Alexander v. Alexander, 5-1261

• Decision Date: 03 June 1957
• Docket Number: No. 5-1261,5-1261
• Citation: 227 Ark. 938,302 S.W.2d 781
• Parties: Verna Cook ALEXANDER, Appellant, v. Alonzo B. ALEXANDER, Appellee.
• Court: Arkansas Supreme Court

Page 781

302 S.W.2d 781

227 Ark. 938

Verna Cook ALEXANDER, Appellant, v. Alonzo B. ALEXANDER, Appellee.

No. 5-1261.

Supreme Court of Arkansas.

June 3, 1957.

Rehearing Denied July 1, 1957.

House, Holmes, Roddy, Butler & Jewell, Little Rock, Shaw, Jones & Shaw, Ft. Smith, for appellant.

Hardin, Barton, Hardin & Garner, Ft. Smith, for appellee.

MILLWEE, Justice.

The principal issue in this divorce suit is whether the appellant, Verna Cook Alexander, is entitled to a division of appellee's property as the injured party under our three-year separation statute [Ark.Stats., Sec. 34-1202(7)] which reads: 'Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby amended, or both.'

Appellee, A. B. Alexander, was reared in Spartanburg, S. C., where he was engaged in the insurance and patent medicine businesses for some time. These ventures had proved unsuccessful in 1932 when he came to Hot Springs, Arkansas, where he obtained a divorce from his first wife. Appellant, who is 13 years younger than appellee, was reared in Malvern, Arkansas, where her father, A. B. Cook, was then president and principal stockholder of the Malvern Brick & Tile Company and the A. B. Cook Company, which was engaged in the lumber business. A. B. Cook was killed in an automobile accident in August, 1934, and the parties to this suit were married in October, 1934, and moved to Spartanburg, S. C., where they maintained their principal place of abode until their separation in 1952.

A. B. Cook and the two companies were heavily indebted at the time of his death and his widow used the greater portion of $350,000 in life insurance left by her husband to pay debts of the corporations and to acquire certain shares of the Malvern Brick & Tile Co. owned by others than Mr. Cook at the time of his death. Appellee and two friends of the Cook family assisted the widow in these negotiations. Mr. Cook left his estate to his widow and two daughters in equal shares with the widow designated as trustee for the daughters. They each received substantial income in the form of salaries from the two corporations for several years.

The two corporations had again become in poor financial condition in 1943 when appellee was employed as manager, and he later became president of the companies. He made certain advances to the corporations which prospered under his management with assets increasing from approximately $400,000 in 1943 to about $3,000,000 in 1955. In addition appellee participated individually in the creation of separate building corporations from which he received considerable income. The manufacturing companies were forced to sell scarce construction materials to the separate corporations at O.P.A. prices but the latter concerns, whose stockholders were ineligible to hold stock in the manufacturing corporations, made much higher profits in their operations. In 1946 appellee negotiated a purchase of the stock of the two corporations owned by Mrs. Cook and appellant's sister. After taking charge of the corporations appellee spent much of his time in Malvern, Arkansas where the companies still maintained the Cook family residence and at a hotel penthouse in Hot Springs also maintained by the companies. Appellant spent much of her time in Florida looking after a $300,000 demonstration or show house maintained by the companies for advertising purposes. She also spent considerable time in other sections of the country in an effort to restore the health of their only child, a son, who died in November, 1954.

The marital troubles of the parties began in the latter part of 1951 primarily over stock ownership and the controlling interest of the two corporations. It was precipitated by his persistent refusal to give her possession of certain stock certificates belonging to her to transfer such stock on the company books. It was also about this time that appellee, acting on 'gossip', allegedly became suspicious of appellant's association with a wealthy Florida widower who was a close personal friend and business associate of both parties. Although appellee stated he wrote a letter of warning to his friend about the matter, their business relations continued as usual and the man remarried shortly after the incident. Appellee also stated, and the appellant as stoutly denied, that she made apologies for the incident.

In October, 1952, the parties separated and became involved in a long and bitter suit over their respective interests in the two corporations in which litigation appellee first contended he was sole owner of the corporate stock but later reduced his claim to at least 50% ownership. The trial court found that Mrs. Alexander owned 71% and appellee 29% of said stock and we affirmed in Malvern Brick & Tile Co. v. Alexander, 224 Ark. 74, 272 S.W.2d 77, which was handed down October 18, 1954. In the meantime separate divorce suits by appellant in Hot Spring County, Arkansas, and by appellee in South Carolina were dismissed. After the appellant gained control of the corporations from the appellee, he sold his interest in the Malvern Brick & Tile Company to the corporation for $625,000 receiving about $160,000 in cash and notes of the corporation for the balance payable over a period of several years.

Appellee moved to Ft. Smith, Arkansas shortly before January 16, 1956, when he brought the instant suit for divorce on the ground of three-years separation without cohabitation. In her cross-complaint for divorce appellant admitted the separation for three years which she alleged was occasioned by his cruel treatment, false accusations, habitual drunkenness and general indignities such as to render her condition in life intolerable. She made specific allegations as to his actions in connection with the long legal battle over control of the companies which will be referred to later. She also asked for statutory allowances in his property and alimony.

After another lengthy trial a decree was entered granting appellee a divorce and awarding him two items of jewelry. Appellant was given certain household furnishings in the Spartanburg home and $5,000 for legal and travel expenses but denied alimony or any division of appellee's property. In a memorandum opinion rendered as a basis for the decree the chancellor found that both parties were somewhat at fault in the separation but that money and the control of the Malvern Brick & Tile Company were the main source of their trouble. In considering the question of who was the 'injured party' under Sec. 34-1202(7), supra, the court found the equities against the appellant.

Appellant does not question the court's action in granting the divorce to appellee under the three-year separation statute, but earnestly contends there was error in the refusal to find she was the 'injured party' and entitled to a division of his property under the statute. But preliminary to a decision of this issue are the questions whether the...