dissenting. I submit that the petition for rehearing has pointed up a grievous error in our original decision and opinion — one that we should correct before our opinion becomes a binding precedent.
While we have not decided the precise question, I feel that our holding that the courts of this state cannot take into consideration property in another state in making distribution in a divorce case and carry that distribution into effect by compelling a conveyance of that property is not only unsound and wrong, but is out of harmony with our holding in Phillips v. Phillips, 224 Ark. 225, 272 S.W. 2d 433.
If the question were one involving the right a wife has, by reason of the marriage, in her husband’s property, I could agree that Oklahoma law should govern. But this is not the question involved at all. We have here a husband and wife, who are both residents of Arkansas and both before the courts of Arkansas in person. There cannot be any doubt about Arkansas being the marital domicile. The question then, is what is the wife entitled to as a distribution of the husband’s property when she is granted a divorce as the injured party. I think the reasons are partly recognized in language of the statute omitted from the original opinion in this case. The pertinent part of the statute reads:
. . . and the wife so granted a divorce against the husband, if she shall have actually personally resided in this State for a period of time next before the commencement of the action at least equal to the residence required to enable her to maintain an action for divorce, 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, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled; ***** The proceedings for enforcing these orders may be by petition of either party specifying the property the other has failed to restore or deliver, upon which the court may proceed to hear and determine the same in a summary manner after ten [10] days’ notice to the opposite party. And such order, judgment or decree shall be a bar to all claim of dower in and to any of the lands or personality [personalty] of the husband then owned or thereafter acquired on the part of his said wife divorced by the decree of the court.
Provided, however, that a wife not haying actually personally resided in this State for a period of time, next before the commencement of the action, at least equal to the residence required to enable her to maintain an action for divorce, but found to be the injured party in an action brought on the grounds of three [3] years separation or granted an absolute divorce on her cross-complaint, shall be entitled to the same portion, if any, of the husband’s personal or real property, or both, that she would have been entitled to, if an absolute decree of divorce had been granted her in the state of the last matrimonial domicile of the parties, wherein they lived together as husband and wife, such portion, however, not to exceed that to which a wife residing in this State, as aforesaid, would be entitled under the provisions of this Section and, provided further, that no permanent alimony allowable under Section 34-1211, Arkansas Statutes 1947, shall be granted a wife not a resident of this State as aforesaid but found to be the injured party in an action brought on the ground of three [3] years separation or granted an absolute divorce on her cross-complaint, unless permanent alimony is, at the time of the rendition of the decree, allowable upon the granting of an absolute divorce in the state of the last matrimonial domicile of the parties, wherein they lived together as husband and wife.
This language itself recognizes that the law of the marital domicile should be the overriding factor in distribution of the husband’s property in a divorce case. It clearly provides for those cases in which the law of some other state should be applied. This is not one of them. It does not say that the wife is entitled to one-third interest in the husband’s Arkansas real estate only.
Marriage is a social institution in which the state has a vital interest. 52 Am. Jur. 2d 866, Marriage § 2. The state has a vital interest in its protection and we have said that it is a silent third party in every divorce action. Dunn v. Dunn, 222 Ark. 85, 257 S.W. 2d 283; Mohr v. Mohr, 206 Ark. 1094, 178 S.W. 2d 502. The state of the marital domicile has the greatest interest in the marital status. Leflar, American Conflicts Law 533, § 220. The state of the marital domicile has the power to prescribe the duties and obligations of the marriage partners. 55 CJS 809, Marriage, § 2. It has the exclusive right to determine the marital status of its domiciled citizens, respecting questions of marriage and divorce. Peirce v. Peirce, 379 Ill. 185, 39 N.E. 2d 990 (1942); Larsen v. Erickson, 222 Minn. 363, 24 N.W. 2d 711 (1946).
The important question is what provision shall be made for the wife out of the husband’s property, when both are domiciliaries. It matters not where the property is located. One jurisdiction should control that distribution, insofar as possible. No better expression of my view could be given than that expressed in McElreath v. McElreath, 162 Tex. 190, 345 S.W. 2d 722, where the Texas court directed enforcement of an equitable decree in a divorce suit in Oklahoma ordering the husband to convey Texas lands to the wife based on a distribution under the Oklahoma statute. Oklahoma was the marital domicile. The Texas court said:
Insofar as marital property is concerned, the laws of Oklahoma are different from those of Texas. However, upon the dissolution of a marriage, Oklahoma like Texas seeks to provide equitable distribution of properties and property rights between its residents. Quite obviously one authority must settle these rights if anything approaching fairness and equity is to be secured. Jurisdiction for such purpose rests with the courts of the matrimonial domicile which, in this case, is the State of Oklahoma. ***** This case involves Oklahomans and it is not against the public policy of Texas for Oklahoma to maintain a different system of property ownership for its residents than that provided by Texas for Texans.
Article 4638 of Vernon’s Ann. Tex. Stats, is a part of Chapter 4, Title 75 of the Revised Statutes relating to Divorce. It reads as follows:
“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.”
This article and the chapter of which it is a part apply only to Texas courts pronouncing decrees of divorce in suits involving Texas residents. Our community property system naturally affects our plan of property division upon a marriage dissolution. Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, 160 Tex. 372, 331 S.W. 2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage. We expect other states to recognize our system of marital property ownership, so should we respect their schemes of property ownership and attendant plans for the adjustment of property rights upon dissolution of a marriage. Texas public policy does not relate to and is not concerned with the settlement by Oklahoma courts of marital property problems which arise between Oklahoma citizens. Article 4638 establishes a policy governing Texas courts in cases involving divorce and property rights based upon the marital laws of this State. It does not purport to establish a public policy relating to land tenure by nonresidents.
The respondent here was a resident of Oklahoma when divorced. He possessed no rights in Texas property under the marital laws of this state. He had no homestead right in and to the property involved, Article 16, § 51, Texas Constitution, Vernon’s Ann. St., Article 3833, Vernon’s Ann. Tex. Stats., 22 Tex. Jur., Homestead, §§31, 32, or anything similar thereto.
*****
. . . The trial court and the Court of Civil Appeals treated the decree as being one which directly affected the title to Texas lands. We regard it as being an equitable order operating in personam which orders James Dorsey McElreath to execute a deed conveying land in Texas to Evelyn Ann McElreath.
*****
James Dorsey McElreath’s holdings consisted of real and personal property situated in both Oklahoma and Texas. The Texas property was devised to him by his father, A. R. McElreath. This circumstance is immaterial as the Oklahoma statute above quoted makes no distinction between property acquired by gift, devise or bequest and any other form of separate property. Under the Oklahoma law the court was empowered to allow alimony to the wife “out of the husband’s real and personal property.”
*****
. . . [W]e might inquire as to how and in what way does one state’s action in adjusting the property rights and problems of its own citizens violate the public policy of another state. Or, to be specific and to the point insofar as this case is concerned, what difference does it make to the State of Texas whether the property here involved is awarded to the ex-husband or the ex-wife of a broken Oklahoma marriage?
*****
It would seem that Texas should have no concern with the statutes and methods adopted by Oklahoma in settling the matrimonial differences of its citizens and their property rights.
*****
Although this Court and the courts below may be of the opinion that the Oklahoma trial court should have awarded Oklahoma land rather than Texas land to the wife or entered an alternative money award to the wife in the event the husband refused to convey the Texas land, 17A Am. Jur. 172, Divorce and Separation § 991, and thus avoided the complexities incident to the type of decree now before us, such opinion or belief would not justify a conclusion that the Oklahoma judgment is contrary to Texas public policy. The public policy issue, stripped of all its spurious and specious ramifications, is simply answered by saying that insofar as the public policy of Texas is concerned, either a husband or a wife to a broken marriage of Oklahoma residents may hold land in this state.
McElreath has been cited and applied in other jurisdictions. One case determined on its authority is Phelps v. Williams, 192 A. 2d 805 (DC. Ct. App. 1963). There the court said:
We of course agree with the trial court that the Ohio decree could not operate directly upon or affect title to the District of Columbia real estate, and that part of the decree which sought to effect a conveyance of title to the wife free from any interest of the husband was wholly ineffective. ***** But it does not necessarily follow that appellant is entitled to no relief.
The Ohio court had personal jurisdiction over appellee and had authority to order him to pay alimony to appellant, and under the law of Ohio alimony may be allowed in real property. In this case the Ohio court ordered appellee to convey the real estate to appellant “as and for” alimony. Thus, although the Ohio court could not by its decree directly act upon the title to the District of Columbia real estate, it could and did impose a personal obligation upon appellee to convey such real estate to appellant as and for her alimony.
*****
Appellee was subject to the jurisdiction of the Ohio court and that court granted appellant a divorce and made a final determination of the rights of the parties with respect to support for the wife. Appellee has the burden as well as the benefit of that determination. There was imposed upon appellee a personal obligation to convey the real estate and such obligation should be recognized and enforced here.
The Nebraska Supreme Court reached the same result. Weesner v. Weesner, 168 Neb. 346, 95 N.W. 2d 682 (1959). That court said:
Also, the Wyoming court had jurisdiction of the parties, the divorce controversy, and all that pertained to it, including an award in lieu of alimony to defendant. If once decided in a final valid personam decree, the same claim or demand for division of the property and alimony cannot generally be relitigated in another action between the parties in this state because of the application of the principle that determines the estoppel of judgments which are res judicata. In other words, as claimed by plaintiff, the Wyoming court had no jurisdiction and authority to directly affect and determine the title to the property in North Platte, Nebraska. However, it did have jurisdiction and authority under the circumstances presented here, to render any personam order it might make in lieu of alimony, such as an order that plaintiff make, execute, and deliver a quitclaim deed to defendant of his interest in the property, which when made and final would be res judicata and binding upon plaintiff and defendant. See, Bates v. Bndie, 245 U.S. 520, 38 S. Ct. 182, 62 L. Ed. 444.
*****
. . . [I]t is universally held that a court of one state cannot directly affect or determine the title to land in another state. However, it is also now well established that a court of competent jurisdiction in one state with all necessary parties properly before it in an action for divorce, generally has the power and authority to render a decree ordering the execution and delivery of a deed to property in another state in lieu of alimony for the wife.
In New Jersey, a decree of a Florida court directing the husband to convey New Jersey land to the wife as lump sum alimony was enforced in Higginbotham v. Higginbotham, 92 N. J. Super 18, 222 A 2d 120 (1966), saying:
The Florida court, as earlier noted, had jurisdiction of the parties and the subject matter of the divorce action. Defendant concedes that its judgment is in all respects valid except for the provision relating to the conveyance of the Clifton property. The Florida court had the power to grant lump sum alimony, Fla. Stat. Ann., § 65.08, and this in the form of ordering defendant to convey the property in question. Kilian v. Kilian, 97 So. 2d 201 (D. Ct. App. 1957); Bezanilla v. Bezanilla, 65 So. 2d 754 (Sup. Ct. 1953).
See also, Larrabee v. Larrabee, 504 P. 2d 358 (1972) where a Colorado intermediate court approved a decree requiring conveyance of Texas property, citing McElreath.
These decisions clearly recognize that when the parties to a divorce suit are before the court in the state of the marital domicile that state may apply its laws relating to property distribution. Support is given by the text writers. Dr. Leflar speaks clearly on the subject, and contrary to the inference drawn from the proof-text quotations in the original opinion. In his American Conflicts Law, he has said:
A decree determining the personal rights of parties, both before the court, with reference to land located in or out of the state ought to be as conclusive as any other judgment. The states are free to reach this conclusion, since Fall v. Eastin [215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65] does not say that faith and credit must not be given to land decrees, but only that it need not be given. Most states today do give full faith and credit to them. On facts almost identical with those in the Nebraska case, Iowa gave effect to the same kind of Washington decree ten years later, distinguishing Fall v. Eastin narrowly on its facts. Nebraska itself changed its position and now grants faith and credit to sister states’ in personam orders for conveyances of local land, as do most of the other states in which the question has recently arisen. In Durfee v. Duke [375 U.S. 106, 84 S. Ct. 242, 11 L. Ed. 2d 186] the United States Supreme Court came close to saying that Fall v. Eastin is superseded, by holding that a sister state jurisdictional finding concerning land was binding on the parties. But the old case has not yet been overruled. The question now is as to what a state court ought to do.
The courts of one state cannot directly affect title to land in another state, and all courts have always looked with suspicion upon the orders of extrastate courts concerning local land. But a court having personal jurisdiction over parties can adjudicate their personal rights and obligations in reference to any res, wherever situated, and all courts have agreed in giving extrastate negative effect to such adjudications, that is, in treating them as defenses to later suits between the same parties on the original causes of action. Several states have allowed such personal decrees to be employed affirmatively, by entertaining suits brought upon them as causes of action, p. 191, § 83.
Although the courts of one state are without power to issue any judgment or decree directly affecting title to land in another state, it is permissible for them to issue in personam judgments and decrees in suits involving foreign land. ***** As an incident to divorce proceedings also, an in personam order may be issued against the husband requiring him to convey extrastate land to his wife in lieu of dower, pp. 428, 429, § 174
. . . The only way in which a wife can secure a direct assignment of dower in land or in tangible chattels in connection with a divorce is by securing her divorce at the situs of the land or chattels. This applies, however, only to a direct assignment; indirectly, the award can often be accomplished by the court which grants the divorce taking into consideration the value of the estrastate property and proportionately increasing the amount awarded to the wife out of local property, or rendering a personal decree against the defendant husband (if he be personally subject to the jurisdiction) for the increased amount in lieu of dower, p. 574, § 239
*****
If the court granting the divorce has personal jurisdiction over the husband, it may issue an in personam decree against him ordering him to convey ex-trastate land to his wife in lieu of dower. Such a decree will have no effect upon the legal title to the foreign land, and the decree is not absolutely entitled to full faith and credit in the state where the land lies. But most states of situs will voluntarily recognize and give effect to such decrees as rendering res judicata a prior right of the parties and creating an equitable obligation which is entitled to extrastate enforcement, p. 575, § 239
In 3 Nelson, Divorce and Annulment, (2d Ed.) 519, § 33.43, the writer says:
A court of one state has no jurisdiction over immovable or real property in another. Such property is governed by the lex rei sitae and is subject to the exclusive jurisdiction of the state in which it is located. Accordingly a court of one state cannot decree a charge upon, or a transfer of, realty in another; nor can its decree have any effect per se upon the title to such property. But a court having jurisdiction of the subject matter and parties in a divorce action can decree a division and distribution of property, including realty in another state, by operating on the person. In other words, it can grant a decree requiring a party to execute an instrument conveying or encumbering realty in such state, the decree operating in personam and not of itself conveying or encumbering the property and, such a decree having been granted, not only may the court that granted it punish disobedience of its order, but the decree will constitute a sufficient basis for an action in the state where the property is located to compel a conveyance. Thus, where a court having personal jurisdiction of the parties has rendered a decree requiring the defendant to convey land in another state, but he has prevented the court from enforcing compliance by leaving the jurisdiction and going to the state where the property is located, a court of the latter state may render a decree in personam against him requiring him to make the required conveyance.
Our statute permits the chancellor to consider all property of the husband in all states when making a property distribution and to compel a conveyance of real property in another state as a part of that distribution. This the chancellor did in this case. I submit that he was more sensitive to the problems involved than this court has been. What are we going to do when a husband who wants to avoid a property distribution in a pending divorce case invests all his assets in real estate in Oklahoma, or any other sister state?
We recognized the propriety of application of the principles of McElreath and other such cases as long ago as our decision in Phillips v. Phillips, 224 Ark. 225, 272 S.W. 2d 433, when we recognized the power of the Kansas courts having jurisdiction of the persons of the parties to dissolve estates by the entirety in Arkansas as an incident to a divorce between a husband and wife who were domiciled in Kansas, by compelling conveyances by each to the other. At the time, our own statute empowering our courts to dissolve tenancies by the entirety had not been passed.
I would also point out that there seems to be an inconsistency in the original opinion’s holding that Oklahoma law should have been applied and the statement that appellant has no interest in the Oklahoma property. Yet, if Oklahoma law is applied the chancellor clearly had the power to award alimony in the real estate, either in gross or in installments. Although I think this is an unsound approach, it seems clear that the chancellor might well have taken a different approach to property distribution and to alimony, had he suspected that the action he took would be set aside because he did not apply Oklahoma law. We properly recognized such a possibility in Lockley v. Lockley, 257 Ark. 603, 519 S.W. 2d 52 (1975), when we voided the trial court’s attempt to act directly upon the title to Michigan real estate and remanded the case in order that the chancellor might reconsider the distribution. See also, Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742. We did not do so here.
However, I would grant the rehearing and affirm the chancellor’s decree.
I am authorized to state that Mr. Justice Brown joins in this opinion.