Johnson v. Johnson

401 S.W.2d 213, 240 Ark. 657, 1966 Ark. LEXIS 1370
CourtSupreme Court of Arkansas
DecidedApril 11, 1966
Docket5-3845
StatusPublished
Cited by2 cases

This text of 401 S.W.2d 213 (Johnson v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Johnson, 401 S.W.2d 213, 240 Ark. 657, 1966 Ark. LEXIS 1370 (Ark. 1966).

Opinion

Oseo 'Cobb, Justice.

Appellant and appellee were married on October 21, 1950. Irreconcilable differences developed and on August 7, 1963, the parties executed a separation agreement providing that appellee should be given the home in which they were living along with the substantial mortgage against same; custody of their two young children; and a monthly allowance of $250 plus a portion of appellant’s special commissions as a salesman for Crane Supply Company. Appellant’s total earnings during the time of this controversy have approximated $8,000 per year.

Appellant failed to pay appellee certain portions of his special commissions and appellee brought action for specific performance of the conditions of the separation agreement, seeking an accounting and judgment for accumulated arrearage. Appellant filed a general denial of the allegations of the complaint and further alleged that the separation agreement was void because it had been obtained by coercion, duress and compulsion, and particularly by threats of an alienation of affection suit against a named female person.

After multiple contested proceedings, the chancellor, on May 12, 1965, entered a decree, the pertinent parts thereof providing:

(a) Appellee is entitled to a decree of separate maintenance.
(b) The separation agreement of August 7, 1963, is not void.
(c) The terms of said separation agreement were not incorporated into the decree.
(d) Appellee has an adequate remedy at law for payments alleged to be due under the separatioxi agreement and no equity jurisdiction is exercised with reference thereto.
,(e) Appellant directed to pay $250 per month plus a stated portion of his special commissions to appellee for maintenance and support of herself and the two children.
(f) Appellee’s attorney was allowed a $100 fee for services rendered.

The decree entered was acceptable to neither party and the case is now before us on appeal and cross-appeal.

Appellant, conceding his legal obligation to support appellee and the two young children, urges two points on his appeal:

1. That the court erred in finding that the separation agreement of August 7, 1963, was not void.
2. That the allowance to appellee for herself and children is excessive.
Appellee by cross-appeal urges a single point:
That the trial court should have entered judgment for arrearage due her under the provisions of the separation agreement.

Appellant’s Point 1—the validity of the separation agreement.

The record reflects that appellant was represented by an attorney of his own choice when the separation agreement of August 7, 1963, was negotiated and executed. Payments were made to appellee thereafter. Appellee testified that the contention that the agreement was obtained by coercion was not asserted in any way until after the filing of her action for specific performance of said agreement. Appellant and appellee both testified at length. Their testimony is in irreconcilable conflict. Appellee testified that appellant was flagrantly involved with another man’s wife, a Mrs. Murley. See Murley v. Murley, 240 Ark. 70, 398 S. W. 2d 68 (1966). "We noted in onr opinion in the Murley case, supra, that there was evidence of misconduct on the part of both parties.

Appellant testified that appellee had harassed him and his employer, threatening his job, and further to the effect that he was not guilty of any adulterous conduct. Appellant also testified as to alleged threats of appellee which he claimed endangered his life.

The chancellor, with many years of experience in dealing with such situations and controversies, held that the separation agreement had not been obtained by coercion and was valid. The evidence in this case does not preponderate against this conclusion. We therefore find no merit as to appellant’s Point 1. Fuller v. Fuller, 240 Ark. 475 (Mar. 14, 1966); Orrel v. E. C. Barton & Co., 240 Ark. 194, 398 S. W. 2d 685 (1966); Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S. W. 2d 625 (1962).

Appellant’s Point 2—the alleged excessiveness of the award to appellee.

Appellant urges that one of the reasons that the chancellor erred in- making the alleged excessive award to appellee was because of the adoption by the court of the provisions of paragraph 3 of the separation agreement as the yardstick for allowance to appellee, while setting forth that said agreement was not being incorporated into the decree. The real question is whether the allowance is reasonable, based upon all of the evidence. We quote from the decree of the court:

“The contract which was entered into by the parties on August 7, 1963, which was introduced into evidence (being the same as the contract attached as Exhibit ‘A’ to plaintiff’s complaint) is not void on account of compulsion, duress, or other coercive acts of Edith. Johnson, bnt the 'Court declines to incorporate the agreement into this decree and declines to grant specific performance of the agreement. Nevertheless, the Court holds that the terms of paragraph 3 of said agreement, relating to the amount of money to he paid by the defendant to the plaintiff, are fair and reasonable and it is ordered that defendant continue to pay the plaintiff for the support of herself and her two children the sum of $250 per month. From any additional quarterly commission checks which defendant receives subsequent to this date, he shall deduct the first $100 and pay to the plaintiff 50% of the remainder. ’ ’

We can understand why the trial court, having found that the separation agreement was valid, was inclined to accept the figures agreed upon by the parties as appropriate for the maintenance and support of appellee and the two children. The record before us indicates that the chancellor has attempted to tailor the relief given appellee in accordance with her needs and the capabilities of appellant to provide support. Indeed, between the date of the decree here on appeal and the filing of the appeal here, the trial court heard a motion of appellant for reduction in support payments and did, on July 20, 1965, in order to give appellant relief from pressing obligations, enter an order temporarily reducing said payments to $200 per month and temporarily denying appellee any portion of two quarters’ special commission checks, and providing that the terms as set forth in the decree of May 12,1965, should re-apply from and after October 1, 1965.

Appellant has not cited a single case authority to support his contention that the allowance to appellee is excessive. Some $70 of the money received by appellee each month goes for the payments upon the house. The balance of $180 per month, plus the participation in the special commissions earned by appellant, provides approximately $2,800 per year for the actual support of appellee and the two children. This can hardly be said to be excessive from the standpoint of need under the present cost of living.

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Bluebook (online)
401 S.W.2d 213, 240 Ark. 657, 1966 Ark. LEXIS 1370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-ark-1966.