Olson v. Olson ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CV-14-115
TINA OLSON Opinion Delivered December 18, 2014
APPELLANT
APPEAL FROM THE POPE COUNTY
V. CIRCUIT COURT
[NO. DR-12-380]
DON OLSON HONORABLE GORDON W.
APPELLEE “MACK” MCCAIN, JUDGE
REVERSED AND REMANDED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Tina Olson appeals a decree entered by the Pope County Circuit Court
granting her amended complaint for divorce on the ground of adultery against appellee Don
Olson. For reversal, Tina contends that the circuit court erred (1) by granting the divorce
on her amended complaint based on the testimony of Don and his witnesses when she was
not present at trial; (2) by dividing the parties’ debts and assets pursuant to the divorce or by
making an unequal division of marital property; and (3) by dismissing her claim for alimony
or by failing to award alimony. We accepted certification of the appeal from the Arkansas
Court of Appeals as raising an issue of first impression; therefore, our jurisdiction is pursuant
to Arkansas Supreme Court Rule 1-2(b)(1). We reverse and remand on the first point raised
on appeal.
Tina initiated this action by filing a complaint for divorce on grounds of general
indignities in the Pope County Circuit Court on July 11, 2012. In the complaint, Tina
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alleged that the parties had married in February 1987, that they had an adult child but no
minor children, and that they had separated on the date that she filed the complaint. She also
stated that the parties owned both real and personal property that would be subject to division
by the court, and she requested alimony. Tina filed an amended complaint on August 21,
2012, in which she asserted that the parties had entered into a covenant of marriage following
the passage of the Covenant of Marriage Act of 2001. In this complaint, she alleged that she
was entitled to a divorce on the ground of adultery.
After a hearing, the circuit court entered a temporary order on August 30, 2012,
granting Tina temporary possession of the marital home, which the parties had listed for sale,
and ordering Don to pay all of the parties’ bills, in addition to spousal support of $250 per
month. On December 11, 2012, the circuit court amended the temporary order by placing
Don in possession of the marital home, as Tina had left the state, and by increasing Tina’s
spousal support to $400 per month. This order also incorporated a three-page list of personal
property that the parties had divided by agreement. On January 14, 2013, Tina filed a motion
for contempt alleging that Don was delinquent in his payment of spousal support. On
February 5, 2013, Don filed a counterclaim for divorce based on the ground of general
indignities. The counterclaim did not mention that the parties had entered into a covenant
of marriage.
On July 15, 2013, the circuit court notified the parties by letter that the final divorce
hearing would be held on October 2, 2013. On that date, Tina failed to appear for trial. At
the outset of the hearing, the circuit court inquired as to whether Don wished to proceed on
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his counterclaim for divorce. Don’s counsel replied that it would be necessary to amend the
counterclaim to allege that the parties had entered into a covenant of marriage and to allege
“specific grounds.”
In his testimony, Don introduced into evidence an exhibit listing the parties’ debts, and
he asked that any funds Tina received as a result of a medical-device lawsuit be applied toward
the payment of their debts. He also stated that the parties’ home had sold at a profit of
$57,180 and that he had given Tina $30,000 of the proceeds from the sale. Don also testified
that the list of property incorporated into the amended temporary order was intended to settle
the division of their personal property. He said that, when Tina moved from the marital
home, she had left some of her personal property contained on the list. Don stated that he
had placed Tina’s property in a storage unit, along with his items of property that did not fit
in his new residence, at a cost of $45 per month. He further testified that Tina had taken four
clocks and a pocket watch that he had inherited and that was designated as his property in
their agreement. He testified as to other items of property that Tina had retained contrary to
the parties’ settlement agreement, including a blender, a television, a DVD player, an
autographed picture of John Daly, and books.
With regard to his retirement accounts, Don stated that he and Tina had been married
for twenty-six years and that he had been working for Entergy “much longer than that.” He
said that he planned to retire the following January, and he expressed the opinion that Tina
was entitled to forty percent of his pension, which would amount to approximately $2,000
per month. Don testified that he was not willing to part with any of the funds held in his
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401k account.1
In addition, Don acknowledged that he and Tina had entered into a covenant of
marriage. He stated that they had sought professional counseling just prior to their separation
in a sincere effort to resolve their marital difficulties. Don also testified that he had committed
adultery. At this juncture in the testimony, the circuit court interjected to ask whether Don
was going forward with his counterclaim for divorce on general indignities or whether he was
admitting Tina’s grounds for divorce. Don’s counsel responded that he was moving forward
on Don’s counterclaim, saying, “I don’t think I could prosecute hers necessarily.” Counsel
added that he was moving orally to amend Don’s counterclaim to reflect the ground of
adultery “because of the covenant of marriage.” The circuit court granted Don’s motion to
amend his counterclaim to reflect the covenant of marriage and the ground of adultery.
Whereupon, Carrie Clayton testified as to that ground.2 Clayton stated that she had engaged
in “a sexual relationship with Mr. Olson subsequent to him being married to Mrs. Olson.”
In oral rulings from the bench, the circuit court dismissed Tina’s pending motion for
contempt and her request for alimony based on her “failure to prosecute” and because she had
not requested a continuance. The court granted Don’s orally amended counterclaim for
divorce on the ground of adultery. The circuit court ordered Tina to return the clocks and
1
At the temporary hearing, Don testified that he deposits $482.60 per month into
the 401k account.
2
Clayton had previously testified that she had known the parties for over thirty
years and that the parties had resided in Pope County in Arkansas for over sixty days prior
to the filing of the complaint for divorce.
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the pocket watch that Don had inherited and pursuant to their agreement. Alternatively, if
Tina failed to return this property, the court found that the property was worth $2,000, and
the court granted judgment in that amount. As for the items of Tina’s personal property that
Don had placed in storage, the court found that Tina had abandoned this property and that
the value of the property and the storage costs were offset by the items kept by Tina that
belonged to Don according to their settlement agreement. The circuit court directed that any
proceeds Tina received from the lawsuit were to be applied to the parties’ debts and that any
remaining debt was to be divided equally. The court awarded Tina forty percent of Don’s
pension and granted Don’s request to retain the entire 401k account.
On October 4, 2013, Don filed a motion pursuant to Rules 59 and 60 of the Arkansas
Rules of Civil Procedure to modify the circuit court’s oral decision in one respect. Instead
of granting him the divorce, he asked the court to award Tina the divorce based on her
amended complaint and her ground of adultery. In this motion, Don noted that he had
presented evidence both proving and corroborating Tina’s grounds for divorce, and he
presented as additional evidence the affidavit of Laurie Scallion. In this affidavit, Scallion
averred that “Don Olson has told me that within the last fifteen months, he has had a sexual
relationship with a girl named Carrie.” On October 10, 2013, the circuit court entered its
decree in which the court granted Don’s posttrial motion and awarded Tina a divorce on the
ground of adultery. With that one alteration, the decree incorporated the court’s oral rulings
made at the hearing. This timely appeal followed.
As her first point on appeal, Tina contends that the circuit court erred in granting her
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the divorce when she was not present at the hearing. She argues that she was the real party
in interest and that she was the only person who could pursue her claim. In this regard, she
asserts that neither Don, who is not a lawyer, nor Don’s attorney, because of a conflict of
interest, could prosecute her complaint for divorce. Tina asserts that the situation left the
circuit court with the options of either continuing the trial to another date, or dismissing her
complaint without prejudice pursuant to Rule 41 of the Arkansas Rules of Civil Procedure
and allowing Don to proceed with his counterclaim for divorce. With regard to the second
option, she points out that Don could not have obtained a divorce on his stated grounds
because general indignities is not a ground upon which a covenant of marriage may be
dissolved. She also maintains that Don’s admission that he committed adultery provides no
grounds upon which he could obtain a divorce and that such an admission cannot force a
divorce upon a spouse who chooses not to prosecute a claim for divorce. Further, she
contends that the evidence failed to establish the ground of adultery because the evidence did
not show that Don had committed adultery before she filed the complaint for divorce.
In response, Don contends that Tina’s arguments are not preserved for appeal because
she did not present them at the hearing or in a posttrial motion. He asserts that Tina’s
arguments do not call into question the circuit court’s subject-matter jurisdiction and that,
therefore, the issues she raises cannot be asserted for the first time on appeal. Don also argues
that Tina’s contentions are without merit because she fully participated in the proceedings
leading up to the final hearing, because she repeatedly asked for a divorce, and because she
testified as to his adultery at the temporary hearing. He maintains that Tina’s “manipulative
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defiance” of the circuit court’s order setting the hearing and her failure to attend the trial does
not diminish the fact that she requested a divorce. He also asserts that the circuit court was
presented with ample evidence establishing Tina’s claim of adultery.
As an initial matter, we address Don’s contention that Tina’s claim of error is not
preserved for appeal. It is well settled that this court will not consider arguments raised for
the first time on appeal. Millsap v. Williams, 2014 Ark. 469, ___ S.W.3d ___; Brown v. Lee,
2012 Ark. 417, 424 S.W.3d 817. Although this court reviews divorce cases de novo on the
record, as we stated in Jones v. Jones, 320 Ark. 449, 453, 898 S.W.2d 23, 25 (1995), “De novo
review does not mean that this court can entertain new issues on appeal when the opportunity
presented itself for them to be raised below, and that opportunity was not seized.” Unless a
party has no opportunity to object to a ruling of the circuit court, an objection must be made
at the time of the ruling, and the objecting party must make known to the court the action
desired and the grounds of the objection. In re Guardianship of S.H., 2012 Ark. 245, 409
S.W.3d 307; Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989). Thus, in order for this
procedural bar to apply, a party must have had the opportunity to voice an objection to the
challenged ruling. In this instance, Tina was not present at the hearing. Therefore, she did
not have an opportunity to object. As a result, her failure to raise this question of law at trial
is no impediment to her ability to contest the circuit court’s decision to grant her complaint
for divorce that she did not prosecute. Nor does her failure to file a posttrial motion
contesting the court’s action preclude our review. Where a party has no notice or an
opportunity to object to a circuit court’s ruling, a posttrial motion is not necessary to preserve
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the point for appellate review. Ark. Dep’t of Human Servs. v. Briley, 366 Ark. 496, 237 S.W.3d
7 (2006). We also note that the circuit court granted Don’s posttrial motion by entering the
decree within ten days of Don’s filing of the motion. Thus, Tina was not afforded the benefit
of having ten days to respond to Don’s posttrial motion. See Ark. R. Civ. P. 59(d) (where
a new-trial motion is supported by affidavits, the opposing party has ten days to respond).
Because Tina had no opportunity to question the circuit court’s actions, we conclude that
Tina may raise this issue on appeal.
We begin with the observation that divorce is a creature of statute and can only be
granted when statutory grounds have been proved and corroborated. Coker v. Coker, 2012
Ark. 383, 423 S.W.3d 599. This court has held that divorces are not granted upon the
uncorroborated testimony of the parties and the adverse party’s admission of the truth of the
matters alleged as grounds for divorce. Settles v. Settles, 210 Ark. 242. 195 S.W.2d 59 (1946).
The parties in this case executed a declaration of intent to designate their marriage as a
covenant of marriage, which is a form of marriage that is governed by Arkansas Code
Annotated sections 11-9-801 to -811 (Repl. 2009). Ark. Code Ann. § 11-9-807. Under
these provisions, a covenant of marriage is entered into by couples “who understand and agree
that the marriage between them is a lifelong relationship” that is to be severed “only when
there has been a complete and total breach of the marital covenant commitment.” Ark. Code
Ann. § 9-11-803(a)(1) & (2). Parties who have entered into a covenant of marriage, after
participating in authorized counseling, may either obtain a judgment of divorce or a judgment
of judicial separation, but only on specified grounds that differ between the two actions. See
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Ark. Code Ann. § 9-11-808(a) & (b). For our purposes here, a spouse to a covenant of
marriage may obtain a divorce where “[t]he other spouse has committed adultery.” Ark. Code
Ann. § 11-9-808(a)(1) (emphasis supplied). However, general indignities constitutes grounds
only for obtaining a judicial separation. Ark. Code Ann. § 11-9-808(b)(5)(C).
In the case at bar, the circuit court granted Tina a divorce, although she did not attend
the trial to prosecute her claim, based solely on testimony offered by Don to prove and to
corroborate Tina’s ground of adultery. In effect, Don procured a divorce based on Tina’s
amended complaint when he did not have grounds upon which he could have obtained a
divorce, either in his original counterclaim in which he sought a divorce on general
indignities or in his orally amended counterclaim alleging the ground of his own adultery. We
have no hesitation in concluding that the circuit court erred by granting Tina a divorce under
these circumstances.
Rule 41 has some bearing on our analysis in light of Tina’s failure to appear at trial.
This rule provides in pertinent part,
(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of Rule 23(e) and Rule 66, an action may be
dismissed without prejudice to a future action by the plaintiff before the final
submission of the case to the jury, or to the court where the trial is by the
court. Although such a dismissal is a matter of right, it is effective only upon
entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the
merits when filed by a plaintiff who has once dismissed in any court of the
United States or of any state an action based upon or including the same claim,
unless all parties agree by written stipulation that such dismissal is without
prejudice.
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(3) In any case where a set-off or counterclaim has been previously presented,
the defendant shall have the right of proceeding on his claim although the
plaintiff may have dismissed his action.
(b) Involuntary Dismissal. In any case in which there has been a failure of the
plaintiff to comply with these rules or any order of court or in which there has
been no action shown on the record for the past 12 months, the court shall
cause notice to be mailed to the attorneys of record, and to any party not
represented by an attorney, that the case will be dismissed for want of
prosecution unless on a stated day application is made, upon a showing of good
cause, to continue the case on the court’s docket. A dismissal under this
subdivision is without prejudice to a future action by the plaintiff unless the
action has been previously dismissed, whether voluntarily or involuntarily, in
which event such dismissal operates as an adjudication on the merits.
We have held that a plaintiff has an absolute right to take a voluntary nonsuit under Rule
41(a) before the final submission of the case for trial. Bevans v. Deutsche Bank Nat’l Trust Co.,
373 Ark. 105, 281 S.W.3d 740 (2008). More to the point, we have applied the involuntary-
dismissal provisions of Rule 41(b) when a party fails to appear at a hearing. Gore v. Heartland
Cmty. Bank, 356 Ark. 665, 158 S.W.3d 123 (2004). We have also observed that a dismissal
for the failure to prosecute should ordinarily be without prejudice. Wolford v. St. Paul Fire &
Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998) (citing Prof’s Adjustment Bureau v.
Strong, 275 Ark. 249, 629 S.W.2d 284 (1982)).
Pursuant to Rule 41(b), the circuit court had the authority to dismiss Tina’s amended
complaint for failure to prosecute when she did not attend the hearing. Also, the court may
have exercised its discretion to continue the case to another date. See McNutt v. Yates, 2013
Ark. 427, 430 S.W.3d 91 (observing that continuances lie within the sound discretion of the
circuit court). However, we know of no authority that would permit the circuit court to
allow Don to proceed with Tina’s amended complaint, which she declined to prosecute.
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The present situation calls to mind our decision in Haller v. Haller, 234 Ark. 984, 356
S.W.2d 9 (1962). There, the wife sued for divorce, and the husband filed a counterclaim for
divorce. After hearing the testimony, the chancery court denied the wife’s claim for divorce,
but the court awarded the divorce to the husband, even though he withdrew his counterclaim
prior to the final submission of the case. On appeal, the husband argued that the chancery
court erred by granting him a divorce. Applying the provision of our former civil code that
corresponds to Rule 41(a),3 we reversed and said,
It must be remembered that the policy of the law is to maintain the marriage
relationship, rather than to dissolve it. In 27A C.J.S. ‘Divorce’ § 8, page 27,
holdings from the various jurisdictions are cited to sustain this text:
It is generally recognized that the state or the public has an
interest in the marital status, its continuance, and dissolution, but
an unwilling party, although legally entitled to a divorce, cannot
be compelled to procure a divorce, or to consent to a divorce,
either ecclesiastical or civil, and it is always optional with a party
who is legally entitled to a divorce whether to exercise the right.
Thus, the guilty party in a divorce action has no personal right
to insist that a divorce be granted against the wishes of the
innocent spouse.
Haller, 234 Ark. at 988, 356 S.W.2d at 11-12. We believe that the same reasoning applies
here, especially when we consider the unusual circumstance that Don supplied the proof upon
which the court granted the divorce to Tina. For whatever reason, Tina did not appear for
trial to prosecute her amended complaint for divorce. Don, as the opposing party in the
divorce action, could not pursue Tina’s claim. Consequently, we hold that the circuit court
3
We interpret Rule 41 in the same manner that we construed the former statute.
Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995); Lemon v. Laws, 305 Ark. 143,
806 S.W.2d 1 (1991).
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clearly erred by awarding Tina a divorce. In so holding, we also reverse the circuit court’s
division of the marital property and debts. When a circuit court errs by granting a decree of
divorce, the court’s division of property cannot stand. See Shelton v. Shelton, 102 Ark. 54, 59,
143 S.W. 110, 112 (1912) (holding that “if appellant is not entitled to a divorce, she is not
entitled to a division of the property at all”).
The only remaining argument for discussion is Tina’s contention that the circuit court
erred by dismissing her claim for alimony to the extent that the dismissal was with prejudice
or functioned as a ruling on the merits. As we said earlier, a circuit court is authorized to
dismiss a claim upon a party’s failure to prosecute pursuant to Rule 41(b). Gore, supra. Such
dismissals are ordinarily without prejudice, Wolford, supra. In the decree, the circuit court did
not expressly dismiss the claim with prejudice. Therefore, we construe the court’s decree as
dismissing the claim for alimony without prejudice. We find no error on this point.
Reversed and remanded.
Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.
Dunham & Faught, P.A., by: James Dunham, for appellee.
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