concurring. I concur but would not reach the issue of estoppel. In my view the marriage between Bill and Mae Ireland Brown was valid. Two rules of civil procedure are involved here. Ark. R. Civ. P. 58 provides:
Every judgment or decree shall be set forth on a separate document. A judgment or decree is effective only when so set forth and entered as provided in Rule 79(a). Entry of judgment or decree shall not be delayed for the taxing of costs.
Ark. R. Civ. P. 79(a) (now Arkansas Supreme Court Administrative Order 2) provides, in part:
All papers filed with the clerk, all process issued and returns thereon, all appearances, orders, verdicts and judgments shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made.
In the case at bar the decree of divorce is dated June 8,1981. It was filed marked on July 1,1981, and the docket entry made in connection with the decree was made on that date. It reads “Decree filed and recorded.” We have no reason to assume that the decree was reduced to writing on any date other than June 8, 1981. There is no indication in this record it was entered nunc pro tunc.
In Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), the issue was the validity of a divorce, and consequent validity of a subsequent marriage. In Standridge, the chancellor heard divorce proceedings between Terry and Annie Thacker on October 5,1984. He made a docket entry on that date, “Decree— A little unusual but it may work.” The decree was filed on October 24, 1984. In the meantime, on October 7, 1984, Annie Thacker had participated in a marriage ceremony with Harold Standridge. From a reading of the opinion in Standridge it is not clear when the decree of divorce was reduced to writing, i.e., in the language of Rule 58, when it was “set forth on a separate document.” In Standridge, the supreme court said, “Since the adoption of the rules, this court has made it clear that a judgment or decree may not be effective until it has been ‘entered’ as provided in Rules 58 and 79.” The court used essentially the same language in Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984) (“ARCP Rule 58 plainly states a decree is effective only when entered as provided by Rule 79(a)”).
In my judgment,. however, this was not the holding in Standridge. In that case the supreme court said:
Annie argues the Childress case and cases similarly decided by our court of appeals are distinguishable because they involve the death of a party, which is not involved here, and because they involve situations where there were or may have been issues left unresolved after announcement of the decree which, she contends, is not the case here. We see no significant difference between the case where a death occurs before entry of a decree and one where remarriage occurs before entry of a decree. In each case, the question is the same. Was the announcement of the divorce from the bench sufficient to effect the divorce? We again say no. (Emphasis added.)
In my view this was the issue decided in Childress and in Standridge. As the majority in Standridge noted, these holdings effectively overruled Parker v. Parker, 227 Ark. 898, 302 S.W.2d 533 (1957).
After stating the issue and deciding it, the majority in Standridge went on to explain the rationale for its holding.
Nor are we persuaded by the idea that in those cases there may have been issues remaining to be resolved. Although in the case before us now the support and property issues seemed to have been settled through Annie’s testimony at the divorce hearing as to the parties’ agreement, there is no telling what sort of objections one or the other of them might have upon seeing the decree in writing and being asked to approve it before entry. Our experience tells us there may always be outstanding issues until a written document is made the final instrument of the divorce and the divorce is made final at some definite point.
The manner in which the court posed the issue in Standridge leads me to the conclusion that the “definite point” is the point at which the divorce decree is reduced to writing in a “separate document”, signed by the trial court. An announcement from the bench or an entry on the docket, or both, would be insufficient.
Other language in Standridge leads me to this conclusion. The court expressly noted that Administrative Order 2 provides merely for the ministerial act of filing. Although the holding in Parker v. Parker, supra, has been overruled by the court’s decisions in Childress and Standridge, the distinction drawn in Parker between judicial and ministerial acts remains a valid one. I am not yet persuaded that the supreme court intends that the validity of a divorce, and the consequent validity of a subsequent marriage, should turn on the date of the performance of a ministerial act. This is particularly so in view of the long-standing presumption against deliberate bigamy, Bruno v. Bruno, 221 Ark. 759, 256 S.W.2d 341 (1953), and the common law presumption of the validity of the second marriage, Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971).
Our supreme court has stated that, because our procedural rules are patterned after the federal rules, we should look with persuasion upon how the federal courts have interpreted their corresponding rules. Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). Although Banker’s Trust Co. v. Mallis, 435 U.S. 381 (1978), is clearly not directly in point here, some of the language used by the United States Supreme Court is relevant. In discussing Rule 58 the Court said:
It must be remembered that the rule is designed to simplify and make certain the matter of appealability. It is not designed as a trap for the inexperienced. . . . The rule should be interpreted to prevent loss of the right of appeal, not to facilitate loss.
The Federal Rules of Civil Procedure are to be “construed to secure the just, speedy, and inexpensive determination of every action.”
* * *
It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities. (Citations omitted.)
If, in the case at bar, the chancellor signed a written decree of divorce on June 8,1981, the subsequent remarriage of Bill Brown to Mae Ireland Brown was valid, notwithstanding the delay in the performance of any ministerial act by a clerk.