Lead Opinion
| ¶ Clayton Coker appeals a divorce decree entered in Garland County Circuit Court. Clayton asserts that the circuit court committed clear error in granting Samantha Hess-Coker a divorce based on the ground of indignities. He also asserts that the circuit court abused its discretion in granting an award of attorney’s fees. We affirm the decree of divorce and reverse and remand the grant of attorney’s fees.
The court of appeals reversеd and dismissed the decision of the circuit court, see Coker v. Coker,
This court reviews divorce cases de novo on the record. Taylor v. Taylor,
Clayton and Samantha were married on July 1, 1991. Samantha asserted below that Clayton engaged in long-term, sustained, and repeated periods of adultery that gave rise to indignities that rendered her life intolerable. Some time in 2006, Clayton began an affair with a woman in Wynne where Clayton and Samantha lived with their two children. Samantha learned of the affair one afternoon when she received a telephone call from her sister while attending a PTA function with her daughter. Her sister gave Samantha an address in Harrisburg where Samantha found her husband with his girlfriend. When confronted, Clayton admitted that he was having an affair. Clayton moved out of the marital home and into an apartment in Wynne.
After some time, Clayton reconciled with Samantha and moved back into the marital home. However, he later recommenced the adulterous relationship with the same woman. Some time later, Clayton again reconciled with Samantha, and after Clayton received an offer of a new position with his employer, he and Samantha decided to move to Hot Springs so Clayton could take the new position and the couple could start anew. However, once in Hot Springs, Clаyton and his former girlfriend again recommenced their adulterous relationship. Upon discovering this, Samantha took the two children and moved from the 133500 square-foot marital home into a small apartment that required her to share a room with her daughter. Clayton moved his girlfriend into the parties’ marital home after Samantha had moved out. Samantha testified about the difficulties that Clayton’s affair had introduced into the family. She asserted that Clayton had lied to her and that he was demeaning to her. She alleged that he would tell her where he would be, but when she checked, he was not there. She testified that he attacked her verbally, that he got in her face, and that she was fearful that this behavior would continue. Samantha’s mother testified that Samantha became extremely nervous
Beginning in 2006, Clayton made cash withdrawаls to pay for restaurant meals, adult novelties, liquor, dock fees, gas for his boat, hotel rooms, movie rentals, diamonds, Victoria’s Secret items, gifts, candy, and sporting goods. He took $64,935.06 out of his retirement account, which included funds acquired during the marriage. He used retirement-reinvestment proceeds amounting to about $4000 per year for his own purposes. He took out at least one $20,000 loan against his retirement account and used it for his own purposes. When he and Samantha sold their home in Wynne, they received $101,000 in equity. Clayton put $64,000 of that amount into the new house in Hot Springs and kept the rest. In addition, he failed to assure that Samantha was listed as an owner of the house in Hot Springs.
On March 29, 2010, Samantha filed a complaint for divorce alleging that Clayton had “offered such indignities as to render plaintiffs condition in life intolerable.” The circuit |4court found that “[t]he Defendant was having an ongoing affair which [led] to Plaintiffs cоndition in life becoming intolerable.”
Clayton asserts that the circuit court erred in granting the divorce based on the ground of indignities. Pursuant to Arkansas Code Annotated section 9-12-301(b)(8)(C) (Repl.2009), the circuit court may “dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony ... [w]hen either party shall ... [o]ffer such indignities to the person of the other as shall render his or her condition intolerable.”
In Rachel v. Rachel,
The appellant next argues that the Chancellor erred in granting the divorce because no grounds of divorce were proven. This argument is also without merit. The appellee testified that, in 1982, while she and appellant were married, he left her to live with another woman in Bastrop, Louisiana. They reconciled their differences almost two years later, and in Seрtember 1984, he moved back into the marital home. However, after only a few weeks he again started spending weekends with the other woman in Bastrop. The testimony established the ground of general indignities.
As in the present case, conditions arising from adultery gave rise to indignities. While adultery can give rise to indignities that may cause the spouse’s condition in life to become intolerable, the act of adultery itself is a separate distinct cause for divorce under the statute. |KSee Ark.Code Ann. § 9 — 12—301(b)(4) (Repl.2009). The two causes for divorce should not be confused.
It has been some time since this court addressed the requirements that must be met to grant a divorce under indignities:
Although the scope of the “indignities” ground has undergone considerable expansion throughout the years, it is still necessary that the conduct relied upon manifest settled hate, alienation and estrangement and be constantly and sys-tematieallypursued with the рurpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. McNew v. McNew, 262 Ark. 567 ,559 S.W.2d 155 ; Welch v. Welch,254 Ark. 84 ,491 S.W.2d 598 . In the cited cases, we pointed out that even this construction of the statute is to be cautiously applied.
Lytle v. Lytle,
The fifth cause of divorce set forth in the statutes [the language regarding indignities at issue in the present case] gives to our courts a broader jurisdiction than that exercised by the civil and ecclesiastical courts for legal cruelty; for indignities to the person may render the condition of the party intolerable without ‘reasonable apprehension of bodily hurt’ ... Personal indignities, such as rudeness, unmerited reproach, contempt, studied neglect, open insult, & c., and other plain manifestations of settled hate, alienation and estrangement, must be habitual continuous and permanent, to create that intolerable condition contemplated by the statute. But such indignities, when habitual and continuous, causing extreme and unmerited suffering, are sufficient to warrant a decree for divorce and alimony, without being attended with bodily harm, and need not be so extreme as to render the party incapable of discharging the marital duties.
Rose v. Rose,
In the present case, Samantha offered evidence of Clayton’s rudeness, unmerited reproach, and studied neglect. Evidence of Clayton’s conduct was offered to show | ^continuous and permanent conduct arising from a long-term adulterous relationship despite his apparent commitments to permanently end the affair and repair the marriage. This constituted evidence of the required “settled hate.” We cannot say that the circuit court was clearly erroneous in finding that Clayton’s conduct constituted such indignities to Samantha as to render her condition intolerable.
However, our analysis does not end there, because in contested divorce cases, evidence of the grounds of divorce must be corroborated, unless expressly waived in writing. See Ark.Cоde Ann. § 9-12-306 (Repl.2009); Oates v. Oates,
In the present case, Samantha presented evidence from her mother that Clayton was rude, inattentive, and did not care one wаy or the other about her. Additionally, Clayton’s purchases of adult novelties, diamonds, items from Victoria’s Secret, along with hotel bills and other charges, provide some inference that he was engaged in studied neglect, open insult, and alienation and estrangement. Finally, there was evidence of misuse of marital funds, which constitutes evidence of indignities. See Mooney v. Mooney,
At the final hearing, Samantha аsked the circuit court how she should proceed with a “petition” for “attorney’s fees.” The circuit court instructed her to submit an “affidavit” simultaneously with the filing of her proposed findings of fact and conclusions of law. The parties have not directed the court to any affidavit, and none is found in the record. Instead of filing the requested affidavit, Samantha included the following statement and request in her proposed findings of fact and conclusions of law:
Attorney’s Fees. The Plaintiff filed a contempt motion pertaining to the payment of support, medical bills and ar-rearages. Moreover, in light of the disparity in income, the Defendant should also be ordered to pay the Plaintiffs attorney’s fees. The Plaintiff has incurred fees and expenses in the amount of $11,376.12.
While Samantha’s proposed findings of fact and conclusions of law request the total sum of $11,376.12 for “fees and expenses,” the decree grants Samantha a judgmеnt “of the Plaintiffs attorney’s fees in the amount of $11,376.12.” Samantha did not request $11,376.12 in attorney’s fees. Based on Samantha’s failure to provide the requested affidavit, the failure to mention the requested expenses in the decree, and the grant of attorney’s fees in an amount in excess of that Samantha’s sought, we find an abuse of discretion. We reverse and remand for the circuit court to consider anew the request for fees and expenses.
Affirmed in part, reversed and remanded in part; court of appeals opinion vacated.
Notes
. Adultery itself is a separate, specific cause for divorce under Arkansas Code Annotated section 9 — 12—301 (b)(4) (Repl.2009). However, Samantha did not plead adultery as the cause for her divorce but as the cause of the indignities that made her condition intolerable to justify divorce.
Concurrence in Part
concurring in part; and dissenting in part.
I concur in the majority’s decision that Samantha proved and corroborated grounds fоr divorce. However, I disagree with the conclusion that the award of attorney’s fees must be reversed and remanded. Such a course departs from our precedent that commits fee awards to the sound discretion of the circuit court.
Clayton’s sole argument on appeal is that the fee award of $11,376.12 is excessive. He argues that this is so because the nature of the case was relatively straightforward and because Samantha presеnted no documentation in support of her request for fees. Drawing from our own precedent, the court of appeals in Paulson v. Paulson,
Whether the chancellor should award fees and the amount thereof are matters within the discretion of the chancery court. In determining whether to award fees he must consider the relative financial abilities of the parties. Aucoin v. Aucoin,211 Ark. 205 ,200 S.W.2d 316 (1947). Among the pertinent considеrations in determining the amount of attorney’s fees are the attorney’s judgment, learning, ability, skill,experience, professional standing, the relationship between the parties and the importance of the subject matter of the case, the nature, extent and difficulties of services, the research, anticipation of defenses and means of meeting them and receiving of confidential information and giving of confidential advice before any pleadings are filed or other visual steps are taken. In making these determinations the trial court’s own experience and knowledge of the character of such services may be used as a guide. Robinson v. Champion, 251 Ark. 817 ,475 S.W.2d 677 (1972). On appellate review considerable weight is given to the opinion of the judge before whom the proceedings were conducted. The chancellor is in a much better position to evaluate the services of counsel than an appellate court, and unless a clear abuse of discretion is evident, the chancellor’s action in fixing attorney’s fees will not be | ^disturbed on appeal. Warren v. Warren,270 Ark. 163 ,603 S.W.2d 472 (1980).
In Lytle v. Lytle,
This court has stated that abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but requires that the trial сourt act improvidently, thoughtlessly, or without due consideration. FMC Corp. v. Helton,
Dissenting Opinion
dissenting.
Because the majority should have taken the opportunity |10to overrule Rachel v. Rachel,
We have repeatedly held that divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. See Oates v. Oates,
It is for the court to determine whether or not the alleged offending spouse has been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to suсh an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by witnesses, and not upon beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the rudeness, contempt, and indignities complained of. General statements of witnesses that the defendant was rude or contemptuous toward the plaintiff are not alone sufficient. The witness must state facts-that is, specific acts and conduct from which he arrives at the belief or conclusion which he states in general terms-so that the court may be able to determine whether those acts and such conduct are of such nature as to justify the conclusion or belief reached by the witness. The facts, if testified to, might show only an exhibition of temper or of irritability prоbably provoked or of short duration. The mere want of congeniality and the consequent quarrels resulting |ntherefrom are not sufficient to constitute that cruelty or those indignities which under our statute will justify a divorce.
Bell v. Bell,
Although Bell was decided long ago, it remains the law that in order to obtain a divorce on that ground, the conduct relied upon manifest settled hate, alienation and estrangement and be constantly and systematically pursued with the purpose and еffect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. See Lytle v. Lytle,
In the instant case, there is no dispute that Samantha alleged indignities as her ground for divorce, not adultery, which is available as a ground for divorce pursuant to Ark.Code Ann. § 9 — 12—301(b)(4). However, when asked by the circuit court why she filed for divorce, more than once Samantha informed the court that she filed because Clayton was having an affair. If Samantha wished to file for a divorce based on adultery, that is clearly provided for by the applicable statute and her pleadings could have even been amended if necessary to reflect the рroper grounds.
The testimony given by Samantha being viewed by the majority as grounds for | ^indignities was actually not testimony given in the context of accusing Clayton of settled hate, alienation, or estrangement. Samantha was being questioned about her personal knowledge of the affair when she
I have no doubt that when a spouse is having an affair, they could also be behaving extremely poorly toward their spouse and end up offering such indignities to their spouse that it renders the condition of that spouse intolerable. On the other hand, it is feasible that spouses are completely civil toward one another although one spouse or both is committing 11sadultery. But, the majority has now cited with authority an opinion that conflated two separate statutory grounds for divorce into one and now allows adultery to qualify as grounds for indignities. Combined with Rachel, this case will set precedent, and the individual who files for divorce based on adultery, will now also provide sufficient grounds for indignities— a change in the law without any explаnation or analysis provided in either of the opinions responsible for the change.
Put simply, Samantha should have picked the proper grounds for her divorce — which, made clear by her testimony, was Clayton’s adultery — properly plead them, and put on the required proof. While the majority holds that conditions arising from Clayton’s adultery gave rise to indignities in the instant case, that holding stretches the facts in an attempt to grant Samantha her divorce but also to distinguish this case from Rachel and do some damage control. The majority purports to set forth facts to support indignities separate and apart from the affair. However, those facts alone fail to amount to what has historically constituted indignities. As noted, Rachel and the instant case both stand for the proposition that a divorce based on the grounds of indignities may be granted with proof of adultery. Why then, I must ask, did the legislature make two separate statutory grounds?
Rather than clarifying what the law is and what it has been for over a century, the instant case does nothing but make it more obscure and causes conflict between the case law and the statute. I sympathize with the bench and the bar who are now left to sort it out.
CORBIN, J., joins.
. Although the issue of attorney’s fees would not have been reached had the majority opinion overruled Rachel and reversed and remanded the case, I do agree that the circuit court erred in that award.