605 S.W.2d 756 | Ark. Ct. App. | 1980
The parties, husband and wife, were divorced by decree dated January 23, 1979. The wife brings this appeal from certain portions of the decree. Three issues are raised, the primary issue being whether the chancellor erred in the division of personal property by not applying the criteria contained in Act 705 of 1979. Because it is clear that Act 705 was not applied, the case is reversed and remanded.
Bonnie Faye Ford and Taid Ford Jr., were married in March, I960. She was 17 years of age at the time and had not completed high school. The couple began their marriage with no property of consequence and Mr. Ford began farming cotton on rented land. The couple had their first child, a son, in 1961 and their second, a daughter, in 1974. Mrs. Ford worked in the home and seems to have helped considerably in the fields in the first years of the marriage, admittedly the first seven or eight, disputedly after 1968 or 1969. In 1969 or 1970, Mrs. Ford began working as a secretary in a framing business, which continued for three or four years. Her wages were used for family needs or applied to savings jointly held. By all accounts, she was frugal in money matters. There is some dispute as to whether she prepared meals as regularly as Mr. Ford had a right to expect and whether he was not entitled to have his work clothing washed more frequently, although Mr. Ford describes her as having been a good housekeeper. He testified that she did not always prepare meals for him; she contended that he preferred to eat frequently at O’Kean’s store, notwithstanding her pleas to eat at home.
Mrs. Ford testified that she began experiencing depression before becoming pregnant with her daughter. The depression became acute a few months prior to birth. She did not leave the hospital after the delivery, but was transferred directly from maternity to the wing for psychological treatment. Since 1974, she has had intermittent, lengthy institutional care for recurrent, severe depression and apparently has been regularly under the care of psychiatrists since that time. She has undergone electro-shock therapy on more than one occasion, and has attempted suicide at least once. The evidence clearly supports the conclusion that Mrs. Ford has a genuine, long standing depression of immobilizing effect.
The parties have not resided together for the past five and one-half years, although they have had sexual relations on several occasions, most recently after suit was filed.
Mr. Ford has clearly been an industrious, capable farmer, and the evidence shows that over the years the labor and prudent management of the Fords has enabled them to acquire and improve farm lands of approximately 190 acres, to build a home, and to accumulate substantial farm equipment and savings, the personal property aggregating around $300,000.00 by some estimates, $360,000.00 by others, all debt free. In addition to the farmlands owned jointly, Mr. Ford farms some 800 additional acres which he rents from his father.
At the close of trial, the chancellor made lengthy comments concerning his findings so as to give clarity to the decree, which have been beneficial to counsel and to this court. The decree granted the divorce, on uncontested evidence, to Mr. Ford, along with custody of their daughter, Brandy, which Mrs. Ford conceded to be in their daughter’s best interest. Possession of the home and one acre was given to Mr. Ford until Brandy reaches her majority. The remaining acreage was converted to tenancy in common and ordered sold. Alimony was denied at the present time, although the court reversed jurisdiction as to possible future needs. In dividing personal property, the court concluded on the basis of the case of Poskey v. Poskey, 228 Ark. 1, 305 S.W. 2d 326 (1957), that Act 705 of 1979 could not be applied retroactively to property which had vested prior to the effective date of the Act. On that assumption, the court awarded Mrs. Ford 10% of the personal property which the chancellor calculated to be approximately $300,000.00. The formula for this division was arrived at on the basis of Mr. Ford’s testimony that of the total acreage which he farmed, 20% belonged to the Fords jointly and since Mrs. Ford’s interest therein was one-half, she was entitled to one-half of 20%, or 10%. The chancellor allowed Mrs. Ford’s solicitors a fee of $1,000.00 to be paid by Mr. Ford.
Appellant appeals only from the chancellor’s division of personal property, the denial of alimony, and the amount of fee allowed.
In substance, Act 705 provides that at the time a divorce decree is entered “all marital property shall be distributed one-half to each party, unless the court finds such a division inequitable.” If the court finds an equal division inequitable, it shall consider the following criteria:
(1) Length of the marriage
(2) Age, health and station in life of the parties
(3) Occupation of the parties
(4) Amount and sources of income
(5) Vocational skills
(6) Employability
(7) Estate, liabilities and needs of each
(8) Opportunity for further acquisition of assets and income
(9) Contribution of each party in the acquisition, preservation or appreciation of “marital property,” including services as a homemaker.
Marital property is defined as all property acquired by either spouse subsequent to the marriage, except for gifts, inheritance, exchange, etc.
One proviso clearly present in Act 705 is the requirement that when property is not divided one-half to each, the court must state in writing the basis and reasons for not doing so in accordance with the above criteria. Appellee argues that the court’s comments dictated into the record was done in compliance with this requiremen, but that cannot be confirmed; none of the criteria are mentioned.
We believe the chancellor erred in interpreting Poskey v. Poskey as requiring that Act 705 of 1979 can be applied only to personal property acquired after the effective date of the act. The decision in Poskey simply followed the earlier case of Jenkins v. Jenkins, 219 Ark. 219, 242 S.W. 2d 124 (1951), in holding that an estate by the entirety in land acquired prior to the effective date of Act 340 of 1947 cannot be dissolved by the chancellor in divorce cases and treated as a tenancy in common. In Jenkins, the court acknowledged that a majority of states hold that an estate by the entirety can be dissolved by divorce decree, but that in Arkansas the contrary view had become a rule of property and, hence, Act 340 could only be applied prospectively. Whatever may be said of Jenkins v. Jenkins, there is nothing in that opinion or in Poskey v. Poskey to require us to apply such a restrictive concept to Act 705 in a case affecting personal property in divorce. In fact, chancery courts have had the inherent power to divide personal property in divorce suits in accordance with the equities of the case, both by statute and at common-law, for decades. Williams v. Williams, 186 Ark. 160, 62 S.W. 971 (1932). Nelson v. Nelson, 267 Ark. 353, 590 S.W. 2d 293 (1979.)
Appellant argues that an equal division of property should have been ordered by the trial court, irrespective of whether Act 705 criteria are applied and a number of decisions support that view: Williams v. Williams, supra; Stephens v. Stephens, 226 Ark. 219, 288 S.W. 2d 957 (1956); Nelson v. Nelson, supra. In Nelson, the court stated:
We have long held' that a court has a right to divide property acquired through the joint efforts of the parties on an equitable basis. Stephens v. Stephens, 226 Ark. 219, 288 S.W. 2d 957 (1956). When the parties were married they did not own this property. It was acquired, during the marriage, through the joint efforts of the parties. We are not required to make a determination as to whether more money or effort was expended on the part of one party or the other in reaching this conclusion. For about 18 years all of the efforts of both parties were directed to the acquisition and operation of the farm. Both of them assisted in raising the children as well as doing all other duties necessary to the operation of the farm. After appellant became employed, outside the home, her money was used to pay household expenses, purchase groceries, and repair and refinish the house in Waldron. In discussing the matter of disposition of property in a divorce proceeding, when the property was held only in the husband’s name, we stated in the case of Williams v. Williams, 186 Ark. 160, 52 S.W. 2d 971 (1932):
... If appellee and appellant by their joint work, labor, and management, acquired the property, a court of equity would even before the recent statutes, protect the wife’s interest in the property.
And . . .
We think the law relating to ownership of personal property is the same as that cited in the previous point relating to ownership of real property.
We view the difference between the decisions regarding a wife’s right to property before the enactment of Act 705 and afterward as being largely a matter of emphasis. In the earlier class of cases, the emphasis was on the degree to which the wife contributed to the joint earnings of parties and, thus, the wife whose primary activities were those of a homemaker was subject to being penalized in a divorce by her inability to point to actual monetary contributions during the marriage. Act 705 seeks to correct the inequity inherent in that approach by expressly including homemaking as one element for the court to consider if it departs from an equal division. But the basic premise of Act 705, we believe, is that “marital property” belongs to the parties jointly. We conclude that it was error to divide marital property on a ratio of 90% to Mr. Ford and 10% to Mrs. Ford and to fail to give reasons therefor pursuant to the criteria of Act 705.
We must next decide whether it is better for this case to be remanded with instructions to the trial court to apply Act 705 in the first instance but without binding that court by our view, or for us to reach first the decision of whether the property in question should be divided equally under Act 705.
We are especially conscious of the admonition expressed in Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). Referring to the trial de novo of chancery cases on appeal, Mr. Justice Fogleman wrote:
Where the case has been once heard upon the evidence or there has been a fair opportunity to present it, this court will not usually remand a case solely to give either party an opportunity to produce other evidence; the rule, however, is not imperative and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional evidence. Fish v. Bush, 253 Ark. 27, 484 S.W. 2d 525; Wilson v. Rodgers (on rehearing), 250 Ark. 356, 68 S.W. 2d 750; Nakdimen v. Atkinson Improvement Co., supra; Brizzolara v. Rowell, 214 Ark. 870, 218 S.W. 2d 728. It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below. Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545; Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. See also, Baxter County Bank v. Copeland, 114 Ark. 216, 169 S.W. 1180. The usual practice is to end the controversy by final judgment here or by directions to the trial court to enter a final decree. Wilborn v. Elston, 209 Ark. 670, 191 S.W. 2d 961. With the evidence fully developed, this court should decide the case without remanding it to the chancery court. Lewis v. Lewis, supra.
We recognize that some implementation of this decision by the trial court cannot be avoided, and should not be, as most divorce cases with property and minor children require some continuing oversight by the chancellor. However, we think considerable time can be spared the court and the litigants if we determine, at least in broad terms, what division we deem equitable on these facts, as opposed to simply remanding the case to the chancellor to make that determination in the first instance. We are satisfied that the length of this marriage, the contribution of each spouse, the children born and raised, indeed all the many considerations that experience and training validate, the property acquired by the Ford couple was “marital property” in the sense and spirit the term is used in Act 705. We find no circumstances present in this record to render an equal division of the property inequitable, unless the emotional illness which disabled Mrs. Ford is regarded as a detraction. Without applying a standard broader than this one case, we believe that it would be inequitable under all the circumstances of this record to hold that Mrs. Ford’s share of marital property should be reduced in any significant degree because of an illness as clearly disabling as hers appears to be.
In treating the appeal in this fashion we are following the pattern of Nelson v. Nelson, supra, wherein the Supreme Court reversed the chancellor’s award of one-third of the property, real and personal, to the wife and awarded her one-half instead, remanding the case with this comment:
We have not attempted to deal with every item of personal property because the trial court is in a much better position to make this determination. It may become necessary to hear additional evidence for a proper decision by the trial court.
We recognize that the trial court is in a better position to oversee the actual division of the personal property and to order, where necessary, the adjustment of assets in kind. Obviously, the farm equipment is more useful and productive in the hands of Mr. Ford; furthermore, the chancellor’s concern with Mrs. Ford’s ability to give prudent management to her own property may well dictate some means of protecting her, even by trust or guardianship, if necessary. We think, too, that the financial burden on Mr. Ford relative to their daughter and their son’s college expenses are worthy of consideration.
Turning to the matter of alimony, we believe the chancellor’s refusal to allow alimony at this time was not unreasonable and clearly not an abuse of his discretion in such matters. It is of significance that the court did not close the door to alimony at a later time, depending upon future needs. The allowance and the amount of alimony is governed by many considerations and is a matter for the discretion of the trial court. Johnson v. Johnson, 165 Ark. 195, 263 S.W. 379 (1924); Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973).
Some of the circumstances which the trial court no doubt considered in deferring alimony are the fact that Mr. Ford has the responsibility and expense of the children; the fact that Mrs. Ford’s needs appear to be conservative in the extreme; and the fact that she is receiving a sizeable proportion of joint assets as a consequence of the divorce. Under all the circumstances we cannot say that the chancellor’s discretion was abused by the deferment of alimony; on the contrary, we think at the present that appears to be a just decision.
Appellant argues vehemently that the allowance of a temporary fee of $500.00 and a fee of $1,000.00 at completion to be paid by Mr. Ford is grossly insufficient. But it has been repeatedly held that the allowance of fees is within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear abuse. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974). Federal Life Insurance Co. v. Hase, 193 Ark. 816, 102 S.W. 2d 841 (1937). That principle is especially apt, we believe, when applied to domestic suits where, as here, substantial assets are involved. The fee being allowed in the latter class of cases is not, after all, the entire fee — but merely that part which in fairness the chancellor feels should be borne by the husband. Where the wife’s share of joint properties is sizeable, relative to the rank and file of divorce cases, it is even more appropriate for the trial judge’s discretion to govern, as he is in the position of balancing and weighing many factors against each other. There is no doubt but that appellant’s lawyers have labored effectively and tirelessly in her behalf as the trial court noted. They are entitled to a reasonable fee and presumably will realize that end. However, it is not for us to speculate as to the precise amount when many of the factors that go into fee determination are not present in the record. Mr. Ford was found to be without fault. Mrs. Ford is recovering ample resources. Many cases affirm the wisdom of giving the trial court broad discretion to determine what portion of a wife’s fee should be paid by the husband. Lytle v. Lytle, 266 Ark. 124, 583 S.W. 2d 1 (1979). McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257 (1960); Yohe v. Yohe, 238 Ark. 642, 383 S.W. 2d 665 (1964); Cook v. Cook, 233 Ark. 961, 349 S.W. 2d 809 (1961). For their services in connection with this appeal appellant’s solicitors are allowed a fee of $1,500.00 and costs.
We mention one other point parenthetically. In this record and noted in both the majority and the dissenting opinions is the fact that it is undisputed that these parties engaged in marital relations while this suit for divorce was pending. Clearly, had that point been raised before the trial court and on appeal, we would be beholden to dismiss the litigation. However, marital relations between litigants in divorce does not create a jurisdictional deficit, but merely creates an affirmative defense in the hands of either party which must be raised. Except for the lack of corroboration in contested divorces which is statutor and may not be waived, the rule of appeal and error holds firmly that we may consider only those points and assignments of error raised on appeal and the decree of the chancellor will not be reviewed upon a ground not argued by the appellant. Ark. Stat. 1947 Ann. 27-2143. Cummings v. Broyles, 242 Ark. 923, 415 S.W. 2d 571 (196]); Johnson v. Gammill, 231 Ark. 1, 328 S.W. 2d 127 (1959). Although chancery cases are tried de novo, they are not reversed on grounds not argued by appellant. Bowling v. Stough, 101 Ark. 398, 142 S.W. 512 (1911). McIlhaney v. Cox, 257 Ark. 934, 521 S.W. 2d 66 (1975). Country Gentleman, Inc. v. Harkey, 263 Ark. 580, 569 S.W. 2d 649 (1978).
Reversed in part and remanded with instructions to proceed in accordance with this opinion.