Tina OLSON, Appellant v. Don OLSON, Appellee
No. CV-14-115
Supreme Court of Arkansas.
Opinion Delivered December 18, 2014
2014 Ark. 537
To the extent that appellant is seeking appointment of counsel for the appeal, postconviction matters are considered civil in nature, and there is no absolute right to appointment of counsel. Anthony v. State, 2014 Ark. 195, 2014 WL 1716538 (per curiam). We have held that, if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. Evans v. State, 2014 Ark. 6, 2014 WL 197783. Here, because the trial court did not have jurisdiction to act on the merits of the petition and this court does not have jurisdiction in the matter, appellant cannot meet his burden of establishing that he is entitled to appointment of counsel.
Affirmed.
Dunham & Faught, P.A., by: James Dunham, Russellville, for appellee.
Appellant Tina Olson appeals a decree entered by the Pope County Circuit Court granting her amended complaint for divorce on the ground of adultery against appellee Don Olson. For reversal, Tina contends that the circuit court erred (1) by granting the divorce on her amended complaint based on the testimony of Don and his witnesses when she was not present at trial; (2) by dividing the parties’ debts and assets pursuant to the divorce or by making an unequal division of marital property; and (3) by dismissing her claim for alimony or by failing to award alimony. We accepted certification of the appeal from the Arkansas Court of Appeals as raising an issue of first imрression; therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1). We reverse and remand on the first point raised on appeal.
Tina initiated this action by filing a complaint for divorce on grounds of general indignities in the Pope County Circuit Court on July 11, 2012. In the complaint, Tina alleged that the parties had married in February 1987, that they had an adult child but no minor children, and that they had separated on the date that she filеd the complaint. She also stated that the parties owned both real and personal property that would be subject to division by the court, and she requested alimony. Tina filed an amended complaint on August 21, 2012, in which she asserted that the parties had entered into a covenant of marriage following the passage of the Covenant of Marriage Act of 2001. In this complaint, she alleged that she was entitled to a divorce on the ground of adultery.
After a hearing, the circuit court entered a temporary order on August 30, 2012, granting Tina temporary possession of the marital home, which the parties had listed for sale, and ordering Don to pay all of the parties’ bills, in addition to spousal support of $250 per month. On December 11, 2012, the circuit court amended the temporary order by placing Don in possession of the maritаl home, as Tina had left the state, and by increasing Tina‘s spousal support to $400 per month. This order also incorporated a three-page list of personal property that the parties had divided by agreement. On January 14, 2013, Tina filed a motion for contempt alleging that Don was delinquent in his payment of spousal support. On February 5, 2013, Don filed a counterclaim for divorce based on the ground of general indignitiеs. The counterclaim did not mention that the parties had entered into a covenant of marriage.
On July 15, 2013, the circuit court notified the parties by letter that the final divorce hearing would be held on October 2, 2013. On that date, Tina failed to appear for trial. At the outset of the hearing, the circuit court inquired as to whether Don wished to proceed on his counterclaim for divorce. Don‘s counsel replied that it would be necessary to amend the counterclaim to allege that the parties had entered into a covenant of marriage and to allege “specific grounds.”
In his testimony, Don introduced into evidence an exhibit listing the parties’ debts, and he asked that any funds Tina received as a result of a medical-device lawsuit be applied toward the payment of their debts. He also stated that the partiеs’ home had sold at a profit of $57,180 and that he had given Tina $30,000 of the proceeds from the sale. Don also testified that the list of property incorporated into the amended temporary order was intended to settle the division of their personal property. He said that, when Tina moved from the marital home, she had left some of her personal property contained on the
With regard to his retirement accounts, Don stated that he and Tina had been married for twenty-six years and that he had been working for Entergy “much longer than that.” He said that he planned to retire the following January, and he expressed the opinion that Tina was entitled to forty percent of his pension, which would amount to approximately $2,000 per month. Don testified that he was not willing to part with any of the funds held in his 401k account.1
In addition, Don acknowledged that he and Tina had entered into a covenant of marriage. He stated that they had sought professional counseling just prior to their separation in a sincere effort to resolve their marital difficulties. Don also testified that he had committed adultery. At this juncture in the testimony, the circuit cоurt interjected to ask whether Don was going forward with his counterclaim for divorce on general indignities or whether he was admitting Tina‘s grounds for divorce. Don‘s counsel responded that he was moving forward on Don‘s counterclaim, saying, “I don‘t think I could prosecute hers necessarily.” Counsel added that he was moving orally to amend Don‘s counterclaim to reflect the ground of adultery “because of the covenant оf marriage.” The circuit court granted Don‘s motion to amend his counterclaim to reflect the covenant of marriage and the ground of adultery. Whereupon, Carrie Clayton testified as to that ground.2 Clayton stated that she had engaged in “a sexual relationship with Mr. Olson subsequent to him being married to Mrs. Olson.”
In oral rulings from the bench, the circuit court dismissed Tina‘s pending motion for contempt and her request for alimony based on hеr “failure to prosecute” and because she had not requested a continuance. The court granted Don‘s orally amended counterclaim for divorce on the ground of adultery. The circuit court ordered Tina to return the clocks and the pocket watch that Don had inherited and pursuant to their agreement. Alternatively, if Tina failed to return this property, the court found that the property was worth $2,000, and the court granted judgment in that amount. As for the items of Tina‘s personal property that Don had placed in storage, the court found that Tina had abandoned this property and that the value of the property and the storage costs were offset by the items kept by Tina that belonged to Don according to their settlement agreement. The circuit court directed that any proceeds Tina receivеd from the lawsuit were to be applied to the parties’ debts and that any remaining debt was to be divided equally. The court awarded Tina forty percent of Don‘s pension and granted Don‘s request to retain the entire 401k account.
As her first point on appeal, Tina contends that the circuit court erred in granting her the divorce when she was not present at the hearing. She argues that she was the real party in interеst and that she was the only person who could pursue her claim. In this regard, she asserts that neither Don, who is not a lawyer, nor Don‘s attorney, because of a conflict of interest, could prosecute her complaint for divorce. Tina asserts that the situation left the circuit court with the options of either continuing the trial to another date, or dismissing her complaint without prejudice pursuant to
In response, Don contends that Tina‘s arguments are not preserved for appeаl because she did not present them at the hearing or in a posttrial motion. He asserts that Tina‘s arguments do not call into question the circuit court‘s subject-matter jurisdiction and that, therefore, the issues she raises cannot be asserted for the first time on appeal. Don also argues that Tina‘s contentions are without merit because she fully participated in the proceedings leading up to the final hearing, because she repeatedly asked for a divorce, and because she testified as to his adultery at the temporary hearing. He maintains that Tina‘s “manipulative defiance” of the circuit court‘s order setting the hearing and her failure to attend the trial does not diminish the fact that she requested a divorce. He also asserts that the circuit court was presented with ample evidence establishing Tina‘s сlaim of adultery.
As an initial matter, we address Don‘s contention that Tina‘s claim of error is not preserved for appeal. It is well settled that this court will not consider arguments raised for the first time on appeal. Millsap v. Williams, 2014 Ark. 469, 449 S.W.3d 291; Brown v. Lee, 2012 Ark. 417, 424 S.W.3d 817. Although this court reviews divorce cases de novo on the record, as we stated in Jones v. Jones, 320 Ark. 449, 453, 898 S.W.2d 23, 25 (1995), “De novo review does not mean that this court can entertain new issues on appeal when the opportunity рresented itself for
We begin with the observation that divorce is a creature of statute and can only be granted when statutory grounds have been рroved and corroborated. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599. This court has held that divorces are not granted upon the uncorroborated testimony of the parties and the adverse party‘s admission of the truth of the matters alleged as grounds for divorce. Settles v. Settles, 210 Ark. 242, 195 S.W.2d 59 (1946). The parties in this case executed a declaration of intent to designate their marriage as a covenant of marriage, which is a form of marriage that is governed by Arkansas Code Annotated sections
In the case at bar, the circuit court granted Tina a divorce, although she did not attend the trial to prosecute her claim, based solely on testimony offered by Don to prove and to corroborate Tina‘s ground of adultery. In effect, Don procured a divorce based on Tina‘s amended complaint when he did not have grounds upon which he could have obtained a divorce, either in his original counterclaim in which he sought a divorce on general indignities
(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of
Rule 23(e) andRule 66 , an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action bаsed upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
(3) In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.
(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or аny order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court‘s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
We have held that a plaintiff has an absolute right to take a voluntary nonsuit under
Pursuant to
The present situation calls to mind our decision in Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962). There, the wife sued for divorce, and the husband filed a counterclaim for divorce. After hearing the testimony, the chancery court denied the wife‘s claim for divorce, but the
It must be remembered that the policy of the law is to maintain the marriage relationship, rather than to dissolve it. In 27A C.J.S. ‘Divorce’ § 8, page 27, holdings from the various jurisdictions are cited to sustain this text:
It is generally recognized that the state or the public has an interest in the marital status, its continuance, and dissolution, but an unwilling party, although legally entitled to a divorce, cannot be compelled to procure a divorce, or to consent to a divorce, either ecclesiastical or civil, and it is always optional with a party who is legally entitled to a divorce whether to exercise the right. Thus, the guilty party in a divorce action has no рersonal right to insist that a divorce be granted against the wishes of the innocent spouse.
Haller, 234 Ark. at 988, 356 S.W.2d at 11-12. We believe that the same reasoning applies here, especially when we consider the unusual circumstance that Don supplied the proof upon which the court granted the divorce to Tina. For whatever reason, Tina did not appear for trial to prosecute her amended complaint for divоrce. Don, as the opposing party in the divorce action, could not pursue Tina‘s claim. Consequently, we hold that the circuit court clearly erred by awarding Tina a divorce. In so holding, we also reverse the circuit court‘s division of the marital property and debts. When a circuit court errs by granting a decree of divorce, the court‘s division of property cannot stand. See Shelton v. Shelton, 102 Ark. 54, 59, 143 S.W. 110, 112 (1912) (holding that “if appellant is nоt entitled to a divorce, she is not entitled to a division of the property at all“).
The only remaining argument for discussion is Tina‘s contention that the circuit court erred by dismissing her claim for alimony to the extent that the dismissal was with prejudice or functioned as a ruling on the merits. As we said earlier, a circuit court is authorized to dismiss a claim upon a party‘s failure to prosecute pursuant to
Reversed and remanded.