McDougal v. McDougal
| Decision Date | 31 May 1943 |
| Docket Number | 4-7086 |
| Citation | 171 S.W.2d 942,205 Ark. 945 |
| Parties | MCDOUGAL v. MCDOUGAL |
| Court | Arkansas Supreme Court |
Appeal from Clay Chancery Court, Western District; J. F. Gautney Chancellor; modified and remanded.
Decree reversed and remanded.
Westbrooke & Westbrooke and C. T. Bloodworth, for appellant.
Taylor & Hines and Phillips & Phillips, for appellee.
The parties to this litigation were married in this state, but removed to the state of Missouri. The wife filed suit in that state for a divorce and prayed the allowance of alimony and the custody of the children born to their union. Being apprised of the filing of this suit the husband left that state, apparently to avoid service of summons upon him, and came to this state, and, after residing in this state for something more than sixty days, he filed suit here under our ninety-day divorce law. There has been no service of process on him in the suit filed by his wife in Missouri.
The wife filed an answer to the suit commenced against her in this state and, in a cross-complaint filed here, she prayed for a divorce, for alimony and for the support and custody of their children and for an attorney's fee and court costs. The court below granted the wife all the relief prayed, and from that decree is this appeal.
The depositions of many witnesses were taken and we have before us a voluminous record. Without reciting the conflicting and sordid testimony found in the record we announce our conclusion to be that the court below very properly refused to grant a divorce to the husband. We are of the opinion also that the testimony shows that plaintiff, the husband, had been guilty of conduct which fully sustained the decree of the court below in awarding a decree of divorce to the wife the defendant, but for the fact that condonation of the husband's conduct is also shown. Since the separation of these parties, and after the filing of these two suits, a child was born of which the defendant says the plaintiff is the father, and he admits the paternity of the child. Buck v. Buck, ante, p. 918, 171 S.W.2d 939.
Two other children were born to this union, one, a daughter now 11 years old, the other, a son who died in infancy. For many reasons the custody of these children was properly awarded to the mother, and we would not think of taking the baby child from its mother's breast.
The court below assessed all the costs against the husband, and this was properly done. The court allowed a fee of $ 400 in addition to $ 100 already paid as a fee for defendant's attorney, and directed plaintiff to contribute $ 100 per month to the support of his wife and children.
This relief was granted to the wife, a nonresident of this state upon her cross-complaint, but the court below had this jurisdiction. The case of Aucutt v. Aucutt, 89 A. L. R. 1203, has an extended annotation of the question of "nonresidence of defendant or cross-complainant in a suit for divorce as affecting power to grant divorce in his or her favor."
Many cases are there cited to support the following statement of the Annotator: "It is a well-established rule of law that where an action for divorce is brought by a resident of the state of the forum against a nonresident, a divorce may be granted the nonresident on his or her cross-petition, although a statute, in general terms, requires the plaintiff in an action for divorce to have been a resident of the state for a designated time."
We conceive it, therefore, to be within our jurisdiction to pass upon the questions here presented and while we deny the wife a divorce, we do so...
To continue reading
Request your trial
-
Hatcher v. Hatcher
...fees to a wife in cases where a divorce was not granted to either party, without placing reliance upon any statute. See McDougal v. McDougal, 205 Ark. 945, 171 S.W.2d 942; Gabler v. Gabler, 209 Ark. 459, 190 S.W.2d 975. This is done on the basis that, even though a decree for divorce is den......
-
McDougal v. McDougal, 7286
...was reversed. However, Oral was 'directed to contribute $100 per month to the support of his wife and children.' McDougal v. McDougal, 205 Ark. 945, 171 S.W.2d 942, 943. In Case No. 4049 (hereinafter referred to as the second Arkansas case), a decree of divorce was granted on June 7, 1945, ......
- Tarr v. Tarr
-
Tarr v. Tarr, 4-7415.
...of this State, and was made a party defendant by the publication of a warning order. It was held in the case of McDougal v. McDougal, 205 Ark. 945, 171 S.W.2d 942, that although the statute requires that the plaintiff in an action for divorce be a resident of this State for a designated tim......