Reed v. Reed

457 S.W.2d 4

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 26, 1970
• Status: Published

Opinions

STEINFELD, Judge.

This is a contest over an alimony award, disallowance of a part of fees and litigation expense, maintenance for children and matters related to the foregoing. The husband has appealed and the wife has attempted to cross-appeal. We affirm the judgment in part, reverse it in part and sustain the motion to dismiss the cross-appeal.

Only three contentions and questions are submitted to this court. They are as follows :

“I. Jean Reed is Entitled to No More Than Maintenance and Support From Clyde Reed.

II. Jean Should Pay Her Attorneys and Expert Witnesses.

III. A Father’s Obligation to Support His Child Does Not Extend Beyond the Age of Eighteen.”

“STATEMENT OF QUESTIONS PRESENTED

1. Is a wife who wrongfully abandons her husband of twenty years, takes their children away from him and refuses to make them obey the orders of the Court, entitled to anything more from him than adequate maintenance and support for life or until she remarries?

2. Is such a wife with a separate estate in excess of $110,000 (all but $500 of which was acquired by reason of the marriage) entitled to require her abandoned husband to contribute $20,-000 toward her attorneys’ fees, pay one-third of her expert witnesses’ fees and all of the Court costs?

3. Does a father have any legal obligation to support his children after they become 18 years of age?”

When Clyde and Jean were married Clyde’s property was worth $50,000 and Jean’s $500. The chancellor opined “From that modest beginning, through industry, foresight — and perhaps an uncanny sense of imagination and management — the net worth of the husband as of the date of submission of this case is between $4,761,-000 and $7,132,500; the lower figure being the net worth established by the husband’s appraisal testimony; the higher figure being the value fixed by the wife’s appraisers.” Through property given to Jean by Clyde her estate then was approximately $110,000.

Their daughter, Marilyn, was born January 31, 1953, and their son, David, on August 15,1954. Clyde devoted almost all of his waking hours to his businesses and Jean looked after the home and raised the children admirably. They lived frugally. This routine continued from the time of the marriage until some time in 1966 when Jean and the children left the home and shortly thereafter Jean sued for a divorce.

In 1964 the Internal Revenue Service asserted a claim for additional income taxes which eventually resulted in a settlement whereby Clyde and his corporations paid approximately $1,000,000. to the federal and state governments. Depressed by worry over raising the funds to meet the income tax demands Clyde secluded himself almost nightly during 1965 and 1966 from Jean and the children. He retired to a darkened room and remained there from the conclusion of the evening meal until bedtime. During that period rumors were brought to Jean that Clyde was having an “affair” with an office employee. These rumors were never substantiated with proof to Jean and the court said they were “ * * completely unfounded so far as the record discloses * * * In December 1964 Jean suffered a nervous breakdown, spent considerable time in hospitals and after her release in March 1965 moved from their home and later sought the divorce on the ground of cruel and inhuman treatment. KRS 403.020(3) (b). Before the decree was granted Clyde tried unsuccessfully to reestablish the marriage. Clyde denied the allegations and counterclaimed on the basis that she was guilty of cruelty (KRS 403.-020(4) (d)) but later he amended and charged that she had abandoned him and that the abandonment had continued for more than one year. KRS 403.020(2) (a). There was litigation over the property, alimony, and maintenance for the children, but on Jean’s claim for their custody Clyde did not resist.

The lower court adjudged that Clyde, rather than Jean, be granted the divorce on the abandonment charge but gave her the children. It awarded to Jean lump sum alimony in the amount of $500,000., credited by her present estate, giving her a net of approximately $390,000. Additionally, it ordered Clyde to pay periodic alimony at the rate of $25,000.00 per year for 10(4 years but made provisions with respect to the death of either of the parties during those years. It also held that he should pay to his wife’s attorneys $20,000. on account of their $60,000. fee, one-third of the cost of appraiser Waldrop whose total charge was $9,400. and the same proportion of the $1,200. charge of accountant Nale. Waldrop and Nale were engaged by Jean to assist in presenting her evidence. The court directed that Clyde pay all of the court costs of the action.

Although he insists that he is being required to pay far more than he should, the appellant approves the statement made by the chancellor that Jean is “* * * entitled to alimony in an amount that will be amply sufficient to provide her with financial independence for as long as she can expect to live; but she is not entitled to. have this amount based on any certain percentage of the wealth that has been accumulated during this marriage.” He contends that she should not have been given a lump sum award although he offered to set up a trust which would provide her an income of $1,000. per month for her remaining unmarried life. Upon her remarriage or death the children would receive the income and corpus of the trust. Also he offered to buy or build her a home and furnish it at a total cost not exceeding $35,000. He also offered to support and educate the children. Clyde notes that the uncontradicted evidence shows that for the five years immediately preceding the separation the expenses for the maintenance of the home and all other normal living expenses averaged less than $1,000. per month. He considers it significant that the court found $625. per month alimony pendente lite as reasonable and that it is paradoxical for the court to make such a generous award at the conclusion of the litigation. He attacks both the amount of the lump sum award and of the annual allowance.¹

Appellant takes issue with the finding of the chancellor as to the value of his estate contending that it is worth not more than $3,782,000. He says that even if it be worth $5,000,000. there is nothing shown to justify an allowance based upon the size of the estate. We find sufficient evidence to support the conclusion of the court as to value, but even if the correct amount was $3,782,000. the amount of the allowance would be justified.

Appellant’s counsel concede that other cases offer little guidance, but they call our attention to Chastain v. Chastain, Ky., 405 S.W.2d 758 (1966). However, there it was found, as here, that the wife was at fault but alimony was allowed to her in the absence of proof of immorality. No claim has been made of immorality on the part of Jean. They note that the experience of the wife in investing funds and taking care of financial matters was a factor properly considered in Holder v. Holder, Ky., 424 S.W.2d 600 (1968), and say that Jean has had no experience in investing money. Clyde is quite concerned that the allowance to Jean of a substantial lump sum is putting her in possession of wealth with which she is incapable of dealing. Lump sum alimony awards are favored by this court. Broida v. Broida, Ky., 388 S.W.2d 617 (1965).

KRS 403.060(1) authorizes an award of alimony to the wife if she has insufficient estate of her own, and she obtains a divorce. Coleman v. Coleman, 164 Ky. 709, 176 S.W. 186 (1915). “It is well established by judicial interpretation that a needy wife may receive alimony on a divorce granted to the husband where she is not entirely to blame for breaking up the marriage and is free from moral delinquency.” 54 Ky.Law Journal 222. Many of our decisions are cited in support of this statement. Clyde does not rely on the denial of the divorce to the wife. We interpret that statute to mean that “ * * * the wife’s estate must be of such character and amount as will yield income or profits sufficient for her comfortable maintenance in a style suitable to her social standing, without her being required to consume the principal.” Scott v. Scott, Ky., 433 S.W.2d 631 (1968). Clyde says that Jean was guilty of misconduct in breaking up the home and that Scott stands for the proposition that she should not profit by her misconduct. Also argument is made that Jean’s $110,000. estate would produce in excess of $550. per month and that it would take only another $5,400. annually to provide her $1,000. per month, the amount on which the entire family had lived. One answer is that while the trial court found that she was at fault, which finding we do not disturb, nevertheless, it appears to us that he sacrificed his marriage to his business. The habits of Clyde in substantially ignoring his family were compelling influences on her actions. Cf. Ca-wood v. Cawood, Ky., 329 S.W.2d 567 (1959).

Although Jean worked little in the various business ventures she ran the home at such a minimum expense, commensurate with the family income and wealth, that we cannot say she did not assist in creating that wealth. In speaking of restoration of property we said in Cooke v. Cooke, Ky., 449 S.W.2d 216 (1969), that where “* * * property has been accumulated in the course and by virtue of the joint efforts of husband and wife as a marital unit, one carrying out his responsibilities and the other carrying out hers. * * * upon dissolution of the marriage, the trial court should be free to weigh it up and determine when, whether and how it is to be cut off and separated out.” Here it appears that the same reasoning should apply. The chancellor permitted Jean to retain the property valued at $110,-000. which she received by reason of the marriage although she was required to credit it on the lump sum award. The $500,000. award together with the annual installments does not appear to be an abuse of discretion, therefore, it will not be disturbed. Long v. Long, Ky., 416 S.W.2d 353 (1967); Justice v. Justice, Ky., 421 S.W.2d 868 (1967) and Lyen v. Lyen, Ky., 422 S.W.2d 127 (1967).

Appellant complains bitterly that “the real cost” to him of the lump sum award will greatly exceed $500,000. because he was ordered to pay the balance within 90 days of the judgment date. The proof showed that raising “immediate cash” of sufficient amount would be difficult and costly. Sales at sacrifices would be necessary and the tax impact would be huge. In Broida v. Broida, Ky., 388 S.W.2d 617 (1965), we held that the tax impact should be considered. There we fashioned a plan for payment to avoid unnecessary burden— we do so here.

The judgment should be amended to provide that one-fourth of the balance (approximately $390,000) of the lump sum award was due and payable on May 7, 1969, one-fourth of that balance on or before February 7, 1970, one-fourth on or before February 7, 1971, and the remainder of the lump sum award on or before February 7, 1972. The unpaid balance of that award shall bear interest at the rate of 4% per annum from February 7, 1969, (the judgment date), until the due date of each installment, and 6% thereafter, with the accrued interest on the remaining balance being due and payable when each installment is due.

Payment of the amount of the lump sum award should be secured by pledge, lien or other adequate protection in such manner as shall be determined by the chancellor. Default in making any payment in full when due or in providing required security shall authorize Jean to precipitate the balance and enforce immediate payment thereof.

Clyde attacks the judgment because it requires him to “ * * * contribute a reasonable amount for the support and maintenance of (his) children until each shall attain the age of twenty-one years or until they marry or become self-supporting, ever which event should first occur.” The court did not fix a specific amount. In Young v. Young, Ky., 413 S.W.2d 887 (1967), we held that in view of the enactment of KRS 2.015 fixing the age of majority at 18 the court was without right to require the husband to maintain his children after their 18th birthday unless they became physically or mentally incapable of supporting themselves. Also see Blackard v. Blackard, Ky., 426 S.W.2d 471 (1968). The portion of the judgment which specifies that support shall be provided after age 18 was erroneous.

The trial court found “ * * * that a total gross fee of not less than $60,000. plus reimbursement of their out-of-office expenses, is reasonable and justified” as compensation for the services rendered to Jean by her attorneys and adjudged that Clyde should pay one-third of that fee and expenses. He objects and argues that both KRS 403.060 and KRS 453.120 have been interpreted as being subject to the general limitation that the wife’s separate estate be insufficient for her to defray the expense of the litigation. While KRS 453.120 does not specifically state that the husband shall defray the expense of the attorneys for the wife we have so construed it. Wills v. Wills, 168 Ky. 35, 181 S.W. 619 (1916), and Anderson v. Anderson, 310 Ky. 521, 221 S.W.2d 69 (1949). It provides: “In actions for alimony and divorce, the husband shall pay the costs of each party, unless it appears in the action that the wife is in fault and has ample estate to pay the costs.” Clyde contends that Jean’s estate is ample to pay her attorneys. He has made those attorneys parties to this proceeding so that this matter could be litigated. Jones v. Jones, Ky., 412 S.W.2d 868 (1967), and Smith v. Smith, Ky., 424 S.W.2d 573 (1968). Jean had no estate except that given her by Clyde, the amount of which was credited on the alimony award. It was not error to hold that the attorneys must be paid in part by Clyde. Cf. Robb v. Robb, 281 Ky. 729, 137 S.W.2d 385 (1940).

Clyde argues that there is no justification for a fee of $60,000. to Jean’s attorneys regardless of Clyde’s or Jean’s ability to pay.² He relies upon the minimum fee schedule of the Kentucky State Bar Association and claims that a fee based upon that schedule would be reasonable. He overlooks the fact that this is a “minimum fee schedule”, and serves only to advise the court. Many factors enter into a determination of the proper amount. King v. King, 218 Ky. 9, 290 S.W. 725 (1927); Stubblefield v. Stubblefield, Ky., 327 S.W.2d 24 (1959) and 27A C.J.S. Divorce § 224 c, p. 987. In the brief filed here counsel carefully analyzed the number of hours spent and the type of litigation, all of which we and the trial court considered and we are unable to say that the amount fixed was clearly or at all erroneous. Cf. Broida v. Broida, Ky., 388 S.W.2d 617 (1965) and Hopkins v. Hopkins, Ky., 431 S.W.2d 863 (1968).

Clyde objects to being charged with one-third of the compensation and expenses claimed by an appraiser and an accountant employed by the wife. It appears to us that the services of those two experts were necessary and our holding with respect to the requirement that the husband pay one-third of the attorneys’ fee is equally applicable to the decision concerning the payment of the charge for those experts. Walters v. Walters, Ky., 419 S.W.2d 750 (1967) and Justice v. Justice, Ky., 421 S.W.2d 868 (1967).

We must now determine whether we may consider the contentions made by Jean on her attempted cross-appeal. She says that she is entitled to alimony approximating one-third of Clyde’s estate; that it was error to require her to pay any part of her attorneys’ fees or expenses for expert witnesses; and that she is entitled to a lien to secure the deferred alimony payments. She also claims that she was improperly denied certain discovery opportunities and that the court erroneously considered irrelevant factors in determining the amount of the alimony award. In connection with these arguments we are referred to many cases and texts.

On May 12, 1969, appellant filed a statement of appeal (RCA 1.090), paid the tax (KRS 142.011(1)), gave bond (CR 73.05) and deposited the record with the clerk. The appeal was docketed and forthwith a notice was mailed to all attorneys of record. RCA 1.070(b). Even though counsel for Jean had filed notice of cross-appeal on April 22, 1969, as provided by CR 73.02 and CR 74, they took no procedural steps to perfect the cross-appeal until September 9, 1969, when there was delivered to the clerk of the Court of Appeals a statement of cross-appeal, a check for $50. as a cash bond and a motion for leave to file a tendered bond. CR 73.06(2). Two days later appellant moved to dismiss the cross-appeal on the ground that it was not perfected within the time permitted by RCA 1.080.

That rule, after its amendment which was effective May 1, 1968, provides:

“To perfect a cross-appeal, the party taking a cross-appeal shall, within 20 days after the mailing of the notice provided in RCA 1.070(b), (1) pay the tax required by KRS 142.011(1), (2) file a statement of cross-appeal setting forth (a) the name of each cross-appellant and each cross-appellee, (b) the name and address of counsel for each cross-appellant and each cross-appellee, and (c) the date the notice of cross-appeal was filed and the page of the record on appeal on which it may be found, and (3) file the bond on appeal required by CR 73.05.”

Clyde cites United Mine Workers of America v. Morris, Ky., 307 S.W.2d 763 (1957), in which an appeal was dismissed for failure to file a statement of appeal. We said that “Judicial administration is dependent upon procedural rules. Without a definitive method of procedure a court cannot function effectively, nor would citizens have the equal protection of the law.” We made it clear that the timely filing of the statement of appeal was “ * * * not a formality, but is required because it furnishes this Court necessary information with respect to the parties to the appeal, the judgment appealed from, and other items of importance.” Stating that “Such rules have the force of law”, we refused to relax the rule and adjudged that the attempted appeal should be dismissed. The rationale of that ruling applies with equal force to the 20-day time limit fixed by RCA 1.080.

Appellee concedes that almost four months had passed before she made effort to perfect the cross-appeal. In the meanwhile, the appellant had moved the Court of Appeals to be permitted to practice the appeal on the original record which motion was sustained, the appellees had filed a “designation of record on cross-appeal” (CR 75.01), the appellees had filed a response to appellant’s motion to practice the appeal on the original record and requested that if the court sustained the motion the cross-appellee be given the same permission. Further, the appellant moved to advance the case which motion was sustained, the appellant filed its brief and a reply brief to the appellees’ brief which she had filed. The case was submitted on August 1, 1969. The court did not rule on the appellees’ motion that she be permitted to practice the cross-appeal on the original record.

In support of her argument that the cross-appeal should not be dismissed, Jean claims, without merit, that she was not required to comply with RCA 1.080 until the court had ruled on the motion to prosecute her cross-appeal on the original record. There is nothing in RCA 1.080 which provides for an extension of the time fixed by that rule. Furthermore, the court could not be expected to pass upon the motion until the cross-appeal had been perfected.

Secondly, the appellee contends that Clyde waived his objection to appel-lees’ late perfection of her cross-appeal. Her counsel cite Bardill v. Bird Well Surveys, Inc., Ky., 310 S.W.2d 265 (1958), in which a motion to dismiss by reason of appellant’s late filing of the record on appeal was the issue. We said that “The filing of the record on appeal is not a jurisdictional matter, and non-compliance with the time limits of CR 73.08 may be excused under special circumstances.” She also refers to Elam v. Acme Well Drilling Co., Ky., 411 S.W.2d 468 (1967), in which the appellant had failed to designate the record for more than 100 days after the day the notice of appeal was filed. The appellees had failed to seasonably move for dismissal which we said was a waiver of the right to make that demand. In the case now before us counsel for Clyde moved to dismiss the appeal almost immediately after the appellees had served their motion for leave to file the cost bond which they say was their first notice that RCA 1.080 had not been complied with.

The cross-appeal must be and it is dismissed even though this may seem harsh. Gulf Oil Corporation v. Vance, Ky., 431 S.W.2d 864 (1968). The issues raised thereby, except those discussed in connection with the original appeal, will not be considered. The judgment is affirmed in part and is reversed to the extent indicated herein and the trial court is directed to correct and amend the judgment to con-’ form to this opinion. The cross-appeal is dismissed.

All concur, except OSBORNE and NEI-KIRK, JJ., who dissent.

1 . On petition for rehearing appellant for the first time contended that the court was powerless to award Jean any alimony in excess of that which Clyde had offered. KltS 403.060. We reject it. RCA 1.350(b). Herrick v. Wills, Ky., 333 S.W.2d 275 (1959); Stewart v. Jackson, Ky., 351 S.W.2d 53 (1961), and Com., Dept. of Highways v. Thomas, Ky., 427 S.W.2d 213 (1967).

2 . Clyde does not argue that the court is powerless to require a husband to defray part of a wife’s expenses for attorneys, appraiser or accountant.