Lead Opinion
On Spetember 28, 1979, James Warren filed suit for a divorce against Susan Varren. -The trial court granted Susan Warren a divorce on her counter claim, divided the property, awarded custody of the child, ordered child support and impounded funds belonging to James Warren. All of the decree is appealed except the granting of the divorce and the awarding of the custody of the child.
The Warrens purchased part of their property and filed their suit after the effective date of Act 705 of 1979, commonly referred to as the marital property act. Ark. Stat. Ann. § 34-1214 (Supp. 1979). The trial court ruled that property held in a tenancy by the entirety was not affected by the 1979 marital property division act.
We have traditionally recognized two categories of property in divorce cases. One category has been divided pursuant to the general property division statute which has been cоdified as Ark. Stat. Ann. § 34-1214 in the 1947 publication, the 1962 replacement and the various supplements prior to 1979. The other category, property held in tenancies by the entireties, has never been divided pursuant to the general property division statute.
Our rule of law on this second category, or entirety property, was well stated in Jenkins v. Jenkins,
We have repeatedly held that a decree of divorce cannot dissolve an entirety case. Seе Roulston v. Hall,66 Ark. 305 ,50 S.W. 690 ; Heinrich v. Heinrich,177 Ark. 250 ,6 S.W. 2d 21 ; Ward v. Ward,186 Ark. 196 ,53 S.W. 2d 8 ; and Davies v. Johnson,124 Ark. 390 ,187 S.W. 343 . In Heinrich v. Heinrich, supra, we said: “An estate by entirety, either legal or equitable, cannot be divested out of the husband and invested in the wife, or vice versa, by the courts. The right to the whole estate by the survivor prevents this. Roulston v. Hall,66 Ark. 305 ,50 S.W. 690 ,74 Am. St. Rep. 97 .”
The majority of jurisdictions hold that divorce dissolves the entirety estate; but our holding to the opposite conclusion has become a rule of property in this State.
See also, Tenancy by the Entirety — Divorce — A Peculiar Rule of Property in Arkansas, 22 Ark. L. Rev. 386 (1968).
By Act 340 of 1947, Ark. Stat. Ann. § 34-1215 (Repl. 1962), the General Assembly gave courts the authority to convert marital survivorship estates to a tenancy in common. That explicit and concise act stated:
Courts of Equity, designated Chancery Courts within the State of Arkansas shall have the power to dissolve estates by the entirety or survivorship, in real or personal property, upon the rendition of a final decree of divorcement, аnd in the division and partition of said property, so held by said parties, shall treat the parties as tenants in common.
This statute is the only authority for dividing estates by the entirety, and it provides for the equal division of property without regard to gender or fault. Minor amendments have since been made but they have no bearing on the issues of this case. See § 34-1215 (Supp. 1981).
From 1891 until the effective date of Act 705 of 1979, all property in the general property category was divided according to the general property division statute, § 34-1214. The first clause in that general statute provided for a limited restoration to each spouse of his or her property not disposed of at the commencement of the action. For a detailed discussion of this provision and a citation of applicable cases see Domestic Relations —Restoration of Property — Obtained In Consideration or by Reason of Marriage Upon Divorce, 7 Ark. L. Rev. 64 (1952). The statute next provided that when the wife was granted the divorce because she was the “injured party” as described by § 34-1203 (Repl. 1962), she was entitled to one-third of the husband’s personal property absolutely and one-third of his real property for life. We have referred to the clause in the statute as “awarding the injured wife her dower.” Alston v. Bitely,
The reasons for the amendment of § 34-1214 (Repl. 1962) by Act 705 of 1979 are obvious. Public caveats on thе infirmities of the old statute were given. See Family Law — Divorce — Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 UALR Law Journal 123 (1979). The fact recites that those warnings were heard:
SECTION 7. It is hereby found and determined by the General Assembly that in a dissenting opinion to the recent case of McNew v. McNew,262 Ark. 573 (1977), regarding Ark. Stat. Ann. § 34-1214, a justice of the Arkansas Supreme Court said that “The Arkansas law regarding property was enacted before the turn of the century and cаn no longer be defended historically or legally with any confidence,” and that “It clearly violates the Equal Protection Clauses of the Arkansas and the United States Constitutions”; that in the majority opinion in that same case the Court did not decide this issue, stating “We will not decide constitutional issues unless their determination is essential to disposition of the case,” and holding that this issue of property division at the time of a divorce action was not propеrly before it; that a decision holding that Ark. Stat. Ann. § 34-1214 is unconstitutional would create chaos in all divorce actions then pending in Arkansas courts until such time as the Arkansas General Assembly could enact legislation to cover this subject; and that this Act is designed to correct and clarify the law on this subject. ***
Appellant contends that even though the reasons and the intent for amending the general property division statute, § 34-1214, are crystal clear, the act аlso abolished the separate statute dealing with entirety property. We disagree. Section 1 of the 1979 act, as well as Section 7 quoted above, state that the general property division statute, § 34-1214, is the statute amended.
SECTION 1. Section 416 of the Arkansas Civil Code, as amended, the same being Arkansas Statutes Section 34-1214, is hereby amended to read as follows:
In 1979 it was necessary for the General Assembly to take some immediate action to curе the defects in § 34-1214. Consequently, Act 705 was made applicable to all cases filed after its effective date and it necessarily affected property purchased before, as well as after, that effective date. By excluding that separate category of property, estates by the entireties, the General Assembly wisely avoided a legal quagmire, for in Jenkins v. Jenkins,
Act 705 nowhere refers to property acquired as tenants by the entirety; it only refers to “all property acquired by either spouse.” Section (1) (B). The conspicuous reason for not amending § 34-1215, the entirety statute, is that it did not need amending. It has no constitutional infirmities.
There is also an apparent сonsideration of public policy by the General Assembly, and that is the recognition that there ought to be reckonability in the law. When a husband and wife cause a marital survivorship instrument to be created they ought to know that if they remain married the survivor will own the property, and they ought to know that if they divorce the property will be divided equally, and they ought to know that they will not be subjected to the eight variables of the 1979 act. The variables which may be takеn into consideration by the court in dividing general marital property are:
(1) the 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 party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker.
Wehold that Act 705 of 1979, § 34-1214 (Supp. 1979),is not applicable to property owned as tenants by the entirety.
In this case the home and apartment building were owned by the parties as tenants by the entirety. Susan Warren contended that James Warren fraudulently caused her to include him on the warranty deeds. Clearly, the entirety dissolution statute, § 34-1215 (Supp. 1981), has no application where one of the parties fraudulently causes his or her name to be added to the deed. Johnson v. Johnson,
The certificate of title to the 1971 Corvette automobile was in the names of “James T. or Susan Warren.” Since Union and Mercantile Trust Co. v. Hudson,
The trial court corrеctly applied the marital property statute, § 34-1214 (Supp. 1979), to the rest of the personal property. We cannot say that dividing equally the proceeds derived from the sale of this property is against the preponderance of the evidence.
At the time of the trial James Warren was earning take-home pay of $250 per week. During the marriage Susan Warren gave him substantial sums of money and gave him the entirety interest in the home and aрartment building. She is now a college student with the responsibility of raising a small child. Under these circumstances we modify the amount of child support from $37.50 to $50 per week.
The trial court ordered that all the proceeds from the sale of James Warren’s interest in the property be impounded in order to insure future child support payments. There was no pleading asking impoundment, no notice and no proof on the matter. There is no judgment for arreаrages and this does not qualify as a bond. We find no authority for the impoundment of funds under these conditions and reverse this holding on cross-appeal. The manner of distributing the proceeds as set out in the decree is otherwise affirmed.
Affirmed as modified on appeal. Reversed on cross-appeal.
Lead Opinion
Supplemental Opinion on Petition for Rehearing delivered December 7, 1981
Susan Warren has filed a petition for rehearing with two contentions. One simply reargues interpretation of statutes, but on rehearing we do not consider such repetition. Rule 20 (g). The other concerns the impoundment of funds. We deny the petition for rehearing but desire to explicate that issue.
Susan Warren argues that she asked for a lien on James Warren’s property for future child support. We have no statute authorizing a lien for future support and courts of equity have no inherent authority to grant one. Some states have held that statutory language to make “provision for ... support аnd education of the minor children of the marriage” gives the implied authority to declare a lien in limited circumstances on specific items of property. Jones v. Jones,
The petitioner alternatively contends that even if she is not entitled to a lien on all of James Warren’s property for future child support, she is entitled to have the property impounded as a bond pursuant to Ark. Stat. Ann. § 34-1211 (Supp. 1981). This court has long recognized that a chancery court has the inherent power to require a bond for payment of child support. Zeddy v. Zeddy,
While there was no bond, there could have been a valid sequestration for the chancery court has the authority to impound property to insure future payment of child support. The general rule is that a court of equity is without the inherent power to impound property to secure the future payment of support. Ring v. Ring,
In summation, while we do not recognize a lien on the obligor’s real estate to insure the future payment of child support, we do have a statutory provision for sequestration of the obligor’s property to insure the payment of future support. A sequestration of property rеquires notice of the reason for sequestration and the order must provide the nature and amount of property to be sequestered and the conditions of sequestration. In addition, we have statutory bonds as well as bonds by the inherent authority of equity courts to secure future payment of child support. There are other proceedings for enforcement of child support orders, not material to this opinion, such as injunctions and restraining оrders, contempt proceedings, judgment lien proceedings and proceedings to sell real or personal property of the obligor pursuant to Ark. Stat. Ann. § 34-2448 (Supp. 1981).
The petition for rehearing is denied.
Dissenting Opinion
dissenting. I respectfully dissent from the majority in this case for reasons to be set out below.
The problem presented to the court is whether Act 705 of 1979 as amended is applicable to the present facts. We are particularly concerned with that part of the codе designated as Ark. Stat, Ann. § 34-1214 (Supp. 1981). Section (A) of the Act provides that all marital property shall be distributed one-half to each party unless the court finds such division to be inequitable. The criteria for distribution of marital property, in case equal division is inequitable, are set out in § (A) (1). Section (A) (2) of the Act provides:
All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subparagraph (A) above, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
Section (B) provides:
For the purpose of this statute “marital property” means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise or descent;
(2) Property acquired in exchange for property аcquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent;...
I see nothing ambiguous about the language of the above-quoted statute. It is quite obvious that the legislature intended that one party would not be allowed to pull a shenanigan on the other simply by marrying, getting property transferred into his name, and then shucking the spouse for someone else. Any interpretation other than the plain languagе of the statute requires a little bit of judicial legislation and a fertile imagination.
Let us look at what the husband said about how the property was acquired. He stated:
... I did not contribute a dime to the purchase of the real property. Every dime that was put into the real property we acquired during the marriage was received from her inheritance from her father. I never made a house payment from my funds. *** I was in the used car sales business and the money that financed the business came from my wife’s guardianship estate left to her by her father. All of the money came from my wife’s guardianship estate. *** The only income I had was from the business of selling autos and she furnished the money for that. I lost money and got out of the business and there was money left which I paid bills with. *** I’d say her money was my money, that’s the way I looked at it. I came out of the business with the Corvette and I paid 55 for it and spent well over $1500 fixing it up. I have it in my possessiоn now and it is titled in both our names. *** The only thing I had when we got married was a cár and I couldn’t even tell you what car that was. I believe it was a ’76 Cutlass and my wife helped pay for it, it just came out of the account. ...
After the parties were separated the husband went to Texas where he obtained employment for a salary netting him $250 per week. During this time he was living with his girlfriend in Texas and helping pay the rent, utilities and some of the groceries. Between the temporаry hearing and order of October 10,1979, and the final hearing in November 1980 the appellee paid only $61 child support, creating a delinquency of $1677.50. These parties were married in January 1978 and separated in September 1979- They were ages 17 and 19 at the time of the marriage.
The only reason Ark. Stat. Ann. § 34-1215 (Supp. 1981) remains on the books is to convert tenancy by the entirety to tenancy in common in case the chancellor fails to make a ruling as to that particular property. § 34-1215 is the codification of Act 340 of 1947, as amended by Act 457 of 1975. Act 705 is the latest legislative action and should take precedence over the earlier law in case of a conflict. The purpose of Act 705 was to bring our divorce statutes in line with our decisions and to update the law.
The majority opinion is a step backwards. It is contrary to the trend in Arkansas divorce law and infringes into the rights of the legislature. I would follow the plain language of Act 705 and thereby prevent the appellee from enjoying the mistakes his former wife made.