Smith v. Smith

Cite as 2015 Ark. App. 539
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-71
CATHERINE W. SMITH Opinion Delivered: September 30, 2015
APPELLANT
APPEAL FROM THE GARLAND COUNTY
V. CIRCUIT COURT
[NO.DR-2013-269-III]
PAUL R. SMITH
APPELLEE HONORABLE THOMAS LYNN WILLIAMS,
JUDGE
AFFIRMED AS MODIFIED
WAYMOND M. BROWN, Judge
This is an appeal from a decree of divorce entered by the Garland County Circuit
Court on October 21, 2014. Catherine and Paul Smith, hereinafter “appellant” and
“appellee,” respectively, were married on October 30, 1995. Appellant filed a complaint
for divorce on March 14, 2014, alleging general indignities as the grounds upon which the
divorce should be granted. After appellee answered and denied that there existed general
indignities, appellant amended her complaint at the divorce hearing to say that the parties
should be divorced because they had been living separate and apart for eighteen (18)
months. The case was tried on August 21, 2014, and again on October 1, 2014. The
divorce was granted.
On appeal, appellant argues that the circuit court erred by granting a divorce based
on general indignities and by granting a divorce without corroborating testimony on the
Cite as 2015 Ark. App. 539
stated grounds. We affirm the granting of the divorce but modify the decree to reflect this
opinion.
The Decree of Divorce reads, in pertinent part:
The parties officially separated on or about March 14, 2013 when this action
was filed. They have lived separate and apart since that time without
cohabitation. The grounds for divorce were proven by Plaintiff and
Defendant waived corroboration. Plaintiff is hereby granted a divorce from
the Defendant on the grounds of general indignities.
Our standard of review in divorce cases is de novo.1 We will not reverse a circuit
court’s finding in a divorce case unless it is clearly erroneous. 2 A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction that a mistake has been
committed.3
Here, appellant is seeking to set aside the divorce decree because it states that the
grounds for the divorce were general indignities. Although the circuit judge used the term
“general indignities” in the court’s order, an examination of the record of the hearing
demonstrates that the divorce was granted because the parties had been living separate and
apart for more than eighteen (18) months.
When husband and wife have lived separate and apart from each other for
eighteen (18) continuous months without cohabitation, the court shall grant
an absolute decree of divorce at the suit of either party, whether the
1
Rocconi v. Rocconi, 88 Ark. App. 175, 196 S.W.3d 499 (2004).
2
Taylor. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).
3
Frigon v. Frigon, 81 Ark. App. 314, 101 S.W.3d 879 (2003).
2
Cite as 2015 Ark. App. 539
separation was the voluntary act of one party or by the mutual consent of
both parties or due to the fault of either party or both parties.4
At the hearing, appellant’s daughter, Lindsey Hollomon, stated “I do know [the parties]
have been separated at least eighteen months continuously, and probably longer than
that.” The circuit court then asked appellant’s counsel if she wished to amend her
complaint because the original complaint listed general indignities as the grounds for
divorce. Her attorney responded, “amend to conform to the proof.” Soon thereafter,
appellant testified saying “Mr. Smith and I have been living separate and apart
continuously for over eighteen months.” Accordingly, the circuit judge granted the
divorce on the statutory grounds that the parties indeed had lived separate and apart.
Because appellant obtained the relief she sought, a complete divorce from appellee,
we find no error. A party cannot appeal from a favorable ruling. 5 Furthermore, we will
only reverse a ruling of a trial court if it committed prejudicial error.6 Prejudicial error is
not presumed and unless appellant demonstrates prejudice accompanying error, our court
will not reverse.7 Appellant has not demonstrated such prejudice, and we find no error.
In summation, the circuit court stated the incorrect grounds in reaching the correct
result. The divorce was proper because the parties had lived separate and apart, without
cohabiting, continuously for eighteen months. This is what appellant complained for and
4
Ark. Code Ann. § 9-12-301(a)(5).
5
Ball v. Foehner, 326 Ark. 409, 931 S.W.2d 142 (1996).
6
Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994).
7
Hibbs v. City of Jacksonville, 24 Ark. App. 111, 749 S.W.2d 350 (1988).
3
Cite as 2015 Ark. App. 539
what she received. Therefore, we affirm but modify the decree to conform to this
opinion.
Affirmed as modified.
ABRAMSON and HARRISON, JJ., agree.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Harrell, Lindsey & Carr, P.A., by: Paul E. Lindsey, for appellee.
4