1130 WOMACK v. WOMACK [247
WINTER C. WOMACK V. DORIS MAE WOMACK
5-5165 449 S. W. 2d 399
Opinion delivered February 2, 1970
1. DIVORCE—SEPARATE MAINTENANCE-POWER OF CRANCELLOR.—A
cause of action for separate maintenance independent of a cause
of action for divorce may be brought under the broad power
of equity, and the chancellor has power to decree separate
maintenance to the wife. [Ark. Stat. Ann. § 34-1202 (Repl.
1962).]
ARK.] WOMACK v. WOMACK 1131
2. DIVORCE-MAINTENANCE DURING PENDENCY OF ACTION-DISCRETION
OF CHANCELLOR —Where allegations were made, proof offered
and issues tried and considered as a petition for divorce from
bed and board, wife's petition for separate maintenance held
a petition for divorce, and award of separate maintenance and
attorney's fees during pendency of the action was within chan-
cellor's sound discretion.
S
3. DIVORCE—SEPARATE MAINTENANCE-GROUND .-A wife may not
leave her husband or drive him away without cause and de-
mand that he continue to support her, nor may a husband
force his wife to continue to endure his conduct constituting
grounds for divorce or forfeit her rights to maintenance and
support.
0
4. DIVORCE- -ATTORN'Y'S FEN'S-DETERMINATION ON REMANn.—On re-
mand, contentions by parties with respect to attnrney's fees
should be considered and passed on by the chancellor on final
hearing and disposition of the case.
Appeal from Union Chancer y Court, Jim Rowan,
Chancellor; affirmed and remanded.
Brown, Compton, Premett & Dickens, for appellant.
Shackleford & Shackleford, for appellee.
J. FRED JONES, Justice. This is an appeal by Winter
C. Womack from an order of the Union County Chan-
cery Court overruling his motion to dismiss a petition
for separate maintenance filed by his wife, Doris Mae
Womack. Mr. and Mrs. Womack were married on March
14, 1947, and lived together as husband and wife until
June 23, 1969, when they separated because of an ac-
cumulation of difficulties stemming primarily from Mr.
Womack's interest, or at least interest which Mrs.
Womack suspected he had, in a female fellow employee.
Mrs. Womack told Mr. Womack to get out of their home
and he did.
On August 7, 1969, Mrs. Womack filed a petition
for separate maintenance, alleging that Mr. Womack
had treated her with contempt, neglect and abuse sys-
tematically and habitually pursued to the extent that
her condition in life had become intolerable. Mrs. Worn-
1132 WOMACK v. WOMACK [247
ack alleged the birth of three children, two of whom
are still minors and in her custody. She prayed for
permanent custody of the children; for a reasonable
amount for the support of herself and the children ; for
permanent use of the homestead and automobile, and
for attorney's fees and court costs. Mr. Womack re-
sponded by general denial except as to the marraige,
separation, and birth of the children. He recognized his
obligation to support his wife and children and prayed
that the court enter such order as under the circum-
stances may be proper.
The petition was set for hearing on August 25,
1969, and on that date both Mr. and Mrs. Womack testi-
fied as to his income, and their respective expenses and
needs. No evidence was offered at that hearing as to
fault of the parties. This hearing was obviously in con-
nection with temporary support, possession of propdr-
ty, and suit money. After the hearing on August 25,
1969, and before the chancellor acted on the petition;
or at least before he entered an order in connection
therewith, Mr. Womack moved back into the home, over
Mrs. Womack's objections, and on September 4, 1969,
he filed a petition alleging facts and praying relief, as
follows :
"Subsequent to the hearing of this matter on Au-
gust 25, 1969, the defendant, Winter C. Womack, re-
turned to the parties' household where he is now
living and is ready, willing and able to provide for
his wife and children.
Therefore, this action has become moot and there
is no basis for the entry of any order for support,
maintenance or related matters.
WHEREFORE, premises considered, the defendant
prays that the Court find that this matter is moot
and an appropriate order be entered."
It was at the hearing on this petition that evidence
ARK.] WOMACK V. WOMACK 1133
was first adduced by both parties as to the cause of the
separation in the first place. It appears from the evi-
dence that Mrs. Womack came into possession of letters
addressed to Mr. Womack and signed by someone named
"Sue." It also appears that Mrs. Womack on one occa-
sion observed Mr. Womack leaving a hotel with a woman
by that name, and on another occasion she observed Mr.
Womack and Sue having lunch together at a diner. Mr.
Womack was employed in radio and he had been ob-
served, by their older son, leaving the radio station late
at night in the company of Sue, and Mrs. Womack had
received anonymous letters and telephone calls pertain-
ing to the same person. The evidence indicates that Mr.
Womack first denied everything when confronted with
Mrs. Womack's accusations, but when his denials seemed
only to aggravate the situation, he adopted the proce-
dure of not denying anything. Mr. Womack contends
that his relations with Sue have been of an innocent
business nature and that his wife has no justification
for separate maintenance.
The chancellor denied Mr. Womack's petition by or-
der dated September 12, 1969, and on the same date en-
tered an order awarding Mrs. Womack temporary sup-
port in the amount of $600 per month, together with
$100 per month support for the minor child at home.
The chancellor also ordered Mr. Womack to pay tuition
for the older son in the amount of $521 and to pay an
allowance for him in the amount of $50 per month. The
chancellor also ordered Mr. Womack to pay Mrs. Wom-
ack's attorneys a fee of $750.
On his appeal to this court Mr. Womack relies on
the following points for reversal:
" The order of the Chancellor in overruling the ap-
pellant's petition to set aside separate maintenance
was contrary to the evidence presented in this case
and the law applicable thereto.
The order of temporary support and maintenance
1134 WOMACK v. WOMACK [247
to appellee is exorbitant and should be reduced ac-
cordingly.
The attorneys' fees awarded as a part of the court's
order of temporary support and maintenance is ex-
orbitant and should be reduced to a reasonable
sum."
It is apparent from the face of the pleadings, as
well as from the evidence adduced at the hearing on Mr.
Womack's petition, that this is not the type of case where
Mr. Womack can moot Mrs. Womack's alleged cause of
action by simply returning to live with her against her
will. Mrs. Womack did not tell Mr. Womack to leave
because he was not supporting her. She alleged in her
petition that he treated her "with contempt, neg 1 ect and
abuse systematically and habitually pursued so as to
make her condition in life as his wife intolerable."
Whether Mrs. Womack can sustain her allegations by ac-
tual proof remains to be seen when her petition is heard
on its merits for a permanent decree of support, child
custody, and property rights. The circumstances under
which Mr. Womack left his wife and home are revealed
by his own testimony, as follows :
"I walked in the bedroom as soon as I got there,
which is a habit of mine, and pulled off my coat
and there was a suitcase on the bed which my kids
had given me in 1965. My wife had followed me into
the bedroom and I asked her what the suitcase was
doing on the bed and she said—that is to pack your
clothes in and get your blank out of here. I asked her
why and she said—just get out of here. I tried to
talk to her but she wouldn't talk to me so I packed
my clothes and went to the farm. On Wednesday I
went back to the house to get my tie pins and I
went into the bedroom and again she followed me
in there and I said—Doris, why did you put my suit-
case on the bed just when I thought we had every-
thing worked out and she said—I didn't put it
there, your daughter did. I called my daughter the
ARK.] WOMACK v. WOMACK 1135
next day and asked her why she bad put the suit-
case on the bed and she said—I am tired of you
making mother unhappy."
The facts in this case present a situation wherein
a wife packs her husband's suitcase, tells him to get out
and he does. The wife then files a petition for separate
maintenance alleging that the husband has mistreated
her to the extent that her condition as his wife has
become intolerable. The husband then files a petition of
his own saying that he has returned to the home and
intends to stay there and support his wife and therefor
his wife's petition for separate maintenance has become
moot and should be dismissed. We are simply unable to
follow Mr. Womack's reasoning en this point. It should
be perfectly obvious to him that Mrs. Womack com-
plains of something more than his being absent from the
home and nonsupport. It is perfectly obvious that Mrs.
Womack suspects that her husband has become inter-
ested in another woman to the extent that she, Mrs.
Womack, does not want Mr. Womack back, living under
the same roof with her.
Ark. Stat. Ann. § 34-1202 (Repl. 1962) provides as
follows :
"Grounds for divorce. The chancery court shall
have power to dissolve and set aside a marriage con-
tract, not only from bed and board, but from the
bonds of matrimony, for the following causes :
Fifth : Where either party shall be addicted to ha-
bitual drunkenness for the space of one (1) year
or shall be guilty of such cruel and barbarous treat-
ment as to endanger the life of the other, or shall
offer such indignities to the person of the other as
shall render his or her condition intolerable."
Ark. Stat. Ann. § 34-1210 (Repl. 1962) provides as
1136 WOMACK v. WOMACK [247
follows :
"During the pendency of an action for divorce or
alimony, the court may allow the wife maintenance
and a reasonable fee for her attorneys, and enforce
the payment of the same by orders and executions
and proceedings as in cases of contempt, and the
court may allow additional attorney's fees for the
enforcement of payment of alimony, maintenance
and support provided for in the decree."
While an independent suit for separate maintenance
may be brought and maintained under the broad powers
of equity (Wood v. Wood, 54 Ark. 172, 15 S. W. 459),
we are of the opinion that the petition filed by Mrs.
Womack was essentially a petition for a divorce from
bed and board, and the award of separate maintenance
during the pendency of the action, as well as attorney 's
fees, was within the sound discretion of the chancellor.
Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d
246.
In Gilliam v. Gilliam, 232 Ark. 765, 340 S. W. 2d
272, the wife filed suit for separate maintenance. The
grounds alleged in the petition are not set out in the
opinion, but Mrs. Gilliam testified as to physical abuse
accorded her by Mr. Gilliam. In sustaining the award
for separate maintenance, this court said:
"We have a long line of cases which recognize that
under what is now § 34-1202, Ark. Stat. the Chan-
cery Court has the power to decree separate main-
tenance to the wife."
We do not attempt to distinguish between inde-
pendent actions for alimony and those in connection
with actions for divorce because that has already been
done in Wood v. Wood, supra. In the case at bar al-
legations were made, proof was offered and the issues
were tried and considered as a petition for divorce from
ARK.] 1137
bed and board. The case has not been heard by the chan-
cellor on its merits, and it is recognized by all parties
concerned that the order appealed from is temporary.
Mr. Womack's monthly income amounts to between $1,-
100 and $1,400. Certainly a wife may not leave her hus-
band or drive him away without cause and demand that
he continue to support her. Neither may a husband force
his wife to endure his conduct constituting grounds for
divorce or forfeit her right to maintenance and support.
Mrs. Womack may not be entitled to separate main-
tenance at all when this matter is heard on its merits,
but we are unable to say that the chancellor abused his
discretion in the temporary awards made in this case.
Mr. Womack also complains that the attorney's fee of
$750 awarded against him is exorbitant. The attorney's
fee awarded by the chancellor was in the nature of suit
money and may have included fee for services in the fu-
ture, as well as for services performed. Mr. Womack's
contention that the fee is exorbitant, as well as Mrs.
Womack's petition for an additional attorney's fee on
appeal to this court, may be considered and passed on
by the chancellor on final hearing and disposition of this
case.
Affirmed and remanded.