Spencer v. Spencer

627 S.W.2d 550, 275 Ark. 112, 1982 Ark. LEXIS 1253

• Court: Supreme Court of Arkansas
• Decided: February 8, 1982
• Docket: 82-4
• Status: Published

Opinions

John I. Purtle, Justice.

Appellant filed suit for divorce and appellee counterclaimed for a divorce. At the commencement of the trial the appellant amended her complaint to ask for separate maintenance. The trial court rejected appellee’s complaint for a divorce and granted appellant a decree of divorce from bed and board only. The property rights were divided in accordance with Ark. Stat. Ann. § 34-1214 (Supp. 1979).

Appellant appeals on the ground that the chancellor erred in granting her a divorce from bed and board and in making disposition of the property. We agree with the appellant that the chancellor was incorrect in awarding a decree from bed and board only. The appellee brought a cross-appeal and argued that he should have been granted a divorce. We disagree with appellee’s contention that he should have been granted a divorce on the evidence presented.

The facts in this case are relatively unimportant and not in dispute. Appellee clearly failed to prove his case for divorce, and the appellant obviously proved she had the right for divorce. The question before this court is whether the chancellor erred in awarding a greater degree of divorce than the appellant sought; also, whether or not property may be distributed under the statute when less than an absolute divorce is granted.

Ark. Stat. Ann. § 34-1202 (Supp. 1981) gives the chancery court power to dissolve and set aside a marriage contract not only from bed and board but from the bonds of matrimony. This portion of the statute has been in effect for many years. We held in the case of Womack v. Womack, 247 Ark. 1130, 449 S.W. 2d 399 (1970), that the statute gave chancery court the inherent authority under the broad powers of equity to grant a decree of separate maintenance. Although there is no statutory authority for such, we have continued to hold that it is within the power of the chancery court to grant a decree of separate maintenance. Prior to Act 705 of 1979, Ark. Stat. Ann. § 34-1214 provided: “In every final judgment for divorce from the bonds of matrimony...” the property rights were to be disposed of by the court. The present act as amended states: “At the time a divorce decree is entered...” the property shall be divided in accordance with the formula set forth therein. We have been unable to find any case holding that property rights are to be adjudicated upon the rendition of a decree of separate maintenance. We held in the recent case of Mooney v. Mooney, 265 Ark. 253, 578 S.W. 2d 195 (1979), that the property belonging to the parties could not be divided unless a divorce was granted.

In the present case the record clearly shows that appellant, with the consent of the court and knowledge of the appellee, amended her complaint to seek only separate maintenance. Therefore, we think this is the only type of decree which could have been entered in the present case. We are not unmindful of the fact that the appellant’s solicitor prepared and approved it as to form. However, it is customary for one of the parties’ solicitors to be requested to prepare the decree. This is not binding to the extent that it would prevent an appeal from that order even though it had been approved as to form by the appellant.

In view of the fact that the court did not have the authority to dispose of the property rights the case is remanded with directions to enter an appropriate order of a decree of separate maintenance.

Reversed and remanded.

Dudley, J., concurs.