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Docket Number

No. 5-4073

Attorney(S)

Fred A. Newth, for appellant. No brief, for appellee.

Judges

OSRO COBB, JUSTICE.

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Smart Summary

Marshall Hodge v. Villa Hodge, No. 5-4073 (Ark. Sup. Ct., Dec. 19, 1966)

Factual and Procedural Background

This appeal arose from supplemental proceedings following a 1964 decree of divorce. Appellant (Marshall Hodge) petitioned the chancery court for a reduction in alimony payments and for other relief, alleging a change in his earnings. At the chancery hearing, the trial court sustained a demurrer to appellant's evidence and dismissed the proceeding. Appellant appealed to the Supreme Court of Arkansas. The divorce decree itself was not made part of the record; however, testimony and the court's remarks at the hearing indicated that a property settlement may have been incorporated into the decree.

At the hearing appellant and his 19-year-old daughter (who lives with him) were the only witnesses. Appellant testified he earned nothing in 1966 but admitted various expenses (rent $65/month; groceries roughly $90/month), a $65.80/month car payment, that appellee had advanced him $1,000 for a filling station business and that the decree fixed a lien for that amount, that he sold the business and paid appellee nothing from the proceeds, and that he was in arrears on alimony in an undisclosed amount. The daughter testified on cross-examination that appellant was working regularly and had told her he was making $60 per week. No substantial evidence regarding appellee's economic condition at the time of hearing was presented, though appellee's verified pleadings indicated her income was less than at the time of the divorce.

Legal Issues Presented

Whether a court may modify or change an alimony award that is part of a divorce decree incorporating a property settlement.
Whether the trial court properly sustained a demurrer to appellant's evidence where appellee's counsel did not rest before the demurrer was made, and the procedural effect of such action under controlling precedent.
Whether the trial court erred in dismissing the proceeding by sustaining the demurrer to the evidence.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950)	When a property settlement is embraced in a decree of divorce, including an award of alimony, the court is powerless to change the alimony award irrespective of changes in the economic situation of the parties.	The court cited Bachus to state the settled rule that if the divorce decree included a property settlement encompassing alimony, the chancery court lacked power to modify the alimony award.
Werbe et al v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950)	Procedural rule governing demurrer to evidence: when an opposing attorney rests before a demurrer is made, the trial court must weigh the evidence and make findings; relevant to the proper handling of demurrers to evidence.	The court held that because appellee's attorney did not rest before the demurrer was made, the case was controlled by Werbe and the trial court's sustaining of the demurrer and dismissal could not stand under that precedent.

Court's Reasoning and Analysis

The Court first observed that the divorce decree was not in the record but that the hearing testimony and court comments suggested the decree may have incorporated a property settlement. It reiterated the existing rule (citing Bachus) that an alimony award which is part of a property settlement in a divorce decree cannot be altered by the court despite subsequent changes in the parties' economic circumstances.

The Court reviewed the evidence presented at the hearing: appellant's testimony about zero earnings in 1966 juxtaposed with admissions of ongoing expenses, a car purchase, a $1,000 advance from appellee (with a lien fixed by the decree), the sale of the business with no payment to appellee, and arrearages in alimony; and the daughter's testimony that appellant had been working and claimed earnings of $60 per week. The Court also noted the lack of substantial evidence about appellee's financial condition at the hearing, except for verified pleadings suggesting her income had decreased since the divorce.

The Court then addressed the procedural posture: because appellee's attorney did not formally rest before the demurrer to appellant's evidence was made, the trial court was required under Werbe to weigh the evidence and make findings rather than sustain a demurrer and dismiss. The Court stated that Werbe controls and that it would not recede from that precedent.

Given the procedural error, the Court concluded the trial court erred in sustaining the demurrer and dismissing the case, and ordered reversal and remand to afford the chancery court the opportunity to examine the divorce decree to determine whether it included a property settlement and to fix and assess an appropriate fee for appellee's counsel for services rendered.

Holding and Implications

REVERSED AND REMANDED.

Direct consequences:

The Supreme Court reversed the trial court's sustaining of appellee's demurrer and dismissal of appellant's petition and remanded for further proceedings.
On remand the trial court is to examine the divorce decree to ascertain whether it included a property settlement; if so, the court's power to modify the alimony award is constrained by the cited precedent (Bachus).
The trial court is also to be afforded an opportunity to fix and assess an appropriate fee for appellee's counsel for services rendered in the supplemental proceeding.

Broader implications: The decision applies existing Arkansas precedent regarding (1) the nonmodifiability of alimony that is part of a property settlement and (2) the procedural requirements governing demurrers to evidence (Werbe). The opinion does not announce a new legal rule beyond applying those precedents.

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MARSHALL HODGE v. VILLA HODGE

1. DIVORCE — DECREE, MODIFICATION OF — POWER OF COURT. — When a property settlement is embraced in a decree of divorce, including an award of alimony, the court is powerless to change the alimony award irrespective of changes in the economic situation of the parties. 2. TRIAL — DETERMINATION DISPOSITION OF CAUSE — RULING ON DEMURRER TO EVIDENCE. — Had appellee's attorney rested at the conclusion of appellant's testimony and before the making of the motion to dismiss, the trial court would have been required to weigh the evidence and make findings binding upon both parties, but where this did not occur the case was controlled by Werbe et al v. Holt, 217 Ark. 198, 229 S.W.2d 225, from which this Court does not recede. 3. APPEAL ERROR — DETERMINATION DISPOSITION OF CAUSE — REVERSAL REMAND. — Where trial court erred in sustaining appellee's demurrer and dismissing the case, the cause is reversed for further proceedings and upon remand the trial court will be afforded an opportunity to examine the divorce decree and ascertain whether it included a property settlement and to fix and assess an appropriate fee for appellee's counsel for services rendered.

OSRO COBB, JUSTICE.

This appeal involves supplemental proceedings following a decree of divorce.

Appellant petitioned for a reduction in alimony payments to appellee and for other relief, based upon an alleged change in his earnings.

The trial court sustained a demurrer to appellant's evidence and dismissed the case. From this action appellant has prosecuted an appeal.

Appellee was granted a divorce from appellant in 1964. The decree was not made a part of the record but the testimony and comments of the Court during the hearing indicate that a property settlement may have been incorporated into the decree.

We have many times held that when a property settlement is embraced in a decree of divorce, including an award of alimony, that the Court is powerless to change the alimony award irrespective of changed in the economic situation of the parties. Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950).

Appellant and his 19-year-old daughter, who lives with him, were the only witnesses to testify. Appellant testified that he had earned nothing in 1966. On cross-examination he admitted that his rent for living quarters was $65.00 per month; that his groceries were $20.00 per week or $90.00 per month; that he and his daughter had traded in a 1963 Mercury for a 1965 Mustang sports car; that the payment on the Mustang was $65.80 per month; that appellee had advanced to him $1,000.00 of her own funds for use in purchasing a filling station business; that in the decree of divorce a lien in said amount was fixed for the benefit of appellee; that notwithstanding the terms of the decree, which were well known to appellant, he sold the business and paid appellee nothing from the proceeds; that he is in arrears in his alimony payments in an undisclosed amount.

The daughter of appellant on cross-examination testified that appellant was working regularly and he had told her he was making $60.00 a week. The daughter received a nominal allotment from her husband, who was in service overseas.

No substantial evidence was given relating to appellee's economic situation as of the time of hearing. From the verified pleadings on behalf of appellee, it appears her income was less than at the time of divorce.

Had appellee's attorney rested at the conclusion of appellant's testimony and before the making of the motion to dismiss, the trial court would have been required to weigh the evidence and make findings binding upon both parties. However, this did not occur. The case, therefore, is controlled by Werbe, et al v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), from which we do not recede.

We are, therefore, compelled to reverse this case for further proceedings. This will afford the trial court an opportunity to examine the decree of divorce to ascertain whether it included a property settlement. It will also provide the trial court an opportunity to fix and assess an appropriate fee for counsel for appellee for services rendered.

Reversed and remanded.

HODGE v. HODGE