Fred McNEW v. Ruth B. McNEW
77-108
Supreme Court of Arkansas
December 19, 1977
559 S.W. 2d 155
(In Banc)
Affirmed.
We agree. HARRIS, C.J., and FOGLEMAN and HOLT, JJ.
JOHN A. FOGLEMAN, Justice. Ruth and Fred McNew were married in November, 1967, whеn both were 47 years of age. He was a widower without children. She was a widow with three children. Both were employed full time and had some assets. They were separated sometime in November, 1975, according to appellee‘s testimony. She had instituted an action for divorce on October 29, 1975, alleging indignities to her person, specifically stating that Fred had treated her with contempt, neglect, ridicule and abuse, systematically and continually. He also sought a divorce оn the same grounds. Her prayer was granted and she was awarded one-third of his personal property and one-third of his realty for life. The court‘s decree contained findings that Ruth McNew‘s allegations had been established by a prepоnderance of the evidence and corroborated by Jean Warren and that the allegations of appellant‘s counterclaim for divorce had not been established. Appellant contends that appellee fаiled to prove her grounds for divorce because of lack of corroboration by her sole witness, Jean Warren. We agree.
Mrs. McNew complained of her husband‘s lengthy absences from home during the week, in following his employment, аnd attention to business affairs when at home on weekends. She testified that there had been a serious break in the marriage in 1972 when she lost her temper as the result of an argument and slapped him. She said that Fred retaliated by striking her and that she had left and driven to Mountain Home, but had returned and moved out of his bedroom. She then demanded that he support her fully out of his salary and he agreed. At that time, she withdrew one-half of a joint checking account and never again contributed anything to that account. She said that she had counseling and tried to move back into the master bedroom she had left to him and that they had sexual intercourse on two occasions, but she quit trying after two years.
She related that they did not entertаin often because he was only at home on weekends and, since there was so much to be done on Saturday, both were usually tired. According to her, when they did have guests for dinner, Fred would leave
Jean Warren had known bоth parties for 23 years. She testified that the McNews did not entertain much, but that she and her husband had been in the McNew house on occasion. She said that Fred would sometimes get up and start cleaning the stove, cleaning up the kitchen, etc., instead of visiting with the Warrens. According to her, Ruth resented this and she thought Ruth was embarrassed by it. She said nothing else that could be considered in determining whether her testimony was corroborative, except that McNew was often away from home and that he was not at home once or twice when Ruth was ill with “flu.”
We have said that corroboration may be comparatively or relatively slight when it is clear that there is no collusion between the parties. Sowards v. Sowards, 243 Ark. 821, 422 S.W. 2d 693; Anderson v. Anderson, 234 Ark. 379, 352 S.W. 2d 369; Adams v. Adams, 252 Ark. 20, 477 S.W. 2d 183. There is no evidence of collusion here.
In considering the sufficiency of the corroboration, it is necessary that we consider the evidence necessary to establish appellee‘s ground for this divorce. In Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728, we said:
*** Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must bе constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.
We have said that the indignities must be continuously and persistently pursued with the purpose and effect of causing аn enduring alienation and estrangement. Wiles v. Wiles, 246 Ark. 289, 437 S.W. 2d 792. The granting of a divorce on this ground requires a showing of habitual, continuous, permanent and plain manifestation of settled hate, alienation and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598. In Welch, we pointed out that because the construction we have given this part of the divorce statute goes to the very verge of safety and is to be cautiously applied, careful attention must be given to the corroborating evidence. We stated that corroboration must be testimony of a substantial fact or circumstance which leads an impartial and reasonable mind to believe that material tеstimony as to a vital fact or circumstance is true; and that it was vital to a complaining spouse‘s suit for divorce on this ground to show that a course of conduct pursued by the other spouse was the cause of an intolerable cоndition of the complaining spouse.
It is true that corroboration of every element or essential in a divorce suit is not required. Sowards v. Sowards, supra. Here the testimony of Jean Warren about a few isolated instances when she was present and obviously fеlt that Fred had conducted himself rudely toward her and her husband to such an extent that she thought Ruth was embarrassed is not corroborative of any course of conduct, habitually, continuously, constantly or persistently pursued or that the object, рurpose or effect of the conduct was to render Mrs. McNew‘s condition intolerable. See Dunn v. Dunn, 255 Ark. 764, 503 S.W. 2d 168. The same may be said of the testimony about the husband‘s absence on one or two occasions when the wife had flu. It is undisputed that his job required him to be away from home during the week and there was nothing in her testimony to indicate that the wife‘s illness was known to him or that his presence and attention was really needed. In spite of the fact that there is a definite trend toward judicial leniеncy in the requirement of corroborating testimony, the limits of safety would be passed if we approved this testimony as sufficient corroboration.
Appellant, somewhat inconsistently with his argument about the sufficiency of the corroboration of appellee‘s testimony, argues that the court erred in denying him a divorce on the basis that his own testimony was not cor-
Appellant has urged other points for reversal, one of which is the constitutionality of our statutes governing allowance of alimony, attorney‘s fees and dower pursuant to
The decree is reversed and the complaint and counterclaim dismissed.
HICKMAN, J., dissents.
BYRD, J., not participating.
Since I would affirm the chancellor‘s findings on the grounds for divorce, I would then face the issues raised by the appellant-husband regarding the constitutionality of certain Arkansas statutes regarding property disposition in divorce cases.
The Arkansas law provides that if the wife is awarded the divorce she must be given one-third of the husband‘s real estate for life and one-third of the husband‘s personal property absolutely. Thеre is no similar provision in the event the husband is granted the divorce.
The Arkansas law regarding property was enacted before the turn of the century and can no longer be defended historically or legally with any confidence. It clearly violates the Equal Protection Clauses of the Arkansas and the United States Constitutions.
Parties marry, share their love, lives, fortunes and misfortunes. In divorce they should share equally the property they have accumulated during their marriage. Anything less is obviously unfair.
I cannot say that the Arkansas law permitting alimony, child support and attorney‘s fees for the wife is unconstitutional. The Arkansas statutes do not require the award of alimony, child support or attorney‘s fees but authorize such awards depending upon the circumstances of the parties and the nature of the case.
In passing, it should be noted that the divorce laws in Arkansas in general are archaic and need revision. It would certainly be best if the legislature reviewed and revamped these laws so that they would not only meet constitutional tests but also be more suitable in assisting people to resolve their domestic disputes.
I would remand this case for the court to enter an order which would fairly and equitably divide the parties’ property.