Freeman v. Freeman

2013 Ark. App. 693, 430 S.W.3d 824, 2013 WL 6095476, 2013 Ark. App. LEXIS 715
CourtCourt of Appeals of Arkansas
DecidedNovember 20, 2013
DocketNo. CV-12-1039
StatusPublished
Cited by4 cases

This text of 2013 Ark. App. 693 (Freeman v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Freeman v. Freeman, 2013 Ark. App. 693, 430 S.W.3d 824, 2013 WL 6095476, 2013 Ark. App. LEXIS 715 (Ark. Ct. App. 2013).

Opinion

DAVID M. GLOVER, Judge.

|! Phillip Freeman appeals from a divorce decree entered by the Clark County Circuit Court. We affirm.

I. Jurisdiction

Phillip argues that the circuit court lacked jurisdiction to enter the divorce decree because appellee, Mary Freeman, did not prove residency in Arkansas for the sixty days preceding the filing of her divorce complaint. He contends that her presence in Arkansas dated only from September 10, 2010, fifty-one days before the complaint was filed on November 1, 2010.

The plaintiff in a divorce case must prove Arkansas residence by either the plaintiff or the defendant for sixty days next before the commencement of the action, and for three full months before the final judgment granting the decree of divorce. Ark.Code Ann. § 9-12-307(a)(l)(A) (Repl.2009). Without proof of Arkansas residency, a circuit court has no [¿jurisdiction to enter a divorce decree. See Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886. Residence, as used in section 9 — 12—307(a)(1)(A), means

actual presence, and upon proof of that the party alleging and offering the proof shall be considered domiciled in the state, and this is declared to be the legislative intent and public policy of the State of Arkansas.

Ark.Code Ann. § 9-12-307(b) (Repl.2009). Phillip maintains that Mary did not prove an “actual presence” in Arkansas for the “sixty days next before the commencement of the action.”

Despite the fact that our supreme court once indicated that subsection (b) designates actual presence as the sole basis for jurisdiction, Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958), the court subsequently clarified that domicile “is still and always has been sufficient” to confer jurisdiction. Weaver v. Weaver, 231 Ark. 341, 344, 329 S.W.2d 422, 424 (1959). The proper inquiry, therefore, is whether Mary was domiciled in Arkansas during the relevant period. We conclude that she was.

Domicile focuses on a party’s subjective intent to remain more or less permanently in a particular state. See Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958). It is a person’s true, fixed, and permanent home, the place to which, when absent, he intends to return and from which he has no present purpose to depart. David Newbern, John J. Watkins, & D.P. Marshall, Jr., Ark Civ. Prac. & Proc. § 6:3, at 128 (5th ed.2010). Once established, domicile continues until it is superseded by a new domicile. Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951). To effect a change of domicile, there must be actual abandonment of the first domicile, coupled with the intention not to return to it, and there must be a new domicile acquired in |3another jurisdiction with the intention of making it a permanent home. Id., 242 S.W.2d 128. A party’s intention to abandon his domicile and take up another must be ascertained from all the facts and circumstances in a particular case. Id., 242 S.W.2d 128.

The evidence in this case reveals that Mary and Phillip were married in Arkansas in 1986 and owned a home on Shiloh Road in Arkadelphia, where they lived from 1995 through mid-2007. They also owned acreage in Caddo Valley and a separate house on Shiloh Road, where Phillip’s mother lived. In July 2007, they began working and living in Tennessee. They maintained ownership of their Arkansas realty and did not rent their home to third parties or disconnect the utilities. Mary continued to receive mail in Arkansas, and she maintained her driver’s license and voter registration here. She described the move to Tennessee as temporary and said she had no intention of remaining there.

In 2009, Mary continued to work in Tennessee while Phillip took a job in Arkansas. She lived at an extended-stay hotel during the work week and returned to the Shiloh Road home in Arkadelphia each weekend, or every other weekend. She looked for employment in Arkansas but found none.

Phillip eventually returned to Tennessee for work, and he and Mary bought a house there in June 2010. Mary testified that she had been looking for an apartment as an alternative to the extended-stay hotel, and the house was an attractive deal financially. She stated that she and Phillip considered the house an investment, which they could rent or sell when they returned to Arkansas.

On or about September 10, 2010, Phillip and Mary traveled from Tennessee to |4Arkansas to attend a football game. They stayed with Phillip’s mother in Arka-delphia. During an argument, Phillip attacked Mary and injured her shoulder. Thereafter, Mary remained in Arkansas, and Phillip returned to Tennessee. Mary made one trip to Tennessee to pick up a car, only to find that Phillip had purportedly sold or transferred their vehicles.

On these facts, we cannot say that Mary abandoned her long-standing Arkansas domicile to establish a new domicile in Tennessee. She kept her Arkansas home, returned to it frequently, and testified unequivocally that she did not intend to stay in Tennessee permanently. She therefore remained an Arkansas resident through the relevant time period for purposes of circuit-court jurisdiction.

Phillip also argues that the proof corroborating Mary’s Arkansas residency was insufficient. Corroborating evidence was offered by Kayla Freeman, who testified that she was the couple’s adult daughter and lived in Arkadelphia. Kayla stated that she was aware of the date on which her mother filed for divorce and that, to her personal knowledge, her mother had been a resident of Clark County, Arkansas, for the required period.

Corroboration of residency is a jurisdictional requirement. Ark.Code Ann. § 9 — 12—306(c)(1) (Repl.2009); Evtimov v. Milanova, 2009 Ark. App. 208, 300 S.W.3d 110. The purpose of corroboration is to prevent collusion in procuring a divorce. Hodges v. Hodges, 27 Ark.App. 250, 770 S.W.2d 164 (1989). Corroborating evidence should not be speculative and vague in scope. Araneda v. Araneda, 48 Ark.App. 286, 894 S.W.2d 146 (1995). But, when it is plain that there is no collusion, the corroboration need only be slight. Hodges, 27 Ark.App. 250, 770 S.W.2d 164.

|sThe corroboration here is slight, but sufficient. The parties’ daughter lives in Arkadelphia and testified to personal knowledge of her mother’s Arkansas residence. Because only slight corroboration was needed — it being plain there was no collusion — the proof was adequate.

II. Division Of Tenancy By The Entirety

The court dissolved the parties’ tenancy by the entirety in their home on Shiloh Road and awarded the property to Mary.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 Ark. App. 693, 430 S.W.3d 824, 2013 WL 6095476, 2013 Ark. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-freeman-arkctapp-2013.