McCue v. McCue

• Decision Date: 02 December 1946
• Docket Number: 4-8015
• Citation: 197 S.W.2d 938,210 Ark. 826
• Parties: McCue v. McCue
• Court: Arkansas Supreme Court

197 S.W.2d 938

210 Ark. 826

McCue v. McCue

No. 4-8015

Supreme Court of Arkansas

December 2, 1946

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Reversed.

Fred A. Isgrig and John S. Gatewood, for appellant.

Taylor Roberts, for appellee.

OPINION

Griffin Smith, Chief Justice.

Appellee, a dentist, sued for divorce, alleging indignities of an intolerable nature. His wife cross-complained with the averment that the Doctor's fractious attitude had become publicly insulting to such an extent that the mutual relationship of husband and wife had ended. The abstract does not show that the cross-defendant denied these charges. On the contrary, there is a ready inference that Dr. McCue welcomed the opportunity to make his wife a burdenbearer in matters of testimony and the production of witnesses. Within three weeks McCue married a widow who had a young daughter. Appellant (the former Mrs McCue) testified in the proceeding from which this appeal comes that her understanding of arrangements pertaining to the divorce decree was that Dr. McCue sought matrimonial emancipation because he wanted to marry the widow.

Whatever the prevailing motives may have been, appellant -- who is referred to as having assisted her husband in his profession for more than fifteen years -- seemingly came to the conclusion that her interests would be best served by cross-complaining and permitting the Doctor to prevail in fact if not of record.

The decree was rendered on Mrs. McCue's testimony and, presumptively, on the testimony of a witness she called. An expression in the decree is: ". . . it appearing to the Court by agreement upon the part of the plaintiff and the defendant that a property settlement has been made, . . . it is ordered that $ 25 per week be made to Lida B. McCue as permanent alimony . . . This decree is based upon property settlement and is a consent decree."

Other items as to which there was adjudication included $ 350 to be paid by Dr. McCue in February for use of the former wife in moving "her" furniture and household goods from Arkansas to Texas. In a subsequent provision it was decreed that all household furniture and furnishings "now in possession of the defendant" should go to the cross-complainant "as her personal property." She was also awarded "the 1942 Nash Tudor sedan."

In June, 1946, Dr. McCue petitioned for modification of the decree, alleging that because of "a lack of business" he had been forced to abandon his profession in Little Rock, and had moved to Green Forest; [a city or town of 750 in Carroll County, Ark.] that he is a stranger there and will not be able to earn compensation in excess of necessary living expenses for a long period of time. It was further alleged that the petitioner "had information to the effect" that the former Mrs. McCue, then 54 years of age, ". . . is, or at least will in the near future, be employed in a remunerative position, [and that] she is able to work. His prayer was that provision in the decree of 1944 for alimony ". . . be cancelled, set aside, and held for naught."

The Chancellor thought otherwise and only partially modified. McCue was relieved entirely during June and July, 1946. The direction was that, beginning August 1, $ 25 should be paid "every two weeks until further orders."

Two questions are presented. (a) Did the Court have jurisdiction to modify the decree; (b) if there were power to relieve, was it appropriately exercised?

Dr. McCue testified he had adopted his second wife's daughter, a child thirteen years of age in 1946. He bought a piano for her use at a cost of about $ 800, and had paid $ 1,475 for an automobile. Appellee is 49 years of age, and with the exception of a slight leg impairment, is in good health "and happy." His present wife is 44.

Appellee purchased a home in Little Rock in October, 1944, with arrangements for deferred payments. The present Mrs. McCue used $ 1,227 of her personal funds in buying the property. It cost $ 4,500 and was sold for $ 8,250. Dr. McCue insisted that improvements he made, when added to the original consideration, represented an investment of $ 6,100. When the home was sold, $ 3,100 was given the second wife.

Gross income in 1944 was $ 13,000, in 1945, $ 11,252. Appellant's counsel argue that according to Dr. McCue's testimony, his net income for 1945 was $ 6,668.25, while appellee contends other deductions to which he was entitled, and concerning which he testified, reduced the net to $ 4,627.32.

During the first five months of 1946, appellee's professional receipts were: January, $ 672; February, $ 1,088; March, $ 1,017; April, $ 810, and May, $ 672 -- a total of $ 4,259, or an average of $ 851.80 per month; whereas the 1944 average was, roughly, $ 1,083, a decrease of $ 231 per month from the highest income year mentioned.

Dr. McCue, after moving to Green Forest, purchased a six-room residence thirty years old, and says he agreed to pay $ 9,000 for it, $ 1,500 being the required "down" payment, with $ 1,500 to follow, the balance in monthly installments. Appellant (Lida B. McCue) has no income and has lived with a nephew and his wife. The relative has not finished school.

It was recognized in Shirey v. Hill, 81 Ark. 137, 98 S.W. 731, that a husband's contract for separate maintenance of his wife is binding. Mr. Justice Wood, in disposing of the argument that Lawrence Chancery Court was without jurisdiction, cited Wood v. Wood, 54 Ark. 172, 15 S.W. 459, and § 2675 of Kirby's Digest, now § 4380 of Pope's Digest. The statute provides that an action for alimony or divorce shall be by equitable proceedings. Effect of the decisions is that enforcement of a contract for alimony is an action for alimony, as distinguished from an action on debt, although the debt, as such, is recognized as subsisting by reason of agreement between the parties.

A leading case dealing with alimony contracts is Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am. St. Rep. 102. A part applicable to the case at bar expressed by Mr. Justice McCulloch, later Chief Justice, is this: Where husband and wife, in contemplation of immediate divorce, enter into a contract whereby the husband agrees to pay certain sums of money at stated times, and such parties voluntarily cause this contract to be made a part of the decree for divorce, the decree cannot subsequently be modified in so far as it is based on the contract, for any substantial change would be a modification of the contract itself.

At page 309 of the Arkansas Reports, where the Pryor case appears, it is said: "The agreement was, in effect, contemporaneous with the decree granting the divorce."

Pryor v. Pryor was distinguished in McConnell v McConnell, 98 Ark. 193, 136 S.W. 931, 33 L. R. A., N. S., 1074. Mrs. McConnell failed to establish grounds for divorce and her complaint was dismissed. On appeal we affirmed. The chancellor also set aside a separation...