Coker v. Coker

JIM HANNAH, Chief Justice.

| ¶ Clayton Coker appeals a divorce decree entered in Garland County Circuit Court. Clayton asserts that the circuit court committed clear error in granting Samantha Hess-Coker a divorce based on the ground of indignities. He also asserts that the circuit court abused its discretion in granting an award of attorney’s fees. We affirm the decree of divorce and reverse and remand the grant of attorney’s fees.

The court of appeals reversed and dismissed the decision of the circuit court, see Coker v. Coker, 2011 Ark. App. 752, 2011 WL 6064889, and we granted Clayton’s petition for review. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886.

This court reviews divorce cases de novo on the record. Taylor v. Taylor, 369 Ark. 31, 34, 250 S.W.3d 232, 235 (2007). We will not reverse a circuit court’s finding of fact in a divorce case unless it is clearly erroneous. Id., 250 S.W.3d at 235. Findings of fact made by the circuit court in a divorce case are reviewed by this court in the light most favorable to the appellee, and we will defer to the superior position of the circuit court to judge the credibility of witnesses. Id., 250 S.W.3d at 235.

Clayton and Samantha were married on July 1, 1991. Samantha asserted below that Clayton engaged in long-term, sustained, and repeated periods of adultery that gave rise to indignities that rendered her life intolerable. Some time in 2006, Clayton began an affair with a woman in Wynne where Clayton and Samantha lived with their two children. Samantha learned of the affair one afternoon when she received a telephone call from her sister while attending a PTA function with her daughter. Her sister gave Samantha an address in Harrisburg where Samantha found her husband with his girlfriend. When confronted, Clayton admitted that he was having an affair. Clayton moved out of the marital home and into an apartment in Wynne.

After some time, Clayton reconciled with Samantha and moved back into the marital home. However, he later recommenced the adulterous relationship with the same woman. Some time later, Clayton again reconciled with Samantha, and after Clayton received an offer of a new position with his employer, he and Samantha decided to move to Hot Springs so Clayton could take the new position and the couple could start anew. However, once in Hot Springs, Clayton and his former girlfriend again recommenced their adulterous relationship. Upon discovering this, Samantha took the two children and moved from the 133500 square-foot marital home into a small apartment that required her to share a room with her daughter. Clayton moved his girlfriend into the parties’ marital home after Samantha had moved out. Samantha testified about the difficulties that Clayton’s affair had introduced into the family. She asserted that Clayton had lied to her and that he was demeaning to her. She alleged that he would tell her where he would be, but when she checked, he was not there. She testified that he attacked her verbally, that he got in her face, and that she was fearful that this behavior would continue. Samantha’s mother testified that Samantha became extremely nervous and that Clayton was inattentive and did not seem to care one way or the other about Samantha.

Beginning in 2006, Clayton made cash withdrawals to pay for restaurant meals, adult novelties, liquor, dock fees, gas for his boat, hotel rooms, movie rentals, diamonds, Victoria’s Secret items, gifts, candy, and sporting goods. He took $64,935.06 out of his retirement account, which included funds acquired during the marriage. He used retirement-reinvestment proceeds amounting to about $4000 per year for his own purposes. He took out at least one $20,000 loan against his retirement account and used it for his own purposes. When he and Samantha sold their home in Wynne, they received $101,000 in equity. Clayton put $64,000 of that amount into the new house in Hot Springs and kept the rest. In addition, he failed to assure that Samantha was listed as an owner of the house in Hot Springs.

On March 29, 2010, Samantha filed a complaint for divorce alleging that Clayton had “offered such indignities as to render plaintiffs condition in life intolerable.” The circuit |4court found that “[t]he Defendant was having an ongoing affair which [led] to Plaintiffs condition in life becoming intolerable.”

Clayton asserts that the circuit court erred in granting the divorce based on the ground of indignities. Pursuant to Arkansas Code Annotated section 9-12-301(b)(8)(C) (Repl.2009), the circuit court may “dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony ... [w]hen either party shall ... [o]ffer such indignities to the person of the other as shall render his or her condition intolerable.”1 This quoted language on indignities remains unchanged since 1838. See Ark. Rev.Stat., Ch. 50 § 1 (1838).

In Rachel v. Rachel, 294 Ark. 110, 113, 741 S.W.2d 240, 242 (1987), this court faced facts strikingly similar to the present case:

The appellant next argues that the Chancellor erred in granting the divorce because no grounds of divorce were proven. This argument is also without merit. The appellee testified that, in 1982, while she and appellant were married, he left her to live with another woman in Bastrop, Louisiana. They reconciled their differences almost two years later, and in September 1984, he moved back into the marital home. However, after only a few weeks he again started spending weekends with the other woman in Bastrop. The testimony established the ground of general indignities.

As in the present case, conditions arising from adultery gave rise to indignities. While adultery can give rise to indignities that may cause the spouse’s condition in life to become intolerable, the act of adultery itself is a separate distinct cause for divorce under the statute. |KSee Ark.Code Ann. § 9 — 12—301(b)(4) (Repl.2009). The two causes for divorce should not be confused.

It has been some time since this court addressed the requirements that must be met to grant a divorce under indignities:

Although the scope of the “indignities” ground has undergone considerable expansion throughout the years, it is still necessary that the conduct relied upon manifest settled hate, alienation and estrangement and be constantly and sys-tematieally pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155; Welch v. Welch, 254 Ark. 84, 491 S.W.2d 598. In the cited cases, we pointed out that even this construction of the statute is to be cautiously applied.

Lytle v. Lytle, 266 Ark. 124, 138-34, 583 S.W.2d 1, 6 (1979). Phrases such as “manifested settled hate, alienation, and estrangement” are terms of art and must be understood in the context of divorce law. Precedent from this court’s initial consideration of the statutory language provides insight into the meaning of the phrases in the context of divorce law:

The fifth cause of divorce set forth in the statutes [the language regarding indignities at issue in the present case] gives to our courts a broader jurisdiction than that exercised by the civil and ecclesiastical courts for legal cruelty; for indignities to the person may render the condition of the party intolerable without ‘reasonable apprehension of bodily hurt’ ... Personal indignities, such as rudeness, unmerited reproach, contempt, studied neglect, open insult, & c., and other plain manifestations of settled hate, alienation and estrangement, must be habitual continuous and permanent, to create that intolerable condition contemplated by the statute. But such indignities, when habitual and continuous, causing extreme and unmerited suffering, are sufficient to warrant a decree for divorce and alimony, without being attended with bodily harm, and need not be so extreme as to render the party incapable of discharging the marital duties.

Rose v. Rose, 9 Ark. 507, 507-08 (1849).

In the present case, Samantha offered evidence of Clayton’s rudeness, unmerited reproach, and studied neglect. Evidence of Clayton’s conduct was offered to show | ^continuous and permanent conduct arising from a long-term adulterous relationship despite his apparent commitments to permanently end the affair and repair the marriage. This constituted evidence of the required “settled hate.” We cannot say that the circuit court was clearly erroneous in finding that Clayton’s conduct constituted such indignities to Samantha as to render her condition intolerable.

However, our analysis does not end there, because in contested divorce cases, evidence of the grounds of divorce must be corroborated, unless expressly waived in writing. See Ark.Code Ann. § 9-12-306 (Repl.2009); Oates v. Oates, 340 Ark. 431, 434, 10 S.W.3d 861, 863 (2000). Where a divorce case is sharply contested, the evidence of corroboration need only be slight. See Welch v. Welch, 254 Ark. 84, 85, 491 S.W.2d 598, 600 (1973). It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential fact. Morgan v. Morgan, 202 Ark. 76, 84, 148 S.W.2d 1078, 1082 (1941).

In the present case, Samantha presented evidence from her mother that Clayton was rude, inattentive, and did not care one way or the other about her. Additionally, Clayton’s purchases of adult novelties, diamonds, items from Victoria’s Secret, along with hotel bills and other charges, provide some inference that he was engaged in studied neglect, open insult, and alienation and estrangement. Finally, there was evidence of misuse of marital funds, which constitutes evidence of indignities. See Mooney v. Mooney, 265 Ark. 253, 578 S.W.2d 195 (1979). The requisite slight-corroborative evidence has been provided in this case.

We finally address the issue of attorney’s fees. In domestic-relations proceedings, the 17circuit court has the inherent power to award attorney’s fees, and the decision to award fees and the amount thereof are matters within the discretion of the circuit court. See Baber v. Baber, 2011 Ark. 40, 16-17, 378 S.W.3d 699, 708; see also Ark. Code Ann. § 9-12-309 (Repl.2009). Absent an abuse of that discretion, an award of attorney’s fees will not be disturbed on appeal. Id., 378 S.W.3d 699, 708.

At the final hearing, Samantha asked the circuit court how she should proceed with a “petition” for “attorney’s fees.” The circuit court instructed her to submit an “affidavit” simultaneously with the filing of her proposed findings of fact and conclusions of law. The parties have not directed the court to any affidavit, and none is found in the record. Instead of filing the requested affidavit, Samantha included the following statement and request in her proposed findings of fact and conclusions of law:

Attorney’s Fees. The Plaintiff filed a contempt motion pertaining to the payment of support, medical bills and ar-rearages. Moreover, in light of the disparity in income, the Defendant should also be ordered to pay the Plaintiffs attorney’s fees. The Plaintiff has incurred fees and expenses in the amount of $11,376.12.

While Samantha’s proposed findings of fact and conclusions of law request the total sum of $11,376.12 for “fees and expenses,” the decree grants Samantha a judgment “of the Plaintiffs attorney’s fees in the amount of $11,376.12.” Samantha did not request $11,376.12 in attorney’s fees. Based on Samantha’s failure to provide the requested affidavit, the failure to mention the requested expenses in the decree, and the grant of attorney’s fees in an amount in excess of that Samantha’s sought, we find an abuse of discretion. We reverse and remand for the circuit court to consider anew the request for fees and expenses.

Affirmed in part, reversed and remanded in part; court of appeals opinion vacated.

| sGOODSON, J., concurs in part; and dissents in part. CORBIN and DANIELSON, JJ., dissent.

. Adultery itself is a separate, specific cause for divorce under Arkansas Code Annotated section 9 — 12—301 (b)(4) (Repl.2009). However, Samantha did not plead adultery as the cause for her divorce but as the cause of the indignities that made her condition intolerable to justify divorce.