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Docket Number

No. 5-5168.

Attorney(S)

Vincent E. Skillman, Jr., for appellant. Edward Rubens, for appellee.

Judges

LYLE BROWN, Justice.

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Smart Summary

Walker v. Walker, No. 5-5168 — Supreme Court of Arkansas (Opinion delivered February 16, 1970)

Factual and Procedural Background

Plaintiff below and appellant, Mrs. Cornell R. Walker, instituted an action for separate maintenance against George Harris Walker. The husband answered and counter-petitioned for an absolute divorce; the chancery court (Crittenden Chancery Court, Gene Bradley, Chancellor) granted the husband an absolute divorce. The parties were married in 1965 and lived together for approximately four years with several periods of separation for matrimonial difficulties. The final separation occurred in March 1969 following several months of quarreling and fighting. No children were born of this marriage. The wife appealed, challenging (1) the sufficiency of the evidence/corroboration supporting the divorce, (2) the chancery court's refusal to award alimony to her, and (3) the correctness of the property division ordered by the chancellor.

Legal Issues Presented

Whether the husband's testimony and the accompanying corroboration were sufficient to support an absolute divorce.
Whether the chancery court abused its discretion in refusing to award alimony to the wife despite her contention that the husband was at fault in part.
Whether the division and disposition of marital property by the chancellor conformed to the controlling statute and was proper.

Arguments of the Parties

Appellant's Arguments

The corroboration of the husband's testimony was wholly insufficient to sustain the divorce.
The chancery court erred in refusing to award alimony to the wife.
The division of property by the chancellor was incorrect and, implicitly, did not comply with Ark. Stat. Ann. 34-1214 (Repl. 1962); she also urged the court should have granted an interest in the husband's real property as part of alimony.

Appellee's Arguments

The husband's testimony described multiple acts of unwarranted indignities sufficient to warrant a divorce if corroborated.
The testimony was corroborated by several witnesses describing separate incidents: (a) Jo Ann Weaver corroborated that the wife wrongfully accused the husband of improper conduct with another woman, (b) Janice Hughes corroborated that the wife's telephone calls to the husband's office were disruptive and tabulated 15 and 17 calls on two days, (c) the husband's daughter corroborated that she had been abused by the stepmother, and (d) other witnesses corroborated testimony that the husband and his daughter were called vile names by the wife.
The chancellor's refusal to award alimony was proper under the circumstances and within his discretion given facts about the parties' conduct, incomes, employability, and property division.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944)	The corroboration required in contested divorce cases without collusion may be comparatively slight; a litigant need not be corroborated on each asserted act of indignity.	The court applied Goodlett to conclude that, because there was no collusion, the corroboration presented (several witnesses corroborating different allegations) was sufficient to support the husband's allegations and the grant of an absolute divorce.
Conner v. Conner, 192 Ark. 289, 91 S.W.2d 260 (1936)	The trial court has the inherent power, acting in sound discretion, to award alimony to a wife even if her faults entitle the husband to a divorce.	The court cited Conner to acknowledge the chancellor's authority to award alimony despite the wife's faults, then reviewed the facts to determine whether that discretion was abused; it concluded no abuse occurred.
Cook v. Cook, 233 Ark. 96, 349 S.W.2d 809 (1961)	The chancellor, in the exercise of discretion in alimony awards, may allocate an interest in the husband's real property as part of an award.	The court cited Cook in describing appellant's contention that she should have been awarded an interest in husband's real property; the court noted such a remedy would be discretionary and found no abuse of discretion in refusing to grant it.
Ark. Stat. Ann. 34-1214 (Repl. 1962)	When the husband is granted a divorce the statute provides that the parties shall be restored to property which either obtained from the other during the marriage "and in consideration or by reason thereof."	The court referenced the statute when discussing the property division. It noted the appellant did not cite specific instances of nonconformance with the statute, and the court upheld the chancellor's disposition of the home, furnishings, car reimbursements, stock interest, and attorney fee award.

Court's Reasoning and Analysis

The court's analysis proceeded in three principal strands: corroboration of the wife's alleged indignities, the chancellor's discretion to award alimony, and the propriety of the property division.

On corroboration and sufficiency of proof, the court began with the settled rule that where a contested divorce is not the product of collusion the quantum of corroboration necessary may be modest. Applying Goodlett v. Goodlett, the court observed that the husband testified to numerous acts of unwarranted indignities, and multiple witnesses corroborated separate aspects of his testimony: Jo Ann Weaver corroborated one charge, Janice Hughes corroborated the disruptive telephone calls and provided counts (fifteen and seventeen calls on two days), the husband's daughter corroborated allegations of abuse by the stepmother, and other witnesses corroborated testimony that appellee and his daughter were called vile names. The court reasoned that because the corroboration covered different asserted acts and because the corroboration standard in non-collusive cases can be comparatively slight, the evidence as a whole was adequate to support the divorce.

Concerning alimony, the court recognized the chancellor's inherent power to award alimony to a wife even if her faults otherwise would entitle the husband to a divorce (citing Conner v. Conner). The court then evaluated the specific factual circumstances that the chancellor considered: the chancellor found the wife guilty of conduct that provoked the husband's ill behavior; the wife had made charges that the chancellor apparently found to be partially fabricated; the second marriage was short and had multiple prior separations (once as long as three months); no children were born of the marriage; the wife was an experienced bookkeeper who had been earning $460 per month at the time of the marriage, was not elderly, and there was no substantial evidence she could not resume full-time employment; and the husband had the ongoing obligation to maintain a home for himself and his teenage daughter on a modest income. Balancing these circumstances, the court concluded that the chancellor did not abuse his discretion in refusing to award alimony in any form.

With respect to property division, the court recited the specific orders: the home (held by the entirety) was ordered sold with proceeds divided; household furnishings were handled like the home because the evidence showed the wife paid one-half of their cost; the husband was ordered to refund to the wife 80% of the trade-in value used on a new car plus $500 cash (which she furnished); the wife retained title to a share of stock she had owned in the husband's business; and the husband was ordered to pay the wife's attorney. The court noted the controlling statute, Ark. Stat. Ann. 34-1214, and observed the appellant did not identify specific instances of nonconformance with the statute. The appellant's alternative theory was that the chancellor should have used his discretion to grant an interest in the husband's real property as an element of alimony (citing Cook v. Cook). The court reiterated that such relief would be discretionary and concluded the chancellor did not abuse that discretion in declining to award it.

Holding and Implications

AFFIRMED.

Consequences for the parties as expressly ordered by the chancery court and affirmed by the Supreme Court of Arkansas:

The husband's prayer for an absolute divorce was granted.
The chancellor's refusal to award alimony to the wife was upheld; the Supreme Court concluded there was no abuse of discretion in that refusal on the facts presented.
The property disposition ordered by the chancellor (sale and division of the home; comparable treatment of furnishings; refund to the wife for car trade-in plus $500; the wife's retention of her business stock interest; and the husband's obligation to pay the wife's attorney) was upheld.

The opinion applied established Arkansas precedent and statutory language to the facts of this case; it did not announce a new legal principle or depart from cited authorities.

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Cornell Rudkin WALKER v. George Harris WALKER

1. DIVORCE — TESTIMONY CORROBORATION — SUFFICIENCY. — The quantum of required corroboration in contested divorce cases where there is no collusion may be comparatively slight and yet be sufficient. 2. DIVORCE — INDIGNITIES — SUFFICIENCY OF CORROBORATION. — A litigant in a divorce action does not have to be corroborated on each asserted act of indignity. 3. DIVORCE — ALIMONY — DISCRETION OF TRIAL COURT — The trial court has the inherent power, acting in sound discretion, to award alimony to a wife even if her faults entitle the husband to a divorce. 4. DIVORCE — ALIMONY — DISCRETION OF TRIAL COURT ABUSE OF. — Chancellor held not to have abused his discretion in refusing to award alimony in any form to the wife in view of facts and circumstances surrounding the separation and divorce, division of parties' real and personal property, and wife's age, earning capacity and work experience.

LYLE BROWN, Justice.

Plaintiff below and appellant here, Mrs. Cornell R. Walker, instituted an action for separate maintenance against George Harris Walker. The husband answered with a prayer for absolute divorce and it was granted. The wife here alleges insufficiency of proof, failure to award alimony, and, alternatively, an incorrect division of property.

The parties were intermarried in 1965 and lived together for four years, excepting several periods of separation caused by matrimonial difficulties. The final separation, which climaxed several months of quarreling and fighting, occurred in March 1969. Each party gave evidence which would place the blame on the other. A recounting of the testimony of these spouses would serve no useful purpose and is really not necessary to a determination of the issues on appeal. The allegation here argued with respect to sufficiency of proof is directed at the corroboration, which appellant contends is wholly insufficient. We will therefore evaluate the corroboration. With respect to the husband's testimony it is sufficient to say that the incidents of unwarranted indignities related by him, if true and if corroborated, were abundantly sufficient to warrant granting him a divorce.

The quantum of required corroboration in contested divorce cases has long been settled. It is plain to us that in this heatedly contested case there was no collusion. In that situation the corroboration may be comparatively slight and yet be sufficient. Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944). The same citation is authority for the rule that the litigant does not have to be corroborated on each asserted act of indignity. Among the many acts of indignities related by the husband, he asserted that his wife wrongfully accused him of improper conduct with another woman; in that connection he was corroborated by Jo Ann Weaver. Appellee testified that appellant's telephone calls to his office were so frequent as to disrupt his business; Janice Hughes testified to the same general effect and specifically recounted tabulating the calls on two different days and they totalled fifteen and seventeen calls. Appellee's daughter by his first wife lived with this couple and she supported her father's testimony that the child had been abused by her stepmother. Appellee's testimony relative to both him and his daughter being called vile names by appellant was supported by other witnesses.

The trial court denied alimony and appellant takes exception to that ruling. We agree with the assertion that the trial court has the inherent power, acting in sound discretion, to award alimony to a wife even if her faults entitle the husband to a divorce. Conner v. Conner, 192 Ark. 289, 91 S.W.2d 260 (1936). We must examine the particular facts and circumstances in the case to determine whether the chancellor abused his discretion. The principal circumstance favoring alimony is the fact that the husband was not without some fault; on the other hand the chancellor found that appellant was Guilty of such conduct as to provoke ill behavior by appellee. Appellant testified as to acts of severe cruelty, most of which were categorically denied. It is clear to us that the chancellor had to conclude that some of her charges were made out of whole cloth. This second marriage by both parties was of comparatively short duration; they were separated many times and on a single occasion as long as three months; no children were born to the union; both conceded that there was no possibility of reconciliation; she is an experienced bookkeeper and was earning $460 a month at the time of this marriage; she is far from being an elderly person and there is no substantial evidence that she will not be able to resume full-time employment; and appellee must, on a rather modest income, maintain a home for himself and his teenage daughter. We are unable to say that the chancellor abused his discretion in refusing alimony.

Finally appellant objects to the division of the property made by the chancellor. The home, held by the entirety, was ordered sold, and any net divided between the parties. The household furnishings were ordered handled in the same manner as the home; that was because the evidence showed appellant paid one-half of the cost of the furnishings. The wife also furnished eighty per cent of the trade-in value on a new car, plus a five hundred dollar cash payment, and the husband was ordered to refund her those amounts. Appellant had for some time owned a share of stock in appellee's business and she was permitted to retain title thereto. Appellee was also directed to pay appellant's attorney for his services. The statute, Ark. Stat. Ann. 34-1214 (Repl. 1962), provides that when the husband is granted a divorce the parties shall be restored to all property then possessed by them which either obtained from the other during the marriage "and in consideration or by reason thereof." If it is the theory of appellant that the trial court did not adhere to 34-1214, we are not afforded the citation of specific instances of nonconformance. We perceive appellant's contention to be that the court should have, under its inherent power, granted her, as a part of alimony, an interest in her husband's real property. Cook v. Cook, 233 Ark. 96, 349 S.W.2d 809 (1961). As in the case of a money award of alimony to the defaulting wife, such an allotment would be in the sound discretion of the chancellor. We repeat that we are unable to say the chancellor abused his discretion in refusing to award alimony in any form.

Affirmed.

WALKER v. WALKER