Coleman v. Coleman

• Decision Date: 16 March 1983
• Docket Number: No. CA82-267,CA82-267
• Citation: Coleman v. Coleman, 648 S.W.2d 75, 7 Ark.App. 280 (Ark. App. 1983)
• Parties: Dickson COLEMAN, Appellant, v. Marie COLEMAN, Appellee.
• Court: Arkansas Court of Appeals

Page 75

648 S.W.2d 75

7 Ark.App. 280

Dickson COLEMAN, Appellant, v. Marie COLEMAN, Appellee.

No. CA82-267.

Court of Appeals of Arkansas.

March 16, 1983.

Hoofman & Bingham, P.A., North Little Rock, for appellant.

Ruby E. Hurley and Stephen E. Whitwell, North Little Rock, for appellee.

CLONINGER, Judge.

Appellee, Marie Coleman, was granted a decree of separate maintenance against appellant, Dickson Coleman, on February 9, 1982, and the only issue on this appeal is the correctness of the trial court's order awarding to appellee as her sole and separate property a $10,000 certificate of deposit.

The order is an improper final award of property. We reverse the decision and remand the case to the trial court.

On January 6, 1981, the appellant purchased the certificate in question with his funds and placed appellee's name on it. When appellant and appellee separated on May 10, 1981, appellant took the certificate with him, and it was in his possession at the time of the hearing in the trial court. The appellee initially endorsed the interest checks on the certificate which came in her name and delivered them to appellant, but appellee has retained the interest checks since the parties separated.

The decree of the trial court provides as follows:

8. That the plaintiff is entitled to retain as her sole and separate property the $10,000 certificate of deposit which currently exists in her name and shall be allowed to expend the interest and principal from said certificate of deposit as she so desires and further that the physical possession of said certificate should be placed with the plaintiff.

An action for separate maintenance is not an action which is based upon statutory authority, but there is inherent power in a court of equity to grant a decree of separate maintenance. Womack v. Womack, 247 Ark. 1130, 449 S.W.2d 399 (1970). Ark.Stat.Ann. § 34-1214 (Supp.1981) provides for a division of property at the time a divorce decree is entered, but the Arkansas Supreme Court has held that a chancellor has no authority to dispose of property rights in an award of separate maintenance. Mooney v. Mooney, 265 Ark. 253, 578 S.W.2d 195 (1979); Spencer v. Spencer, 275 Ark. 75, 627 S.W.2d 550 (1982). In a concurring opinion in Spencer v. Spencer, Mr. Justice Dudley observed that "Property cannot be divided in a separate maintenance proceeding although possession may be awarded."

In Mooney v. Mooney, supra, the court upheld the chancellor's finding that the husband was not entitled to a...