concurring. There are some parts of the majority opinion and the results reached with which I cannot agree. I do not agree that the issue of the constitutionality of Ark. Stat. Ann. §§ 34-1211 and 34-1214 was raised too late for it to be considered as to any facet of the case. Any doubt about the constitutionality of these two sections has been dispelled. I agree that appellant raised the question too late to affect the decree of December 4, 1978. In that decree the court stated:
There is a dispute between the parties as to whether Plaintiff should be awarded any interest in certain other items of personal property, among them being Cullum Flying Service Claim, PCA membership certificates, and other stocks and bonds. The Court will hear further evidence and argument on these issues before making a ruling.
The award of a one-third interest in the Cullum note was made in a decree filed January 2, 1979. The court also held that appellee was not entitled to any interest in five United States “E” bonds, or in stock of the Cross County Farmers Association, the Production Credit Association or Riceland Foods. The court reserved the question of appellee’s responsibility for income taxes. Appellant’s brief questioning the constitutionality of the statutes was filed on December 19, 1978, before the decisions in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 306 (1979) and Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 were rendered. This was also before the decree was signed by the chancellor. There was a hearing on December 13, 1978, but there is no indication in the abstract of the record that the court rendered its decision on that date. That issue, in my opinion, was raised by appellant’s brief before this decree was signed. I am not aware of any statute, procedural rule or case law that requires that the question of constitionality of a statute be raised only in a formal pleading.
On the date of the entry of the decree of January 2, 1979, appellee filed a motion for reconsideration of the court’s decree insofar as it related to the stocks and bonds in which she had been denied any interest. A hearing was had on January 15, 1979, and the chancellor rendered a letter opinion in which he treated the motion for reconsideration. In that part of the opinion the court held that, under Ark. Stat. Ann. § 34-1214, it was mandatory that appellee be awarded a one-third interest in appellant’s personal property. The chancellor found that the decree upon which the motion for reconsideration was based should be modified to award appellee an undivided one-third interest in appellant’s stock in Riceland Foods and in his interest in Cross County Farmers Association. An order putting the chancellor’s opinion into effect was entered on November 2, 1979- Appellant raised the issue of constitutionality again in a motion for reconsideration which was denied.
I do not pretend to understand all the facets of the position of this court expressed in Hatcher and in Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 1, except to the extent that the inherent powers of equity have been expanded so that property awards are not necessarily based on statutes, at least when no statute in in effect. I maintain the position expressed, that in Sweeney the court rejected the idea that the rights of the parties were fixed when the divorce decree was rendered. It appears that the court is now ready to hold that the rights of the parties become fixed by the granting of the divorce, saying that Ark. Stat. Ann. §§ 34-1211 and 34-1214 fixed the limitations of the court’s power. This is the position I took in my dissent in Sweeney but I thought it had been rejected. I could agree that the modification of the court’s decree to award an interst in the corporate stocks was justified on that basis. It must not be forgotten that the chancery court did not exercise the general powers of equity in making this award. The award was specifically made on the basis that the statute was mandatory and the court had no option. From reading that court’s opinion, I doubt that it would have made the award under its inherent equity powers.
I must question the application of the Rules of Civil Procedure to this appeal. As I view the record, these rules were not in effect at the time the notice of appeal was given.