dissenting. I respectfully dissent from the decision of the prevailing opinion of this court which holds that Mildred Self’s twenty-four year delay in seeking to set aside her husband’s 1965 decree of divorce does not give rise to the defense of laches. I believe the chancellor’s decision, which the prevailing opinion of this court affirms, is clearly erroneous.
I think it important to recognize that we are not required to decide whether the 1965 divorce decree should have been entered. Clearly it should not. The issue is whether Mildred Self should be barred by laches for having waited twenty-four years before seeking to have the divorce decree set aside. The adversaries are not Mildred and Alex Self, but Mildred and Elizabeth. One of these women, depending upon our decision, will suffer adverse consequences. If the chancellor’s decision is reversed, Mildred will not be entitled to receive VA widow’s benefits. If the chancellor’s decision is affirmed, Elizabeth will not be entitled to receive VA widow’s benefits and her child may very well become illegitimate under applicable Louisiana law. As between these women, which one has caused, or is at least more culpable in bringing about, this situation?
The prevailing opinion cites several cases on which the appellant, Elizabeth, relies. The most striking parallel to this case, however, is found in Maples v. Maples, 187 Ark. 127, 58 S.W.2d 930 (1933), and should be the controlling precedent. Rarely does a precedent bear the similarities of fact and procedural postiire as Maples does to columns show the comparison: the case at bar. The following
Maples
Maples, a nonresident, obtains an Arkansas divorce on service by publication of a warning order and upon false representations to an Arkansas court that he was a resident of Arkansas and that his wife had deserted him.
Self
Self, a nonresident, obtains an Arkansas divorce on service by publication of a warning order and upon false representations to an Arkansas court that he was a resident of Arkansas.
Maples’ first wife learns of the divorce.1
Maples remarries.
Maples dies and his widow becomes entitled to VA benefits.
Maples’ second wife begins receiving VA benefits.
Fourteen years after the divorce decree was entered, the first wife brings an action to set it aside.
In an ex parte proceeding the chancellor sets the decree of divorce aside.
Maples’ second wife intervenes and seeks to set aside the prior order which set aside the decree of divorce.
An adversarial proceeding is held with first and second wives appearing.
The chancellor refuses to set aside the prior order which set aside the decree of divorce.
Maples’ second wife appeals.
The supreme court reverses.
Self’s first wife leams of the divorce decree within a week of its entry.
Self remarries.
Self dies and his widow becomes entitled to VA benefits.
Self’s second wife begins receiving VA benefits.
Twenty-four years after the divorce decree was entered, the first wife brings an action to set it aside.
In an ex parte proceeding the chancellor sets the decree of divorce aside.
Self’s second wife intervenes and seeks to set aside the prior order which set aside the decree of divorce.
An adversarial proceeding is held with first and second wives appearing.
The chancellor refuses to set aside the prior order which set aside the decree of divorce.
Self’s second wife appeals.
In Maples the supreme court cited its earlier case of Corney v. Corney, 97 Ark. 117, 113 S.W. 813 (1910), and repeated a quotation in that opinion from Bishop on Marriage and Divorce (vol. 2, § 1533) as follows:
There are excellent reasons why judgments and matrimonial causes, whether of nullity, dissolution or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonial status of the parties draws with it and after it so many collateral rights and interests of third persons that uncertainty and fluctuation in it would be greatly detrimental to the public. And, particularly to an innocent person who has contracted a marriage on faith of the decree of the court, the calamity of having it reversed and the marriage made void is passed estimation. These considerations have great weight with the courts, added whereto there are statutes in some of the States according a special inviolability to such judgments.
The supreme court concluded by holding that because the first wife waited fourteen years before bringing her action to have the divorce decree vacated, she had waited too long and was barred by her laches.
The prevailing opinion attempts to distinguish Maples from the instant case by pointing out that in Maples the first wife knew of her husband’s remarriage in 1918 and took no action until 1931, while here the first wife did not learn of her husband’s remarriage until his death. This, however, is a point without relevance. Maples’ remarriage was merely a consequence of the fraudulent divorce. It must have been her knowledge of the fraudulent decree and failure to act within a reasonable time that gave rise to laches. Alex Self’s first wife admitted that she learned of the divorce decree within a week of its entry. Yet she delayed for twenty-four years before bringing this action to set it aside.
The prevailing opinion also suggests that Alex’s payment of child support pursuant to the Louisiana decree was an indication that even he regarded the Arkansas divorce as invalid. However, Alex’s opinion of the validity of the divorce decree has no relevance to whether laches applies to Mildred’s cause of action, but even if it did, Alex’s payment of child support may have resulted from his recognition of a moral obligation to support his children who were residing with his first wife, whether or not the Louisiana court order so required, rather than from an opinion that the Arkansas divorce was invalid. Furthermore, even if Alex believed the decree of divorce was invalid, he utilized the decree by displaying it to his second wife, Elizabeth, before she married him. Elizabeth is the party raising the defense of laches, not Alex.
The consequences which may result upon the voiding of a decree of divorce are multiplied and magnified with the passage of time. Laches is particularly appropriate in this setting to avoid the inevitable harm to new family units and the difficulty in sorting out the property interests of the parties, especially those of the members of the new family unit. Delays of even six months, or two years, after a divorce has been granted before bringing an action to set aside the decree have been held sufficient to raise the bar of laches where one of the parties has remarried. Sariego v. Sariego, 231 Ark. 35, 328 S.W.2d 136 (1959); Corney v. Corney, 97 Ark. 117, 133 S.W. 813 (1910).
The additional fact, mentioned in the prevailing opinion, that Mildred sought the advice of an attorney upon learning about the divorce decree is of no consequence. A client is bound by the inaction and inattention of her attorney. Beth v. Harris, 208 Ark. 903, 188 S.W.2d 119 (1945). Furthermore, Mildred chose this attorney, Elizabeth did not. Elizabeth had no reason to know that she needed to consult an attorney prior to marrying Alex, for she had seen the decree of divorce which appeared perfectly valid in form.
As noted in the prevailing opinion, the doctrine of laches is founded on equitable maxims of “he who seeks equity must do equity” and “equity aids the vigilant.” Grimes v. Carroll, 217 Ark. 2, 210, 229 S.W.2d 668 (1950). I believe the chancellor’s decision to render aid to Mildred violates these maxims and is clearly erroneous. I would reverse.
Mayfield, J., and Wright, S.J., join in this dissent.
This is the only fact listed which is implied rather than explicit. The Maples opinion does not disclose when the first wife learned of the fraudulent divorce, only that she learned of Maples’ marriage to the second wife soon after the marriage, which occurred in the same year as the divorce. It is most unlikely, however, that the supreme court would have found that she was barred by laches to attack the fraudulent divorce decree unless she knew about the decree.