A. A. Tarr and Cassie M. Tarr were married March 23, 1913, and lived together as husband and wife until March, 1940. They have a son, now 22 years old, who is their only child.
Mr. Tarr became a resident of Siloam Springs in this state on August 16, 1943, and on October 18 thereafter filed this suit for a divorce, and as ground therefor alleged that he and his wife had lived separate and apart for more than three years, without cohabitation.
Act 20 of the Acts of 1939, p. 38, amending 4381, Pope's Digest, makes this fact a ground for divorce, which, when established, entitles either spouse to sue for a divorce, and this without regard to the cause of separation. This Act provides that, ". . . The question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony." That this Act means what it plainly says, whatever we may think of its policy, has been held in the ten cases cited in the recent opinion in the case of Young v. Young, ante, p. 36, 178 S.W.2d 994. *Page 624 The still more recent case of Larsen v. Larsen, ante, p. 543, 181 S.W.2d 683, is to the same effect.
The court found that the plaintiff had established this ground for divorce, and upon that finding a divorce decree was entered. The testimony sustains this finding, indeed, it is undisputed.
The wife filed an answer and cross-complaint, in which she denied that her husband was a resident of this state, and she prayed that alimony be allowed her. The wife is a non-resident of this state, and was made a party defendant by the publication of a warning order. It was held in the case of McDougall v. McDougall,205 Ark. 945, 171 S.W.2d 942, that although the statute requires that the plaintiff in an action for divorce be a resident of this state for a designated time before suit is filed, the court has jurisdiction to grant a divorce and allow alimony on the cross-complaint of a non-resident defendant. It was held also in the case of Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876, a suit under our 90-day divorce law, that while filing a motion for suit money and alimony, and an answer to the complaint of the plaintiff, had the effect of entering the defendant's appearance, it would not confer jurisdiction upon the court, if jurisdiction did not otherwise exist.
The jurisdictional question, therefore, presents itself whether the plaintiff had resided in this state for a sufficient length of time to maintain this suit. The court held that he had, but it is insisted that this finding is contrary to the preponderance of the evidence.
It is undisputed that Mr. Tarr became a resident of this state more than 60 days before filing suit, but the insistence is that he did not maintain that residence until the time of the trial. Tarr had been and is now engaged in the real estate business in Kansas City, Missouri, operating there under the name of Tarr Land Company, and it was shown that on more than one occasion, after becoming a resident of this state, he had made trips to Kansas City; but it was shown also that these trips were never of more than a day or two in *Page 625 duration, and that after attending to the business which called him to Kansas City, he returned to this state, and it was not shown that during this time he maintained or had a residence in Missouri or elsewhere, except in this state.
We have consistently held that the residence required by our divorce law must be actual and not colorable, and in Kennedy v. Kennedy, supra, we said that the provisions of this law may be availed only by one who actually and in good faith became and was a resident of this state for the period of time prescribed by the statute; but we have also held that this actual residence once established is not lost or destroyed by temporary absence from the state. Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078, citing Wood v. Wood, 140 Ark. 361, 215 S.W. 681.
In the case of Murphy v. Murphy, 200 Ark. 458,140 S.W.2d 416, we said, quoting from the prior case of Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242, that our divorce law did not mean that the plaintiff should not at any time during the 3 months residence leave the state for any purpose, and that he might reside here as did any other resident; but it did mean that during all of this 3 months period, he must be a resident of this state, and not of some other.
We think the testimony warranted the finding that plaintiff was a resident of the state for more than 60 days before filing his suit, and continued to be a resident until after the trial, which was more than three months after becoming a resident.
The court disallowed the claim of alimony, and did so upon the theory that at the time of the separation, the wife retained and converted to her own use property of the value which the law would otherwise have given her as alimony. It appears that just before the final separation Mrs. Tarr sold some cattle for about $400, as Mr. Tarr testified, but for $300, as Mrs. Tarr testified, and she converted the proceeds of the check given for *Page 626 these cattle. Mrs. Tarr testified that her husband was in the business of buying and selling cattle, and owned 300 head at one time, but he had sold these cattle until he had only 22 head when he deserted her. She testified that she had milked a number of the cows, and sold about $5 worth of milk a day, from the proceeds of which sale she paid the operating expenses of the household, and she refused to surrender the $300 check until her husband had replaced the cows for the sale of which the check had been given. She told her husband, "No, you are not going to get this check until you put more cows in here. You are not going to set me out on foot. When you get more cows in here you can have the check."
Mrs. Tarr admitted that, when her husband deserted her, she retained possession of the household goods, but these she says were of small value, and that she has no income and is living with her father, a man of small means and 90 years of age. We can readily believe that the proceeds of this check have long since been expended, as Mrs. Tarr testified that she had a nervous breakdown.
In her original answer and cross-complaint, Mrs. Tarr asked an allowance of $40 per month as alimony, but in amended pleadings she increased this demand to $60 per month. Mr. Tarr testified that he employs four salesmen in his real estate business; that he pays the office rent, advertising charges and overhead expenses and gives them 50 per cent. of the commission on sales made by them, and in addition he himself makes sales without dividing his commissions. Mr. Tarr testified in effect that he is barely making both ends meet in the matter of his earnings and expenses, and that he is unable to pay any alimony; but we think his earnings in excess of his expenses are sufficient to pay his wife the sum of $40 per month, which she first demanded. We would allow a larger amount if his ability to pay justified, as we must take into account not only her necessity, but his ability to meet those necessities.
Act 20 of 1939, supra, denies us the right to inquire into the cause of the separation, but it does permit us to *Page 627 consider "the question of who is the injured party . . . in the settlement of the property rights of the parties and the question of alimony." Mr. Tarr shows no ground for divorce except that by his voluntary act he has deserted the mother of his only son, and has lived apart from her without cohabitation for more than three years, and she is now dependent upon her aged father for support. Under the circumstances we think the original demand for alimony in the sum of $40 per month should be paid, and the cause will be remanded with directions to modify the decree in this respect.