dissenting. Like my brother Holt, I am unwilling to join in the court’s retreat from its previous refusal to hold that the chancellor abused his discretion in ordering the tenancy by the entirety disolved by sale. In our original opinion in this case, we said:
Neither can we agree that the chancellor erred in ordering the jointly owned residence sold and the proceeds equally divided between the parties. Each is regularly employed. The appellant earns approximately $7,800 a year. Appellee’s earnings fluctuate from $10,000 to $12,-000 annually. The chancellor awarded her $50 per month alimony and, as indicated, the household furnishings. Appellant has had the use of the residence since their separation in 1967. Their only child is a married adult. Ark. Stat. Ann. § 34-1215 (Repl. 1962) specifically gives the court the power to dissolve an estate by the entirety upon the rendition of a final divorce decree. Sec. 34-1214, supra, provides authority for the sale of real estate where it cannot be divided without “great prejudice” to the parties. The chancellor is, therefore, accorded broad discretionary authority in the disposition and award of marital property in a divorce action. In view of both parties’ earnings and their contribution to the purchase of the home in which they had lived for only approximately two years before their separation, the award of the household furnishings to appellant together with alimony, we cannot say the chancellor abused the discretionary power entrusted to him by our legislature in ordering a sale of the property and dividing the proceeds equally. Furthermore, it is well established that we do not reverse a chancellor’s finding on a disputed factual issue unless it is clearly against the preponderance of the evidence. We are unable to say that the chancellor’s resolution of this iss: e was clearly against the preponderance of the evidence.
This case had been before that judge from the time appellant instituted suit for separate maintenance on January 31, 1967. She did not even seek a divorce until October 17, 1969, some two years after appellee took up his abode in a place near this home. Even then, her grounds were general indignities and desertion. The case was tried January 19, 1971. The chancellor saw, heard and evaluated these parties and their positions. For some unexplained reason a formal decree was not entered until two years and nine months after the court’s decision was noted on the trial docket on the day of the trial.
During the separation of the parties beginning in January, 1967, he bought a set of tires for appellant’s automobile. In addition to other items of personalty awarded her, appellant sold a boat for $150.00 with appellee’s consent.
Appellant was approximately 67 years of age at the time the decree was entered. At the time of the trial, she had been employed as a secretary, clerk-typist, by the U.S. Department of Agriculture for 21 years, had a salary of $7,800.00 a year, wrs eligible for retirement and will be required to retire when she reaches age 70. Her retirement income would have amounted to $150.00 or $160.00 a month, if she had retired at the time of the trial. She has a diamond ring worth $ 1,000.00. Although she kept her money separate all during the marriage, with approval of appellee, she admitted that her money was released because appellee was paying things she normally would have paid as “a member of the marriage.” Appellee, a rural mail carrier, earned $12,610.70 in 1970, the most he ever earned, but his earnings, being based on a mail count, fluctuate and decreased by $1,100.00 in 1971. He anticipated that it would later be much less. He testified that appellant had tried to get him fired.
The lot on which the home was built in 1964 was purchased by appellant in 1959 for $3,000.00. Of the cost of the new home SI 1,000.00 was paid from the proceeds of the sale of the home in which the parties had been living. Appellant’s contribution of $6,900.00 to the cost of the home was based upon her promise to appellee to pay all above the $11,000.00 realized from the sale, because of his reluctance to incur indebtedness for a new home. Appellee testified that he let appellant pressure him into selling and that the sale price was far below value. He said the buyer made $7,000.00 profit on it. Appellee’s father gave them $350.00 on a lot for the previous home.
All these matters and others were in contemplation by the chancellor in arriving at his decision. In spite of the fact that fault is a relevant consideration in such matters, giving the chancery court discretionary power to act upon tenancies by the entirety in divorce cases was not for punitive purposes. The discretion is a sound judicial one and this, to me, means an equitable one. Appellant was not blameless. Without detailing the evidence the chancellor heard, the fact that appellee was not without fault, is clearly shown by the testimony of the mature adult daughter of the parties, called as a witness by appellant. She said that her mother and father had trouble for many years — at least since her childhood. Appellant admitted she threw a rock at appellee when he came to the house during the separation.
I simply cannot agree that the chancellor abused his broad discretion in this matter.