dissenting. There can be no doubt that the result we reach in this case is manifestly unjust. If the law mandated the result we reach, we would have no choice. It doesn’t and we do. This is not a difficult case. Its correct resolution requires only the application of well known and accepted principles of law.
Mr. and Mrs. Rachel were married for 30 years and have a grown daughter. Mr. Rachel left his wife in 1982, and lived with another woman for two years. Despite this, Mrs. Rachel took him back and tried to reconcile. He stayed home approximately five months and then began seeing another woman in Bastrop, Louisiana, sometimes for weeks at a time. Mrs. Rachel filed for divorce, alleging adultery.
It is clear that on the morning of trial, Mr. Rachel’s lawyer advised the court in chambers that Mr. Rachel would waive corroboration of grounds in accordance with the statute. This was confirmed by the trial judge in open court with all parties present. The chancellor proceeded on this basis and awarded a divorce to Mrs. Rachel and made a division of the parties’ property. He also awarded alimony and attorney’s fees to Mrs. Rachel.
Because Mr. Rachel was dissatisfied with the amount of alimony and attorney’s fees awarded, he did not file a separate written waiver of corroboration of grounds as he had assured the court he would do. Instead, Mr. Rachel took an appeal arguing that, while he orally waived corroboration of grounds, the statute requires that the waiver be in writing and therefore the chancellor erred in granting Mrs. Rachel the divorce.
In our original opinion in this case we agreed with Mr. Rachel and reversed and dismissed the divorce action, thus returning Mrs. Rachel to wedded bliss.
I agree with much of Judge Cracraft’s dissent. I agree that a stipulation waiving corroboration of grounds made in open court is the functional equivalent of a written waiver. I also agree that the doctrine of invited error is applicable. The majority says that the doctrine is inapplicable because the chancellor did not commit error. I was under the impression that we reversed and dismissed this case because of our perception that the chancellor erred in awarding Mrs. Rachel a divorce on the ground there had not been strict compliance with the statutory requirement of a written waiver. Finally, I agree that this case can be correctly resolved by applying the equitable maxim, “equity treats as done that which ought to have been done.” This principle is a part of our law. Walden v. Holland, 206 Ark. 401, 175 S.W.2d 570 (1943).
But in my view the most powerful argument for granting the petition on rehearing is the principle of estoppel. The basic concept is that a person may be precluded from questioning the validity of a divorce decree if, under the circumstances of the case, it would be inequitable to permit him to do so. In the Law of Domestic Relations § 11.3, at 305 (1968), Professor Clark formulates the principle concisely:
[I] f the person attacking the divorce is, in doing so, taking a position inconsistent with his past conduct, or if the parties to the action have relied upon the divorce, and if, in addition, holding the divorce invalid will upset relationships or expectations formed in reliance upon the divorce, then estoppel will preclude calling the divorce in question.
See also Restatement (Second) of Conflicts § 74 (1971). These basic principles are well established in Arkansas law. In Anderson v. Anderson, 223 Ark. 571, 575, 267 S.W.2d 316, 318 (1954), a divorce case, our supreme court said:
The whole principle of equitable estoppel is that when a man has deliberately done an act or said a thing, and another person who had a right to do so has relied on that act or words and shaped his conduct accordingly, and will be injured if the former can repudiate the act or recall the words, it shall not be done, (quoting Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146,282 S.W. 995 (1926))
In Masonv. Urban Renewal, 245 Ark. 837, 840, 434 S.W.2d 614, 615 (1968), the court said:
We find it unnecessary to consider appellants’ contentions because each of the appellants shared in benefits from the decrees of the trial court. One who shares in the fruits or benefits of a judgment or decree is estopped to challenge its validity, even where there is a want of jurisdiction of the subject matter.
See also Morgans. Morgan, 171 Ark. 173, 283 S.W. 979 (1926), and Butts v. Butts, 152 Ark. 399, 238 S.W. 600 (1922).
Clearly on the facts of this case Mr. Rachel is estopped to challenge the validity of this divorce decree.
The majority’s explanation as to why estoppel is inapplicable is particularly unsatisfying. The majority says that estoppel does not apply because there was no waiver in writing as required by the statute. It fails to recognize that waiver and estoppel are separate concepts.
The majority opinion is based on platitudes and general statements from clearly inapplicable cases. As Holmes said in Lochner v. New York, 198 U.S. 45 (1905), general propositions do not decide concrete cases. The majority goes to great lengths to establish that it was the law for many years in this state that corroboration of grounds was essential and could not be waived, before noting, almost as an aside, that the legislature has now changed that rule to provide that corroboration of grounds can be waived in any divorce action whether contested or uncontested. In McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977), from which the majority quotes, the question the court dealt with was whether it ought to judicially abolish the requirement of corroboration in contested cases. The court held that it would be unwise to do so. Of course McNew was decided before the legislature provided for waiver of corroboration in contested cases in 1981. So was Morrow v. Morrow, 270 Ark. 31,603 S. W.2d 431 (1980), cited by the majority. It is fair to say that the action the legislature took in 1981, was a legislative overruling of the majority opinion in Morrow. No case cited by the majority is factually similar to the case at bar. No case cited by the majority deals with the issue of estoppel.
As Justice David Newbern, then a judge of this court, said in dissent in Morrow, “the majority appears to attribute to the corroboration requirement a sacredness which I find unjustifiable.” 270 Ark. at 36, 603 S.W.2d at 434. The majority correctly recognizes that the sole reason behind the requirement of corroboration is to prevent collusion. It is abundantly clear that there was no collusion in this case.
We do not know whether these litigants may have remarried. We do not know what has become of their property, long since divided by the chancellor. If there were some compelling reason to leave these unfortunate litigants dangling in the wind, I would be forced to agree. Because no such reason exists, I respectfully dissent from the denial of the petition for rehearing.
I am authorized to state that Judges Cracraft and Cooper join in this dissent.