Jenkins v. Jenkins

• Decision Date: 02 July 1951
• Docket Number: No. 4-9488,4-9488
• Citation: 219 Ark. 219,242 S.W.2d 124,27 A.L.R.2d 861
• Parties: , 27 A.L.R.2d 861 JENKINS v. JENKINS.
• Court: Arkansas Supreme Court

Page 124

242 S.W.2d 124

219 Ark. 219, 27 A.L.R.2d 861

JENKINS v. JENKINS.

No. 4-9488.

Supreme Court of Arkansas.

July 2, 1951.

Rehearing Denied Oct. 8, 1951.

Wilson, Kimpel & Nobles, El Dorado, Paul K. Roberts, Warren, for appellant.

Ovid T. Switzer and W. P. Switzer, Crossett, for appellee.

McFADDIN, Justice.

From a decree of the Chancery Court granting the wife a divorce, and making a division of the property, the husband prosecutes this appeal, presenting the questions now to be discussed.

I. Sufficiency of the Evidence as to Grounds of Divorce. Appellant, Roy Jenkins, and appellee, Ida Goodwin Jenkins, were married in April 1944. Their only child, a boy, was born in May 1945. They lived in Crossett, Ashley County, Arkansas, where appellant worked at the paper mill and appellee was sometimes a chemist at the mill and sometimes a public school teacher. The parties separated on April 2, 1949; and this divorce suit was filed on April 26, 1949 by Mrs. Jenkins on the ground of indignities.

According to the testimony of the wife and her witnesses, Mr. Jenkins had a violent and ungovernable temper; and on occasions would strike and beat his wife. One witness saw bruises on her body inflicted by a broomstick. Others testified to tongue lashings and cursings. Mrs. Jenkins testified that on the morning of April 2, 1949, she told him that she was leaving; that he took their child from her ¹; and that when she and her brother (Vascoe Goodwin) were leaving in the car, Mr. Jenkins cursed them and threatened them with a gun. In the encounter, Vascoe Goodwin shot Roy Jenkins. Appellant and his witnesses give an entirely different version of each incident; but after a careful study, we reach the conclusion that the preponderance of the evidence supports the Chancellor's findings in favor of Mrs. Jenkins as to grounds of divorce.

Furthermore, we find no merit in appellant's claim that the appellee had unconditionally condoned all of appellant's misconduct for the years prior to April 2nd, 1949. What we said in Franks v. Franks. 211 Ark. 919, 204 S.W.2d 90, 92, is apropos: 'Assuming, without deciding that her acts in returning and resuming the marital relation, based on his promises not to repeat the offense, constituted condonation for past mistreatment, still it was only conditional condonation. If the condition is broken by future misconduct, condoned past conduct may then be relied on in support of an action for divorce on the subsequent misconduct or both.' See also Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41, and Denison v. Denison, 189 Ark. 239, 71 S.W.2d 1055.

II. Jurisdiction of the Court. The parties were living in Ashley County at the time of the separation, and neither had acquired a new domicile when the suit was filed on April 26, 1949, or when defendant's answer was filed on may 16, 1949. But the trial was delayed by the defendant; and on June 12, 1950 he filed his 'Motion to Dismiss on Account of Loss of Jurisdiction', in which he made the claims: (a) that Mrs. Jenkins had in fact become a resident of Louisiana; and (b) that she was estopped to deny her Louisiana residence. The question of jurisdiction properly received first consideration and determination by the trial court, although we have, for convenience, discussed the grounds of divorce as the first item in this opinion. The testimony going to the appellant's motion is quite voluminous. As previously stated, Mrs. Jenkins' brother, Vascoe Goodwin, shot Roy Jenkins in the encounter of April 2nd, 1949. Mrs. Jenkins regained custody of her child and obtained a position as school teacher at Elm Grove, Louisiana, fifteen miles from Shreveport. She was employed there during the 1949-50 term, and returned to her home in Arkansas after the completion of the school term.

(a)--Appellant contends that Mrs. Jenkins in fact became a resident of Louisiana, because when she taught school in Louisiana, she thereby changed her residence to that State. Appellant cites the following cases which hold that domiciliary residence is essential to jurisdiction of the court to grant a plaintiff a divorce: Barth v. Barth, 204 Ark. 151, 161 S.W.2d 393; Gilmore v. Gilmore, 204 Ark. 643, 164 S.W.2d 446; Parseghian v. Parseghian, 206 Ark. 869, 178 S.W.2d 49; Porter v. Porter, 209 Ark. 371, 195 S.W.2d 53; Cassen v. Cassen, 211 Ark. 582, 201 S.W.2d 585; and Walters v. Walters, 213 Ark. 497, 211 S.W.2d 110.

We affirm our holdings in the cited cases; and nothing herein is contrary to them. But, here, the plaintiff, Mrs. Jenkins, was a lifelong domiciled resident of Arkansas and went to Louisiana for only a short period without intending--or in fact accomplishing--a change of domiciliary residence. She had a home in Crossett which she leased during her absence. She testified:

'Q. When you went to Louisiana after your separation did you have any intention of establishing your home in Louisiana? A. I did not.

'Q. Did you have any intention of abandoning your home in Arkansas and not returning? A. I did not. I had all my income tax returns made in Arkansas and my home is in Arkansas. Everything I have other than my job was and is in Arkansas.

'Q. Have you taught in Louisiana before? A. Yes, sir.

'Q. Did you always return home to Crossett after school was out? A. i did.

'Q. Is it your present intention to maintain your home in Arkansas and Ashley County? A. Yes.'

In Wood v. Wood, 140 Ark. 361, 215 S.W. 681, 682, the contention was made that the court lost jurisdiction to grant a divorce because the plaintiff was temporarily absent from the State; and this Court, speaking through Chief Justice McCulloch, said: '* * * the proof is sufficient to show that plaintiff resided in Jefferson county, Ark., where the suit was brought, and that she had never removed from this state, but that her absence of a few months on a visit to her sister in Mississippi was only temporary.'

In 27 C.J.S., Divorce, § 76, p. 647, in discussing actual residence as essential to the jurisdiction of a court to grant a divorce, cases from many jurisdictions are listed to sustain the text: '* * * nor is a loss of domicile or residence effected, by temporary absence with the intention to return.' To the same effect see also 17 Am.Jur. 286.

The case at bar is within the above quoted rule. This is not a case in which jurisdiction is claimed under the 90-day divorce law: the question here is whether appellee, a lifelong resident of this State, lost her legal residence by temporarily sojourning in another State while teaching school for a nine months term, after which she returned to her home in this State where she has since remained. Without reviewing the evidence in detail, we conclude that Mrs. Jenkins all the time remained, in fact, a domiciled resident of Arkansas.

(b)--Appellant next claims that Mrs. Jenkins is estopped to deny her Louisiana residence. On March 15, 1950, Roy Jenkins, claiming to have acquired residence in Louisiana, filed, in the United States District Court at El Dorado, Arkansas, an action against Vascoe Goodwin and his wife, and also Mrs. Ida Jenkins, claiming damages for the pistol wounds sustained by Jenkins in the encounter heretofore mentioned. Diversity of citizenship between plaintiff and defendants was essential to maintenance of the suit in the Federal Court. ² Vascoe Goodwin's attorney contacted Mrs. Jenkins' attorney and obtained from him permission to file a pleading for Mrs. Jenkins in the Federal case; and in the said pleading so filed in the Federal case, it was stated that Mrs. Jenkins was a resident of the State of Louisiana. The effect of that pleading, if its recital were true, would have been to destroy the complete diversity essential to Federal jurisdiction. ²

When the aforesaid pleading was filed by Vascoe Goodwin's attorney in the Federal Court, Roy Jenkins' attorneys voluntarily dismissed the Federal case. There was never any testimony offered in the Federal case to show that Mrs. Jenkins was a resident of Louisiana. She never made any such statement and never signed any pleading in the Federal case. She claimed that she went to the Federal Court as a witness and did not know that any pleading was being filed for her. Mrs. Jenkins never talked to Vascoe Goodwin's attorney.

With becoming frankness, Mrs. Jenkins' attorney in this divorce case stated that he had never discussed the Federal case with her when her intervention was filed. And, likewise, with admirable candor, the attorney for Vascoe Goodwin who filed the pleading in the Federal Court--to the effect that Mrs. Jenkins was a resident of Louisiana--frankly stated that he obtained his information from Vascoe Goodwin and not from Mrs. Jenkins. There is not the slightest reflection on any attorney on either side in either the Federal case or this case. There was a plain, honest misunderstanding. Merely because some person, unauthorized by her, made a statement to the contrary, Mrs. Jenkins is not estopped in the present case from proving her actual domiciliary residence to be the State of Arkansas. See Carson v. Hyatt, 118 U.S. 279, 6 S.Ct. 1050, 30 L.Ed. 167.

So we hold that the Chancery Court of Ashley County had jurisdiction to hear and determine this divorce action between Mr. and Mrs. Jenkins.

III. The Decree as to Division of the Property. Appellant also attacks that part of the decree of the trial court which made a property division. As regards the...