Brooks v. Brooks

Appellee brought this action against appellant to secure a decree of divorce from her on the ground that they had lived separate and apart, without cohabitation, for a period of more than three consecutive years prior to the filing thereof, under the authority of subdivision seven of 2 of act No. 20 of the Acts of 1939, p. 38. In her answer appellant did not deny that they had lived apart without cohabitation for three years, but denied that she voluntarily left appellee, and that their separation was involuntary on her part and was under his coercion.

The evidence is without dispute that the parties hereto have lived separate and apart and without cohabitation for a period of more than three consecutive years, and, under the authority of Jones v. Jones,199 Ark. 1000, 137 S.W.2d 238, the court granted appellee an absolute divorce from appellant, awarded her $100 monthly, as alimony, and other property rights, and decreed both parties to be the owners of a certain farm in Pulaski county as an estate by the entirety, but gave appellee the exclusive right to control and operate the farm, pay the costs of operation and repairs, and retain the income therefrom.

This appeal challenges the decree of the court on two grounds: 1, that the court erred in granting the divorce under the cited statute; and 2, that it erred in awarding the farm and the income therefrom to appellee.

1. The seventh subdivision of 2 of act 20 of 1939 provides: "Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony."

In Jones v. Jones, supra, this court reviewed the history of this legislation, 4381, Pope's Digest, and as same was amended by said act 20, next above quoted, and there said: "In view of the history of this legislation above recited, there remains no doubt as to the purpose of act No. 20, and we can only say that it was not beyond the power of the legislature to enact it. We must, therefore, enforce it in cases where its provisions are applicable. The act requires that the husband and wife shall have lived separate and apart for three consecutive years without cohabitation, in which event an absolute decree of divorce shall be granted at the suit of either party, whether such separation was the voluntary act, or by the mutual consent of the parties, and the question as to who was the injured party may be considered only in the settlement of the property rights and the question of alimony."

We think the Jones case is conclusive of this and that appellant's argument concerning the phrase in said statute, "whether such separation was the voluntary act or by mutual consent of the parties," is without convincing force. The argument is that the proper interpretation of said statute rests upon that phrase, and that it can have no application to one who has been caused to separate involuntarily, by coercion or force. We think that phrase was inserted in said statute to meet the decision of this court in White v. White,196 Ark. 29, 116 S.W.2d 616, and to express the legislative intent that a decree of divorce is made mandatory on the court at the suit of either party, where the conditions of the statute have been met, no matter what caused the separation. This view is made certain by the concluding clause in the statute which says: ". . . and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony." To give effect to the argument of appellant would be to take into consideration the question as to who the injured party is for the purpose of denying a divorce to the offender, in the very teeth of the statute to the contrary. See Clarke v. Clarke, ante p. 10, 143 S.W.2d 540.

The court, therefore, correctly granted a divorce decree to appellee, and this part of the decree is affirmed.

2. As to the contention relative to the farm, the court correctly held them to be the joint owners thereof as an estate by the entirety. The decree did not take away from appellant her interest therein. It did give appellee the right to control and operate same and all the income therefrom, and awarded her $100 per month. We think the court was correct in leaving him in control of the operations thereof as she testified she knew nothing about the management of a farm. We think, however, the decree should be modified by requiring him to consult with her in the matter of making substantial improvements thereon and that she should be awarded one-half the net income therefrom, in addition to the payment by appellee of the $100 per month as alimony. The parties were married in 1911. They separated in 1936. Three children were born to them, all now being of age. The proof shows he has an income from his profession as a physician of about $6,000 per year. The wife of his youth is no longer young, being 47 years old, is in poor health and has no income of her own. Her inheritance from her father went into the farm, and we think she is entitled to one-half the income therefrom in addition to the monthly allowance made by the court.

Appellant claims an additional fee for her attorney. The record shows the trial court made an allowance of $200 against appellee for this purpose, which has been paid. Under the circumstances of this case, we think appellee should not be required to pay any additional sum, and this request is denied.

The decree will be reversed as to the allowance to appellant of a one-half interest in the income from the farm, but in all other respects is affirmed. Costs will be judged against appellee.