dissenting. I would grant the petition for rehearing and affirm the decree as entered. I fully agree that divorce is a creature of statute and that, prior to the enactment of Act 267 of 1981, divorce in contested cases could only be granted on proof of a statutory ground duly corroborated. That enactment retained the requirement of proof of statutory grounds but relaxed the requirement of corroborating testimony so that Ark. Stat. Ann. § 34-1207.1 (Repl. 1985) now reads as follows:
Hereafter in uncontested divorce suits corroboration of plaintiffs ground or grounds for divorce shall not be necessary nor required. In contested suits corroboration of the injured party’s ground may be expressly waived in writing by the other spouse.
No one questions that appellee adequately proved her ground for divorce. The issue on appeal was whether corroboration of her ground had been waived within the meaning of the statute. I conclude that it had.
At the commencement of the hearing, the chancellor stated in the record:
Also, the Court has been advised by Mr. Draper [appellant’s attorney] that [appellant] will waive corroboration of the grounds for absolute divorce by [appellee] in accordance with the statute. Since the Court feels that for safety’s sake that waiver should be in writing, we’ll do it on the record here then, and whoever prepares the decree from this proceeding will specifically put a provision in the decree, so that we will have a written waiver, so to speak. [Emphasis added.]
The record reflects that, at the time the court made that statement, appellant was present in person and by his then attorney. No protest or denial of the court’s statement by anyone present is recorded. Both parties proceeded to trial on the theory that the appellant would prove a statutory ground for divorce, but that corroboration of that ground would not be required. The chancellor decided the issue on that same basis.
Although Ark. Stat. Ann. § 34-1207.1 (Supp. 1985) does provide that the waiver of corroboration may be in writing, the reasons advanced for holding that the waiver here was not effective are, in my opinion, a bit narrow and certainly inappropriate for a court of equity and good conscience. It is inconceivable to me that we should hold that a right which can be waived in writing cannot be waived as effectively by stipulation made in open court and dictated into the record by the chancellor himself. Oral stipulations made in open court which are taken down by the court reporter and acted on by the parties and the court are valid and binding, and it is not necessary that an agreed statement admitted by the parties to be true in open court be signed by the parties or their attorneys. Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983). In 83 C.J.S. Stipulations § 4(b)(2) (1953), it is stated:
Statutes and court rulings requiring stipulations to be in writing do not apply to stipulations made in open court or before a master, although it has been said to be the better practice to have them reduced to writing.. . . Stipulations made in open court have been very generally regarded as just as obligatory as though reduced to writing and executed with every legal formality. [Footnotes omitted.]
See also 73 Am. Jur. 2d Stipulations § 2 (1974).
In many instances, our courts have held that a good-faith, substantial compliance may satisfy statutory procedural requirements. To cite one example among many, Rule 3(e) of the Rules of the Arkansas Rules of Appellate Procedure requires that a notice of appeal “shall . . . contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.” In Wise v. Barron, 280 Ark. 202, 655 S.W.2d 446 (1983), the notice of appeal did not contain that statement even though the record had in fact been ordered. The court held that there had been substantiál compliance with the requirement and allowed the appeal to proceed. See also Brady v. Aiken, Inc., 273 Ark. 147, 617 S.W.2d 358(1981), where substantial compliance was also held to satisfy the requirement of a written statement. Here, the record itself shows that the waiver was in fact made, albeit not carved in stone.
There is another compelling reason why I believe the decision in this case is manifestly unjust. The appellant was present in court when the court recited the parties’ stipulation and made no protest. He ought not now be heard to say that the waiver was invalid. It is obvious that neither the appellant nor the court would have proceeded to judgment on this basis without appellant’s acquiescence in that procedure. Even if the action of the chancellor in recognizing an oral stipulation of the waiver was incorrect, it is well settled under the doctrine of invited error that one may not complain on appeal of an erroneous action of the chancellor if he has induced, consented to, or acquiesed in that action. Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1974); Kansas City Southern Railway v. Burton, 122 Ark. 297, 183 S.W. 189 (1916); Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984); J. I. Case Co. v. Seabaugh, 10 Ark. App. 186, 662 S.W.2d 193 (1983).
The prevailing opinion finds the invited error rule inapplicable “because there was no erroneous action by the chancellor. The record reflects the chancellor properly followed the law by directing the party preparing the decree to reduce the waiver to a writing.” In my opinion, those judges denying the rehearing could only have misread or misinterpreted the chancellor’s statement in implying that he required counsel to supply a written waiver as a condition to his acceptance of it. The chancellor did not direct that the waiver be reduced to a writing. His statement as quoted here should speak for itself. He stated that the waiver was being made on the record and merely requested counsel to see that the precedent recited that the waiver had been made in open court. If counsel had done exactly what the court requested, there would have been no written waiver such as the prevailing opinion seems to require because the parties did not and would not have signed the decree.
The fact that the waiver was not subsequently alluded to in the decree as requested the court should not alter our result. If the stipulation in open court was in fact a waiver, the failure to subsequently comply with the court’s initial directive is a matter to which the trial court might have directed its attention, but it certainly is not a basis for reversal on appeal. The ancient and honorable maxim that equity treats as done that which ought to have been done might lend some support to this proposition.
If, however, we must rule that the form rather than substance controls in this instance, the injustice is compounded by the court’s order dismissing the case completely. It has long been a general rule that, where there has been a simple failure of proof, the case should be remanded in order to give the party an opportunity to supply the deficiency. This rule has been applied in both circuit and chancery cases. Colonial Life & Accident Insurance Co. v. Whitley, 10 Ark. App. 304, 664 S.W.2d 488 (1984); Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981). Where an equity case has been heard on the evidence, or there has been a fair opportunity to present it, the appellate court is not usually required to remand the case solely to give either party an opportunity to produce other evidence. However, the court does have the power to remand any case in equity for further proceedings, including the hearing of additional testimony, where the parties have tried the case on an erroneous theory and the chancery court has decided the case on that theory. In such cases, the court on appeal may exercise its discretion to remand in order that the pertinent facts not fully developed may be ascertained. Simmons First National Bank v. Wells, 279 Ark. 204, 650 S.W.2d 236 (1983); Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949); Moore v. City of Blytheville, supra. Here, both parties tried the case on the theory that corroboration of grounds of divorce would not be required and had been waived. The chancellor decided the case on that assumption. For this reason, the appellee offered no corroborative proof that appellant’s conduct had rendered her condition in life intolerable, which, if true, would certainly be susceptible of proof.
I do not argue that in cases where a party negligently fails to prove his case, this opportunity should be afforded. I am of the opinion, however, that, in those cases where the absence of proof is not due to neglect of the parties, but to misunderstandings, which are not only shared by opposing counsel but by the court as well, such a rule should be applied. I would grant the rehearing and affirm the decree as entered. In the alternative, I would remand the matter for further proof corroborative of appellee’s grounds for divorce.
I am authorized to state that Judges Cooper and Jennings join in this dissent.