Aucoin v. Aucoin

• Decision Date: 03 March 1947
• Docket Number: 4-8085
• Parties: Aucoin v. Aucoin
• Court: Arkansas Supreme Court

200 S.W.2d 316

211 Ark. 205

Aucoin v. Aucoin

No. 4-8085

Supreme Court of Arkansas

March 3, 1947

Rehearing Denied April 7, 1947.

Appeal from Union Chancery Court, Second Division; W. A. Speer Chancellor.

Affirmed.

Kermit B. Duidroz and M. P. Matheney, for appellant.

John M. Shackleford, for appellee.

Minor W. Millwee, Justice. Robins, J., dissenting.

OPINION

Minor W. Millwee, Justice.

Appellee, Glen Aucoin, instituted suit in the Union Chancery Court on November 14, 1945, against appellant, Ivy Aucoin, for divorce and for the custody of two children allegedly born of the marriage of the parties. The children are boys and, when suit was filed, were of the ages of three years and five months, respectively. As a ground for divorce, appellee alleged personal indignities and cruelty on the part of her husband.

Appellant filed an answer containing a general denial of the allegations of the complaint, but admitting appellee's residence in Union county and jurisdiction of the court. He also filed a cross-complaint in which he sought a divorce from appellee on the grounds of desertion and adultery. Appellant denied paternity of the younger child, but asked for custody of both children in the event the court should find that the younger child was born of their marriage. Thereafter, appellee amended her complaint to ask for alimony pendente lite, support money for the children and attorney's fee.

A lengthy hearing in which 26 witnesses testified was concluded on April 3, 1946. The trial court made extensive findings in which it was determined that appellee had failed to sustain her charge of cruelty and indignities by sufficient evidence and her prayer for divorce was denied. On his cross-complaint, appellant was granted a divorce from appellee for desertion. The custody of both children was awarded to appellee, with the right of visitation in appellant at all reasonable times and places. Appellant was directed to pay $ 30 per month for the support and maintenance of the children. Appellee's prayer for alimony and attorney's fee was denied and each party was directed to pay their own costs. Both parties have appealed from a decree based on these findings.

The parties were living in Baton Rouge, Louisiana, when they were married on August 27, 1941. They continued to reside in Baton Rouge until after the first child was born on August 30, 1942. Appellant enlisted in the Coast Guard on October 8, 1942, and was stationed in Florida until he was transferred to the west coast in December, 1943. Appellee and the older child resided with appellant in Florida until he was transferred, when she returned to live with her mother in Baton Rouge.

Appellant was in and out of west coast ports until his discharge from military service on October 25, 1945. He obtained furloughs and visited in Baton Rouge in April, November and December of 1944, and in June, 1945. The parties cohabited as man and wife in April, 1944, although appellee testified that she advised appellant on this visit that she could no longer bear his ill treatment and wanted a divorce. This cohabitation was resumed on the night of November 7, 1944, which was the date of his next visit. Appellant left the following day and spent the rest of his November leave with his parents who resided near Baton Rouge. He testified that he left at her request and upon her representation that the doctor had advised that she had only a short time to live and that she wanted to spend this time with the child. This was denied by appellee who testified that she could no longer endure his drinking and abusive treatment. This testimony is typical of the irreconcilable conflict in the evidence of the parties as well as that of many of their supporting witnesses who displayed much bias and partisanship in giving their testimony. We agree with the trial court that the character of most of the testimony is such that, "Solomon with all his wisdom would not know just what the truth is."

On her cross-appeal appellee argues that the trial court erroneously denied her prayer for divorce on account of cruel treatment by appellant, it being insisted that her action in refusing to cohabit with him after November 7, 1944, was justified by such treatment. Appellee testified that appellant struck her on several occasions and this testimony was corroborated by her mother and other witnesses. It is true that this testimony, standing alone, might warrant a decree in her favor, but these instances of ill treatment were denied by appellant and his witnesses. We think the preponderance of the evidence supports the chancellor's finding in favor of appellant on this issue, and that it would serve no useful purpose to detail this testimony.

Appellee also contends that the chancellor erred in refusing her prayer for costs and attorney's fee. When the appeal was lodged in this court we directed appellant to pay $ 50 attorney's fee and costs of printing appellee's brief, and appellant complied with this order. Under our statute (§ 4388 of Pope's Digest, as amended by Act 274 of 1945) the matter of the allowance of attorney's fees and suit money pending a divorce action is in the sound discretion of the court. Kincheloe v. Merriman, 54 Ark. 557, 16 S.W. 576, 26 Am. St. Rep. 60; Hodge v. Hodge, 161 Ark. 299, 255 S.W. 1090. Since the trial court correctly found that appellee was at fault in the separation of the parties and denied her prayer for divorce, we cannot say there was an abuse of discretion in the court's refusal to allow attorney's fee and all costs to appellee. Nor can we say that the trial court was in error in the allowance of only $ 30 per month for support and maintenance of the two children. It is true that appellant has a good job and, while the allowance may not be termed a liberal one, we are unable to say that it is too small when all the circumstances are considered.

In granting appellant a divorce on the ground of desertion, the trial court made the following finding: "As to the allegation of desertion, she asserts that the reason she wanted a divorce was because she was tired of his cruel treatment, but it is an admitted fact on her part that she made up her mind to divorce him in November, 1944, more than one year before her complaint was filed and more than one year before the cross-complaint was filed. It is undisputed when all the testimony is considered, that they did not live together as husband and wife after that time, and that was more than a year before the suit for divorce was filed, and under that view, and under the evidence, there is no question but that defendant has established in his cross-complaint the right to a divorce on the grounds of desertion." This finding is fully supported by the...