Vorisek v. Vorisek

• Decision Date: 01 December 1982
• Docket Number: No. 13212,13212
• Parties: Lee K. VORISEK v. Peggy Genevieve Weil VORISEK.
• Court: Court of Appeal of Louisiana — District of US

Page 758

423 So.2d 758

Lee K. VORISEK v. Peggy Genevieve Weil VORISEK.

No. 13212.

Court of Appeal of Louisiana,

Fourth Circuit.

Dec. 1, 1982.

Bernard Marcus, Patricia Maureen Joyce of Deutsch, Kerrigan & Stiles, New Orleans, for plaintiff-appellant.

Philip R. Riegel, Jr. of Parlongue & Riegel, New Orleans, for defendant-appellee.

Before GARRISON, AUGUSTINE and CIACCIO, JJ.

CIACCIO, Judge.

Peggy Weil Vorisek filed a rule to fix post-divorce alimony. After a trial on the merits, the district court rendered judgment in favor of Mrs. Vorisek, awarding her six hundred dollars ($600.00) per month alimony. The trial court also ordered Lee Vorisek to provide his former wife with an automobile for her use, and the maintenance for the vehicle. Lee Vorisek appeals from this judgment, alleging the excessiveness of the award and the legal impropriety of certain items of expense. We amend the trial court's judgment and affirm.

The sole issue on appeal is whether Mrs. Vorisek is legally entitled to post-divorce alimony in the amount of six hundred dollars ($600.00) per month, plus the use and maintenance of an automobile.

The facts are as follows:

Peggy Genevieve Weil and Lee K. Vorisek were married on June 5, 1956. They have three children who have reached the age of majority and are attending college. The children are given voluntary support payments by their father, Lee Vorisek.

Mr. Vorisek and his former wife are major stockholders in a closely held package manufacturing corporation, known as CON PAC, Inc. Together they own 76% of the stock. Mr. Vorisek is the president of the corporation and earns approximately $36,000 ¹ per year in gross income from the company which employs eighty people. As a result of his position with the corporation, Mr. Vorisek experienced many non-income financial benefits. ²

The former Mrs. Vorisek has a two year college education. She is employed by the jointly owned company and has been so employed for slightly over a year. She works only twenty (20) hours a week due to a physical disability. She testified that she suffers from a degenerative spinal condition. As a result of this condition she has undergone extensive surgery and experienced three (3) years of partial paralysis. She incurred medical bills in excess of $25,000 and is being treated by Dr. Hyman Soboloff and Dr. Richard Levy for her condition. The former Mrs. Vorisek testified that she was under doctor's orders not to work more than twenty (20) hours per week and had tried to exceed this limit, but could not, because she lost the use of her legs. Peggy Weil Vorisek takes home $368.40 wages per month, based upon a gross salary of $435.50 per month.

The former Mrs. Vorisek holds a real estate license; however, since her physical condition prevents her from climbing stairs, she has not engaged in the active real estate practice. She completed only two real estate transactions in the prior five years: the sale of her family home and the purchase of her current residence.

She has no other skills nor training. Although she took two courses in jewelry design, she does not have sufficient training to be employed in this trade.

The couple separated (physically) in November, 1974. A petition for divorce was filed August 8, 1977 on the basis that the couple had lived two years separate and apart. On September 19, 1977 a judgment of divorce was granted in which both parties were found to be free from fault.

On April 30, 1981 the family home was sold. Mrs. Vorisek realized slightly over $35,000 from the sale and a real estate commission of $1,950. She used the monies to purchase a condominium, located at 2712 Whitney Place, valued at $56,900. She currently resides at this location and pays a monthly mortgage note of $225.27.

Mr. Vorisek received $36,650 from the sale of the home. He paid off a bank loan of $13,500. He stated that he had not yet paid his attorney fees and he owed his company $2,400.

In addition to the family home, the couple owns a lot in Ascension Parish, which the defendant valued at $12,000 with a mortgage of $3,000. At the time of the hearing on this matter, Mrs. Vorisek was performing the background work needed in order to sell the lot.

Attempts were made, without success, to negotiate a settlement between them concerning the corporate stock.

On June 8, 1981, testimony was given in conjunction with the wife's rule to fix alimony. Mrs. Vorisek stated that she owned her condominium at 2712 Whitney Place, some 5,600 shares of CON PAC, Inc. stock, her community interest in the lot in Ascension Parish and $6,000 in her checking account. She also earns $435.50 per month, gross income. She itemized her income and expenses for this hearing. ³

Mr. Vorisek stated that he owns an automobile, one-half interest in the Ascension Parish lot, the proceeds from the sale of his family home, and his interest in the CON PAC, Inc. corporation. He receives a gross monthly income of $3,000 per month, plus various non-income company benefits. He gave a detailed list of income and expenses which were admitted into evidence at the hearing. ⁴

The trial court considered the evidence, and awarded the wife $600 per month alimony, reasoning that the "total amount that she could possibly collect under the Code ... would be one-third of his total salary, anyway, of $36,000, which would be $12,000."

The Louisiana Civil Code, Article 160, controls the award of alimony after divorce:

Art. 160. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse's earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.

In determining whether the claimant is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.

This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.

(Amended by Acts 1964, No. 48, § 1; Acts 1979, No. 72, § 1, eff. June 29, 1979)

We must determine, therefore, whether the trial court violated the provisions of this Article when it made its award of alimony to the defendant.

Wife's Means and Needs:

The appellant contends that the wife failed to prove that she had insufficient means for her support. He specifically points to the wife's income, earning capacity and non-depleted assets in support of his position.

I. Wife's Means:

The party seeking alimony has the burden of proving necessitous circumstances or insufficient means for their maintenance. Kean v. Kean, 388 So.2d 398 (La.App., 1st Cir., 1980); Moss v. Moss, 379 So.2d 1206 (La.App., 3rd Cir., 1980). "Means" includes capital and income. Loyacano v. Loyacano, 358 So.2d 304 (La., 1978); vacated, other grounds, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979); on remand, 375 So.2d 1315 (La., 1979) Guarisco v. Guarisco, 271 So.2d 553 (La.App., 1st Cir., 1973).

(a) Income

The appellant contends that his former wife had an average monthly income of $623.00. This amount is comprised of gross salary of $435.50, plus $25.00 interest income and $1,950 real estate commission. We cannot agree with this reasoning.

Mrs. Vorisek did receive gross earnings of $435.50 per month, however, the interest income and $1,950 real estate commission were not regular and reoccurring income to be computed as a fixed sum into her monthly total.

The interest income was interest earned on a checking account and as the balance decreased, so would the interest income.

The real estate commission was a one time earning from the sale of the family home. Moreover, the wife specifically stated that she was no longer engaged in the real estate practice, because she suffered a disability which prevented her from climbing steps.

These figures were properly not considered part of the wife's regular monthly income. There is, however, no indication that these sums were not taken into consideration as an asset of the wife, when the court arrived at its final decision.

(b) Earning Capacity

The appellant next argues that the trial court failed to properly consider the wife's earning capacity. He contends that the appellee failed to prove her inability to work more than twenty (20) hours a week and her inability to continue in the real estate trade.

Under Civil Code Article 160, the wife's earning capacity is a proper consideration in awarding alimony. Noto v. Noto, 396 So.2d 486 (La.App., 4th Cir., 1981); White v. White, 393 So.2d 240 (La.App., 1st Cir., 1980). Although earning capacity is a consideration for awarding alimony, it is only one consideration, and taken alone, it is not a proper basis for rejecting an award of alimony. Super v. Super, 397 So.2d 1084 (La.App., 4th Cir., 1981), writ den. 399 So.2d 583. A mere refusal to work does not create a "need" for alimony, just as it does not create an inability to pay alimony, C.C. Art. 160, LeBlanc v. LeBlanc, 405 So.2d 1187 (La.App., 1st Cir., 1981).

The appellant relies upon the decision of Graff v. Graff, in establishing that the wife has not met her burden of proving that she is unable to work. 407 So.2d 70 (La.App., 4th Cir., 1981).

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