McCray v. McCray

Conley Byrd, Justice.

Both appellant and appellee sought a divorce. The appellant prevailed. However, she contends that the chancellor erred with respect to her statutory dower rights. Appellant asserts that she is entitled to a dower interest in a parcel of real property in addition to V2 of the proceeds from the sale of their jointly owned residence. The appellee admitted that he owned an undivided 1 /3 interest in certain realty. Ark. Stat. Ann. § 34-1214 (Repl. 1962) provides in pertinent part that where the wife is granted a divorce, as here, she “***shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life*** ” Clearly this statute mandates that appellant was entitled to her statutory interest in this additional real property.

Appellant also presents the argument that even though the court awarded her the household furnishings, Vi of the proceeds from the sale of the residence and an automobile, she was entitled to a dower interest in additional personal property. The burden was upon her to establish the nature and'extent of appellee’s property, both real and personal. It was for the chancellor to resolve the conflict in the evidence, some of which appears speculative. After a careful review of the evidence, we are of the view there is nothing in the record to show that appellant has not received in value her equitable share of her statutory rights in the personal property. Biddle v. Biddle, 206 Ark. 623, 177 S.W. 2d 32 (1944); and Myers v. Myers, 226 Ark. 632, 294 S.W. 2d 67 (1956).

The chancellor dissolved the estate of the entirety under which the parties’ homestead was held and ordered the property sold and the proceeds divided. The record shows that the parties were married in 1928 and that at the time of trial in January, 1971, appellant was sixty-four years of age. Appellant had been steadily employed during most of the marriage — having earnings of $7,800 for the year of 1970. Appellee had worked as a rural mail carrier since 1935, and his earnings fluctuated from $10,000 to $12,000 per year. Some two years before their separation the parties had sold the home they owned on Main Street in Malvern for $12,000 and after paying off a small mortgage put the balance of $11,-000 into their present home. The proof shows that their present home was built on a lot acquired in 1959, for $3,000, by appellant from her own monies. In addition appellant admittedly put an additional $6,900 of her own savings into the construction cost of their present home. Other evidence shows that appellee left the appellant and took a room with a widow and her children two doors down from appellant. When we consider that these parties had been married for thirty-nine years; that appellee flagrantly violated the marital code by moving in with another woman within sight of the family home; and that appellant not only spent $3,000 of her own funds for the lot upon which the house was constructed but also used $6,900 of her savings to finish the construction only two years before the separation, we conclude that the chancellor abused his discretion in ordering the family homestead sold. It follows that the chancellor should have awarded possession of the family homestead to appellant and have imposed upon her the obligation of keeping up the insurance and taxes in the parties’ joint names.

Appellant also requests an additional attorney’s fee for the services of her counsel on appeal, which we allow in the amount of $600.00.

Reversed and remanded.