Hatcher v. Hatcher

• Citation: 265 Ark. 681,580 S.W.2d 475
• Decision Date: 07 May 1979
• Docket Number: No. 78-295,78-295
• Parties: James B. HATCHER, Appellant, v. Sue Guyant HATCHER, Appellee.
• Court: Supreme Court of Arkansas

Page 475

580 S.W.2d 475

265 Ark. 681

James B. HATCHER, Appellant, v. Sue Guyant HATCHER, Appellee.

No. 78-295.

Supreme Court of Arkansas, In Banc.

May 7, 1979.

Coleman, Gantt, Ramsay & Cox, Pine Bluff, for appellant.

Baim, Baim, Gunti, Mouser & Bryant, Pine Bluff, for appellee.

HICKMAN, Justice.

The Jefferson County Chancery Court granted the appellee, Sue Guyant Hatcher, temporary maintenance and attorney fees in a divorce action. The appellant, James B. Hatcher, objected to the court's order, arguing that Ark.Stat.Ann. § 34-1210 (Repl.1962) which authorizes such an award violates the equal protection clauses of the United States and Arkansas Constitutions in that it granted rights to temporary alimony, maintenance and attorney fees only to women and not to men. See U.S.Const.Amend.XIV, and Ark.Const. art. 2, § 3.

The appellant raises on appeal from the temporary order the constitutional issue as well as whether the court's award was excessive.

Mrs. Hatcher was awarded $3,200.00 per month as "temporary support and maintenance," and a $1,500.00 temporary attorney's fee. There was no breakdown of how much was allotted as temporary alimony, and how much as support, if any, for the minor child. The order also provided that the appellant was to pay all medical, dental and drug bills incurred by the appellee and her son, Lynn Brady Guyant. (The minor son is by a prior marriage of Mrs. Hatcher. However, she alleged that the appellant was responsible for his support.) The appellee was given temporary possession of a Mark V automobile and their home. It is not disputed that the appellant's adjusted gross income for 1977 was $274,000.00.

Since the trial court entered its order, the United States Supreme Court has issued a decision which we consider controlling and which requires us to declare that the law in question is unconstitutional. In Orr v. Orr, --- U.S. ----, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the United States Supreme Court declared a similar Alabama statute unconstitutional. ¹

The court applied the following test in determining the constitutionality of the Alabama statute:

"To withstand scrutiny" under the equal protection clause, " 'classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.' "

Several possible governmental objectives that could justify the existence of such a statute were examined by the court. First, allocation of family responsibilities in which the wife plays a dominant role. The court found that this purpose could not now sustain such laws, commenting:

"No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and world of ideas."

Next, the court considered two other possible purposes: (1) "to provide help for needy spouses, using sex as a proxy for need"; and, (2) to compensate "women for past discrimination during marriage" which arguably has left them unprepared to fend for themselves in the working world after a divorce. These two objectives were recognized as legitimate and important governmental objectives. However, the court held that since "individualized hearings at which the parties' relative financial circumstances are considered Already occur," the gender-based classification was unnecessary and the state's purposes could be effectuated without it. (Emphasis in original.)

More importantly, the court noted that the use of such a gender classification gives "an advantage only to the financially secure wife whose husband is in need."

Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender-classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound if only indirectly to the benefit of those without need for special solicitude.

Orr v. Orr, supra, at ----, 99 S.Ct. at 1113-1114.

The Arkansas law in question, Ark.Stat.Ann. § 34-1210 (Repl.1962), is very much like the Alabama law. It reads:

Maintenance and attorney's fees pending action Attorney's fees for enforcement of decree. During the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow additional attorney's fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.

The Arkansas law permits, but does not require, alimony and attorney fees; the Alabama law is identical in that regard. We have held that the allowance of temporary alimony and attorney's fees is within the sound discretion of the court. So long as they are within reasonable limits they will not be disturbed. Livingston v. Livingston, 247 Ark. 1137, 449 S.W.2d 396 (1970); Brabham v. Brabham, 240 Ark. 172, 398 S.W.2d 514 (1966). In Alabama such an award is based upon all the circumstances of the case. Alabama Code, Title 30 § 30-2-52. The Arkansas law only provides for such relief to the wife with no reference to a reciprocal right for a husband. So does the Alabama law. The fact that the Arkansas law in question only relates to temporary, as opposed to permanent, alimony is not significant. We have even held that a wife is entitled to temporary alimony based upon the sole fact that the husband sued her for divorce. Kearney v. Kearney, 224 Ark. 484, 274 S.W.2d 779 (1955). It is not a question of temporary or permanent alimony. It is a question of a gender-based classification of the statute. The same arguments made to justify the Alabama law can be made regarding the Arkansas statute in question.

There is no doubt that the Arkansas law cannot survive application of the principles of the Orr case. "A gender-based classification which, as compared to the gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny," Orr v. Orr, supra, --- U.S. at ----, 99 S.Ct. at 1113. Therefore, we declare Ark.Stat.Ann. § 34-1210 (Repl.1962) unconstitutional in violation of the equal protection provisions of the United States and the Arkansas constitutions.

The appellee has argued that we should simply hold that the law applies to both wives and husbands. We have never applied this statute in favor of husbands. When the will of the General Assembly is clearly expressed, we are required to adhere to it without regard to consequences. Walker v. Allred, 179 Ark. 1104, 20 S.W.2d 116 (1929). It is not the function of this court to legislate; to do so would be a clear violation of this court's authority. Divorce and the incidental rights, responsibilities and liabilities of a divorce, are purely statutory. Ex parte Helmert, 103 Ark. 571, 147 S.W. 1143 (1912); Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975); Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958). We held in Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944):

The Legislature not the courts determines the grounds for, the defenses against, divorce; because divorce is always regulated by statute.

Since the Orr decision, the Arkansas General Assembly passed, and the Governor of Arkansas signed into law, Act 705 of 1979. It amends Ark.Stat.Ann. § 34-1210 to read During the pendency of an action for divorce or alimony, the court may allow to the wife or to the husband maintenance and a reasonable fee for her or his attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow either party additional attorney's fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.

It seems that the General Assembly has addressed, by Act 705, the problems created by Orr and although we take judicial knowledge of the Act, we do not rule on its legality nor application since it is not before us. However, as far as these parties are concerned, it is relevant to their pending divorce case. This matter is remanded for the chancery court to reconsider its order in view of the Orr decision, our decision and Act 705.

The United States Supreme Court, in Orr, cautioned litigants as to the effect of the Orr decision. It may not result in much change. It was pointed out that in Alabama, alimony is sometimes a matter of contract and, therefore, enforceable as a contract between the parties. Arkansas also has recognized this distinction. Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970). Furthermore, parties who have not raised the constitutional issue in prior proceedings may be precluded from raising it at a later date. Orr v. Orr, supra.

We do not reach the second argument of the appellant, that the award was excessive, because this matter may be rendered moot at a rehearing. It may be that the order of the trial court, based on the statute declared unconstitutional, can be remedied on a rehearing. Also, this was a temporary and not final adjudication of the rights of the parties.

The appellee also argues that the appellant did not properly appeal from the temporary award of attorney's fees. The record reflects that the appellant appealed from the order entered by the court and that order included attorney fees.

It may be that the Orr decision and our decision will at least for a period of time cause some problems to litigants. However, we resist the temptation to rule beyond the issues before us. It is best that any legal problem resulting from Orr be addressed by the General Assembly or through our judicial system. We cannot cure all the ills created by such cases, nor should we presume to anticipate them.

Reversed and remanded.

GEORGE ROSE SMITH and FOGLEMAN, JJ., concurring in part and dissenting in...