Olson v. Olson
453 S.W.3d 128
Ark.2014Background
- Tina Olson filed for divorce (general indignities) July 11, 2012; she later amended to allege covenant-of-marriage and adultery (Aug. 21, 2012).
- Temporary orders allocated possession, spousal support, and incorporated a personal-property list; Tina later left the state.
- Don Olson filed a counterclaim for divorce (general indignities) and attended the October 2, 2013 final hearing; Tina did not appear.
- At trial Don admitted adultery, offered evidence of property, debts, and pension division, and orally moved to amend his counterclaim to allege adultery under the covenant-of-marriage statute.
- The circuit court granted divorce to Tina based on adultery (after allowing Don’s oral amendment and later granting his Rule 59/60 motion to award Tina the divorce), divided property and debts, and dismissed Tina’s alimony claim for failure to prosecute.
- Arkansas Supreme Court reversed and remanded, holding the trial court erred in granting Tina a divorce that she did not prosecute and which Don, as opposing party, could not properly pursue on her behalf.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could grant plaintiff's divorce when plaintiff absent and did not prosecute | Olson: She was the real party in interest; only she could prosecute; court should have continued or dismissed her claim without prejudice | Don: Issue not preserved; Olson participated in prior proceedings and repeatedly sought divorce; evidence supported adultery | Court: Reversible error — plaintiff had no opportunity to object; opposing party cannot prosecute plaintiff's claim; granting divorce was improper |
| Whether admitting opposing party's testimony and an admission can corroborate grounds for divorce | Olson: Admission by Don cannot force divorce on an unwilling spouse; corroboration insufficient when plaintiff absent | Don: His testimony and witnesses corroborated adultery so grounds proven | Court: Corroboration by adverse party insufficient where plaintiff did not prosecute; divorce statutes require proper proof/corroboration by appropriate parties |
| Whether court could allow defendant to orally amend counterclaim at trial to allege adultery under covenant-of-marriage | Olson: Oral amendment and posttrial action improper to obtain divorce she declined to pursue | Don: Sought to amend to reflect covenant and specific grounds; presented affidavit posttrial | Court: Amendment did not cure the fundamental error — defendant cannot prosecute plaintiff's claim; court erred in granting divorce |
| Effect of erroneous divorce on property division and alimony dismissal | Olson: Property division and alimony award/dismissal improper if divorce invalid | Don: Property division and alimony rulings followed from decree | Court: Reversed property/debt division (division cannot stand if divorce improperly granted); alimony dismissal construed as without prejudice and not erroneous |
Key Cases Cited
- Coker v. Coker, 423 S.W.3d 599 (Ark. 2012) (divorce is statutory and requires proved, corroborated grounds)
- Settles v. Settles, 195 S.W.2d 59 (Ark. 1946) (divorces not to be granted on uncorroborated testimony or mere admissions)
- Haller v. Haller, 356 S.W.2d 9 (Ark. 1962) (unwilling spouse cannot be compelled to have divorce granted by opposing party)
- Gore v. Heartland Community Bank, 158 S.W.3d 123 (Ark. 2004) (Rule 41(b) dismissal authority for failure to appear)
- Wolford v. St. Paul Fire & Marine Ins. Co., 961 S.W.2d 743 (Ark. 1998) (dismissals for failure to prosecute ordinarily without prejudice)
- Bevans v. Deutsche Bank Nat’l Trust Co., 281 S.W.3d 740 (Ark. 2008) (plaintiff’s right to voluntary nonsuit before final submission)
- Shelton v. Shelton, 143 S.W. 110 (Ark. 1912) (if not entitled to divorce, not entitled to property division)
- Jones v. Jones, 898 S.W.2d 23 (Ark. 1995) (appellate de novo review does not allow new issues not raised below)