Pendergist v. Pendergist, CA

• Decision Date: 23 January 1980
• Docket Number: No. CA,CA
• Citation: Pendergist v. Pendergist, 593 S.W.2d 502, 267 Ark. 1114 (Ark. App. 1980)
• Parties: Stottie PENDERGIST, Appellant, v. Jessie PENDERGIST, Appellee. 79-182.
• Court: Arkansas Court of Appeals

Page 502

593 S.W.2d 502

267 Ark. 1114

Stottie PENDERGIST, Appellant, v. Jessie PENDERGIST, Appellee.

No. CA 79-182.

Court of Appeals of Arkansas.

Jan. 23, 1980 Released for Publication by the Court of Appeals Feb. 13, 1980.

E. Winton McInnis, II, Little Rock, for appellant.

Joe N. Peacock, McCrory, for appellee.

NEWBERN, Judge.

The appellant sought a nonsuit of her divorce action. The chancellor refused to grant the nonsuit because he regarded the divorce decree as having been rendered from the bench at the divorce hearing, although he recognized that the appellant's request in her divorce complaint that the court adjudicate property rights had been taken under submission as of the date of the divorce hearing. In his memorandum opinion denying the nonsuit, the chancellor held the divorce had been granted but that he could take no action with respect to the property rights of the parties because the husband-defendant had died after the property aspects of the case were submitted but before they were finally decided.

On the day of the divorce hearing, the chancellor wrote the following docket notation:

6-5-78 On oral of parties Burl Simmons, et al. Submitted.

On December 22, 1978, the chancellor entered a formal decree Nunc pro tunc July 5, 1978, the date of the hearing. The decree, in addition to describing the previous rendition of the divorce, said the following with respect to the parties' property:

4. That all items of personal property held in the entireties will be governed by the statutes pertaining thereto and that all property held in the name of the Defendant only will abate as the date of his death, and the Court will make no further actions regarding such property.

The appellant asks us to decide either that she is entitled to her nonsuit or that this action abated upon the death of a party. We hold the latter.

The parties appeared at the divorce hearing on July 5, 1978. The appellant put on her testimony and corroboration. The appellee and his counsel were present, not to contest the taking of the divorce, but to protect his interest in an equitable property distribution. The chancellor's memorandum decision denying the appellant's nonsuit motion recites he had been forewarned one of the parties had a serious heart condition which was affected by emotional stress, and in view of the "unusual bitterness" between the parties, he wanted to prevent emotional outbursts in the courtroom. The memorandum says that after the plaintiff had presented her evidence on the issue whether the marriage should be dissolved:

The court then heard all of the evidence concerning property rights. When both parties had rested and at the suggestion of counsel the Chancellor in open court declared that the plaintiff's prayer for divorce was granted and the marriage of the parties dissolved, reserving for further consideration all other issues.

Upon departure of the parties, the court having already reached a determination on each and every issue, outlined to counsel what was thought and intended to be a full determination of all issues, permitting counsel, as I usually do, to vary the terms if they could by agreement make a happier solution in the final and formal decree.

We agree that when a chancellor has rendered a decree in open court the decree is effective as of that time even if not entered of record. That is the express holding in Parker v. Parker, 227 Ark. 898, 302 S.W.2d 533 (1957). But the Parker Case did not involve a docket notation of any kind, whereas in this case we find a docket notation inconsistent with the later finding by the chancellor that a decree had been rendered.

In the case of McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927), the court reviewed authorities from several jurisdictions and reached the following holding:

There are authorities to the contrary but we hold that when a decision has been reached, announced by the court, And sufficient memorandum (is placed) on the chancery docket to show a final settlement of the case, it is a final judgment although it has not been spread in full on the record. (Emphasis added. 175 Ark. at 263, 299 S.W. at 48)

Although in that case there had been a docket entry of the judgment the supreme court found extant, and thus the lack of one or an inconsistent...