Bachman v. Bachman, 81-71

Decision Date05 October 1981
Docket NumberNo. 81-71,81-71
Citation274 Ark. 23,621 S.W.2d 701
PartiesAntoinette R. BACHMAN, Appellant, v. David S. BACHMAN, Appellee.
CourtArkansas Supreme Court

Davidson, Plastiras, Horne, Hollingsworth & Arnold by Cyril Hollingsworth, Little Rock, for appellant.

Laws & Swain, P.A. by Ike Allen Laws, Jr., Russellville, for appellee.

DUDLEY, Justice.

This divorce case involves the issues of venue and division of marital property. The parties moved to Arkansas in 1965 and since then have been domiciled here. Their home was located in Russellville in Pope County. Their marriage reached the breaking point and on numerous occasions they discussed divorce. On April 16, 1980, appellee, David Bachman, made arrangements, unknown to his wife, to rent an apartment in Dardanelle, which is in Yell County and also made arrangements to have some movers transfer his furniture to that apartment upon notice. On Sunday, April 20, the parties had a heated argument and they agreed that Antoinette Bachman would file for the divorce. She asked appellee to move out of the home but he refused. On Wednesday, April 23, he left their home around 8:00 a.m. ostensibly to go to work. Instead of going to work he called his attorney and the movers. They moved some of his household furnishings four miles to the apartment in Dardanelle. At 10:00 a.m. he filed suit for divorce in Yell County, which is in a different judicial district from Pope County. Appellee, a physician and surgeon, continues to practice medicine at the same clinic in Russellville. He intends to remain a resident of Yell County and has contracted to buy a home there. There is very little dispute about the facts and the venue issue was timely raised. The Chancellor held that appellee had established residence in Yell County, and we affirm.

Among our divorce statutes, Ark.Stat.Ann., Title 34, Chapter 12 (Repl. 1962 and Supp. 1981), there are two separate residence statutes. One deals with jurisdiction and the other deals with venue. The jurisdictional residency statute, § 34-1208, requires a waiting period by one party or the other for sixty days before the commencement of the action and three full months before the granting of the decree. Residence in that statute is defined in § 34-1208.1. This jurisdictional statute was complied with as the parties have lived here for fifteen years.

The second residency statute, the venue statute, is the one at issue in this case. The proper county of venue is where the complainant resides. § 34-1204. We have interpreted this venue statute to mean domicile. Smith v. Smith, 219 Ark. 876, 245 S.W.2d 207 (1952). No particular length of time is required for the establishment of residence, pursuant to the venue statute, but there must be actual presence coinciding with the intent to make it a permanent residence. Moon v. Moon, 265 Ark. 310, 578 S.W.2d 203 (1979). The trial court found these two elements existed at the time of filing the complaint. In determining the sufficiency of evidence as to venue on appeal we review the proof in the light most favorable to the appellee, New York Life Ins. Co. v. Weeks, 201 Ark. 1160, 148 S.W.2d 330 (1941), and findings of fact will not be set aside unless clearly erroneous. Rule 52 of Rules of Civil Procedure, Ark.Stat.Ann. Vol. 3A (Repl. 1979). Viewing the evidence in that light we cannot say that the holding of the chancellor was clearly erroneous and we affirm the holding that venue existed in Yell County.

David Bachman was granted a divorce in Yell County. Appellant appeals from a number of specific rulings which were made in the division of property. We reverse and remand on one of those points and affirm the others.

A part of the assets accumulated during the marriage consists of appellee's interests in a profit-sharing trust agreement and in a money-purchase pension plan. The trust and pension plan are owned by a medical professional association in which appellee is a stockholder. The sole purpose of this profit-sharing trust is to enable the employees to share in the profits of the professional association. A participating employee has a vested interest in the plan, which is now fully distributive if an employee leaves the professional association and upon the occurrence of other contingencies. The trustee of the plan can purchase insurance contracts and appellee has $12,000 of cash surrender value in a whole-life policy owned by the plan. The profit-sharing trust can make loans to participating employees. Similarly, the money-purchase pension plan provides that a participating employee has present vested interests which can be paid out upon the occurrence of certain events.

In Fenney v. Fenney, 259 Ark. 858, 537 S.W.2d 367 (1976), we held that military retirement pay was not personal property under the property division statute then in effect, § 34-1214 (Repl. 1962). In Knopf v. Knopf, 264 Ark. 946, 576 S.W.2d 193 (1979), we held that railroad retirement funds were not divisible under the same statute. The general property division statute now in effect, § 34-1214 (Repl. 1962 and Supp. 1981), or Act 705 of 1979 as amended, defines marital property as all property acquired by either spouse subsequent to the marriage. See Warren v. Warren, 273 Ark. ---, --- S.W.2d ---- (Sept. 28, 1981). In Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980), holding that military retirement was not marital property, we stated:

Military retirement pay is not a fixed and tangible asset such as a vested pension or profit-sharing plan that may be collected in a lump sum. Rather, it terminates at death and has no loan, surrender or redemption value. We agree with the decision of the trial court that military retirement pay is not marital property as contemplated by Act 705 of 1979.

In this case the...

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10 cases
  • Day v. Day
    • United States
    • Arkansas Supreme Court
    • January 30, 1984
    ...interest in a profit-sharing trust was deemed to be marital property, because it was subject to his withdrawal. Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981). We now realize that we have inadvertently failed to recognize the new concept of "marital property," created by Act 705 of ......
  • Wasp Oil, Inc. v. Arkansas Oil and Gas, Inc., 83-93
    • United States
    • Arkansas Supreme Court
    • October 17, 1983
    ...evidence most favorable to the appellee and affirm unless the judge's decision is clearly erroneous. ARCP Rule 52; Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981). Using that test, there is sufficient evidence to support the finding that actual malice caused the publication of the de......
  • Hackett v. Hackett, 82-220
    • United States
    • Arkansas Supreme Court
    • December 20, 1982
    ...divorce. Therefore, Mrs. Hackett is not entitled to any portion of that account as "property" defined by Act 714. Bachman v. Bachman, 274 Ark. 17, 621 S.W.2d 701 (1981); Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 Mrs. Hackett complains part of the child support goes to make the mortga......
  • Stover v. Stover, 85-50
    • United States
    • Arkansas Supreme Court
    • October 7, 1985
    ...parties will be made. Cases supporting this position are: Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981); and Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 The ruling of the lower court is affirmed. DUDLEY and NEWBERN, JJ., ......
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