430 S.W.3d 824
Ark. Ct. App.2013Background
- Mary and Phillip Freeman were married in Arkansas (1986) and owned real property in Clark County, including a Shiloh Road home; they lived in Arkansas from 1995 until mid-2007.
- The couple moved to Tennessee for work in 2007, kept Arkansas realty, utilities, Arkansas mail, driver’s license, and voter registration; Mary regularly returned to the Arkansas home and described the Tennessee stay as temporary.
- In June 2010 they purchased a house in Tennessee; Mary continued job-seeking in Arkansas and stayed in an extended-stay hotel during workweeks while returning to Arkansas on weekends.
- On or about September 10, 2010, after an alleged assault by Phillip in Arkansas, Mary remained in Arkansas; she filed for divorce on November 1, 2010.
- The circuit court found Arkansas domicile/residency sufficient for jurisdiction, dissolved tenancy by entirety and awarded the Shiloh Road home to Mary, divided marital property and debt unequally in Mary’s favor based on dissipation, assault, and resulting economic harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: residency/60-day rule | Mary: was domiciled in Arkansas; maintained ties and intent to return | Phillip: Mary was only physically present in Arkansas from Sept 10 — 51 days before filing | Court: domicile (intent + ties) satisfied statutory residency; jurisdiction proper |
| Corroboration of residency | Mary: daughter corroborated Mary’s Arkansas residence | Phillip: corroboration insufficient/vague | Court: slight corroboration by adult daughter adequate; no collusion shown |
| Division of tenancy by entirety (Shiloh Rd.) | Mary: trial court may apply § 9-12-317(c) to distribute property under current law | Phillip: subsection (c) should not apply retroactively to property acquired 1995 | Court: application valid because title vested in State during tax transfers, interrupting vested interest; § 9-12-317(c) properly applied |
| Property & debt division (unequal award) | Mary: Phillip dissipated assets, assaulted her causing job loss and expenses — justifies unequal split | Phillip: unequal division unjustified/too large; claimed separate acreage | Court: unequal division and debt allocation were equitable given dissipation, assault, economic harm; property division effectively equal when debts accounted for; no evidence acreage was severed/unencumbered |
Key Cases Cited
- Roberts v. Roberts, 349 S.W.3d 886 (Ark. 2009) (failure to prove residency deprives court of jurisdiction)
- Wheat v. Wheat, 318 S.W.2d 793 (Ark. 1958) (discussing actual presence as basis for residency)
- Weaver v. Weaver, 329 S.W.2d 422 (Ark. 1959) (domicile remains sufficient for jurisdiction)
- Oakes v. Oakes, 242 S.W.2d 128 (Ark. 1951) (domicile requires intent plus presence; change requires abandonment and new intent)
- Cole v. Cole, 110 S.W.3d 310 (Ark. App. 2003) (limits on courts’ options for distributing tenancy by entirety prior to statutory amendment)
- Givens v. Haybar, Inc., 234 S.W.3d 896 (Ark. App. 2006) (State tax vesting interrupts owner’s vested title)
- Keathley v. Keathley, 61 S.W.3d 219 (Ark. App. 2001) (dissipation of marital assets can justify unequal property division)
- Hodges v. Hodges, 770 S.W.2d 164 (Ark. App. 1989) (corroboration requirement exists but need only be slight when no collusion)
- Evtimov v. Milanova, 300 S.W.3d 110 (Ark. App. 2009) (corroboration of residency is jurisdictional requirement)