dissenting. With due respect, I do not agree with a portion of the majority’s opinion in this case.
The appellant’s sole contention is that the trial court’s judgment awarding the appellee $400.00 per month alimony and the right to live in the parties’ marital home for the rest of her life is contrary to the preponderance of the evidence. I think the evidence supports the alimony award, but the appellant is absolutely right as to the home issue.
A careful reading of the majority’s opinion reveals that the only bases upon which it attempts to sustain the award of the home is (1) it was agreed to and (2) the issue is being raised for the first time on appeal.
The problem with the first position is that the appellant designated all of the evidence to be contained in the record on appeal and the record shows that no such agreement was introduced into evidence. In fact, the majority opinion very carefully avoids stating otherwise. The record does contain a decree of separate maintenance entered on May 20, 1981, and it recites that for $10,000.00 paid in open court the appellee relinquishes all right, title; and interest to all properties owned by appellant except that out of 124 acres which the parties have previously conveyed to their two sons and their wives, those grantees will reconvey to the appellant four acres on which is located a home, and the appellee shall have possession and use of this home as long as she lives or until she permanently moves from it. However, the fact that the parties had settled their property rights by an agreement which had been approved by the court in the separate maintenance suit did not mean that the divorce decree entered eighteen months later should again recite some of the terms of the property settlement set out in the separate maintenance decree. To the contrary, it very definitely indicates otherwise. If there has been no new agreement, then there is simply no need to again recite any of the terms of the old agreement, and if there has been a new agreement, it is wrong for the new judgment to incorporate terms of the old agreement.
The problem is that the court entered judgment based upon the old agreement without any evidence that it was still in effect and unchanged. As the appellant’s brief asserts “there is simply the unexplained inclusion of the terms of the earlier decree of separation.”
The majority opinion seeks to justify the trial court’s action by saying the appellant’s attorney did not raise the issue of the use and possession of the home in the trial court and is raising it here for the first time. The short answer to that is the case of Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). There, the Supreme Court of Arkansas held that under Civil Procedure Rule 50 (e), it is not necessary, in a non-jury trial, to make a motion in the trial court questioning the sufficiency of the evidence in order to raise that issue on appeal. The instant case was tried non-jury and appellant has the right to question the sufficiency of the evidence for the first time on appeal. Parenthetically, I note that appellant’s attorney on appeal was not his attorney at the trial and I do not criticize the new attorney for raising this issue on appeal. Furthermore, the appellant’s complaint for divorce alleges that the property rights “have already been determined and settled between the parties.” It was, therefore, the appel-lee’s burden to show otherwise and she has failed to do that.
I would delete the chancellor’s reference to the use and possession of the home because it is not supported by the evidence.
Cooper, J., joins in this dissent.