Bebout v. Bebout

Paul Ward, Justice. This litigation, relating to a division of property between man and wife, arose out of the factual situation presently summarized. Four separate stages of legal procedure between these parties preceded this appeal. First. On May 16, 1961 the wife filed a suit for separate maintenance; the husband, on cross-complaint, asked for a divorce and one-half of all real and personal property, and then the wife asked for a divorce and a share of the property. On July 9, 1962 the trial court found the wife should have the homestead consisting of forty acres (held by the entirety) and also should have a note (being the proceeds from the sale of 148.46 acres of land) which was held by the entirety; also the wife was granted a divorce. Second. The above mentioned decree was appealed to this Court, and on March 2, 1964, we reversed the trial court, holding there was no corroborating evidence to sustain the divorce. We also said: “. . . the entire decree must fall.” See: Bebout v. Bebout, 237 Ark. 735, 375 S. W. 2d 798. Third. On June 28, 1962 the husband filed a complaint in a Nevada court, asking for a divorce. The divorce was granted on July 23, 1962 — just two weeks after the wife was granted a divorce in this State (as pointed out previously). It is noted here that on the same day the husband filed his complaint in Nevada he also filed a pleading asking for a divorce in Arkansas. Fourth. The suit from which comes this appeal was filed by the husband (appellant herein) on April 22, 1964. In the complaint appellant alleged that he and his wife (appellee herein) were the owners by the entirety of the real and personal property referred to previously. He asked that said property be partitioned equally between them. Appellee answered, alleging the invalidity of the Nevada divorce, and that she was entitled to all the property. On January 11, 1965 the trial court found: (a) the parties previously agreed that appellee was the owner of forty acres of land and that by “reason of said agreement” appellee is the owner in fee simple of said land; The court also found that the parties “are owners as tenants by the entirety” of the promissory note; (b) The court was not required to give “full faith and credit” to the Nevada divorce decree and “the parties hereto are still husband and wife to each other despite the Nevada decree,” and; (c) appellant’s petition for partition should be dismissed. From the decree of dismissal appellant now prosecutes this appeal, contending the trial court erred; One, in refusing to give full faith and credit to the Nevada decree; Two, in holding the Nevada decree was obtained by fraud; Three, in holding appellant was not domiciled in Nevada, and; in “awarding to the appellee the real estate.” Under our view of the case it is necessary to discuss only two questions: One, was appellant domiciled in Nevada when that court granted him a divorce, and Two, did the trial court err in awarding the real estate to appellee. One. We have concluded that the trial court was correct in holding appellant was not domiciled in Nevada. Appellant’s own testimony was to the effect that he left his home in Madison County (Arkansas) and went to Nevada, knowing that the divorce suit was pending in this State; he knew when he filed for a divorce in Nevada that he had, on that same day, asked the court here for a divorce; he admitted he left here on a vacation, that he did not work in Nevada, that he rented a motel room while there, that he had read about the “quickie” divorces in Nevada; he admits that shortly after the Nevada decree he returned to his home at Huntsville in Madison County, and that he later bought real estate in that county; he admitted he left for Nevada when he learned it would take over a year to get a divorce here. It is not disputed that appellee did not, in person or by an attorney, appear in the Nevada conrt or otherwise contest the divorce action. Under the above factual situation we think the trial court was fully justified in holding appellant was not at any time domiciled in Nevada even though he did reside there a few weeks. The word “domicile,” according to Black’s Law Dictionary, means “That place where a man has his true, fixed, and permanent home . . .” Since appellant was not domiciled in Nevada when he secured the divorce, the decree of that court was not entitled to full faith and credit in this State. See: Williams v. State of North Carolina, 325 U. S. 226. See also: Cooper v. Cooper, 225 Ark. 626. 294 S. W. 2d 617. Two. We have concluded it was error for the trial court to give the real estate to appellee. It is not disputed that this property constituted an estate by the entirety. In the case of Yancey v. Yancey, 234 Ark. 1046, 356 S. W. 2d 649, this Court said: “It is necessary that this decree be reversed, because the court exceeded its authority in directing appellant to give appellee a quit-claim deed to his interest in the home held as an estate by the entirety. The Chancellor was evidently undertaking to arrive at an equitable solution relative to property rights in making his findings, and we find nothing erroneous purely from the standpoint of equity; however, we have stated on several occasions that in event of a divorce, property held as an estate by the entirety shall be treated as a tenancy in common. The conrt may then do one of two things; it may place one of the parties in possession of the premises, or it may order the property sold and the proceeds divided.” The Yancey decision was based on Act 340 of 1947 — Ark. Stat. Ann. § 34-1215 (Repl. 1962) — which reads: “Dissolution of estates by the entirety or survivor-ship. Courts of Equity, designated Chancery Courts within the State of Arkansas, shall have the power to dissolve estates by the entirety or survivorship, in real or personal property, upon the rendition of a final decree of divorcement, and in the division and partition of said property, so held by said parties, shall treat the parties as tenants in common. ’ ’ The intent and scope of the Act is indicated by certain language in the emergency clause which recognizes that courts of equity in this State have “lacked the power heretofore, upon dissolution of the marital status, to dissolve estates in property created by the marital status.” Thus this, under the statute, limited power of chancery courts to dissolve estates by the entirety is confined to cases involving a divorce — no divorce is involved here. This limitation has been repeatedly recognized and upheld by this Court. See: McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911; Poskey v. Poskey, 228 Ark. 1, 305 S. W. 2d 326, and; Childers v. Childers, 229 Ark. 11, 313 S. W. 2d 75. Apart from its statutory power, a chancery court unquestionably is authorized to grant specific performance of an oral contract for the sale of land where there is sufficient part performance. It is necessary, however, that both the making of the contract and its performance be proved by clear and convincing evidence. Hudspeth v. Thomas, 214 Ark. 347, 216 S. W. 2d 389. Here the proof does not meet that stndard. The appellee did not plead the existence of a contract; she merely asserted as a conclusion that she owned the land. Her testimony was to the effect that the appellant agreed that she could have the property if she made the final payment on the purchase price. The appellant did not corroborate her statement. He testified that he thought that she was to receive the property (in the divorce case) and that “if she was going to get it, let her pay for it.” There were no other witnesses to the transaction. We are unable to say that the making and performance of the asserted oral agreement were established by that high standard of proof that the law requires in such a case. It is pointed out that the trial court did not award the note (held by the entirety by the parties) to appellee. Upon remand the trial court will have the right (based on the-evidence) to determine how much, if any, maintenance shall be awarded to appellee, and to determine whether or not to award appellee possession of (not title to) the homestead. The cause is therefore affirmed in part and reversed in part, and it is remanded for further action consistent with this opinion. McFaddin, Amsler and Bland, JJ., dissent in part.