disseriting. I find it ludicrous that a woman who invests $45,000.00 as well as her services' as “wife” and homemaker (in contrast to her husband’s $4,-600.00 investment) in' property held' in a tenancy by the entireties suddenly finds she riot only is not a' wife, but also is only a one-half owner of the property purchased by the couple. Furthermore, she is characterized by the Chancellor as an adult of sound mind who merely invested' her life savings in a high risk operation, thereby becoming a partner of the man who, but for his failure to have a divorce from his sixth wife, would be her husband.
(2) as to the property division, this seems very .similar in my mind to a situation where two partners enter into a speculative business venture which turns out not to be very profitable and then one partner wants to, in essence, cancel the whole deal and be put back in the position that he was in before the venture began. Of course, such action is not proper if both partners wilfully entered into the business transaction and neither exercised any fraud to induce the other into the transaction. (3) In this case I find that the evidence preponderates in favor of a finding that each thought was valid when entered into and that they both wilfully entered into the speculative venture of attempting to establish and run a horse breeding and racing operation. The idea was for the plaintiff to furnish the money and the defendant to furnish the labor and expertise to establish and run the venture. It is true that the plaintiff invested some $45,-000.00 of her money in the venture while the defendant only invested some $4,600.00 in the venture which consisted of money he earned from cutting pulpwood and repairing televisions after he moved to Arkansas, however, he did invest a great deal of time and effort in the venture.
Marriage in the State of Arkansas is not a business relationship. Marriage is not only a civil contract, it is a social and domestic relationship. Marriage in Arkansas may not be dissolved at the parties’ will. Fault must be present in a divorce. The State has a vested interest in the marriage. The motive for entering a marriage is quite different from the motive for entering a partnership. Marriage is entered with the expectation of mutually nurturing, sustaining, and caring for the well being of the marriage partner. From the undispusted testimony of the plaintiff, I find she invested her assets in the real property in Independence County after she married the defendant. They married June 21, 1972. The down payment check for the property is dated June 30, 1972. Plaintiff testified she would never have spent her $45,000.00 had they not been legally married.
I would reverse and instruct the Chancery Court to impose a constructive trust on the property. Although the Chancellor made a specific finding as to the absence of fraud,1 he did not state the couple did not have a confidential relationship. In Arkansas a constructive trust will be imposed if it shown by clear and convincing evidence the action which produced the reliance was either done fraudulently or by one in a confidential relationship. Bottenfield v. Wood, 264 Ark. 505, 573 S.W. 2d 307 (1978); Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958); Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840 (1955). Restatement, Trusts, Section 45. I can think of no more confidential relationship than that of husband and wife. This was the relationship which plaintiff thought she enjoyed.
Through no fault of her own, plaintiffs marriage was void. Ironically, had she decided to divorce the defendant, she would most likely have been entitled to more than fifty percent of the marital property. Act 705 requires an equal distribution of property unless this is inequitable. The eight factors listed in Act 705 when applied to this case would entitle the plaintiff to more than fifty percent of the property. More specifically, she has contributed to the acquisition of the property as well as contributing services of homemaker.
I would reverse this inequitable decision. Therefore, I respectfully dissent.
I might also add I am not convinced there was no fraudulent conduct on the part of the defendant. The plaintiffs testimony, which was not disputed, was that the defendant told her he had been married only twice. When the parties to a lawsuit offer testimony as to matters within their knowledge, and material evidence of one party is not contradicted by the other, it must be presumed to be true. Lenderman v. Lenderman, 266 Ark. 1000, 588 S.W. 2d 707 (Ark. App. 1979); Matthews v. Lanier, 33 Ark. 91 (1878); Miller v. Jones, Adm’r, 32 Ark. 337 (1877). One might question whether the plaintiff would have married and spent her savings on an investment with a man who obviously has a difficult time staying with a woman "until death do us part.” Furthermore, who is charged with knowing one’s status - be it single or married? Who is in a better position to know whether one is divorced from the sixth spouse and free to marry the seventh?