White v. White

• Decision Date: 25 April 1938
• Docket Number: No. 4-5045.,4-5045.
• Citation: 116 S.W.2d 616
• Parties: WHITE v. WHITE.
• Court: Arkansas Supreme Court

116 S.W.2d 616

WHITE v. WHITE.

No. 4-5045.

Supreme Court of Arkansas.

April 25, 1938.

Dissenting Opinion May 2, 1938.

Rehearing Denied May 30, 1938.

Appeal from Union Chancery Court, Second Division; Geo. M. Le Croy, Chancellor.

Suit for divorce by D. E. White against Mary Lynn White. From a decree granting an absolute divorce, defendant appeals.

Reversed, with directions.

Robert C. Knox, of El Dorado, for appellant.

Walter L. Brown and Wayne Jewell, both of El Dorado, for appellee.

GRIFFIN SMITH, Chief Justice.

This appeal is from a decree of the Union chancery court wherein appellee, Dr. D. E. White, was granted an absolute divorce from appellant on the ground that "the parties have lived separate and apart for more than three years prior to the filing of the complaint."

By Act No. 167 of 1937, p. 630, section 3500 of Crawford & Moses' Digest was amended to read: "Divorce from the bonds of matrimony may be obtained, in addition to the causes now provided by law, and subject to the same procedure and requirements, for the following cause: When the husband and wife have lived apart for three consecutive years without cohabitation the court shall grant an absolute decree of divorce at the suit of either party."

On cross-examination Dr. White was asked: "Wasn't the real reason why you left home, and why you continued trying to get a divorce — isn't it because you are enamored of another woman, and you want a divorce from Mrs. White so you can make this other woman your wife?"

There was this objection: "We object to that because it has no place in this suit. We are relying upon the Kentucky case in which it says it makes no difference whose fault it was; if they have been living apart that is the only pertinent thing. * * * In the Wisconsin case it was held that the family skeleton should not be brought out before the public."

The objection was overruled, and exceptions saved.

Appellant and appellee were married in 1919 and lived together until 1934. They have one child — a daughter — who was six years old at the time the complaint was filed in August, 1937. Appellee, who is a prominent physician and surgeon of El Dorado, alleged that his income was $3,852.61, and that he was the owner of certain real property, descriptions of which are set out. He asked that one-third of his property be decreed to appellant, and that the court determine what alimony should be paid from appellee's net income. It was further alleged that appellee had already made provision through life insurance for the education of the child, and that he "wishes to support and care for said child until she reaches her majority and has finished her education."

The only ground urged for divorce was that the parties had not resided together nor cohabited as man and wife for more than three years.

Appellant's answer admits that she and appellee lived together until August 13, 1934. She alleged that "on or about the 13th day of August, 1934, Dr. D. E. White, without any just cause therefor, left the marital domicile of the parties in the City of El Dorado, Arkansas, and removed to the Mitchell Hotel in said city, where he has since maintained his residence, but this defendant states that said removal by the said D. E. White was without the knowledge and consent of this defendant, and that the said D. E. White has since said time maintained his residence in said hotel against the consent of said defendant, and over her protests and entreaties that he should return to the home and live with her as her husband. That during all said time this defendant has been willing to live with said plaintiff as his wife, and that she has repeatedly so informed the plaintiff, and has repeatedly urged him to return, and that the so-called separation between the plaintiff and defendant has been the voluntary act of the plaintiff, and that this defendant has at no time consented nor acquiesced therein."

Appellant challenged correctness of appellee's statement that his income was only $3,852.61, and alleged that such income was $12,000 per year.

Further, by way of defense, appellant alleged:

"That plaintiff's cause of action, if any, is founded upon a certain purported act of the general assembly of the state of Arkansas for the year 1937, designated as act No. 167 and entitled `An Act to Amend Section 3500 of Crawford & Moses' Digest' of the statutes of the state of Arkansas.

"Plaintiff says that said act is invalid and of no effect for the following reasons, to-wit:

"1. That said act undertakes to impair the contract between the plaintiff and the defendant in violation of article 1, section 10 of the Constitution of the United States.

"2. That said act seeks to deprive this defendant of her dower and homestead rights in the property of the plaintiff without due process of law in violation of section 1, of the Fourteenth Amendment to the Constitution of the United States, and section 8, article 2 of the Constitution of the state of Arkansas.

"3. That said act was not properly adopted by the general assembly of the state of Arkansas and is, therefore, not a valid law because:

"a. Same was not styled, introduced and passed as a `Bill' as required by section 21, article 5 of the Constitution of the state of Arkansas.

"b. That said purported act was not read at length on three different days in each house, nor were the rules suspended by two-thirds vote of each house as required by section 22, article 5 of the Constitution of the state of Arkansas.

"c. That the vote of yeas and nays upon the final passage in each house was not taken as required by section 22, article 5 of the Constitution of the state of Arkansas.

"d. That the names of the persons for and against said purported act were not entered on the journal of each house as required by section 22, article 5 of the Constitution of the state of Arkansas.

"e. That majority of each house did not vote in favor of said proposed act and are not recorded in the journals of each house as having so voted in favor thereof as is required by section 22, article 5 of the Constitution of the state of Arkansas.

"f. That said proposed act was originally introduced in its present form in the house of representatives, that it was amended in the senate and adopted by the senate as amended, but that the house of representatives never at any time concurred in said amendment or voted thereon or adopted said bill as amended, and that, therefore, said purported act as signed by the Governor was not the same act as adopted by each of the houses of the general assembly.

"g. That the subject and purpose of said purported act was not clearly set forth in the title thereof as is required by the Constitution of the state of Arkansas.

"h. That said purported act violates section 24, article 5 of the Constitution of the state of Arkansas in that it seeks to grant divorces by legislative fiat in violation of said section and article."

Dr. White, in his direct examination, testified to facts in substantial conformity to declarations of his complaint. He denied that he had lived with appellant since the designated date of separation, or that they had cohabited. He also denied that appellant had visited him at the Mitchell Hotel, and asserted that the separation was final.

On cross-examination appellee testified that at the time he moved to the Mitchell Hotel Mrs. White was in Monticello.

"Q. At whose suggestion had she gone to Monticello?

"Counsel for Appellee: We object to that question for the reason it is immaterial under the statute. It is attempting to bring something into the evidence, or read something into the statute, that is not there, and I don't think we should go into that question."

The court permitted the question to be asked.

The witness then testified: "She went at my suggestion. Mrs. White and I had reached the boiling point in our married life, and we both realized we couldn't continue as things had been recently. I talked to Mrs. White and told her that if it was possible for our married life to continue we would have to live apart for a while, or a short time. I therefore suggested that she go to Monticello to visit her people and I remain in ElDorado. She knew that full well * * *. I brooded over it for several days and realized it was hopeless, and some four or five days after she had been away I moved — on the 13th day of August, 1934 — to the Mitchell Hotel. At the time Mrs. White left I didn't intend getting a divorce. * * * After two or three days I caused a divorce suit to be filed and sent a summons to her at Monticello. Before I filed the suit I called her brother to meet me at Warren. After the summons was issued the sheriff at Monticello talked to her and she came back to ElDorado. The summons was served on her here.

"Q. Did Mrs. White urge you, at that time, to return home? A. Yes, sure she did."

Appellee further testified that at a later date Mrs. White went to his office and urged him to return.

Depositions in the divorce suit filed in 1934 were taken. Mrs. White testified, in 1936, that in spite of Dr. White's conduct and attitude she still loved him; that she was willing for him to return home; that she had no malice against him, and had demonstrated none.

Asked if he was familiar with the contents of his wife's deposition of 1936, Dr. White said: "I haven't contacted Mrs. White for the last three years, nor made any effort to go home."

At this point in the proceedings the objection, as set out in the third paragraph of this opinion, was interposed. Thereafter, counsel for appellant asked:

"Doctor, how long have you known Miss Vera Taylor? A. For six or seven years.

"Q. Miss Taylor is in the hospital where you do a good deal of your professional work? A. No. I do my practice at Warner Brown Hospital. She is a student nurse in the Robert Rosemond Hospital.

"Q. Since your separation from Mrs. White haven't you been paying pretty marked attention to Miss Taylor?"

There...