Cooper v. Cooper

• Decision Date: 28 November 1955
• Docket Number: No. 5-778,5-778
• Citation: 225 Ark. 626,284 S.W.2d 617
• Parties: J. W. COOPER, Appellant, v. Dorothy COOPER, Appellee.
• Court: Arkansas Supreme Court

Page 617

284 S.W.2d 617

225 Ark. 626

J. W. COOPER, Appellant, v. Dorothy COOPER, Appellee.

No. 5-778.

Supreme Court of Arkansas.

Nov. 28, 1955.

Petition for Rehearing Withdrawn Jan. 2, 1956.

Henry B. Whitley, Wendell Utley, Magnolia, for appellant.

A. A. Thomason, Magnolia, for appellee.

ROBINSON, Justice.

The principal issues here are the validity of a divorce granted by a court in the State of Nevada, and the wife's interest in funds received on a fire insurance policy for the loss of a house owned as an estate by the entirety. Appellant and appellee were married on August 29, 1950, in Columbia County, Arkansas, where they had lived all their lives. A son was born in January, 1952. On May 24, 1951, they purchased two acres of land as an estate by the entirety and built a house on the property. The house was insured for $2,500 against fire; later it burned and the loss was settled for $2,250 which was paid to appellant J. W. Cooper. The parties also purchased an automobile on which appellee Dorothy Cooper paid $30 a month for several months.

On April 10, 1952, appellant J. W. Cooper filed suit for divorce in the Columbia Chancery Court. Dorothy appeared in the case and the plaintiff took a nonsuit on June 29, 1952. A few days later, on July 2, he filed a suit for divorce in the Pulaski Chancery Court and after Dorothy appeared in that case he again took a nonsuit. On August 18, 1952, he again filed a divorce suit in the Columbia Chancery Court and, after Dorothy appeared, he took his third nonsuit on January 26, 1953. A short time later, he departed for the State of Nevada where it appears that he again filed suit for divorce. Dorothy was not notified, and he obtained a decree of divorce on March 26, 1953. Two days after this divorce was granted he returned to Arkansas and immediately married another person.

Appellee, Dorothy Cooper, then filed this suit in which she alleges that she is the wife of appellant and asks for maintenance for herself and support for the child. She further asks that appellant be required to account to her for one-half of the proceeds from the insurance policy, and that he also be required to account to her as to her interest in the automobile. Cooper answered, alleging that he had been granted a valid divorce in the State of Nevada. Dorothy replied, denying the validity of the Nevada divorce and stating that it was invalid because proper service was not obtained and further alleging that the Nevada court did not have jurisdiction to grant a divorce because the plaintiff, Cooper, was not domiciled there.

The Chancellor made a finding that the Nevada court was without jurisdiction to grant a divorce to Cooper, and ordered appellant to pay $12.50 a week for support of his child. The court also rendered a judgment against appellant for one-half of the proceeds of the insurance policy and for the amount that Dorothy had paid on the car, making a total of $1,432.46.

If Cooper did not have a bona fide domicile in Nevada, a court of that State had no jurisdiction to grant a valid divorce. And, the jurisdiction of the Nevada court may be impeached in a court of Arkansas. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608. But, if the defendant appears in the cause and thus has an opportunity to contest the issue of domicile, the decision of the court of the State where the trial is held is controlling. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, 1 A.L.R.2d 1355; Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316. Here, Mrs. Cooper had no knowledge of the pendency of the suit in Nevada and of course did not appear therein.

The evidence that Cooper did not have a bona fide domicile in the State of Nevada is overwhelming. It is clear that he went to that State merely to get a divorce and not to establish a domicile there. He intended to stay there just long enough to meet the technical residential requirements of the divorce laws of Nevada. In the first place, he filed three suits in the State of Arkansas within a comparatively short time before leaving for Nevada. He was teaching school in this State and had another person to substitute for him until his return, which he stated would be in about six weeks. (Nevada requires a six weeks' residence in divorce cases.) Two days after the decree of divorce was rendered in Nevada, he came back to Arkansas, immediately married another person and returned to his old job as teacher. In these circumstances, it is hard to see how it could be seriously contended that Cooper ever had a bona fide domicile in Nevada.

Next is the question of the ownership of the proceeds of a policy of fire insurance. The house owned by the parties was destroyed by fire and Cooper collected and kept the insurance money. He had taken out the policy of insurance in his own name but in doing so he was acting as agent for his wife as well as for himself.

The husband is not an agent for the wife solely by reason of the marital relationship. 'But slight evidence of actual authority is sufficient proof of the agency of the husband for the wife in matters of domestic nature.' 41 C.J.S., Husband and Wife, § 70, p. 549. Agency may be established by circumstantial evidence. Williams v. O'Dwyer & Ahern Company, 127 Ark. 530, 192 S.W. 899; Sidle v. Kaufman, 345 Pa. 549, 29 A.2d 77, 81. In the Sidle case, the court said: "'The relationship of agency cannot be inferred from mere relationship or family ties unattended by conditions, acts, or conduct clearly implying an agency' * * *; but such relation is competent evidence when considered with other circumstances as tending to establish the facts of agency and where there has been other competent evidence tending to the same end." And, it is said in Restatement of Agency, § 22: 'Neither husband nor wife by virtue of the relationship has power to act as agent for the other. The relationship is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority may indicate it in the case of husband or wife.' In the case at bar, the husband secured a policy of fire insurance in his name only on property which is an estate by the entirety. In these circumstances, the fact that the husband was acting as agent for his wife in addition to acting for himself is established if any reasonable inference to be deduced from the evidence leads to that conclusion.

In the case at bar, the circumstantial...