Goodloe v. Goodloe, 5--6038

• Decision Date: 11 December 1972
• Docket Number: No. 5--6038,5--6038
• Citation: 487 S.W.2d 593,253 Ark. 550
• Parties: David Kirby GOODLOE, Appellant, v. Betty Lou GOODLOE, Appellee.
• Court: Arkansas Supreme Court

Page 593

487 S.W.2d 593

253 Ark. 550

David Kirby GOODLOE, Appellant, v. Betty Lou GOODLOE, Appellee.

No. 5--6038.

Supreme Court of Arkansas.

Dec. 11, 1972.

Charles L. Carpenter, N. Little Rock, for appellant.

Eubanks, Files & Hurley by Ruby E. Hurley and Jack D. Files, Little Rock, for appellee.

HARRIS, Chief Justice.

This is a divorce case. David Kirby Goodloe, appellant herein, and Betty Lou Goodloe, appellee, were married in March, 1951. Mrs. Goodloe instituted suit in February, 1971, alleging that appellant had been guilty of such indignities, systematically pursued, as to render her condition in life intolerable. Goodloe filed a motion asking that the complaint be made more definite and certain and in compliance therewith, the complaint was amended asserting that appellant struck appellee with his hand at or near Thanksgiving day, 1970, in the presence of the minor children, and verbally abused appellee during the months of September, October, November, December, 1970, and January, 1971, by telling that she had spent all of his money was insane, and various other derogatory remarks, all in the presence of the children. Appellant filed an answer denying the charges and also filed a cross-complaint likewise seeking a divorce on the grounds of general indignities. At the conclusion of the trial, the court entered its decree granting the divorce to appellee, custody of the children to appellee, with certain visitation rights to appellant, and rendered numerous findings relative to division of the property. From the decree so entered, appellant brings this appeal. For reversal, it is asserted that appellee's testimony for divorce was not corroborated; that appellant's grounds for divorce were corroborated and the divorce should have been granted to him; further, that appellant's rights under Article 2 of the Arkansas Constitution were violated.

Before discussing these points, we first proceed to pass on appellee's first contention, viz, that appellant has failed to comply with Supreme Court Rule 9(d) in that he has not abstracted the decree. This was done by the appellant in a reply brief, but we have held that furnishing an abstract in the reply brief is not compliance with the Rule. Reeves v. Miles,236 Ark. 261, 365 S.W.2d 460; Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S.W.2d 101. However, though the decree contains 25 different findings, these mainly relate to the division of property rights, based on the granting of the divorce to appellee. Appellant's argument is simply that the court erred in granting the divorce to Mrs. Goodloe rather than to him, and the abstract is sufficient to determine this question; accordingly we cannot agree that the decree should be affirmed because of non-compliance with this rule.

Taking the second point first, we quickly state that we do not agree that there was corroboration of Goodloe's allegations. Only two witnesses besides appellant himself testified on his behalf, and the testimony of one of these, appellant's sister, only dealt with property that she had purchased together with her brother. Sgt. Richard A. Burns, a member of the Security Police Detachment at the Little Rock Air Force Base, testified that he was called to investigate a domestic disturbance at the Goodloe home on the base, ¹ and responded to the call. Appellee was, with the aid of her mother, moving from the premises to another location, and the two women said that Goodloe was disturbing them. Appellant was simply standing in the doorway and Sgt. Burns witnessed no altercation whatsoever. Appellant argues that the testimony of appellee and her witnesses corroborates his allegations of general indignities but we do not agree.

Nor do we find sufficient corroboration to sustain the award of the divorce decree to Mrs. Goodloe. It will be remembered that in compliance with the motion to make more definite and certain, Mrs. Goodloe set out the acts to be relied upon. First, she asserted that the plaintiff struck her 'on or near Thanksgiving day, 1970, in the presence of the parties' minor children'. Teresa Goodloe, a thirteen year old daughter, testified that she had never seen her father hit her mother since they had lived in Jacksonville; that she did see him hit her in Texas once, about the time she was in the fifth grade. The witness stated that she was presently in the eighth grade. A sixteen year old son likewise testified but did not corroborate this occurrence. Appellant himself testified that he had been working outside and when he came in the house, his wife was standing in the dining area brushing her hair. He said he hit her with the back of his hand playfully 'on the fanny', which he had done many times and that she then quickly turned around and hit him on the side of the head with the hair brush; that he did slap her, more or less as a reflex action. Nothing further happened and both agreed that they had best quit before 'one of us might get mad'.

It was also asserted that during the months of September, October, November, December, 1970, and January 1971, appellant...