Biddle v. Biddle

• Decision Date: 17 January 1944
• Docket Number: 4-7199
• Citation: 177 S.W.2d 32,206 Ark. 623
• Parties: Biddle v. Biddle
• Court: Arkansas Supreme Court

177 S.W.2d 32

206 Ark. 623

Biddle v. Biddle

No. 4-7199

Supreme Court of Arkansas

January 17, 1944

Appeal from Craighead Chancery Court, Western District; Francis Cherry, Chancellor.

Reversed.

C T. Carpenter, for appellant.

Bon McCourtney and T. J. Crowder, for appellee.

OPINION

Knox J.

On March 12, 1941, appellee, a man then 79 years of age, and appellant, a woman then 31 years of age, were married. Appellant explained her reason for marrying appellee as follows: "Because he wanted me to, it was a mutual business relationship. He needed a home, my children needed a home, and I did not have to work." Appellee had been married once previously, his wife had died and his children were all grown. Appellant had been married twice before, and had obtained a decree of divorce from each of her husbands. She was the mother of two small boys eight and five years of age, one by each of her former divorced husbands. At the time of the marriage appellee was, and for many years prior thereto had been, employed as a telegraph operator for the Cotton Belt Railroad, at a salary of approximately $ 200 per month. This employment continued until the third of March of the year succeeding his marriage, when he was retired on a pension of $ 75.61 per month.

During the lifetime of his former wife appellee had acquired some property, including a two-story house, situated in one of the best residential districts in the city of Jonesboro, Arkansas, which property he and his former wife occupied as their homestead. After the death of his first wife appellee, together with other members of his family continued to occupy said property as his homestead, and appellee was so occupying said property at the time he and appellant were married. Immediately after the marriage appellee took appellant and her two children to his home, where they all resided until the separation, and since such time appellant has continued to occupy the same. The house is large and has been arranged so as to permit the renting of parts thereof for apartments, and since the separation appellant has been renting out these apartments and collecting and receiving for her own use and benefit the rents accruing therefrom. This homestead property is described as lot 3, block 2 of Culberhouse's Third Addition to the city of Jonesboro.

At the time of the marriage appellee also owned a piece of property situated on Monroe street in the city of Jonesboro, which property he exchanged for a tract of land, consisting of 15 lots, together with a dwelling house and other improvements thereon, described as lots 46 to 60, both inclusive, Johnson's Subdivision of lot 12 of Center & Company's Addition to the city of Jonesboro. This property is referred to throughout the transcript as the "Radio Hill property," and will hereinafter be so designated. At the time the exchange was made the title to the "Radio Hill property" was taken jointly in the names of appellee and appellant, thus creating an estate by the entirety. Later the parties executed a conveyance to a third person, who on the same date reconveyed said property to appellant. Appellee testified that the original exchange was made at the urgent insistence of appellant, and that later she became dissatisfied with the fact that the conveyance had vested title in the two, and that she continued to nag and abuse him until he finally consented to and did place the title to this property in her name. Appellant, on the other hand, testified that the original exchange of the property, and, also, the change from an estate by the entirety in the two to a fee simple estate in her as the sole owner was in each instance the voluntary act of the appellee, and was not induced by any action on her part.

On January 27, 1942, appellee adopted the two minor children of his wife.

Appellee testified that for several months after the marriage appellant treated him with consideration and kindness, but that later her attitude towards him changed, and that thereafter she treated him with such indignities as to render his condition in life intolerable, and as a result of such mistreatment he was forced to, and did on May 8, 1942, leave appellant.

On September 30, 1942, appellee instituted this suit for divorce on the ground of cruel treatment, and in his complaint he also prayed that the title to the "Radio Hill property" be vested in him and that he be given possession of the homestead and the furnishings therein.

Appellant did not at first pray for a divorce, but asked only that the complaint be dismissed and that plaintiff be required to contribute monthly to the support of herself and her children. On January 30, 1943, appellant filed an amendment to her cross-complaint, in which she prayed that she be granted a divorce; that she be awarded "as her permanent home" the homestead property, a reasonable amount for the support of herself and children, attorney's fees and costs, and general relief. None of the pleadings filed by appellant contained specific prayer for alimony, dower, or division of property, but throughout her pleadings she has prayed that she be awarded the homestead property as her permanent home.

After the completion of the proof the lower court entered a decree: (1) denying appellee's prayer for divorce; (2) granting appellant a divorce on her cross-complaint, awarding her the custody of the two children and requiring appellee to contribute $ 40 per month for the support of the minor children; but the court further decreed that title to the Radio Hill property should be divested out of appellant and awarded to appellee, and further that appellee should have possession of the homestead property, and that he should have all the household goods and furnishings owned by him at the time of the marriage. The decree further provided that the award of $ 40 per month should begin when possession of the property ordered restored to appellee had been delivered to him. From this decree the appellant, Estelle Biddle, prosecutes this appeal.

Appellant's prayer for an appeal is general in its terms. At page 4 of appellant's brief, however, her counsel say: "From that part of the decree depriving her of the Radio Hill property, the home and furnishings defendant appeals." Thus the matters presented for review are limited to those included within that statement.

Appellee, J. A. Biddle, does not seek a review of the action of the trial court in denying his prayer for divorce, or in granting the appellant a divorce on her cross-complaint. The relative faults of the parties resulting in the separation is, therefore, not a matter for consideration of this court for any purpose other than in determining the correctness of the action of the chancery court in awarding alimony or settling property rights between the parties. Upchurch v. Upchurch, 196 Ark. 324, 117 S.W.2d 339.

As before stated, the trial court awarded title to and possession of the Radio Hill property to appellee. While § 4393 of Pope's Digest does provide that in every final judgment for divorce each party shall be restored to all property which the other party obtained from or through him or her during the marriage and in consideration or by reason thereof, it has been held that such provision of the statute does not apply to property which the husband conveyed to the wife for love and affection. Dickson v. Dickson, 102 Ark. 635, 145 S.W. 529; Glover v. Glover, 153 Ark. 167, 240 S.W. 716. Likewise, it has been held that this statute is not applicable to gifts or advancements made by the husband to his wife, and where a husband purchases land and takes the deed therefor in the name of his wife there is a presumption that he intended to make an advancement to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased, or to hold the same in trust for him, which presumption is not conclusive but may be rebutted by evidence of fact showing a contrary intention. Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867.

In the last mentioned case of Harbour v. Harbour supra, title to property which had been conveyed to the wife was in the divorce decree vested in the husband upon allegation and proof that the wife had obtained the property as a result of fraud practiced by her upon the husband. In that case Mr. Justice Kirby, speaking for the court, says: "His contention is, and the proof tends to show, as the chancellor found, that the conveyances were procured by the practice of fraud and deceit upon him by his wife, whom he greatly loved, and in whom he then had the utmost confidence, and that the conveyances were made upon her urgent and continuous solicitation and assurances that it would be held for the common benefit of both and subject to his control for life as though the conveyances had not been made. She intended to and did use the confidential relation existing between them to mislead and impose upon him and despoil him of his property and estate, intending all the time to procure a divorce after securing the conveyances, or force him to the necessity for doing so, and deprive him of all benefit thereof in his old age." After making specific reference to certain parts of the testimony tending to disclose fraud on the part of the wife, Judge Kirby continues: "If it be true that she married and started in with the deliberate intention to simulate an affection she did not feel for a man much older than herself in order that she might acquire the title to his property and despoil him of it and drive him from the home he had purchased and conveyed to her in his utter reliance upon her affection, loyalty and faithfulness to him, or if she later formed such a design and pursued it with such intention to the...