Strang v. Strang

523 S.W.2d 887, 258 Ark. 139, 1975 Ark. LEXIS 1605

• Court: Supreme Court of Arkansas
• Decided: May 19, 1975
• Docket: 75-14
• Status: Published

Opinions

J. Fred Jones, Justice.

Billy J. Strang and Mary Alice Strang were husband and wife until that relationship was dissolved by action of the Sebastian County Chancery Court in a divorce decree awarded to Mrs. Strang on December 31, 1970. Three children were born as a result of the marriage and their custody was awarded to Mrs. Strang with the usual right of visitation by Mr. Strang. The 1970 decree then provided as follows:

“(6) The Estate by the entirety in all real estate owned by the parties is hereby dissolved and vest[ed] in said parties as tenants in common wheresoever located.

(7) Plaintiff is entitled to all right granted to the wife under Ark. Stat. 34-1214 except such interest in real estate provided for in paragraph (6) above.”

On January 11, 1972, Mrs. Strang filed a motion to modify the decree and in her motion she stated as follows:

“ [P]laintiff states that she was awarded all of the rights granted to the wife under Ark. Stat. 34-1214. In accordance with said Arkansas Statute, the wife after having been granted a Divorce against the husband was entitled by law to one-third of the defendant’s personal property absolutely, and one-third of all of the lands that defendant was seized of an estate of inheritance at any time during the marriage for this plaintiff’s life. That this defendant was the owner in fee to 60 acres of real estate in Section 6, Township 12, Range 27 in Sequoyah County, Oklahoma and fee owner in and to 60 acres of real estate in Section 7, Township 12, Range 27 in the County of Sequoyah, Oklahoma, on the date this plaintiff was awarded a Decree of Divorce from this defendant. That the Decree filed of record in this cause should be modified to show that this plaintiff is the record owner of an undivided one-third interest in and to the 120 acres of real estate owned by the husband and the specific property description should be set forth in detail. Further, this defendant should be ordered and directed to convey by quitclaim deed to the plaintiff a one-third undivided interest in and to said real estate.”

The original decree dated December 31, 1970, was rendered by a different chancellor than the one who finally entered the order from whence comes this appeal. After considerable correspondence between the attorneys and the chancellor, the chancellor on September 30, 1974, entered a final 11 page order, the pertinent parts of which appear as follows:

“(4) Plaintiff, will have the use, and possession of the homeplace, and with Defendant paying the existing monthly home mortgage payments, and up to $50.00 per month on the monthly utilities thereon. Plaintiff shall be responsible for the routine and ordinary upkeep and minor repairs on the homeplace. As the parties own said homeplace as tenants in common, the parties shall share equally in the cost of any major alterations or major repairs. However, no expense for major alterations, major repairs, or damages shall be incurred by the Plaintiff without having first conferred with the Defendant and obtaining his agreement if Plaintiff expects Defendant to share in the cost thereof, concerning the work required to be done; and each of the parties having opportunity to arrange for the completion of the major alterations and major repairs in a satisfactory manner at the lowest cost available. The Court expressly finds that the cost of re-painting the homeplace would be considered a major cost of upkeep and that the parties should equally share in the cost thereof. The Plaintiff shall have the right to make any and all repairs at her own expense to improve the property and without notice to this Defendant.

(5) Further, the Court finds that Plaintiff is entitled to a one-half undivided interest as a tenant in common in the following described realty in which previous ownership by tenants by the entirety has hereinbefore been dissolved: * * * [Lengthy description of the property]. [I]n Sequoyah County, State of Oklahoma, consisting of approximately 318 acres, together with all oil, gas, coal and all minerals in, under and upon said lands, said Warranty Deed being found in Deed Book 291, at Page 105, office of the County Clerk, Sequoyah County, Oklahoma.

Lot 34, Southbrook Addition to the City of Fort Smith, Arkansas situated in Fort Smith District of Sebastian County, Arkansas, said Warranty Deed being found in Deed Book 183, at Page 129, office of the Circuit Clerk, Fort Smith, Arkansas.

(6) Further, the Court finds that the Defendant is ordered and directed to convey to this Plaintiff a one-third interest for life in the following described realty located in the State of Oklahoma acquired by the parties during their marriage with title in Defendant’s name only, and ownea by Defendant on the 24th day of November, 1970:

The Southwest Quarter of the Northeast Quarter (SW Va NE Va ) and the West Half of the Southeast Quarter of the Northeast Quarter (W'A, SE!4, NE!4), Section 6, Township 12 North, Range 27 East, and the Northwest Quarter of the Northeast Quarter (NW!4, NE Va ) and North Half of the Southwest Quarter of the Northeast Quarter (SW /a , NE!4) of Section 7, Township 12 North, Range 27 East, situated in Sequoyah County, Oklahoma, said Warranty Deeds being found in Deed Book 293, at Page 522 and Deed Book 305, Page 451, in the office of the County Clerk, Sequoyah County, Oklahoma.

The Court finds that the Defendant be and is hereby ordered to convey said interest to Plaintiff within 15 days after the entry of this Order herein so that her interest therein might be of record. The Court further finds that upon demand by Plaintiff, Plaintiff is entitled to receive the value of this one-third life interest in said described Oklahoma property computed in accordance with the statutory tables set out in Arkansas Statute Annotated Section 50-705. The Court retains jurisdiction over this cause for the purpose of determining the fair market value for said acreage should an Agreement not be reached by the parties herein.

(7) The Court finds that the Defendant be and is hereby directed and ordered to pay to the Plaintiff the sum of $1,156.66 which is Plaintiff’s one-third interest in the accepted or agreed sale value of the personal property owned by this Defendant on November 24, 1970, amounting to $3,470.00. The Court finds that in order to do equity in this cause, Plaintiff’s interest in Defendant’s personal properties should be determined as of the time suit was filed in this cause. The Defendant did execute certain security agreements on the 16th day of November, 1970 which were filed of record on the 2nd day of December, 1970, but it is noted that Defendant satisfied said liens on March 2, 1971. That such action on the part of Defendant was during the pendency of this suit for divorce and designed to defeat or diminish Plaintiff’s property interest. The Court, therefore, finds that Plaintiff’s interest should not be reduced by the amounts of said security agreements for to do so under the circumstances of this case would be inequitable. The Defendant is directed and ordered to pay said sum of $1,156.66 to the Plaintiff within thirty days subsequent to the entry of this Order.

Further, the Court finds that the Plaintiff is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral, calf feeder, miscellaneous tools, chest/chain saw, electric stove, and quail incubator. These items shall be appraised forthwith and sold within twenty days after the entry of the precedent for Order in this cause unless either party in the interim desires to purchase the other party’s interest therein and does so. The Court further finds that the photographic equipment, bed springs and mattress, iron bed rail, piano, dehumidifier, books, portable heaters, and household goods and furnishings are to remain with the respective parties as having heretofore been distributed to each other as personal effects or as part of the household goods or furnishings awarded to the Plaintiff for her use and that of her minor children.”

The chancellor retained jurisdiction for such orders as might be necessary in the future and awarded an attorney’s fee in the amount of $100 and the cost of the action against the appellant-defendant.

On appeal to this court Mr. Strang assigns error under five points stated as follows:

“The chancellor erred in awarding the appellee the use and possession of the homeplace while requiring the appellant to pay the existing home mortgage payments in the amount of $77.65 per month and up to $50.00 per month for utilities, and one-half the cost of any major alterations and repairs in addition to requiring him to pay child support and alimony in the amount of $100.00 per week.

The chancellor erred in applying Arkansas law to determine the appellee’s interest in the appellant’s separate real property located in Oklahoma.

The chancellor erred in failing to apply the law to the facts when he found that the appellee’s interest in the appellant’s personal property should be determined as of the time suit was filed rather than on the date of the decree for divorce.

The chancellor erred in requiring the appellant to pay appellee’s attorney’s fees and court costs.

The chancellor erred in finding that the appellee is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove, and quail incubator, and further erred in ordering that said items be appraised and sold inasmuch as on the date of the decree of divorce the appellant’s liabilities exceeded his assets and the appellee should only be entitled to one-third of appellant’s equity interest.”

We are unable to say that the chancellor abused his discretion as contended by Mr. Strang under his first assignment. The chancellor’s finding that Mr. Strang had an annual income of approximately $20,000 is supported by the evidence. The ages of the three minor children are 10, 9 and 8 years. The chancellor reduced the estate by the entirety in the Fort Smith homeplace to a tenancy in common and awarded Mrs. Strang the possession. Mr. Strang was directed to continue the mortgage payments of $77.65 on balance owed on the homeplace and to pay $50 per month on the utility bills. He was ordered to pay $100 per week alimony and child support to be allocated equally between Mrs. Strang and the three minor children, which would amount to $25 per week for each of them. Mr. Strang was ordered to pay one-half of any major repairs necessary in the upkeep of the homeplace.

The mortgage payments and major repairs on the property would increase and protect Mr. Strang’s undivided one-half interest in the property as well as that of Mrs. Strang, and Mrs. Strang would actually receive only about $88.82 per month benefits under the decree in addition to the $100 per month in alimony. The overall money award, aside from possible major repairs on the property, would amount to approximately $6,731 per year, or approximately one-third of Mr. Strang’s annual net income. While we consider the amounts of these awards quite generous under the evidence in this case, we are unable to say that the chancellor’s findings and order in connection therewith are against the preponderance of the evidence, or that he abused his discretion in making them.

As to appellant’s second point, Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides in part as follows:

“In every final judgment for divorce . . . where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband .. . shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled.....”

This section then provides that when the court is satisfied that such real estate is not susceptible to division in kind without great prejudice to the parties interested, the court .shall order a sale of said real estate to be made by a commissioner to be appointed by the court for that purpose, at public auction to the highest bidder upon terms and conditions fixed by the court. The proceeds of such sale then to be paid into the registry of the court and divided between the parties. This section then provides that such judgment or decree shall be a bar for claim of dower in any of the lands or personalty of the husband.

In Beene v. Beene, 64 Ark. 518, 43 S.W. 968, we pointed out that the purpose of this statute was to put an end to controversies as to dower right in divorce actions and, as we interpret the chancellor’s order in the case at bar, he was simply attempting to determine and set aside to the wife the property she was legally entitled to as a matter of law and in lieu of her inchoate right of dower. The original decree simply recited that “she was entitled to all right granted to the wife under Ark. Stat. 34-1214.” The appellant has correctly quoted Lefiar, American Conflicts Law, § 234, (1968), but the appellant’s separate, real property involved in the case at bar, was acquired after marriage and § 235 of Lefiar states as follows:

“If new property is acquired after marriage by purchase or exchange for property previously owned by one or both of the spouses, every state agrees that the title, or at least the equitable title, in the new property is the same as that which existed in the predecessor property. Apart from that, if the newly-acquired property be immovable, there is no doubt that in the absence of a controlling prenuptial contract the whole law of the situs determines what marital interests exist in it.”

This statement from Leflar is not in conflict with § 174 having to do with the power of state courts to issue judgments or orders pertaining to lands in other states where, under the subtitle, “Actions Concerning Extrastate Land,” appears the following statement:

“As an incident to divorce proceedings also, an in personam order may be issued against the husband requiring him to convey extrastate land to his wife in lieu of dower. ”

This section begins with the statement:

“Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state. ...”

As we interpret the chancellor’s decree in the case at bar, that is exactly what the order attempted to do: directly affect title to land in another state. The right of dower has been abolished in Oklahoma¹ and the law of Oklahoma is quite different from § 34-1214, supra. 12 Okla. Stat. Ann. § 1278 provides as follows:

“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. As to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. In case of a finding by the court, that such divorce should be granted on account of the fault of aggression of the wife, the court may set apart to the husband and for the support of the children, issue of the marriage, such portion of the wife’s separate estate as may be proper.”

It thus appears that under Oklahoma law a wife has no inchoate right of dower in her husband’s property as is the situation in Arkansas and, therefore, the Oklahoma Legislature has not provided for disposition of such right in her husband’s lands in the event of divorce. On the contrary the Oklahoma Legislature in § 1278, supra, has vested a very comprehensive equitable power in courts concerning the husband’s real estate in connection with the award of alimony and child support. See Gardenshire v. Gardenshire, 2 Okla. 484, 37 P. 813 (1894); Haddad v. Haddad, 152 Okla. 264, 4 P. 2d 110. We conclude, therefore, that the chancellor erred in the case at bar in not applying the Oklahoma law in determining the property rights of the parties in this case.

As to the appellant’s third point, we are unable to say the chancellor erred. A wife does not acquire, by marriage, an inchoate right of dower in the personal property of her husband. Hewitt v. Cox, 55 Ark. 225, 15 S.W. 1026 (1891); Featherston v. Hartford Fire Ins. Co., 146 F. Supp. 535. Under ordinary circumstances where property subject to division in a divorce case is mortgaged, each takes subject to the mortgage. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337. However, in the case of Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742, we held that where a husband, in contemplation of his wife’s suit for divorce, fraudulently conveyed his land and departed from the state taking his personal property with him, the value of the property so taken should be considered in determining her share of his property, and the same declared to be a lien on the land so fraudulently conveyed. In Dowell v. Dowell, 207 Ark. 578, 182 S.W. 2d 344, we held that where testimony supported a finding that a chattel mortgage was executed in fraud and to defeat the wife’s marital rights, the wife was entitled to her interest in the personalty free from the mortgage. See also Austin v. Austin, 143 Ark. 222, 220 S.W. 46.

The parties stipulated that the value of the personal property involved in the appellant’s third point had been sold and its value amounted to $3,470. The evidence was to the effect that the appellant had from time to time borrowed money from his Federal Employees Credit Union and on November 16, 1970, he executed a security agreement to the credit union covering some of the property involved. We find it unnecessary to set out the testimony pertaining to the transaction in detail. The chancellor saw the parties as they testified in the case and we are unable to say his findings as to the fraudulent intent of the appellant were against the preponderance of the evidence.

We are inclined to agree with the appellant as to his fifth point contending that the chancellor erred in finding that the appellee was entitled to a one-third interest absolutely in a pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator and in ordering said items to be sold. The appellee was awarded the household furniture and other items for the use of herself and her children and we think it only equitable that the appellant be awarded his mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator. We find no error in the chancellor’s award of a one-third interest value in the pontoon boat to appellee, and we find no error in the chancellor’s award of attorney’s fee and court costs.

The decree is reversed as to the two 60 acre tracts of land individually owned by the appellant in Oklahoma. The appellee has no interest in this property. The decree is reversed as to the calf mineral feeder, miscellaneous tools, chest, chain saw, electric stove and quail incubator. These items are awarded to the appellant. One-third the value of these items is surely no more than two-thirds the value of furniture and other items awarded to the appellee.

In all other respects the decree is affirmed. The Appellee’s attorney is awarded a fee of $500 for his services in this court and the appellant is hereby ordered to pay said amount.

Affirmed in part, reversed in part.

Dissenting Opinion on Denial of Rehearing delivered June 23, 1975

1 See 84 Okla. Stat. Ann. § 214