dissenting. I respectfully dissent. The law of this State has been for many years that a marriage entered into by one not divorced from a living spouse is void, even though one of the parties to the marriage enters into it in good faith. See Cooper v. McCoy, 116 Ark. 501, 173 S.W. 412 (1915); Evatt v. Miller, 114 Ark. 84, 169 S.W. 817(1914). This rule was reaffirmed by the Arkansas Supreme Court as recently as May 1, 1989, in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). That case held that the rendition of divorce is not enough; it is not effective until reduced to writing and entered as required by Ark. R. Civ. P. 58 and Administrative Order 2.1 In these two respects, Standridge stands on all fours with the case at bar.
The majority opinion would evade the application of this established rule by applying the novel principle announced in Fox v. Fox, 247 Ark. 188, 444 S.W.2d 865 (1969). I think this approach is wrong for at least two reasons.
In the first place, estoppel is an affirmative defense which must be specifically pled. Ark. R. Civ. P. 8(c). The abstract fails to disclose that this issue was evfcr pled, raised, or argued in the trial court, and it cannot be raised for the first time on appeal. Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984); Sheffield v. Strickland, 268 Ark. 1148, 599 S.W.2d 422 (Ark. App. 1980).
Secondly, any similarity between the material facts in Fox and those in this case simply escapes me. In Fox, a divorced husband induced his former wife to resume the marital state without remarriage by willfully misrepresenting to her that he had seen their attorney and had their divorce decreé set aside. Although he knew that the divorce had not been set aside, the wife did not. Relying on his misrepresentation, she believed in good faith that she was legally married to him and resumed the marital relationship. He made no mention of this deceit until he pled the divorce decree as a bar to a second action for divorce and property settlement twenty years later. In denying the husband’s plea that he was not in fact married to her, the court said:
The evidence of record in the case at bar sustains Dorothy’s contention that she lived with Walter as his wife for more than twenty years under the mistaken belief, brought about by Walter’s deceit, that the divorce had not become final or that the decree had been set aside and that she and Walter were still legally married during the entire period they lived together.-There is no evidence in the record inconsistent with Dorothy’s belief that she was legally married to Walter, and Walter has offered no proof tending to show that Dorothy did not believe they were still legally married, except her long toleration of his own philandering activities.
A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity should, and we hold that it does, under the facts in this case, require that Walter be estopped to deny that the divorce decree was set aside or “thrown out” before it became final, and he is estopped to deny such rights as Dorothy would be entitled to had a divorce decree never been entered. In other words, we simply hold that as between Walter and Dorothy, Walter is estopped from setting up the prior divorce as a defense to Dorothy’s petition, and that Dorothy is entitled to exactly the same property rights, alimony and attorney’s fees as she would be entitled to had there never been a divorce.
Fox, 247 Ark. at 199-200, 444 S.W.2d at 871 (emphasis added).
Estoppels rest on the principle that a party may not assert a right he has obtained by knowingly inducing another to in good faith change his position to his detriment. To establish estoppel, one must show that the party sought to be estopped knew the facts and intended that his conduct be acted upon, and that the party seeking estoppel was ignorant of the true facts and relied upon the other’s conduct to his injury. Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985); First State Bank v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984).
In Fox, the court found that the husband had willfully deceived the wife by misrepresenting the facts to her and that she had acted in the good faith belief that he had told her the truth. Here, there is no evidence to support a finding that either party did not act in the good faith belief that they were free to marry or that either knew the divorce was invalid. There is nothing m the record I reviewed to suggest that either party relied on any statements other than the one made by the chancellor from the bench that Bill Brown and his former wife were “single people.” The majority does not seem to base its application of the doctrine of estoppel on any knowledge of the true facts by Mr. Brown but on its de novo finding that he “was at least culpably negligent in not determining that his divorce decree was final before initiating his remarriage.” The basis for finding him more negligent than appellant in their reliance on the judge’s pronouncement or the lawyers’ duty to effect a final decree also escapes me. There is simply nothing in the record I reviewed to sustain such a finding or conclusion. . ,
I would follow the decision in Standridge, supra, and affirm.
Corbin, C.J., joins in this dissent.Administrative Order 2, which superseded Ark. R. Civ. P. 79, was adopted by per curiam opinion of the Arkansas Supreme Court on December 21, 1987, and became effective March 14,1988, subsequent to the “divorce” and marriage involved herein. In all ways pertinent to the issues of this case, however, the order and former rule are identical.