Russell v. Russell, 741118
| Decision Date | 01 December 1975 |
| Docket Number | No. 741118,741118 |
| Parties | Ernest B. RUSSELL, Jr. v. Evelyn B. RUSSELL. Record |
| Court | Virginia Supreme Court |
Harry J. Hicks, Norfolk, for appellant.
Edward W. Wolcott, Norfolk (William A. Wheary, III, Wolcott, Spencer & Rivers, P.C., Norfolk, on brief), for appellee.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.
We decide here that the lower court did not abuse its discretion when, on July 26, 1974, it ordered Ernest B. Russell, Jr. to continue to pay his former wife, Evelyn B. Russell, the sum of $200 a week for alimony and support. On March 6, 1973, the wife was granted an absolute divorce from her husband on the ground of adultery. In the final decree the husband was directed to pay the sum of $200 a week to the wife as alimony and support until further order of the court.
On September 15, 1973, husband and wife entered into an agreement by which they settled their respective real and personal property rights and other matters in controversy. The husband agreed to continue to pay wife the alimony ordered paid to her by the court until such order was changed or modified.
Thereafter the appellant filed his petition for a reduction in alimony. He alleged that the appellee was the owner of rental property which he had conveyed to her and that she no longer needed the sum of $200 per week as alimony. He further complained that appellee had failed to obtain employment notwithstanding her qualifications, and that he was financially unable to make the weekly payments ordered by the court. On November 23, 1973, the matter was referred to the Commissioner in Chancery, who, after conducting extensive hearings, recommended that the wife's alimony payments be reduced to $175 per week. Both parties excepted to the report. The trial court decided that appellant had the ability to pay, and appellee had the need to receive, the sum of $200 per week as alimony and support. It accordingly entered an order directing appellant to continue the weekly payments of $200 to appellee. We granted appellant an appeal from this order.
During the pendency of the divorce case Russell was at one time in arrears in the payment of alimony in the approximate amount of $14,000. As a result the court following the rule in Gloth v. Gloth, 154 Va. 511, 153 S.E. 879 (1930), refused to permit appellant to present evidence he desired to introduce in his defense. He argues that the rule of Gloth should be reconsidered by us in this case. We decline, for the sole issue before us on this appeal is the action of the lower court in refusing to reduce appellant's alimony payments. The record shows that in support of his motion for a reduction, appellant was given full opportunity to introduce evidence before the Commissioner in Chancery as to his ability to pay, and as to the needs of appellee.
The Commissioner's first report, recommending that the parties be divorced, reflects that at the time of their separation they owned real estate valued at $187,500, and that they were co-owners of the Hampton Roads Plastering Company, Inc. This was obviously a very profitable business which each week paid appellant a salary of $250 and his wife a salary of $150. The company had a gross income in 1971 of $553,769.18 and showed a gross profit of $74,461.
Following the trial court's entry of an order for the wife's temporary support, appellant discharged appellee as the bookkeeper of the company and employed Sarah West (whom he subsequently married) at $200 per week. The husband is alleged to have made numerous transfers of the assets of the corporation during the pendency of the divorce suit, resulting in the Hampton Roads Plastering Company being placed in receivership, and the remaining assets being distributed between appellant and appellee.
Thereafter, upon the advice of appellant, a new corporation was formed, named 'Sa-Bill Construction Company', which engages in the same business as Russell's former company and operates with essentially the same employees. Appellant claims that this...
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