449 S.W.2d 399 | Ark. | 1970
WOMACK v. WOMACK [247 WINTER C. WOMACK V. DORIS MAE WOMACK(cid:13)
5-5165 449 S. W. 2d 399(cid:13) Opinion delivered February 2, 1970 1. DIVORCE—SEPARATE MAINTENANCE-POWER OF CRANCELLOR.—A cause of action for separate maintenance independent of a cause of action for divorce may be brought under the broad power of equity, and the chancellor has power to decree separate maintenance to the wife. [Ark. Stat. Ann. § 34-1202 (Repl. 1962).]
ARK.] WOMACK v. WOMACK 1131
2. DIVORCE-MAINTENANCE DURING PENDENCY OF ACTION-DISCRETION
OF CHANCELLOR —Where allegations were made, proof offered and issues tried and considered as a petition for divorce from bed and board, wife's petition for separate maintenance held a petition for divorce, and award of separate maintenance and attorney's fees during pendency of the action was within chan- cellor's sound discretion.
3. DIVORCE—SEPARATE MAINTENANCE-GROUND S .-A wife may not leave her husband or drive him away without cause and de- mand that he continue to support her, nor may a husband force his wife to continue to endure his conduct constituting grounds for divorce or forfeit her rights to maintenance and support.
4. DIVORCE- 0 -ATTORN'Y'S FEN'S-DETERMINATION ON REMANn.—On re- mand, contentions by parties with respect to attnrney's fees should be considered and passed on by the chancellor on final hearing and disposition of the case.
Appeal from Union Chancery Court, Jim Rowan, Chancellor; affirmed and remanded. Brown, Compton, Premett & Dickens, for appellant. Shackleford & Shackleford, for appellee. J. FRED JONES, Justice. This is an appeal by Winter
C. Womack from an order of the Union County Chan- cery Court overruling his motion to dismiss a petition for separate maintenance filed by his wife, Doris Mae Womack. Mr. and Mrs. Womack were married on March 14, 1947, and lived together as husband and wife until June 23, 1969, when they separated because of an ac- cumulation of difficulties stemming primarily from Mr. Womack's interest, or at least interest which Mrs. Womack suspected he had, in a female fellow employee. Mrs. Womack told Mr. Womack to get out of their home and he did.
On August 7, 1969, Mrs. Womack filed a petition for separate maintenance, alleging that Mr. Womack had treated her with contempt, neglect and abuse sys- tematically and habitually pursued to the extent that her condition in life had become intolerable. Mrs. Worn- WOMACK v. WOMACK [247
ack alleged the birth of three children, two of whom are still minors and in her custody. She prayed for permanent custody of the children; for a reasonable amount for the support of herself and the children ; for permanent use of the homestead and automobile, and for attorney's fees and court costs. Mr. Womack re- sponded by general denial except as to the marraige, separation, and birth of the children. He recognized his obligation to support his wife and children and prayed that the court enter such order as under the circum- stances may be proper.
The petition was set for hearing on August 25, 1969, and on that date both Mr. and Mrs. Womack testi- fied as to his income, and their respective expenses and needs. No evidence was offered at that hearing as to fault of the parties. This hearing was obviously in con- nection with temporary support, possession of propdr- ty, and suit money. After the hearing on August 25, 1969, and before the chancellor acted on the petition; or at least before he entered an order in connection therewith, Mr. Womack moved back into the home, over Mrs. Womack's objections, and on September 4, 1969, he filed a petition alleging facts and praying relief, as follows :
"Subsequent to the hearing of this matter on Au- gust 25, 1969, the defendant, Winter C. Womack, re- turned to the parties' household where he is now living and is ready, willing and able to provide for his wife and children. Therefore, this action has become moot and there is no basis for the entry of any order for support, maintenance or related matters. WHEREFORE, premises considered, the defendant prays that the Court find that this matter is moot and an appropriate order be entered." It was at the hearing on this petition that evidence
ARK.] WOMACK V. WOMACK 1133 was first adduced by both parties as to the cause of the separation in the first place. It appears from the evi- dence that Mrs. Womack came into possession of letters addressed to Mr. Womack and signed by someone named "Sue." It also appears that Mrs. Womack on one occa- sion observed Mr. Womack leaving a hotel with a woman by that name, and on another occasion she observed Mr. Womack and Sue having lunch together at a diner. Mr. Womack was employed in radio and he had been ob- served, by their older son, leaving the radio station late at night in the company of Sue, and Mrs. Womack had received anonymous letters and telephone calls pertain- ing to the same person. The evidence indicates that Mr. Womack first denied everything when confronted with Mrs. Womack's accusations, but when his denials seemed only to aggravate the situation, he adopted the proce- dure of not denying anything. Mr. Womack contends that his relations with Sue have been of an innocent business nature and that his wife has no justification for separate maintenance.
The chancellor denied Mr. Womack's petition by or- der dated September 12, 1969, and on the same date en- tered an order awarding Mrs. Womack temporary sup- port in the amount of $600 per month, together with $100 per month support for the minor child at home. The chancellor also ordered Mr. Womack to pay tuition for the older son in the amount of $521 and to pay an allowance for him in the amount of $50 per month. The chancellor also ordered Mr. Womack to pay Mrs. Wom- ack's attorneys a fee of $750.
On his appeal to this court Mr. Womack relies on the following points for reversal: " The order of the Chancellor in overruling the ap- pellant's petition to set aside separate maintenance was contrary to the evidence presented in this case and the law applicable thereto. The order of temporary support and maintenance WOMACK v. WOMACK [247
to appellee is exorbitant and should be reduced ac- cordingly. The attorneys' fees awarded as a part of the court's order of temporary support and maintenance is ex- orbitant and should be reduced to a reasonable sum." It is apparent from the face of the pleadings, as
well as from the evidence adduced at the hearing on Mr. Womack's p etition, that this is not the type of case where Mr. Womack can moot Mrs. Womack's alleged cause of action by simply returning to live with her against her will. Mrs. Womack did not tell Mr. Womack to leave because he was not supporting her. She alleged in her petition that he treated her "with contempt, neg 1 ect and abuse systematically and habitually pursued so as to make her condition in life as his wife intolerable." Whether Mrs. Womack can sustain her allegations by ac- tual proof remains to be seen when her petition is heard on its merits for a permanent decree of support, child custody, and property rights. The circumstances under which Mr. Womack left his wife and home are revealed by his own testimony, as follows :
"I walked in the bedroom as soon as I got there, which is a habit of mine, and pulled off my coat and there was a suitcase on the bed which my kids had given me in 1965. My wife had followed me into the bedroom and I asked her what the suitcase was doing on the bed and she said—that is to pack your clothes in and get your blank out of here. I asked her why and she said—just get out of here. I tried to talk to her but she wouldn't talk to me so I packed my clothes and went to the farm. On Wednesday I went back to the house to get my tie pins and I went into the bedroom and again she followed me in there and I said—Doris, why did you put my suit- case on the bed just when I thought we had every- thing worked out and she said—I didn't put it there, your daughter did. I called my daughter the
1135 ARK.] WOMACK v. WOMACK next day and asked her why she bad put the suit- case on the bed and she said—I am tired of you making mother unhappy." The facts in this case present a situation wherein
a wife packs her husband's suitcase, tells him to get out and he does. The wife then files a petition for separate maintenance alleging that the husband has mistreated her to the extent that her condition as his wife has become intolerable. The husband then files a petition of his own saying that he has returned to the home and intends to stay there and support his wife and therefor his wife's petition for separate maintenance has become moot and should be dismissed. We are simply unable to follow Mr. Womack's reasoning en this point. It should be perfectly obvious to him that Mrs. Womack com- plains of something more than his being absent from the home and nonsupport. It is perfectly obvious that Mrs. Womack suspects that her husband has become inter- ested in another woman to the extent that she, Mrs. Womack, does not want Mr. Womack back, living under the same roof with her.
Ark. Stat. Ann. § 34-1202 (Repl. 1962) provides as follows : "Grounds for divorce. The chancery court shall have power to dissolve and set aside a marriage con- tract, not only from bed and board, but from the bonds of matrimony, for the following causes : Fifth : Where either party shall be addicted to ha- bitual drunkenness for the space of one (1) year or shall be guilty of such cruel and barbarous treat- ment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable." Ark. Stat. Ann. § 34-1210 (Repl. 1962) provides as WOMACK v. WOMACK [247
follows : "During the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow additional attorney's fees for the enforcement of payment of alimony, maintenance and support provided for in the decree." While an independent suit for separate maintenance
may be brought and maintained under the broad powers of equity (Wood v. Wood, 54 Ark. 172, 15 S. W. 459), we are of the opinion that the petition filed by Mrs. Womack was essentially a petition for a divorce from bed and board, and the award of separate maintenance during the pendency of the action, as well as attorney 's fees, was within the sound discretion of the chancellor. Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246.
In Gilliam v. Gilliam, 232 Ark. 765, 340 S. W. 2d 272, the wife filed suit for separate maintenance. The grounds alleged in the petition are not set out in the opinion, but Mrs. Gilliam testified as to physical abuse accorded her by Mr. Gilliam. In sustaining the award for separate maintenance, this court said:
"We have a long line of cases which recognize that under what is now § 34-1202, Ark. Stat. the Chan- cery Court has the power to decree separate main- tenance to the wife." We do not attempt to distinguish between inde-
pendent actions for alimony and those in connection with actions for divorce because that has already been done in Wood v. Wood, supra. In the case at bar al- legations were made, proof was offered and the issues were tried and considered as a petition for divorce from
1137
ARK.]
bed and board. The case has not been heard by the chan- cellor on its merits, and it is recognized by all parties concerned that the order appealed from is temporary. Mr. Womack's monthly income amounts to between $1,- 100 and $1,400. Certainly a wife may not leave her hus- band or drive him away without cause and demand that he continue to support her. Neither may a husband force his wife to endure his conduct constituting grounds for divorce or forfeit her right to maintenance and support.
Mrs. Womack may not be entitled to separate main- tenance at all when this matter is heard on its merits, but we are unable to say that the chancellor abused his discretion in the temporary awards made in this case. Mr. Womack also complains that the attorney's fee of $750 awarded against him is exorbitant. The attorney's fee awarded by the chancellor was in the nature of suit money and may have included fee for services in the fu- ture, as well as for services performed. Mr. Womack's contention that the fee is exorbitant, as well as Mrs. Womack's petition for an additional attorney's fee on appeal to this court, may be considered and passed on by the chancellor on final hearing and disposition of this case.
Affirmed and remanded.
