Oates v. Oates

10 S.W.3d 861, 340 Ark. 431, 2000 Ark. LEXIS 77

• Court: Supreme Court of Arkansas
• Decided: February 24, 2000
• Docket: 99-108
• Status: Published

Opinions

TOM GLAZE, Justice.

This divorce case was filed by appellee Maria Teresa Oates against her husband, appellant Owen D. Oates. Maria alleged general indignities. Owen filed an answer, denying Maria’s allegations and countered, requesting that he be granted a divorce and that the parties’ liabilities and property rights be adjudicated.

At trial, Maria proceeded on her complaint and testified in support of her alleged grounds, stating that Owen no longer loved her and did not want to live with her, that she felt she had been abused mentally and emotionally, that there had been some unfaithfulness in the marriage, and that Owen had a drinking problem. Maria said the stress from all these matters made her ill. Maria further averred that she and Owen had separated on October 28, 1997, and had been apart continuously since then.

Owen’s counsel cross-examined Maria and asked her whether she was aware when they married that Owen’s job would require him to be transferred to other cities. She agreed, but said when they moved to New York, she became unhappy because she was from a small town. Maria also complained that Owen was gone from dark-to-dark. She admitted that Owen had had a drinking problem all of his life, and she had coped with it. Maria stated that she asked Owen if she could return to her home town. Later she left Owen in New York and returned to Texas where she taught and worked on her retirement. Maria would visit Owen in New York when she took her vacation. She conceded she was not interested in filing for divorce even after Owen left her in Perry, Arkansas; she begged him to stay. At this stage of Maria’s cross-examination, her counsel interrupted. The following colloquy occurred:

Mr. Branscum: I thought they had stipulated to the grounds. I don’t know that the relevance of this is — I thought the issue was the property.

Mr. JAMES: There is a question about alimony, or if you are waiving alimony, then we won’t get into that.

MR. BRANSCUM: I’ve asked for an equalization of the retirement that was acquired during the marriage in lieu of alimony.

MR. JAMES: You’re asking for one-half (V2) interest in the pension.

Mr. Branscum: Yeah.

MR. JAMES: Okay. That’s all?

Mr. Branscum: Yeah.

The COURT: Did you say “yes,” Mr. Branscum?

MR. Branscum: That is the prayer. I’ve asked for the equalization in the pension in lieu of alimony. I think that’s the way it’s pled.

The COURT: Did you understand that, Mr. James?

Mr. JAMES: Let me ask some questions.

Owen’s counsel then questioned Maria concerning her and Owen’s pensions and inquired about other property and insurance as well. After testifying, Maria called Tina Sawyer as her corroborating witness, who testified that Maria had been a resident of the state at least 90 days prior to filing this divorce action, and that Sawyer knew Maria and Owen had been separated since October of 1997. Maria then rested her case.

Owen took the stand and testified to the parties’ problems over the years and said that the longest period he and Maria lived together was four years. He stated that Maria appeared a little bit more stable when she was in Texas, but admitted their marriage never worked. Owen said, “I suppose she is aggrieved at me as we cannot have this thing happen without her finding fault. But I have no drinking problem.” The balance of Owen’s testimony bore largely on the parties’ properties and pensions in dispute. Owen’s testimony reflected he never agreed to Maria’s demand that she be awarded one-half of pension, or that the one-half amount be paid in lieu of alimony.

After both parties rested, the trial court entered a final decree, awarding Maria a divorce. The court awarded Maria 27.5% of Owen’s retirement and Owen 27.27% of Maria’s retirement and then ordered various properties it found marital to be divided or sold and the proceeds divided equally. The chancellor also found Maria to be the sole owner of inheritance property located in Texas, and divided other personal property equally.¹ The chancellor also ordered Owen to continue Maria on his health insurance.

Owen appealed from the chancellor’s decree, raising six issues for reversal. The first issue questions whether the chancellor erred in granting Maria a divorce. In this first point, Owen argues Maria failed to corroborate her grounds for divorce. We agree. Thus, we must reverse and dismiss this case without prejudice. In so holding, the remaining issues bearing on the property awards and other matters argued will not be addressed.

The premise of Owen’s argument is that this is a contested divorce, and at no time did Maria provide an expressed waiver of the requirement of corroboration to her alleged grounds as she could have done under Ark. Code Ann. § 9-12-306(b) (Repl. 1998) (in contested suits, corroboration of the injured party’s grounds may be expressly waived in writing by the other spouse). Our courts have held that divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). Here, Maria concedes the record reflects no writing whereby she waived corroboration of grounds. However, she submits that some sort of “understanding” had been presented to the court in a pretrial in-chambers session, but then admits that nothing in the record actually reflects a written waiver or “understanding.”

Maria argues that, while the record reveals no written waiver by Owen, she claims that such a waiver was evident from the exchanges between counsel at trial. Our review reveals that colloquy made nothing clear. Owen’s counsel questioned Maria regarding her ground allegation that she previously mentioned on direct examination, at which point Maria’s counsel interrupted and asserted that he thought they had stipulated to divorce grounds and that only the parties’ property was in issue.² Owen’s counsel responded, indicating such was not the case if she was asserting a claim to alimony or to one-half of Owen’s pension. Maria’s counsel made it clear that Maria sought one-half of Owen’s pension in lieu of alimony. In short, a fair reading of Owen’s remarks reflects that he was contesting the divorce, so long as the alimony/pension issues remained unresolved.

Maria cites to Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987), to support her proposition that Owen’s counsel waived corroboration, but the situation in Rachel was vastly different. There, the defendant-husband’s counsel specifically informed the trial court that defendant, Mr. Rachel, had waived plaintiff’s, Mrs. Rachel’s, having to corroborate her grounds. Having been informed of Mr. Rachel’s waiver, the trial court properly entered Mr. Rachel’s waiver on record, so the waiver would be in writing and meet the statutory requirement under § 9-12-306(b). In the instant case, neither Maria’s counsel nor the chancellor showed or clarified whether a waiver or so-called stipulation had been reached.

Finally, Maria’s arguments suggest that Owen had some obligation to object to her having failed to prove corroboration at trial, and that, if he had done so, Maria would have offered additional testimony. Our law is long settled that in a non-jury trial, a party who does not challenge the sufficiency of evidence does not waive the right to do so on appeal. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); see also Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995); Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982); Ark. R. Civ. P. 50(e). As was the disposition in Harpole, we reverse and dismiss this case without prejudice.

Arnold, C.J., Brown and Thornton, JJ., dissent.

1 The chancellor also had each party retain the personal property in their possession.

2 Administrative Order Number 4 provides that, unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.