Gibson v. Gibson

Neill Bohlinger, Associate Justice.

The appellee herein filed his complaint in the Chicot Chancery Court in which he sought a divorce from the appellant, Sarah Gibson, on the grounds of general indignities and asked that the two adopted children of the parties be awarded to him and that the appellant take no part of his property. Subsequently appellee amended his complaint and alleged that the appellant had attempted to destroy and invade his personal dignity; was suspicious and jealous of his friends; persistently quarreled; fussed, abused and nagged him; exhibited manifest hatred; was devoid of concern for his business and prohibited the appellee from administering his business; required unreasonable explanations of his business and social activities; and had neglected personal supervision of his two children.

To this complaint appellant filed an answer denying the specific allegation of indignities; denying she was not a fit and proper person to have the custody of the children; denying that she had failed to maintain the home; asking that the complaint be dismissed; and asking for support for herself and children, costs and attorney’s fees and for permission to file a cross complaint if on examination it was found necessary; and asked for all equitable relief.

Thereafter the appellant filed her amended answer and cross complaint alleging that the appellee herein had treated her with contempt and neglect, had shown a propensity for preferring the company of other women that caused her mental and physical strain through no fault of her own and asked for separation of bed and board. She further alleged that any conduct complained of by appellee was brought on by appellee’s own action and that she was without means of support. In addition to asking for separation from bed and board, in the alternate she asked an absolute decree of divorce and for her property rights.

. Responding to a motion by the appellee, the appellant filed an amended and substituted counterclaim with interrogatories aqd in that pleading reaffirmed and readopted her former pleadings and made further allegations that the appellee’s course of conduct displayed an attitude of contempt and neglect; that he had privately and publicly abused and cursed her name and reputation; that he had continually associated with other women, indicating improper or immoral conduct; that the appellee had on numerous occasions appeared in public intoxicated; that he had committed one or more acts of adultery prior to the filing of his complaint and she alleged appellee was guilty of acts of adultery.

Further, that appellee had refused a reconciliation which she was willing to accept and that the counterclaim was made for the purpose of protecting her rights in appellee’s property and that if the court determined an absolute divorce shodld be granted, that such divorce be granted to her and asked for her statutory rights in appellee’s property and for such other relief as she might be entitled to and that her pleadings be deemed amended to conform to the proof.

After numerous delays and a lengthy trial, the court awarded to the appellee an absolute divorce and awarded temporary custody of the children to the appellant with right of visitation in the appellee and required the appellee to pay $500.00 per month temporary support. The chancellor, in his finding, took the view that the position of the appellant would have been better taken had her plea been for an absolute divorce and if the chancellor, in his discretion, finds absolute divorce not be granted then a limited divorce be granted; that the court could not grant an absolute decree when a limited divorce was prayed. The chancellor further found that appellee’s charge of fussing and nagging, use of profanity toward appellee and the use of profanity in the company of others, a closet incident, use of detectives to shadow him and charging appellee with adultery had been corroborated.

The chancellor found that the appellant’s allegation of the appellee removing himself from the marital bed, desire for party life to the exclusion of family life, requiring her to associate with obnoxious friends, contemptuous behavior toward her, fussing and nagging, cursing her, had not been sufficiently corroborated and had been explained away; that the appellant had failed to prove the charge of adultery and that the allegation and subsequent failure to prove this charge was the basis for a finding that the appellant’s charge constituted cruel treatment. He further found both parties had the same grounds for personal indignities, but that the appellant had failed to prove the charge of adultery. The court found her action in hiring detectives to shadow the appellee was a cause of the separation and that the decree therefore should be awarded to the appellee.

The chancellor, in his finding, took the position that the appellant could not be granted an absolute decree of divorce as her application was for a limited divorce. We do not so read the record. In her answer and cross complaint the appellant asked for separation of bed and board and in the alternative asked for an absolute decree and for her property rights. We think the case of Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633, is applicable here. In that case we said:

“We have held that the statement of facts in a complaint or cross complaint and not the prayer for relief constitutes the cause of action and that the court may grant whatever relief the facts pleaded and proved may warrant in the absence of surprise to the complaining party. ’ ’

In this case there was no surprise nor does the appellee plead surprise.

Not only did the prayer of the answer and cross complaint ask, among other things, an absolute decree but the facts as pleaded and proved would entitle the appellant to that relief. See also Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804. While the Crabtree case deals with the matter of judicial discretion when deciding whether the pleadings are adequate to award an absolute or limited divorce, we stated in that case:

“* * * This, however, does not mean a discretion to be exercised at the will of the chancellor; but it is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case. * * *“

“On the other hand, if his discretion is to be exercised according to the principles expressed in Conant v. Conant, supra, [70 Am. Dec. 717] and in accordance with the acts of the chancellor in Crews v. Crews, supra, [68 Ark. 158] it is manifestly an abuse of discretion for the chancellor to grant a divorce from bed and board where the complaining party is without fault and has established his or her grounds for divorce.” [Citations added]

We hold that the pleadings of the appellant are not so limited as to preclude the granting to her of an absolute decree.

In the matter of the personal indignities alleged by both parties, the chancellor made this finding:

“Summarizing, the plaintiff charged the defendant with personal indignities, and the defendant charged the plaintiff with personal indignities and adultery. The plaintiff sustained the grounds of personal indignities, the defendant sustained the grounds of personal indignities, but failed to prove the charge of adultery. The court following the rule of comparative rectitude finds that becase the defendant failed to prove the charge of adultery and her action in employing detectives to ‘ shadow’ the plaintiff- was the ultimate cause of the separation, that the divorce should be granted the plaintiff.”

There was no appeal by the appellee from the chancellor’s finding that the appellant had sustained the grounds of personal indignities alleged by her. After a careful perusal of the many hundreds of pages of the record in this case, we reach the conclusion that the appellee failed to prove his general charge of indignities in such a manner as would have entitled him to a divorce. Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.

Perfection is the ultimate goal in all fields but we doubt if perfection in the field of human relations has ever been or will ever be attained. It is hardly conceivable that over a period of years two separate and distinct persons can live their lives as intimately enmeshed as in the marital relation without friction and rare would be the history of a marriage where no clash of opinions, ideas and wishes have ensued. Colorless indeed would be the life of any strong willed pair if either party cast aside a personal preference in minor details and followed without remonstrance the dictates of the stronger of the two. We might, in such a circumstance, have a semblance of peace but we would not attain the degree of felicity which the marital state contemplates.

We do not find that the appellant has in all respects been gentle and yielding nor willing to subject her inclinations and preferences to the more boisterous activities of the appellee and in some respects her fears and apprehensions for him may have been a source of annoyance to him but we fail to find a studied neglect or the indignities that must be habitually and systematically pursued for the purpose of rendering her mate’s station in life intolerable. In this case we have two people with different backgrounds and a clash of personalities that may never be resolved and the record before us convinces us that neither party to this action has displayed that tolerance and understanding that rests upon each party in a marriage contract if a marriage is to be preserved. In this respect they are both guilty. We therefore conclude that the appellee’s allegations of indignities on which he predicates his prayer for divorce have failed.

In the matter of the charge of adultery. We know of no useful purpose that will be served in a page by page recital of the sordid details in this chapter of domestic infelicities. It is true, as the chancellor found, that the appellant placed the appellee under surveillance by the employment of detectives, and the rumors that gave rise to her suspicions seem to have been well grounded. There was brought to light by their activities at least one episode in Hot Springs on which we must sustain the charge of adultery. We do not agree with the chancellor that the degree of proof necessary to establish adultery was lacking. Were this a criminal case we might share his view but this is a charge of adultery in a civil proceeding and that charge may be sufficiently proved by evidence of circumstances leading to an inference of guilt. The following cases are pertinent. Leonard v. Leonard, 101 Ark. 522, 142 S. W. 1133; Buck v. Buck, 207 Ark. 1067, 184 S. W. 2d 68; Hargis v. Hargis, 188 Ark. 1167, 67 S. W. 2d 597, and Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24.

The opportunity and the adulterous disposition must meet. The opportunity was present and while there is no person except the participants who know whether or not one or both of the parties involved harbored an adulterous disposition, the almost daily telephone calls between the appellee and the woman, his clandestine meetings with her, their demonstrations and their presence in a darkened motel room during the nighttime are such circumstances that would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.

From the record in this case we conclude that the appellant has sustained her charge of adultery and is entitled to a decree of absolute divorce from the defendant.

The trial court was correct in awarding the temporary custody of the two children to the mother with visitation rights in the appellee. That order should stand until the court finds that the welfare of the children necessitates a change. The appellee will be required to furnish support money for the children.

In the matter of attorney’s fees. We do not have before us the schedule of fees adopted by that local Bar but the allowance of $2,500.00 by the trial court does not appear adequate and for that reason an allowance of an additional $1,500.00, which will cover the costs of this appeal, is made to the attorneys for the appellant and it will be paid by the appellee. At the conclusion of this cause on the remand the court will further examine the matter of additional allowances to cover the services of counsel for appellant in the final disposition of this cause.

The court will further ascertain the rights of the appellant in the property of the appellee and make the appropriate orders therein. This cause is reversed and remanded for further proceedings consistent with this opinion.

Robinson and Johnson, JJ., dissent.