Rachel v. Rachel

Donald L. Corbin, Chief Judge.

Appellant brings this appeal from a divorce decree entered by the Ashley County Chancery Court. He brings five points for reversal. First, appellant contends the chancery court lacked jurisdiction because residence of the appellee was not corroborated as required under Arkansas Statutes Annotated Section 34-1208 (Repl. 1962); second, appellant claims that the chancellor erred in awarding appellee a divorce because there was not sufficient corroboration of her grounds for divorce; third, appellant contends appellee did not establish sufficient grounds to entitle her to a divorce; fourth, appellant contends the award of alimony by the chancellor was erroneous; finally, appellant claims the chancellor abused his discretion in awarding attorney’s fees to appellee. We agree with appellant that appellee failed to corroborate her grounds for divorce. Accordingly, appellee’s cause of action must fail, and we reverse and dismiss.

Appellee brought this action for divorce against appellant, who answered and counterclaimed. Shortly before trial, the parties entered into a stipulation agreement reciting that only four major areas of disagreement remained between them for resolution by the court, and appellant withdrew his counterclaim. At the beginning of the trial, the chancellor stated that he understood appellant was waiving the requirement of corroboration of grounds and requested that any decree which might eventually be entered take care of the written waiver required by Arkansas Statutes Annotated Section 34-1207.1 (Supp. 1985). Nevertheless, appellant never executed a writing waiving grounds for divorce, and appellee offered no corroboration of grounds at trial.

Section 34-1207.1 provides in pertinent part as follows: “[h]ereafter in uncontested divorce suits corroboration of plaintiffs ground or grounds for divorce shall not be necessary nor required. In contested suits corroboration of the injured party’s grounds may be expressly waived in writing by the other spouse.” The statute is clear and unambiguous: a party seeking a divorce must prove and corroborate grounds unless the other party to the divorce action expressly waives corroboration in writing.

“Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated.” Russell v. Russell, 19 Ark. App. 119, 121, 717 S.W.2d 820 (1986); Harpoley. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). However, “[i]n a contested divorce case, the required corroboration of grounds for divorce may be slight.” Russell, supra, at 121; Hilburn v. Hilburn, 287 Ark. 50, 696 S.W.2d 718 (1985). “This court has defined corroboration as testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that the material testimony of that witness is true.” Russell, supra, at 121; Anderson v. Anderson, 269 Ark. 751, 600 S.W.2d 438 (Ark. App. 1980). We review chancery cases de novo on appeal, and findings of the chancellor will not be reversed unless clearly erroneous or clearly against a preponderance of the evidence. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); ARCP Rule 52(a).

The record reflects that appellee testified to facts which, if believed, might entitle her to divorce. However, upon review of the record in this case, we cannot find one scintilla of evidence tending to even slightly corroborate any of appellee’s grounds for divorce. Nor can we find any express written waiver by appellant of the requirement that appellee corroborate her grounds, regardless of any understandings verbalized by the parties prior to trial of this case. Accordingly, the decision of the chancellor was clearly erroneous, and we reverse and dismiss on appellant’s Point II. Since appellee’s cause of action must fail for lack of corroboration of her grounds for divorce, we need not address appellant’s remaining points for reversal.

733 S.W.2d 743

Reversed and dismissed.

Mayfield and Coulson, JJ., agree.

Supplemental Opinion on Denial of Rehearing July 15, 1987

Donald L. Corbin, Chief Justice. Both appellant, Raymond Henry Rachel, and appellee, Christine S. Rachel, have filed petitions for rehearing.

Appellee has filed a petition for rehearing contending there was substantial compliance with Arkansas Statutes Annotated § 34-1207.1 (Supp. 1985) requiring written waiver of corroboration of grounds and secondly, that appellant is precluded from relief on appeal under the doctrines of invited error and estoppel.

Appellant also filed a petition for rehearing contending the case should be reversed and remanded for the sole purpose of recovery and restitution of property taken and sums paid under the erroneous decree. We deny the petitions for rehearing but desire to elucidate the issues.

Law regarding the formation and dissolution of marriage is clearly defined in historical precedent. In Maynard v. Hill, 125 U.S. 190 (1888), the Supreme Court said: “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature.” The New York Court of Appeals, in Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815 (1936), made a similar statement: “Marriage is more than a personal relation between a man and woman. It is a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based on principles of public policy affecting the welfare of the people of the state.” More recently the United States Supreme Court has said in Boddie v. Connecticut, 401 U.S. 371, 376 (1971):

As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our society.. . . It is not surprising, then, that the States have seen fit to oversee many aspects of that institution. Without a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval.

Arkansas has historically followed the rationale behind the above cases as evidenced by statute and case law. “A divorce proceeding is one in which the public is interested. The parties can waive nothing essential to the validity of the proceeding, and all statutory requirements must be observed.” Widders v. Widders, 207 Ark. 596, 182 S.W.2d 209 (1944).

“Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated.” Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986). “This court has defined corroboration as testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that the material testimony of that witness is true.” Russell, supra, at 121. The purpose of requiring corroboration is to prevent parties from obtaining a divorce by collusion. Anderson v. Anderson, 269 Ark. 751, 600 S.W.2d 438 (Ark. App. 1980).

In Calhoun v. Calhoun, 3 Ark. App. 270, 272, 625 S.W.2d 545 (1981), it was eloquently stated that in a contested divorce:

The rule of this state, long established and uniformly adhered to in our decisions is that while both parties are competent to testify in a divorce action, in order to justify the granting of a divorce the testimony of the complaining spouse must be corroborated by some witness other than the parties to the action. That corroboration may not be supplied by the defending spouse as divorces are not granted upon the uncorroborated testimony of the parties or their admissions of the truth of the matters alleged, [citations omitted].

In Calhoun, citing Jackson v. Bob, 18 Ark. 399 (1857), it was observed that in any ordinary adversary suit a complainant may obtain a decree upon the declarations or admissions of the defendant. Calhoun further quoted from Jackson this principle: “It is because of the interest which the public have in the marriage relation, that suits for divorce, in the respects above stated, are not governed by the rules of evidence applicable in ordinary suits.” Id. at 272.

Act 267 of 1981 provides a spouse may waive in writing the necessity of corroborating the injured party’s grounds even where suits are contested. Ark. Stat. Ann. § 34-1207.1. Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in Arkansas Statutes Annotated § 34-1202 (Supp. 1985). In other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984).

Inasmuch as the law does not permit the offending spouse to corroborate the grounds of the complaining spouse, it certainly does not follow that the offending spouse may waive corroboration of grounds. Justice Fogleman stated as follows in McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977):

We have already indicated that we feel that the requirement of corroboration is still applicable and appropriate. We have so considered it in Adams in 1972, in Welch in 1973, and in Dunn in 1973. There is nothing that calls upon this court to engage in the judicial activism that would be required for our nullifying that requirement. The fact the legislature has not seen fit to abolish the rule is not sufficient, particularly in view of the fact that there has been legislative amendment of the divorce statutes at least 24 times, one of which was the amendment of the pertinent section, Ark. Stat. Ann. § 34-1207 (Supp. 1975), in 1969, to eliminate the requirement of corroboration on all except one ground for divorce, in uncontested cases. . . .It is best that changes in the divorce law be left to that branch of government which is the repository of all powers of government not vested in the other two branches, and which is most representative of the people, the ultimate sovereign.

Id. at 572.

In the instant case, the chancellor stated that he understood appellant was waiving the requirement of corroboration of grounds and requested that the party drawing up the decree take care of the written waiver. A written waiver was never prepared or signed, nor did appellee incorporate the waiver into the decree as directed by the chancellor. Appellee negligently failed to prove her case by her failure to prepare a waiver for appellant’s signature or to comply with the chancellor’s direction to put the waiver in the decree. Arkansas law requires proof and corroboration of grounds unless there has been an effective waiver of corroboration. The effect of affirming the decree in the case at bar without an effective waiver as required by law would be to grant appellee a divorce without proof of grounds. This would be contrary to the very cornerstone of divorce law in Arkansas.

For over 100 years Arkansas law has required corroboration of grounds in a divorce action. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973); Dunn v. Dunn, 219 Ark. 724, 244 S.W.2d 133 (1951); Owen v. Owen, 208 Ark. 23,184 S.W.2d 808 (1945); Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944); Davis v. Davis, 163 Ark. 263, 259 S.W.2d 751 (1924); Sisk v. Sisk, 99 Ark. 94, 136 S.W. 987 (1911); Rie v. Rie, 34 Ark. 37 (1879); Jackson v. Bob, 18 Ark. 399 (1857). Corroboration of grounds has been required since 1869, when Arkansas adopted the Kentucky Code. See Ky. Code, Divorce § 458 [codified in Gantt’s Digest, Divorce § 2200 (1874)], Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984).

The law regarding the necessity for corroboration has undergone several changes within the last twenty years. In 1969 the legislature carved one exception eliminating the necessity of corroborating grounds in uncontested divorce suits. See Ark. Stat. Ann. § 34-1207.1. Again in 1981, a change was made allowing for written waiver of corroboration in contested divorce actions if signed by the offending spouse. Id. The legislature saw fit to carve these narrow exceptions into divorce law in Arkansas. These modifications reflect its response to divorce actions in our contemporary society. Historically, our courts have been reluctant to interfere with law as it is laid down by the legislative body of our government, and as evidenced through case law, courts have refrained from engaging injudicial activism in divorce law.

The Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark. App. 1980), opinion recognizes the long-standing rule that divorce is a creature of the legislature requiring strict adherence, and proof of grounds and corroboration thereof is jurisdictional:

The law has long been settled that divorce shall not be granted upon the uncorroborated testimony of a party to the suit except in an uncontested case. Ark. Stat. Ann. § 34-1207 (Repl.), eliminates the requirement of corroboration of ground in uncontested cases.

The Arkansas Supreme Court has consistently adhered to the rule announced in Rie v. Rie, 34 Ark. 37 (1879) that a divorce will not be granted unless the grounds are corroborated by evidence other than the testimony of the parties. The rule was modified in 1969 by the enactment of § 34-1207 which eliminates the requirement of corroboration in uncontested divorce cases. It is significant the legislature did not see fit to make the 1969 amendment applicable to the establishment of grounds in contested cases, but specifically limited the application to uncontested cases. As recently as Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973) and McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977) the court reiterated the requirement of corroboration of grounds for divorce.

Id. at 32.

We find no merit to appellee’s contention that there was substantial compliance with Arkansas Statutes Annotated § 34-1207.1, and our decision to reverse on this point is reaffirmed.

Appellee also contends in her petition for rehearing that appellant is precluded from relief on appeal under the doctrines of invited error and estoppel. Under the invited error doctrine, the appellant may not complain on appeal of an erroneous action of the chancellor if he has induced, consented to or acquiesced in that action. Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984). This doctrine is inapplicable in the instant case because there was no erroneous action by the chancellor. The record reflects the chancellor properly followed the law by directing the party preparing the decree to reduce the waiver to a writing. Therefore, we find no merit to this contention in appellee’s petition.

Appellee further argues appellant is estopped to challenge the validity of the decree because he accepted benefits thereunder. We are not persuaded by this argument, because this case involves a failure to substantially comply with a statute. Arkansas Statutes Annotated § 34-1207.1 is clear and unambiguous: a party seeking a divorce must prove and corroborate grounds unless the other spouse expressly waives corroboration in writing.

In her petition, appellee asserts that in the alternative this court should not have reversed and dismissed this action but remanded the case to the trial court for further disposition. In Ferguson v. Green, 266 Ark. 556, 565, 587 S.W.2d 18 (1979), the supreme court stated that “It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below.” Under these circumstances we do not find it necessary to remand for further proceedings.

The petitions for rehearing are denied.

Mayfield, J., concurs.

Cracraft, Cooper, and Jennings, JJ., dissent.