Klauser v. Klauser


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Docket Number: 2002-CA-00269-COA
Linked Case(s): 2002-CT-00269-SCT ; 2002-CA-00269-COA

Court of Appeals: Opinion Link
Opinion Date: 07-22-2003
Opinion Author: Thomas, J.
Holding: Affirmed

Additional Case Information: Topic: Divorce: Adultery - Alimony - Equitable distribution of marital property - Attorney’s fees
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - DOMESTIC RELATIONS

Trial Court: Date of Trial Judgment: 01-23-2002
Appealed from: Lee County Chancery Court
Judge: Jacqueline Mask
Disposition: COMPLAINT FOR DIVORCE GRANTED, MARITAL ASSETS DIVIDED, ALIMONY AWARDED
Case Number: 00-0799

  Party Name: Attorney Name:  
Appellant: Harry Edward Klauser, D.V.M.




JAMES W. BINGHAM



 

Appellee: Linda Gayle Klauser T. JACKSON LYONS  

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Topic: Divorce: Adultery - Alimony - Equitable distribution of marital property - Attorney’s fees

Summary of the Facts: Linda Klauser filed for divorce on the grounds of adultery against Harry Klauser. The court granted the divorce and awarded Linda the marital home, the cabin, the retirement account, annuity, stock, and cash value of the life insurance for a total of $122,749.30. Harry was awarded the veterinary realty and the veterinary clinic for a total of $216,106. The difference, $93,357, was awarded to Linda as a property settlement which is payable by Harry in increments of $1,000 per month until the sum is paid in full. Harry appeals.

Summary of Opinion Analysis: Issue 1: Alimony Harry argues that the chancellor erred in awarding Linda's $1,000 per month alimony, because it is excessive and unfair. Factors to be used in determining if alimony is appropriate the income and expenses of the parties; health and earning capacities of the parties; needs of each party; obligations and assets of each party; length of the marriage; presence or absence of minor children in the home; age of the parties; standard of living of the parties; tax consequences of the spousal support order; fault or misconduct; wasteful dissipation of asset; or any other equitable factor. The record shows that the chancellor determined that there was a large difference between Harry's and Linda's gross monthly incomes and that the chancellor also considered the health, age, need and earning capacity of both individuals when deciding on whether to award alimony and how much to award. Given these factors, the alimony award is equitable. Issue 2: Equitable division Harry argues that a proper division of marital property would be an equal 50/50 split of the marital assets, rather than a difference of $93,357 which he must pay at a rate of $1,000 per month. Factors the court should consider include substantial contribution to the accumulation of the property; degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets; market value and emotional value of the assets; value of assets not ordinarily subject to such distribution; tax and other economic consequences; extent to which property division may be utilized to eliminate periodic payments and other potential sources of future friction between the parties; needs of the parties for financial security; and any other equitable factor. The chancellor is not required to divide the property equally. The chancellor has made findings of fact on the record, and there is no error. Issue 3: Attorney’s fees Harry argues that Linda is able to pay her attorney's fees. Where the only liquid asset is the alimony award and the party seeking fees has otherwise demonstrated an inability to pay the fees, a reasonable award is appropriate, providing the McKee factors regarding inability to pay, the skill of the attorney, the nature and novelty of the case, usual fees for similar cases of a similar character are satisfied. Although there is no verbalized finding, the record provides more than adequate foundation that the individual factors in McKee were ample to support the chancellor's finding.


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