Hewitt v. Morgan, 4-9686

• Decision Date: 25 February 1952
• Docket Number: No. 4-9686,4-9686
• Citation: 220 Ark. 123,246 S.W.2d 423
• Parties: HEWITT v. MORGAN.
• Court: Arkansas Supreme Court

Page 423

246 S.W.2d 423

220 Ark. 123

HEWITT v. MORGAN.

No. 4-9686.

Supreme Court of Arkansas.

Feb. 25, 1952.

P. L. Smith, Antoine, for appellant.

Alfred Featherston, Murfreesboro, for appellee.

McFADDIN, Justice.

By this appeal, the husband, Fay Hewitt, challenges the Chancery decree which (I) granted the wife, Pauline Hewitt, a divorce; (II) denied the husband's cross-complaint for divorce; (III) adjudicated property rights; and (IV) awarded the custody of the two children. We discuss the assignments in the order named.

I and II. The Divorce Decree To The Wife, And The Denial Of The Husband's Cross-complaint. The parties were married in 1942. On August 30, 1950, the husband became enraged at his wife and physically chastised her. As a result, she suffered two black eyes, a broken cheek bone, and welts on her body. The wife returned to her parents, and filed this suit. The husband admitted the beating, but pleaded condonation and recrimination. As to the condonation, the evidence reflects that the wife slipped away from the husband as soon after the beating as she could, so we find no evidence of condonation.

By his defense of recrimination, the husband not only sought to defeat his wife's suit for divorce, but also to gain a decree on his cross-complaint. Recrimination is discussed in some of our recent cases. See Widders v. Widders, 207 Ark. 596, 182 S.W.2d 209; and Young v. Young, 207 Ark. 36, 178 S.W.2d 994, 152 A.L.R. 327. The husband attempted to show that the wife had been guilty of adultery which, he claimed, occurred after the separation. In a written opinion, the Chancellor thoroughly weighed and discussed the matter. Without detailing the evidence, it is sufficient to say that we agree with the statements contained in the Chancellor's opinion: 'The testimony offered by the defendant as to the actions of the plaintiff at Malvern, when considered alone, and if unexplained, would be incriminating; however, plaintiff and others offer an explanation of those circumstances. So the result is, that the circumstances adduced in support of the charge of adultery are capable of two interpretations, one of which is consistent with plaintiff's innocence, and, after a study and consideration of the whole record on this issue, the Court cannot say that the charge of adultery is sustained by a preponderance of the evidence. So defendant's cross-complaint charging adultery on the part of the plaintiff must be dismissed for want of equity.'

We affirm the Chancery decree granting the wife a divorce, and refusing the husband's cross-complaint.

III. The Property Settlement. In April, 1946, the husband purchased a house and lot in Antoine, Arkansas, for a cost of $1,000 and the deed was made to the husband, as grantee. The sum of $200 was paid in cash, and the balance in deferred installments. The Chancery decree directed that the said real estate be sold, and the proceeds divided equally between the husband and wife. We hold that the wife's interest in the real property is that stated in Sec. 34-1214 Ark.Stats., which is a one-third interest for life. The wife was her only witness in regard to the property, and her testimony was as follows:

'Q. What kind of real estate * * * do you and your husband own? A. We own our home in Antoine, house and lot, worth $1,000.00. * * *

'Q. How is the title to this property? Is it deeded to both you and your husband? A. To both of us, yes. * * *

'Q. Will you please attach the deed to your deposition? * * * A. I don't have the deed. * * *

'Q. You may state from whom you bought this property, what price you paid, and what part of the money, if any, you contributed. A. Jack Mosely. $1,000.00. I did without everything for about three years to get it paid for. Payments were $100.00 each six months.'

The deed--of record since 1946--was introduced in evidence by the husband; and it was not a joint deed. The husband was the sole grantee; and he alone had been liable for the purchase price. To sustain the Chancery decree, the appellee cites Williams v. Williams, 186 Ark. 160, 52 S.W.2d 971; and Price v. Price, 217 Ark. 6, 228 S.W.2d 478. In those cases there was either a partnership between husband and wife, or a direct payment by the wife from her funds. Neither factor is present in the case at bar. Furthermore, we find no evidence sufficient to establish a trust, as was discussed in Harbour v. Harbour, 207 Ark. 551, 181 S.W.2d 805.

In short, we hold that the evidence is sufficient to take the case at bar out of the statute (Sec. 34-1214 Ark.Stats.), which gives the wife a one-third interest for life in the real estate. As to the realty, the Chancery decree must be reversed. The wife's expectancy can be reduced to its cash value and the property sold by order of the Chancery Court, on petition of either party. See Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32. The Chancery decree--giving the wife one-half of the personal property--is in all things affirmed, because there is ample evidence that the wife paid for much of the household goods.

IV. The Custody Of the Children. Two boys were born to the marriage; and at the time of the divorce decree, they were respectively 4 years and 3 years of age. By this appeal, the husband challenges not only the custody order as awarded in the divorce decree dated February 12, 1951; but also challenges the order of the Court of August 20, 1951, refusing to modify the original custody order. In his memorandum opinion of February 12, 1951, the Chancellor used the following language:

'If it can be said that these children are unfortunate in their parents, there is...