.00; and undistributed capital gain of Regulated Investment Companies, $4,423.00, for a total income of $37,279.00. This income was subject to be reduced by $5,500.00 because defendant was not employed at the time of the judgment of divorce (the cause of his unemployment was found by the trial court to be ill health and the publicity occasioned by the divorce) and a further sum representing reduced dividends of $3,500.00 caused by the payment of $85,000.00 to plaintiff wife as part of the property settlement. After these reductions the gross income of defendant would be $28,279.00 per year with the following expenses: interest $4,986.00; medical expenses (1/2) $2,530.00; and estimated state taxes $800.00; and estimated Federal Taxes $2,000.00 for a total of $10,316.00. Under these facts the useable income of defendant would amount to $17,963.00. Out of this sum defendant was required to pay plaintiff $12,000.00 as allowance and support for herself and the children plus extraordinary medical and educational expenses for the children. It is evident that the alimony and support to be paid by defendant is possibly more than he can pay out of his income. Unless defendant obtains employment or sells some of his assets he will not be able to make ends meet and provide a necessary living for himself.
In the case of Ackerman v. Ackerman (1966), 5 Mich.App. 338, 349, 146 N.W.2d 668, 674, we quoted from the case of Bialy v. Bialy (1911), 167 Mich. 559, 565, 566, 133 N.W. 496:
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