Steiner v. Steiner

Citation48 So.2d 184,254 Ala. 260
Decision Date12 October 1950
Docket Number6 Div. 914
PartiesSTEINER v. STEINER.
CourtSupreme Court of Alabama

Wilkinson & Skinner, of Birmingham, for appellant.

David R. Solomon and Lange, Simpson, Robinson & Somerville, all of Birmingham, for appellee.

STAKELY, Justice.

This is a suit for divorce by Sylvia F. Steiner against Leo K. Steiner, Jr., on the grounds respectively of (1) adultery, (2) addiction to habitual drunkenness since marriage and existing at the time suit was filed, (3) actual violence on the person of complainant attended with danger to life or health and (4) reasonable apprehension of such violence. The suit seeks custody of their minor child, temporary and permanent alimony and an allowance of counsel fees.

The court rendered a decree of divorce, assigning no specific ground, awarded custody of the minor child to complainant with allowance of $250 per month for the support of the child, a girl nineteen years of age, and also allowed permanent alimony and counsel fees to complainant. The appellant makes only three assignments of error, (1) the allowance to complainant of $400 per month for her own support and maintenance, (2) the allowance of $10,000 to complainant as counsel fees for her solicitors of record and (3) taxation of the costs of the cause against the respondent. While the cause is submitted here on the foregoing assignments of error, it is also submitted on cross-assignments of error of the appellee, which question the adequacy of the alimony allowance made to her and the failure to make award to her of alimony pendente lite.

The case was submitted for decree on evidence heard orally before the court including evidence taken before the register. The evidence taken before the register is substantially the same as that heard before the court. The evidence is voluminnous and need not be stated here in all its details. There is no question on this appeal as to the decree of divorce or the ruling of the court with reference to the custody and support of the minor daughter. The only real question here relates to the allowance of alimony and counsel fees made to the wife. These questions grow out of the estates which the respective parties are claimed to own and the conduct of the respondent which relates to the grounds of divorce.

We turn first to the estate and situation of Sylvia F. Steiner. She married the respondent, member of a banking firm in Birmingham, on October 15, 1924 and is now in her late forties. She is accustomed to live in surroundings that can be termed luxurious. The home where she has lived with her husband and children is situated in spacious grounds in one of Birmingham's best residential districts and is valued at about $45,000. It is claimed, however, that she has a separate estate sufficient for her maintenance and therefore is not entitled to permanent alimony. The following is an itemized list of the assets of her estate with values insisted on by appellant. Tendencies of the evidence show the following with reference to these separate properties.

'1. 30 shares preferred (Raye-Namrof) stock at $100.00 $3,000.00'

No dividends have been paid on this stock since 1940. Dividends thereon were paid in 1939-40 and had not been paid thereon for a long time prior thereto. The dividends are non-cumulative. The stock is non voting. It is in a closely held corporation and could probably not be sold for a substantial amount.

'2. 198 shares common-(Raye-Namrof) stock at $1,321.10, adjusted book value $261,577.80.'

This stock is non dividend producing. The income of the company is used to pay interest and principal on the mortgage indebtedness of the company and is not available for dividends. The shares of common stock belonging to appellee are less than 20% of the company's outstanding voting stock. Accordingly she has no control over the policy of the company with reference to declaration of dividends and therefore cannot obtain dividends. One witness valued this stock at $300 per share or a total of $59,400. The stock represents a minority interest in a closely held investment corporation and for practical purposes is a nonavailable asset.

'3. Undivided 1/4 interest Joint Heir Account as of December 31, 1948 $59,531.50.'

The mother of Sylvia F. Steiner, who was the first of her father's three wives, left a piece of property known as the Whitney Building to her four children, Edward, Maurice, Fred and Sylvia. This property was subject to mortgage. It has been managed as 'Joint Heir Account' and the Joint Heir Account has never paid Sylvia F. Steiner any money. One of the assets of this account is a second mortgage on a piece of property in Buffalo, N. Y., which according to tendencies of the evidence is of little or no market value because of failure of tenants in the property. If this item is taken out of the statement, the equity of Mrs. Steiner in the Joint Heir Account is reduced by half. The account owes a mortgage of $117,822.85, which is a lien upon its primary asset, the Whitney Building. All of the income of the account is required to service this mortgage. The actual value of this item is not greatly in excess of $20,000, which produces no income to Sylvia Steiner and because of substantial mortgage indebtedness cannot be expected to pay her any income even in the remote future.

'4. Sylvia F. Steiner's jewelry $17,450.'

On the separation of the parties this jewelry was in the Steiner Bank in a lock box and it was necessary for Mrs. Steiner to bring a suit against her husband to obtain possession of it. Not one article in this lot of jewelry came to Mrs. Steiner from her husband. If Mrs. Steiner had been compelled to sell or pawn this jewelry to support herself, the evidence is lacking to show that it would have made available to her the substantial sum of money claimed to be its value.

'5. 51 Shares Eastman Kodak Stock (equity) $700.00'

In order to subsist Mrs. Steiner was compelled to pledge this stock to the bank for a loan of $1,500. It came to her from her own family and not from her husband. It is doubtful if she will be able to redeem this stock from the pledge from the allowance made by the court and the bills now outstanding against her, which were incurred during her life with her husband.

'6. Insurance policies June 1954, pays Mrs. Steiner retirement income $200.00 per month for life $22,574.00.'

This insurance was a gift to Sylvia Steiner and her children from her father. Her children have the right to cash out two of the three policies involved at any time they desire and in this way deprive Mrs. Steiner of the proportionate part of the expected retirement income in 1954. This income is not now available to Mrs. Steiner and it may never become available to her. The value attached to these policies is problematical.

'7. One new 1949 Oldsmobile.'

While Mrs. Steiner was living with the respondent as his wife she was accustomed to the use of an automobile. She insists that she should not now be required to divest herself of the use of an automobile.

Appellant also insists on what are called 'deferred assets of Sylvia F. Steiner as shown by record', which may be listed as follows:

'1. Contingent interest Raye C. Forman Estate $65,906.73.'

The will of Raye C. Forman, the stepmother of Mrs. Steiner, specifically provided that the decedent's husband, Benjamin Forman, should have the right to withdraw from this estate all or any part thereof, and the evidence shows that he has withdrawn a very large part thereof and is continuing to withdraw the corpus therefrom. At Mr. Forman's death it is problematical whether there will be anything in this estate available to Mrs. Steiner. There is nothing now available to her therefrom.

'2. Insurance Policies, June, 1954.'

These are the same insurance policies described hereinabove and are subject to what was there said about them. What the situation with respect to this insurance will be in 1954 is a contingency which cannot now be determined in connection with Mrs. Steiner's financial assets.

'3. B. Forman under contract to will 1960 shares Raye-Namrof preferred stock to Sylvia F. Steiner $205,800.00'

The record contains what purports to be a copy of the present draft of the proposed last will and testament of Mrs. Steiner's father. It appears that he leaves to some trustees for Mrs. Steiner 'all the preferred capital stock of Raye-Namrof, Inc., which I may own at the time of my death, but in trust nevertheless * * *' It appears that this will has been executed pursuant to a contract to devise. If Mr. Forman decides to change his will it is claimed that all that Mrs. Steiner would have would be a lawsuit for breach of contract against her father with no way of proving what damages she had sustained by his failure to devise this stock to trustees for her benefit during life. Furthermore there is the hazard that Mr. Forman would become insolvent prior to his death and tendencies of evidence show that he is in a hazardous business, namely, a women's specialty shop, with preferences in favor of his creditors. Furthermore the evidence tends to show this devise could be defeated by Mrs. Steiner's brother, Fred Forman, for matters not necessary to be here set out.

According to Mrs. Steiner she has no actual money in hand beyond an income of $80 per year dividends from her stock in the Eastman Kodak Company. Tendencies of the evidence show gifts made to Sylvia Steiner from her father and brothers in prior years of $200 per month. All of these gifts, however, were voluntary and ceased when the present trouble between the parties to this suit arose.

The Federal Income Tax return for 1947 of the complainant shows that she had a gross income of $4,921.76. In addition to this sum of money, she received $2,400 from her brothers, which has been referred to and which tendencies of the evidence show to be a gratuity. The records of Steiner Brothers, Bankers, show that during the year 1947 the...

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