Raney v. Raney

• Decision Date: 13 February 1978
• Docket Number: No. 76-385,76-385
• Citation: 561 S.W.2d 287,262 Ark. 747
• Parties: Jacqueline RANEY, Appellant, v. Thomas D. RANEY, Appellee.
• Court: Arkansas Supreme Court

Page 287

561 S.W.2d 287

262 Ark. 747

Jacqueline RANEY, Appellant, v. Thomas D. RANEY, Appellee.

No. 76-385.

Supreme Court of Arkansas, In Banc.

Feb. 13, 1978.

Rehearing Denied March 13, 1978.

Ernie E. Wright, Harrison, Roy E. Danuser, Mountain Home, for appellant.

Friday, Eldredge & Clark by Michael G. Thompson, Catlett & Henderson by Leon B. Catlett, Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

In this case the parties separated in 1973, after 19 years of marriage. There are three children, now grown or nearly so. Both parties sought a divorce, Raney on the ground of three years' separation and Mrs. Raney on that ground and indignities as well. After a protracted trial the chancellor announced that he could not find either party to be at fault, at once adding: "That necessarily means she would not be entitled to his, quote, property." At the chancellor's invitation Raney agreed that, as between the two, the divorce might be awarded to his wife under the three-year separation statute. The chancellor fixed alimony at $15,000 a year, directed that two jointly owned pieces of real property be sold and the proceeds divided, awarded the household furniture and furnishings to Mrs. Raney, provided her with a car, directed Raney to carry $100,000 of life insurance with Mrs. Raney as the beneficiary until her remarriage or death, and awarded Mrs. Raney a $7,500 attorney's fee. There is now no dispute about child custody or child support. Mrs. Raney appeals and Raney cross appeals, each seeking more favorable terms with respect to alimony and property division.

Inasmuch as the marriage was obviously beyond the possibility of being salvaged when the case was heard, the primary issue before the trial judge was whether the wife was the injured party, so as to be entitled to a statutory one-third interest in her husband's property. The chancellor, in refusing to make a finding of fault on either side, despite a plethora of charges and countercharges in the testimony, in effect found that the wife was not shown by the weight of the evidence to be the injured party. That finding is the primary point presented by the direct appeal.

We cannot say that the chancellor was wrong. Some two years before the separation Mrs. Raney decided to leave the Methodist Church, to which both parties belonged. She became a member of a sect that espouses "speaking in tongues," faith healing, the belief in demons, and other tenets not generally accepted by more orthodox denominations. No one doubts a person's right to adopt whatever religious beliefs she chooses, but in this instance Mrs. Raney's new beliefs and practices became, day and night, such obsessions that she lost any real sense of responsibility toward her husband or toward her children. As the chancellor said: "Mrs. Raney was not willing to compromise at all on her beliefs under any circumstances, and Mr. Raney could not accept a change in his way of life and what he thought the family ought to be." We do not imply that Raney was blameless with regard to the ultimate breakdown of the marriage, but we find it impossible to say that Mrs. Raney is shown by the weight of the evidence to have been the injured party.

That being so, the chancellor had a fairly broad range of discretion in arriving at an equitable amount of alimony for Mrs. Raney. Raney's income and assets are both related to a family-owned investment firm and are hard to evaluate with anything like precision, but his resources do appear to be sufficient to provide for all members of the family. Thus the issue of alimony relates primarily to Mrs. Raney's needs, having regard to the couple's past standard of living. We must also bear in mind that Mrs. Raney will apparently receive more than $125,000 from the sale of the two properties owned jointly. Upon the testimony as a whole we do not feel able to improve upon the chancellor's award of alimony, either by increasing it or by reducing it.

The appellant also assigns as error the chancellor's failure to allow her to share the rentals from a commercial building in downtown Little Rock in which Raney has a one-fourth interest. There is outstanding a 20-year lease, expiring on July 30, 1978. Mr. and Mrs. Raney both signed the lease as lessors, along with the owners of the other three-fourths interest. Raney testified that his share of the rentals, amounting to $488 a month, had been used through the years for the maintenance of the family.

The chancellor correctly refused to award the appellant half the future rentals as a matter of contractual right. The facts in the case relied upon, Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975), are readily distinguishable. There in the sale of property owned by the husband alone the notes for the purchase price were drafted by an attorney and were made payable to the husband and wife jointly. Adhering to our earlier cases, we held that a tenancy by the entirety was created, so that the wife became an equal co-owner of the notes.

That case would be in point here if the rentals due under this lease had been evidenced by notes payable jointly to Mr. and Mrs. Raney. That, however, is not the case. The lease merely provides that the rents are payable to the lessors, without even reciting the undivided interests of the three owners. Over a 20-year period Raney's share of the rents would total $117,120. It would be wholly unrealistic to hold that Mrs. Raney, merely by signing the lease, obtained an absolute contractual right to half those rentals for the term of the lease. Presumably her signature was added to the lease to satisfy the lessee about her agreement to the transaction. Mrs. Raney had the burden of proving the claim she now asserts, but there is no testimony whatever about the circumstances that attended the execution of the lease. All we have is the bare lease itself, which does not sustain the present claim.

As cross-appellant, Raney questions the trial court's direction that he carry $100,000 of life insurance for Mrs. Raney's benefit. At the time of the trial Raney had in force $149,000 of life insurance, which he described as mostly paid up. We regard this provision in the decree as being simply a way of awarding Mrs. Raney an interest in her husband's property.

Counsel state perfunctorily that they know of no precedent for such an order, but we have frequently reviewed decrees providing for the continuance or assignment of insurance policies in favor of the divorced wife or the children. Such an existing policy is property. Understandably, courts elsewhere have frequently recognized their power to direct that the husband in a divorce case maintain life insurance for the benefit of the wife. Bildner v. Bildner, 219 So.2d 749 (Fla.App., 1969); Cooley v. Cooley, 320 Mich. 209, 30 N.W.2d 840 (1948); Shomaker v. Shomaker, 166 Neb. 164, 88 N.W.2d 221 (1958); Williams v. Williams, 44 Wis.2d 651, 171 N.W.2d 902 (1969).

Such a provision is particularly appropriate in this case. Raney's principal asset is his interest in the family-owned investment company. Not only is this property hard to evaluate, but also Raney's interest might not be readily subject to sale without undue hardship to him. In the circumstances the chancellor's decision to award the wife an interest in the existing life insurance rather than in other property is a sensible and practical solution to the problem of making a fair property allowance to the appellant.

As to the attorney's fee allowed in the court below, we do not consider it excessive and allow an additional $3,000 with regard to counsel's services in this court.

Affirmed.

HARRIS, C. J., and FOGLEMAN and BYRD, JJ., dissent in part.

HICKMAN, J., disqualified.

FOGLEMAN, Justice, dissenting in part:

I respectfully dissent from the court's affirmance of the decree, insofar as the rentals are concerned. Appellant signed the lease as a lessor. She is not mentioned in the lease in any other capacity. I do not understand what the majority uses as a springboard to the presumption that appellant signed "to satisfy the lessee about her agreement to the transaction." Even when I read between the lines, I cannot find it. About what did the lessee want to be satisfied as to her agreement? Neither the lease nor the acknowledgment mentions dower. In the acknowledgment appellant is named as a lessor along with the other signers in that capacity.

The use to which the rentals had always been put is consistent with her claim. This, along with the bare lease, in my opinion, does sustain appellant's position. As a matter of fact, I do not agree with the majority that the bare lease does not sustain her position. I concede that Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 can be distinguished on the facts. But I submit that the distinction made on the basis that a note was given in Ramsey and not given here is like that of "tweedle-dee" from "tweedle-dum." Of course, this lease did not convert the title to the land into a tenancy by the entirety. But the entitlement to rents is something else. Apparently, the majority would hold that appellant's position was correct if a note had been given for the rent in which appellant was a payee (or would it, in addition, have to be drawn by an attorney?).

In case of dispute about default by the lessee in the payment of rent, could anyone doubt for a moment that appellant would have been a necessary party to an action for collection of rent from the lessee? Even though the husband was the owner of the property the wife named in a lease of the property has the legal capacity to sue and must be joined as a necessary plaintiff in an action to recover rent, as the action is maintainable by the joint lessors. Pollack v. House & Herman, 84 W.Va. 421, 100 S.E. 275 (1919). See also, Bowen v. West Virginia Gas Corp., 121 W.Va. 403, 3 S.E.2d 629 (1939). Where the lessee promises to pay rent to someone other than the owner of the leased property, the person...