*1 HODGES G. Jerry M. HODGES Charlotte 770 S.W.2d CA 88-304 of Arkansas of Appeals Court Banc En 10, 1989 May delivered Opinion *3 in part. reversed and remanded part; affirmed Hart, Farris and Rutledge, Highsmith, Gregg, by: Hart, L. appellant. Josephine McLarty, A. for appellee. James comes to us Corbin, Judge. Donald L. Chief This appeal from the Jackson Court. Charlotte County Chancery Appellant, in favor of Hodges, M. from a decree divorce appeals granting Hodges, G. and appellee, Jerry dividing parties’ property. affirm reverse and remand in part part. 20, 1988, filed on
Appellee seeking a complaint April absolute divorce from on of grounds general indignities. Appellant answered and for divorce. counterclaimed 13,1988, A was held hearing on June and a decree of divorce was entered on June granting divorce favor appellee and dividing the From the comes parties’ decree this property. appeal. reversal,
For (1) raises two points: chancellor erred in granting a divorce to grounds general on the appellee indignities; (2) the court erred in division of the property its (a) by: ordering the capital stock the business sold and giving business; possession ordering exclusive (b) appellant surcharged for she (c) received award- moneys legally; ing possession of the awarding marital home to (d) appellee; automobile a non-party to the case. We address her points order.
First, appellant argues that the erred in granting chancellor *4 a divorce to the appellee on grounds general She indignities. essentially contends that failed appellee to introduce sufficient evidence to was he entitled to a prove general divorce based upon indignities. She argues also the necessary that corroboration was residence, lacking as to separation, grounds. to
Prior the taking hearing, at testimony appel lant’s attorney indicated that for divorce would not grounds be However, contested. fact despite grounds that were uncon tested, existing law statutory does not a permit spouse stipulate to or grounds waive for v. Harpole Harpole, divorce. 10Ark. App. 298, 664 S.W.2d (1984). Regardless of whether a divorce is uncontested, contested or the injured must his always prove or her ground(s) for divorce set as forth Arkansas Code 302, Annotated Section Id. 664 S.W.2d (1987). 9-12-301 at 482. based sought for divorce was
Appellee’s complaint
9-12-301(4) (1987)
Arkansas Code Annotated Section
either
granted
which
that divorce
where
provides
may
shall offer such
to the other so as to render his or her
indignities
condition intolerable.
testified that much
dishar
Appellee
that on
arose over
habits. He testified
mony
appellant’s spending
occasions,
name,
several
his
without authoriza
forged
appellant
tion, on checks drawn on
account held in his name only.
a personal
Further
stubbed or
testimony
purposely
revealed
appellant
$10.00,
recorded
as
been written for
a check
when
check had
$10,000
account,
on the
a total of
business
and withdrew
$16,200
causing
from the business account
over
approximately
drafts and
a financial
on the
business.
placing
hardship
family
Other
irregular
evidence was also introduced
conduct
regarding
connection with the business. The
parties’ twenty-
four-year-old daughter testified that
made accusations
in her
on numerous occasions that
was
presence
having
an affair with a third
and of misconduct with
another.
party,
yet
offered no basis for the accusations made. It has been
Appellant
said that the charge of sexual
or
promiscuity
infidelity probably
other,
the most offensive
one
can make
charge
against
spouse
and it has been held that to make such a
without basis is an
charge
v.
indignity entitling
charged to a divorce.
person
Relaford
(1962). Although
Ark.
With cor regard arguments concerning to appellant’s roboration, above, grounds as noted parties agreed suits, divorce would not be contested. In uncontested divorce corroboration of for divorce is not plaintiffs grounds necessary Ark. required. 9-12-306(a) (1987). Code Ann. § argues also that because the con
Appellant *5 tinued to reside in the martial home until and after divorce was granted, lived and appellee’s testimony they separate under roof apart disagree. the same must be corroborated. necessary Corroboration of is not the instant case. separation Separation affirmatively is not an element which must be proved plaintiff general indignities. for divorce based grounds for divorce which to make a only plaintiff require prima facie are found subsections six and showing separation of seven of ground 9-12-301. Subsection six as a for provides divorce, the without of the for separation cohabitation three has a consecutive Subsection seven similar years. require- ment, but for three deals with caused specifically separation years by inexcusable insanity. grounds None of the other divorce a See Code Ann. require Ark. 9-12-301 showing separation. of § (1987). section Although 9-12-306(c)(l) requires of proof separation and cohabitation be continuity separation without corroborated, we construe the reference to relate to those only grounds found in Arkansas Code Annotated Sections 9-12- 301(6) and (7) in which without cohabitation is an separation element, or cases in which affirmative cohabitation is an defense. we have
Although
established
was not
required
prima
make a
facie
showing
separation under
Section
9-12-301(4),
defense of
could have
condonation
been
asserted by
Condonation
rather
appellant.
is a conditional
than
607, 267
an
Coffey
absolute
v.
Ark.
Coffey,
defense.
S.W.2d
499 (1954). Cohabitation after marital
misconduct
evidence of
condonation but standing alone
is not conclusive. Elerson
Elerson,
Finally, corroboration of we residency, agree that must residency instance, proven corroborated see every Ark. Code Ann. 9-12-307(a) 9-12-306(c)(l) (1987), §§ despite admission aby defendant. Ark. Code Ann. 9-12-305 (1987). The purpose rule corroboration tois requiring *6 collusion, is when it though of divorces the procuring prevent collusion, only corroboration required is no that there plain Anderson, Anderson be slight. needs to no indication us we find the record before S.W.2d 369 On of collusion. resident of had been a that he testified
Appellee to the Arkansas, than sixty days prior for more County, Jackson acres one hundred and that the owned filing of the action Arkansas, marital which the County, of land in Jackson of the and location evidencing sat. Deeds ownership home twenty-four- were entered into evidence. The parties’ property with her parents that she lived daughter also testified year-old disharmony, home three throughout years marital that the showing The deeds filing until and after the of the action. with in Arkansas coupled real was located parties’ only property marital home that she resided in the daughter’s testimony testi with both was sufficient to corroborate appellee’s parties, that the say resident. We cannot that he was an Arkansas mony had finding that residence chancellor was erroneous clearly been and corroborated. proven reversal, several
In second raises her point First, it regarding issues the chancellor’s distribution property. stock of ordering erred in argued capital is that the chancellor sold. We agree. business action, party of this each The record reveals time issued Bill’s IGA by owned of the stock fifty percent capital #2, Inc., Foodliner constituted marital property. which to agree could not mutually chancellor ordered that if the parties stock, that it terms and conditions regarding capital privately the court clerk. was to be sold at sale public Section 9-12-315 Code Annotated Arkansas Subsection the division of marital (1987) governs property. (a)(4) of 9-12-315 as follows: provides stocks, bonds, aby other securities issued
(4) When or association, make entity up corporation, government in its designate the court shall of the marital part property, in securities final order or judgment specific property entitled, the fair determining or after which each party sureties, adjudge order may of the market value on condition to one be distributed the securities securities of the market value (xh) one-half the fair to the and distributed be set aside or other money distribution division and other in lieu of securities. *7 the (1) designate specific
This states that the court shall section entitled; or (2) may in securities to which each property party to one party be distributed adjudge order and that the securities the market value of and the other receive one-half of the fair neither chancellor did securities in or other The money property. to an and ordered the if the failed reach sale of stock statute and agreement. Sale of the stock is not authorized the by that, On regard. the must reversed in chancellor’s decree remand, in one of the two the chancellor must divide the stock manners, authorized that division be equal unequal. whether Ark. Code Ann. 9-12-315 (1987).
[16] Appellant also argues that the court erred in awarding exclusive business because no appellee possession equitable the reason existed for the regarding parties’ court to take action business. We was disagree. The record reflects that appellant substantial causing by withdrawing the business hardship upon Further, that sums of cash from its account. testified appellee certain hearing to the removed from the prior appellant premises returns, business records tax to necessary prepare quarterly checkbook, business sales concerning history. and the records in believe the chancellor’s that should be finding put appellee exclusive of the business is the record. control amply supported
Next, that the chancellor erred in argues surcharging her for certain made from expenditures corporate funds has to the of the divorce action. The chancellor prior filing broad to achieve an powers to distribute the order division, 280 Ark. equitable Williford, Williford S.W.2d as (1983), order credits and set-offs may appear Marshall, See Marshall v. equitable just.
S.W.2d 279 withdrew The record reflects that appellant $16,000 account, outside the approximately from the corporate use, the two ordinary during course of business for personal month for divorce. period filing immediately preceding Cty QO corpora- interest m the each had a
Although fifty percent we While tion, marital property. also constituted that interest interest to share recognized a legally that had agree withdrawals, does not that to make the arguably profits, against be surcharged withdrawn cannot mean that the funds The she was entitled. to which interest in the marital property with his an to attempt comply the chancellor was surcharge by of the marital property. intent make an distribution equal regarding him chancellor had extensive evidence before marital property. and the other financial condition of the business finding he was erroneous clearly We cannot say distribution equal was to affect surcharge necessary parties’ property. erred that the chancellor also contends
Appellant without marital home to granting possession division for an unequal its and reasons as stating required basis 9-12-315(a)(l)(B) Annotated Section under Arkansas Code The chancellor ordered 1987). agree. We cannot (Supp. *8 home within six the to a sale of the agreed unless parties mutually decree, would be sold months from the date of the the property that, whether clerk. He further provided sale the court public by sale, the sale were to be divided or from by private public proceeds was in of between the equally parties. Appellee put possession was granted possession home sale. The fact that pending in of of the home not result in an division unequal property does to award has the discretion the case at bar. The trial court found terms of the homestead to either possession spouse Schaefer, v. and just. equitable Schaefer S.W.2d 444 The award of made possession sale, and we cannot chancellor was a measure pending temporary such finding in say that the chancellor abused his discretion an award was equitable. awarding erred in that the court
Finally,
argues
appellant
automobile to
because she was not a
daughter
the parties’
the action. The chancellor heard
from both
testimony
parties
in
daughter
of the automobile
regarding ownership
question.
in her brief the
In
of her
sets out
support
position, appellant
Ark. App.
Copeland Copeland,
following language
from
(1981):
We also with that the chancellor agree to the son of awarding items of disputed personal property himself a to the action. Third who was not parties into, in, or intervene divorce brought parties may clearing determining actions for the purpose of the in rights specific spouses properties. [Citation In this case neither was done. omitted].
However, stated, further, “The had read the court also court also might have found that the simply disputed property belonged to neither contending spouse.” case,
In the instant the chancellor held that all owned divided with the property by the should be parties equally of certain not of this and “a exception property appeal, part which, Mercury although automobile titled in the plaintiffs name, fact, is in truth Hodges, of Michelle property adult of the The chancellor did not “award” daughter parties.” the automobile to the He found that daughter. merely We no merit belonged contending to neither find property spouse. in appellant’s argument.
Affirmed in reversed and remanded in part; part. J., concurring Jennings, dissenting part part. Jennings, Judge, concurring dissenting in part, John E. In part. 9-12-315(a)(4) view Ark. Code Ann. does not my § preclude the chancellor from While it is ordering a sale of stock. sale, true that the statute does a just not authorize it is specifically as true that 9-12-315 does not authorize the sale specifically know, course, any chancellors order personal property. — the personal sold frequently quite *9 so, chancery has the inherent to do from certainly authority apart statute. did,
Here the court language 9-12-315(a)(4) “desig- nate in its final order” “the and securities to specific property which each is entitled. . . .’’It then ordered that sold, unless the could arrive agreement at an on the stock. I do not understand the court why lacked to fashion this power seemingly appropriate remedy.
I would affirm.