Coker v. Coker

• Court: Arkansas Court of Appeals
• Writing for the Court: JOSEPHINE LINKER HART
• Citation: Coker v. Coker, 2012 Ark. App. 180, No. CA11-471 (Ark. App. Feb 22, 2012)
• Decision Date: 22 February 2012
• Docket Number: No. CA11-471,CA11-471
• Parties: CLAYTON COKER APPELLANT v. SAMANTHA HESS COKER APPELLEE

2012 Ark. App. 180

CLAYTON COKER APPELLANT v. SAMANTHA HESS COKER APPELLEE

No. CA11-471

ARKANSAS COURT OF APPEALS DIVISIONS I & II

Opinion Delivered February 22, 2012

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT,

[NO. DR 2010-287-III]

HONORABLE LYNN WILLIAMS,

JUDGE

DISSENTING OPINION ON DENIAL

OF REHEARING

JOSEPHINE LINKER HART, Judge

I dissent on denial of rehearing because the opinion handed down on December 7, 2011, contained mistakes of law and fact when it reversed the trial court's grant of a divorce on the ground of general indignities. In so doing, the majority held that even though appellee/wife had established that her husband was publically consorting with another woman, she had neither proved nor corroborated her grounds. ¹

In my view, appellee proved general indignities and clearly established that she was entitled to a divorce. It is important to note that the trial court did not make specific findings of fact with regard to what evidence it relied on in finding that appellee proved her ground and was entitled to a divorce. However, when the trial court fails to make certain findings of fact, the appellate court, under its de novo review, may nonetheless conclude thatthe evidence supported the decision. Chastain v. Chastain, 2012 Ark. App. 73, --- S.W.3d ---. Both appellant and appellee testified that appellant was publically involved in a long-time, extramarital affair. In fact, appellant confirmed that at the time of the hearing, his paramour had actually stayed overnight in the marital residence. In my view, this clearly qualifies as a general indignity. The rule of law is that

[i]n order to obtain a divorce on that ground, the plaintiff must show a habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable.

Coker v. Coker, 2011 Ark. App. 752 (citing Poore v. Poore, 76 Ark. App. 99, 61 S.W.3d 912 (2001)). It also correctly notes that "a petition for divorce will not be granted on the testimony of the complainant alone, even if the defendant admits the allegations, but it must be corroborated by other evidence to establish the truth of the assertion." Id. (citing Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944)). Somehow the majority judges fail to apply the law to the facts in this case. Having an open, ongoing extramarital affair constitutes general indignities. Such an affair is a manifestation of settled hate, alienation, and estrangement that clearly rendered his wife's life intolerable.

Appellee also presented evidence that supported an alternative theory of general indignities: appellant expropriated marital funds to fund his extramarital affair. To prove this assertion, appellee presented testimony and financial documents. Dissipating marital funds has been held to support a finding of general indignities. Rocconi v. Rocconi, 88 Ark. App. 175, 196 S.W.3d 499 (2004); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). Hodges is of particular note in that the court of appeals, in its de novo review, found evidenceof the wife's spending habits supported the grant of a divorce on the ground of general indignities when the trial court had not made a specific finding as to what conduct it was relying on in finding this ground. The majority in the instant case abdicated its duty as appellate judges in not making a similar review.

The opinion also misapplies the law with regard to corroboration. As the appellee correctly notes, in the instant case, only slight corroboration was necessary. The rule is that

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