dissenting.
Because the majority should have taken the opportunity |10to overrule Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987), rather than citing it with approval, I dissent.1 I recognize that the attorneys and the circuit court in this case could have relied on Rachel; however, it was quite clearly a rogue opinion which changed the law and basically rewrote the applicable statute.
We have repeatedly held that divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. See Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000); Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). Arkansas Code Annotated section 9-12-301(b)(3)(C) (Repl.2009) does provide that one ground for divorce is when one party offers “such indignities to the person of the other as shall render his or her condition intolerable.” However, this court long ago set out what evidence is necessary to establish such indignities as a ground for divorce:
It is for the court to determine whether or not the alleged offending spouse has been guilty of acts or conduct amounting to rudeness, contempt, studied neglect or open insult, and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bonds. This determination must be based upon facts testified to by witnesses, and not upon beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the rudeness, contempt, and indignities complained of. General statements of witnesses that the defendant was rude or contemptuous toward the plaintiff are not alone sufficient. The witness must state facts-that is, specific acts and conduct from which he arrives at the belief or conclusion which he states in general terms-so that the court may be able to determine whether those acts and such conduct are of such nature as to justify the conclusion or belief reached by the witness. The facts, if testified to, might show only an exhibition of temper or of irritability probably provoked or of short duration. The mere want of congeniality and the consequent quarrels resulting |ntherefrom are not sufficient to constitute that cruelty or those indignities which under our statute will justify a divorce.
Bell v. Bell, 105 Ark. 194, 195-96, 150 S.W. 1031, 1032 (1912).
Although Bell was decided long ago, it remains the law that in order to obtain a divorce on that ground, the conduct relied upon manifest settled hate, alienation and estrangement and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. See Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979); McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977); Welch v. Welch, 254 Ark. 84, 491 S.W.2d 598 (1973). See also Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204; Poore v. Poore, 76 Ark. App. 99, 61 S.W.3d 912 (2001); Russell v. Russell, 19 Ark.App. 119, 717 S.W.2d 820 (1986). Additionally, corroboration must be testimony of a substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that material testimony is true. Welch, supra.
In the instant case, there is no dispute that Samantha alleged indignities as her ground for divorce, not adultery, which is available as a ground for divorce pursuant to Ark.Code Ann. § 9 — 12—301(b)(4). However, when asked by the circuit court why she filed for divorce, more than once Samantha informed the court that she filed because Clayton was having an affair. If Samantha wished to file for a divorce based on adultery, that is clearly provided for by the applicable statute and her pleadings could have even been amended if necessary to reflect the proper grounds.
The testimony given by Samantha being viewed by the majority as grounds for | ^indignities was actually not testimony given in the context of accusing Clayton of settled hate, alienation, or estrangement. Samantha was being questioned about her personal knowledge of the affair when she testified that Clayton had lied to her about it and about his whereabouts. She was then asked about why she moved out and her testimony was that it was because he was lying to her, demeaning her, and would say he was going somewhere, but would not be there when she checked. Samantha did not testify that Clayton verbally attacked her and got in her face on a regular basis, nor did she claim that she was fearful he would continue that behavior on some ongoing basis. Her testimony revolved around an isolated incident. Samantha had placed a tracking device in Clayton’s truck and also removed a pistol from the truck, but denied placing the device when asked about it in her deposition. She testified that she lied about it at her deposition because when Clayton had gotten mad at her before, he came at her verbally and got in her face. She testified that she lied at the deposition and removed the pistol from his truck because she was scared he would do that again. Samantha’s testimony certainly provides grounds for a divorce based on adultery, especially considering that Clayton admits to the affair. However, the facts do not support that Clayton’s behavior manifested settled hate, alienation, and estrangement that rendered Samantha’s condition intolerable.
I have no doubt that when a spouse is having an affair, they could also be behaving extremely poorly toward their spouse and end up offering such indignities to their spouse that it renders the condition of that spouse intolerable. On the other hand, it is feasible that spouses are completely civil toward one another although one spouse or both is committing 11sadultery. But, the majority has now cited with authority an opinion that conflated two separate statutory grounds for divorce into one and now allows adultery to qualify as grounds for indignities. Combined with Rachel, this case will set precedent, and the individual who files for divorce based on adultery, will now also provide sufficient grounds for indignities— a change in the law without any explanation or analysis provided in either of the opinions responsible for the change.
Put simply, Samantha should have picked the proper grounds for her divorce — which, made clear by her testimony, was Clayton’s adultery — properly plead them, and put on the required proof. While the majority holds that conditions arising from Clayton’s adultery gave rise to indignities in the instant case, that holding stretches the facts in an attempt to grant Samantha her divorce but also to distinguish this case from Rachel and do some damage control. The majority purports to set forth facts to support indignities separate and apart from the affair. However, those facts alone fail to amount to what has historically constituted indignities. As noted, Rachel and the instant case both stand for the proposition that a divorce based on the grounds of indignities may be granted with proof of adultery. Why then, I must ask, did the legislature make two separate statutory grounds?
Rather than clarifying what the law is and what it has been for over a century, the instant case does nothing but make it more obscure and causes conflict between the case law and the statute. I sympathize with the bench and the bar who are now left to sort it out.
CORBIN, J., joins.
. Although the issue of attorney’s fees would not have been reached had the majority opinion overruled Rachel and reversed and remanded the case, I do agree that the circuit court erred in that award.