Walters v. Walters
| Decision Date | 20 October 1967 |
| Parties | Myrtle WALTERS, Appellant, v. Mack G. WALTERS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Frank E. Haddad, Jr., Louisville, Marion Rider, Frankfort, for appellant.
Earl S. Wilson, E. F. Schaeffer, Jr., Lexington, for appellee.
The judgment appealed from granted the wife a divorce, $37,500 lump sum alimony, $200 monthly alimony, a Buick automobile, and some furniture. She demands a reversal on the theory (1) that the chancellor undervalued an item of appellee's property in arriving at his net worth; (2) that she is entitled to greater alimony, all in a lump sum; (3) that she is entitled to a lump sum in alimony equal to or in excess of one-third of her husband's net estate; and (4) that $1000 paid by her to two appraisers, who made appraisement and testified for her, should be taxed as costs.
We approach a solution to the questions presented conscious of CR 52.01 which limits the reviewability of findings of fact by the chancellor. Such findings of fact will not be disturbed unless found to be clearly erroneous.
The parties were married in 1945. It was a second marriage for appellant. Appellant had one child, Patricia Ann Rule, age eight, at the time of her marriage to appellee. This child was educated by the parties herein.
Early in 1965, according to appellant, the husband lost his affection for her and wanted a divorce. At the instance of appellee, the appellant filed suit for divorce on April 14, 1965.
The chancellor found appellee's net estate to be worth $178,200.
Included in the gross valuation is an item of $80,000 found and used by the chancellor as the worth of appellee's one-third interest in a tobacco warehouse partnership known as Old Globe Tobacco Warehouse. This is the only item in the list making up appellee's gross estate that is seriously questioned by appellant in this court. She contends appellee's one-third interest in the partnership far exceeds $80,000, the amount found by the chancellor.
The evidence shows the fair market value of the real estate owned by the partnership was $400,000 and that its liabilities were $160,000. The chancellor apparently deducted the liabilities from the value of the real estate and took one-third of the remainder as the value of appellee's interest in the partnership. Appellant complains that no value was placed on 'going concern' or 'good will.'
The partnership earned the following amounts during the years listed:
1964 $69,256.08
1965 47,500.47
1966 78,250.89
Appellee drew cash in the following amounts for the years indicated below:
1964 $21,724.47
1965 18,676.87
1966 22,525.54
The balance sheet of the partnership shows the book value of the interest of appellee at $75,208.87 for 1964 and $77,715.24 for 1966.
Appellant uses two systems to determine the value of appellee's one-third interest in the partnership: (1) The book value plus four times the 'excess income' gives a value of $135,888.68; (2) Capitalization of 'net income at eight percent' gives a value of $136,544.92.
The partnership contract, dated October 14, 1963, after defining the respective duties of the three partners, provides that in case of 'death' or 'incapacitation' of either partner, the remaining partners shall have an option to purchase the interest of the departed or incapacitated partner on the basis of the valuation in effect at the time of death or disability.
Without going into further detail on the value of appellee's interest in the tobacco warehouse partnership, it may be said that the chancellor's value of $80,000 was low and could have been higher. However, there are many elements to be considered in fixing the values of one's estate for the purpose of determining alimony. One element is the husband's ability to pay. Under this factor the court may consider the means necessary to raise the amount of alimony allowed, such as, quick sales and tax obligations incurred in connection with liquidating one's estate. In this case, according to appellee's brief, we have a good example of a tax...
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