Strang v. Strang, 75--14

• Decision Date: 19 May 1975
• Docket Number: No. 75--14,75--14
• Citation: 258 Ark. 139,523 S.W.2d 887
• Parties: Billy J. STRANG, Appellant, v. Mary Alice STRANG, Appellee.
• Court: Arkansas Supreme Court

Page 887

523 S.W.2d 887

258 Ark. 139

Billy J. STRANG, Appellant, v. Mary Alice STRANG, Appellee.

No. 75--14.

Supreme Court of Arkansas.

May 19, 1975.

Rehearing Denied June 23, 1975.

Jones, Gilbreath & Jones, Fort Smith, for appellant.

Wayne Harris of Warner & Smith Fort Smith, for appellee.

JONES, Justice.

Billy J. Strang and Mary Alice Strang were husband and wife until that relationship was dissolved by action of the Sebastian County Chancery Court in a divorce decree awarded to Mrs. Strang on December 31, 1970. Three children were born as a result of the marriage and their custody was awarded to Mrs. Strang with the usual right of visitation by Mr. Strang. The 1970 decree then provided as follows:

'(6) The Estate by the entirety in all real estate owned by the parties is hereby dissolved and vest(ed) in said parties as tenants in common wheresoever located.

(7) Plaintiff is entitled to all right granted to the wife under Ark.Stat. 34--1214 except such interest in real estate provided for in paragraph (6) above.'

On January 11, 1972, Mrs. Strang filed a motion to modify the decree and in her motion she stated as follows:

'(P)laintiff states that she was awarded all of the rights granted to the wife under Ark.Stat. 34--1214. In accordance with said Arkansas Statute, the wife after having been granted a Divorce against the husband was entitled by law to one-third of the defendant's personal property absolutely, and one-third of all of the lands that defendant was seized of an estate of inheritance at any time during the marriage for this plaintiff's life. That this defendant was the owner in fee to 60 acres of real estate in Section 6, Township 12, Range 27 in Sequoyah County, Oklahoma and fee owner in and to 60 acres of real estate in Section 7, Township 12, Range 27 in the County of Sequoyah, Oklahoma, on the date this plaintiff was awarded a Decree of Divorce from this defendant. That the Decree filed of record in this cause should be modified to show that this plaintiff is the record owner of an undivided one-third interest in and to the 120 acres of real estate owned by the husband and the specific property description should be set forth in detail. Further, this defendant should be ordered and directed to convey by quitclaim deed to the plaintiff a one-third undivided interest in and to said real estate.'

The original decree dated December 31, 1970, was rendered by a different chancellor than the one who finally entered the order from whence comes this appeal. After considerable correspondence between the attorneys and the chancellor, the chancellor on September 30, 1974, entered a final 11 page order, the pertinent parts of which appear as follows:

'(4) Plaintiff, will have the use, and possession of the homeplace, and with Defendant paying the existing monthly home mortgage payments, and up to $50.00 per month on the monthly utilities thereon. Plaintiff shall be responsible for the routine and ordinary upkeep and minor repairs on the homeplace. As the parties own said homeplace as tenants in common, the parties shall share equally in the cost of any major alterations or major repairs. However, no expense for major alterations, major repairs, or damages shall be incurred by the Plaintiff without having first conferred with the Defendant and obtaining his argeement if Plaintiff expects Defendant to share in the cost thereof, concerning the work required to be done; and each of the parties having opportunity to arrange for the completion of the major alterations and major repairs in a satisfactory manner at the lowest cost available. The Court expressly finds that the cost of re-painting the homeplace would be considered a major cost of upkeep and that the parties should equally share in the cost thereof. The Plaintiff shall have the right to make any and all repairs at her own expense to improve the property and without notice to this Defendant.

(5) Further, the Court finds that Plaintiff is entitled to a one-half undivided interest as a tenant in common in the following described realty in which previous ownership by tenants by the entirety has hereinbefore been dissolved: * * * (Lengthy description of the property). (I)n Sequoyah County, State of Oklahoma, consisting of approximately 318 acres, together with all oil, gas, coal and all minerals in, under and upon said lands, said Warranty Deed being found in Deed Book 291, at Page 105, office of the County Clerk, Sequoyah County, Oklahoma.

Lot 34, Southbrook Addition to the City of Fort Smith, Arkansas situated in Fort Smith District of Sebastian County, Arkansas, said Warranty Deed being found in Deed Book 183, at Page 129, office of the Circuit Clerk, Fort Smith, Arkansas.

(6) Further, the Court finds that the Defendant is ordered and directed to convey to this Plaintiff a one-third interest for life in the following described realty located in the State of Oklahoma acquired by the parties during their marriage with title in Defendant's name only, and owned by Defendant on the 24th day of November, 1970:

The Southwest Quarter of the Northeast Quarter (SW 1/4 NE 1/4) and the West Half of the Southeast Quarter of the Northeast Quarter (W 1/2, SE 1/4, NE 1/4), Section 6, Township 12 North, Range 27 East, and the Northwest Quarter of the Northeast Quarter (NW 1/4, NE 1/4) and North Half of the Southwest Quarter of the Northeast Quarter (SW 1/4, NE 1/4) of Section 7, Township 12 North, Range 27 East, situated in Sequoyah County, Oklahoma, said Warranty Deeds being found in Deed Book 293, at Page 522 and Deed Book 305, Page 451, in the office of the County Clerk, Sequoyah County, Oklahoma.

The Court finds that the Defendant be and is hereby ordered to convey said interest to Plaintiff within 15 days after the entry of this Order herein so that her interest therein might be of record. The Court further finds that upon demand by Plaintiff, Plaintiff is entitled to receive the value of this one-third life interest in said described Oklahoma property computed in accordance with the statutory tables set out in Arkansas Statute Annotated Section 50--705. The Court retains jurisdiction over this cause for the purpose of determining the fair market value for said acreage should an Agreement not be reached by the parties herein.

(7) The Court finds that the Defendant be and is hereby directed and ordered to pay to the Plaintiff the sum of $1,156.66 which is Plaintiff's one-third interest in the accepted or agreed sale value of the personal property owned by this Defendant on November 24, 1970, amounting to $3,470.00. The Court finds that in order to do equity in this cause, Plaintiff's interest in Defendant's personal properties should be determined as of the time suit was filed in this cause. The Defendant did execute certain security agreements on the 16th day of November, 1970 which were filed of record on the 2nd day of December, 1970, but it is noted that Defendant satisfied said liens on March 2, 1971. That such action on the part of the Defendant was during the pendency of this suit for divorce and designed to defeat or diminish Plaintiff's property interest. The Court, therefore, finds that Plaintiff's interest should not be reduced by the amounts of said security agreements for to do so under the circumstances of this case would be inequitable. The Defendant is directed and ordered to pay said sum of $1,156.66 to the Plaintiff within thirty days subsequent to the entry of this Order.

Further, the Court finds that the Plaintiff is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral, calf feeder, miscellaneous tools, chest/chain saw, electric stove, and quail incubator. These items shall be appraised forthwith and sold within twenty days after the entry of the precedent for Order in this cause unless either party in the interim desires to purchase the other party's interest therein and does so.

The Court further finds that the photographic equipment, bed springs and mattress, iron bed rail, piano, dehumidifier, books, portable heaters, and household goods and furnishings are to remain with the respective parties as having heretofore been distributed to each other as personal effects or as part of the household goods or furnishings awarded to the Plaintiff for her use and that of her minor children.'

The chancellor retained jurisdiction for such orders as might be necessary in the future and awarded an attorney's fee in the amount of $100 and the cost of the action against the appellant-defendant.

On appeal to this court Mr. Strang assigns error under five points stated as follows:

'The chancellor erred in awarding the appellee the use and possession of the homeplace while requiring the appellant to pay the existing home mortgage payments in the amount of $77.65 per month and up to $50.00 per month for utilities, and one-half the cost of any major alterations and repairs in addition to requiring him to pay child support and alimony in the amount of $100.00 per week.

The chancellor erred in applying Arkansas law to determine the appellee's interest in the appellant's separate real property located in Oklahoma.

The chancellor erred in failing to apply the law to the facts when he found that the appellee's interest in the appellant's personal property should be determined as of the time suit was filed rather than on the date of the decree for divorce.

The chancellor erred in requiring the appellant to pay appellee's attorney's fees and court costs.

The chancellor erred in finding that the appellee is entitled to a one-third interest absolutely in the following properties: Pontoon boat, mineral calf feeder, miscellaneous tools, chest, chain saw, electric stove, and quail incubator, and further erred in ordering that said items be appraised and sold inasmuch as on the date of the decree of divorce the appellant's liabilities exceeded his assets and the appellee should only be entitled to one-third of a...