Araneda v. Araneda

James R. Cooper, Judge. The appellant in this chancery case, a resident of Guatemala, filed a divorce action against the appellee, who was at that time living in Little Rock, Arkansas. The appellee filed a counterclaim for divorce. After a hearing, the chancellor entered a decree of divorce in favor of the appellant, but denied her request for alimony. From that decision, comes this appeal. For reversal, the appellant contends that the chancery court lacked jurisdiction to grant a divorce; that the chancellor erred in finding there were no marital assets; and that the chancellor erred in refusing to award her alimony. We find the appellant’s first point to be dispositive, and we reverse and remand. The record shows that the appellee was living in Little Rock on November 20, 1992, when the appellant’s divorce action was filed. However, the only evidence adduced at trial regarding the appellee’s residence was that he had been a resident of Little Rock “for at least sixty days prior to December of 1992.” (Emphasis supplied). Although it was perhaps merely the result of an inadvertent error in framing the question, the effect of stating that the appellee had been a resident for sixty days prior to December (as opposed to November 20, which was the actual date on which the action was commenced) was that only 49 days of residence prior to the commencement of the action was established. Arkansas Code Annotated § 9-12-307 (Repl. 1993) provides that residence in the state by either the plaintiff or defendant for 60 days before the commencement of the action must be proved in order to obtain a divorce. Furthermore, proof of residence must be corroborated and the corroboration of residence may not be waived by the parties. Ark. Code Ann. § 9-12-306 (Repl. 1993); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). Residence for the required period in this state is jurisdictional and, dealing as it does with the power and right of the trial court to act, evidence corroborating residence should not be speculative and vague in scope. Hingle v. Hingle, 264 Ark. 442, 572 S.W.2d 395 (1978). The question of residence, being jurisdictional, may be raised at any stage of the proceeding. Id. In the case at bar, there was no evidence corroborating the appellee’s residence in the state for the statutory period. Although it is true that the corroborating evidence may be relatively slight, there is no evidence in the case at bar to corroborate residence in the state for 60 days prior to commencement of the action. We recognize that a party who has benefited from a transaction may be estopped from questioning the transaction’s validity. Crain v. Foster, 230 Ark. 190, 322 S.W.2d 443 (1959). However, the doctrine of estoppel is ultimately founded upon a party’s own act or acceptance,1 and for this reason the application of the doctrine is inappropriate in the case at bar. Proof of residency in a divorce action is to be distinguished from other elements of proof in that the legislature has expressly provided that it may neither be waived nor established by agreement of the parties. Ark. Code Ann. § 9-12-306 (1987). Given that this element may not be dispensed with or supplied by the express and direct action of the parties, it follows that it may not be supplied by their indirect actions through application of the doctrine of estoppel. Consequently, we are constrained to reverse and remand for further proceedings consistent with this opinion. See Hingle v. Hingle2, supra. Reversed and remanded. Jennings, C.J., and Mayfield, J., dissent. Footnotes [1] in the words of Lord Coke, the doctrine “is called an estoppel or conclusion, because a man’s owne act or acceptance stoppeth or closeth up his mouth to alleage or plead the truth.” 2 Coke, Littleton 352a. [2] We note that the remand in Hingle, supra, was broad enough to allow proof of residency as well as corroboration.