Research References

U. Ark. Little Rock L. Rev.

Zakrzewski, Family Law — Petitions to Change a Minor's Surname: Arkansas Supreme Court Adopts “Clearly Erroneous” Standard of Review and Establishes Six-Factor Test (Huffman v. Fisher), 22 U. Ark. Little Rock L. Rev. 613.

Case Notes

In General.

This section is merely in affirmation and in aid of, and supplementary to, the common-law rule that one may ordinarily change his name at will, without any legal proceedings, merely by adopting another name, that the right is not limited by the ordinary rules of minority and that the section only affords another method of doing so. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

Contest.

Chancery court did not err in allowing mother to change names of children to name of second husband despite petition by first husband objecting to change. Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952).

A natural father has standing to challenge a proposed change of name of his minor child. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

Restraining order to prevent wife from changing child's name held warranted. Norton v. Norton, 268 Ark. 791, 595 S.W.2d 709 (Ct. App. 1980).

Because a child might encounter difficulties, harassment, or embarrassment from bearing the father's surname (since the father was incarcerated in relation to the mother's death), and because the father had not made any serious attempts at visiting the child, it was in the child's best interests to change the child's surname. Walker v. Burton, 2011 Ark. App. 439, 384 S.W.3d 605 (2011).

Notice.

Where a petition for the name change of minor children is made by one parent, notice must be given to the other parent, for to fail to do so is a violation of the due process clauses of both the state and federal constitutions. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Domestic Peace Act, 26 U. Ark. Little Rock L. Rev. 415.

Case Notes

Construction.

Subdivision (1) of this section is unrelated to nondiscrimination laws and obligations and does not create protected classifications or prohibit discrimination on some basis. Rather, in its respective context, the provision asks domestic-abuse shelters to develop their own nondiscrimination policies. Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, 510 S.W.3d 258 (2017).

Research References

ALR.

Legal Protection Against Domestic Violence in Same-Sex Relationships, 19 A.L.R.7th Art. 1 (2018).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Home Study, 26 U. Ark. Little Rock L. Rev. 408.

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Research References

Ark. L. Rev.

Chiles, A Hand to Rock the Cradle: Transracial Adoption, the Multiethnic Placement Act, and a Proposal for the Arkansas General Assembly, 49 Ark. L. Rev. 501.

Case Notes

Preferential Consideration to Relative.

Appellants claimed error in the trial court's finding that it was in the child's best interests that he be adopted by appellees, and appellants pointed to subsection (a) of this section for preferential consideration purposes; however, keeping in mind the standard of review, the court affirmed the trial court's best interest finding because it was not clearly contrary to the preponderance of the evidence, and the trial court was faced with choosing between two suitable adoptive homes. Wilson v. Golen, 2013 Ark. App. 267, 427 S.W.3d 723 (2013).

Research References

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Ark. L. Rev.

Brummer and Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259.

Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.

Leflar, Conflict of Laws: Arkansas, 1983-87, 41 Ark. L. Rev. 63.

Note, Strict Construction, Jurisdictional Requirements and the Arkansas Adoption Code: Martin v. Martin and a Missed Chance for Clarity, 49 Ark. L. Rev. 123.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Derden, Note: Family Law — Adoption — Revised Uniform Adoption Act, 2 U. Ark. Little Rock L.J. 135.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Arkansas Law Survey, Morgan, Family Law, 8 U. Ark. Little Rock L.J. 169.

Legislative Survey, Family Law, 8 U. Ark. Little Rock L.J. 577.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Survey—Family Law, 14 U. Ark. Little Rock L.J. 799.

Fifteenth Annual Survey of Arkansas Law, 15 U. Ark. Little Rock L.J. 427.

Case Notes

In General.

Law in effect at time of adoption governs in determining validity of adoption. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950).

Construction.

Statutory provisions involving the adoption of minors are strictly construed and applied. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Agreements to Adopt.

An oral agreement to adopt a child did not prevent the person making the agreement from disposing by will of all his property to other persons than the child agreed to be adopted. Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930) (decision under prior law).

To prove a contract to adopt a person, the burden of proof rests with the person claiming the benefit of an alleged contract for adoption, to establish it by clear, cogent, and convincing evidence. Thomas v. Costello, 226 Ark. 669, 292 S.W.2d 267 (1956) (decision under prior law).

Grandparents.

Where grandparents intervened in an adoption proceeding to show the best interests of their grandchildren, but did not seek to adopt them, it could not be argued that the adoption statutes deprived them of their rights to the grandchildren without showing a compelling state interest or deprived them of due process. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).

Joinder of State Agency.

There is nothing in Ark. R. Civ. P. 19 or this subchapter which compels the joinder of the Division of Social Services (abolished — see § 25-10-101 et seq.) in all adoption proceedings. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).

Rehabilitative Services.

Any claim of a right to receive rehabilitative services must be made in the juvenile court dependency-neglect proceedings and not later in the probate court on a petition for adoption of the neglected children, since this subchapter makes no provision for rehabilitative services. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).

Residency Requirement.

Probate courts are not empowered to grant an adoption when neither the adopting parents nor the child sought to be adopted are residents of Arkansas. In re Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987).

Cited: Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980); Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982); Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983); Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983); In re Proposed Local Rules, 284 Ark. 133, 682 S.W.2d 452 (1984); Summers v. Mylan, 287 Ark. 150, 697 S.W.2d 91 (1985).

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

Case Notes

Cited: In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990); Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997).

Case Notes

Abandonment.

Record supported the circuit court's holding that a natural father's consent to the adoption of his minor child was not required under § 9-9-207 because he had failed significantly, without justifiable cause, to support the child for a period of one year, and therefore had abandoned her. Vick v. Cecil (In re A.M.C.), 368 Ark. 369, 246 S.W.3d 426 (2007).

Abuse.

Trial court did not err in allowing a stepfather to adopt a biological father's daughter without the biological father's consent because it was undisputed that the biological father had pled guilty to three counts of raping a minor, including the rape of his daughter. Gordon v. Draper, 2013 Ark. App. 352, 428 S.W.3d 543 (2013).

Cited: King v. Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997); In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004); Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427 (2013); Ducharme v. Gregory, 2014 Ark. App. 268, 435 S.W.3d 14 (2014).

Research References

ALR.

Adoption of Child by Same-Sex Partners. 61 A.L.R.6th 1.

Case Notes

Adoption by Unmarried Father.

Trial court erred in its interpretation of this section because a child's biological father could adopt the child, despite the fact that the father was unmarried. Also, the trial court's policy concern that the adoption would relieve the mother, who had consented to the adoption, of her obligation to financially support the child was a matter that was more appropriately addressed by the legislature. King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008).

Adoption by Unmarried Mother.

Circuit court did not err in denying the adoption petition, because it was the mother's burden to present credible evidence to convince the circuit judge that adoption was in the best interest of the child, and considering the circuit court's determination that the effect of § 9-9-215 was speculative and that the mother's allegations against the father could be afforded no weight, she failed to meet this burden. There was no corroborating testimony or evidence as to the mother's allegations regarding the father's use of alcohol and drugs or the father's abuse of his children, other than what the mother told her mother. In re Adoption of M.K.C., 2009 Ark. 114, 313 S.W.3d 513 (2009).

Standing to Adopt.

Section 9-9-210(a)(3) provides that a petition for adoption shall state “the date the petitioner acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how petitioner acquired custody of the minor.” That language, having to do with the contents of the petition, does not mean that a person who does not have custody and with whom the child has not been “placed” has no standing; standing to adopt is conferred by this section, and this section does not exclude persons who have served as foster parents of the minor to be adopted. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Case law and this section, recognizing the right of foster parents to adopt a foster child, was not superseded by the juvenile code. Schubert v. Ark. Dep't of Human Servs., 2010 Ark. App. 113 (2010).

Cited: Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989).

Research References

Ark. L. Rev.

Case Note, In re Adoption of Pollock: Arkansas Probate Court Jurisdiction — A Question of Policy, 41 Ark. L. Rev. 677.

U. Ark. Little Rock L.J.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Jurisdiction.

The General Assembly, in enacting subsection (a) of this section, has assured this state has a genuine interest or contact with at least one of the parties (adoptive parents, adopted child, or local agency that has care and control of the child) involved before an adoption matter is filed or granted within its borders. Restricting the state's jurisdiction to such instances, the General Assembly has placed our courts in a position to better ensure that the adopted child's best interests are achieved. In re Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987).

Failure to comply strictly with the Adoption Code denies the probate court jurisdiction, and unless all jurisdictional requirements appear in the record, the resulting decree will be void on collateral attack. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).

Granting of mother's, brother's, and wife's petition for adoption was inappropriate as Arkansas did not have jurisdiction; the brother and his wife were not residents of Arkansas and the child was not a resident of the state, only the child's guardian was. Roberts v. Westover, 368 Ark. 288, 245 S.W.3d 119 (2006).

Arkansas court would have no jurisdiction over an adoption proceeding when neither the child, nor the guardians who sought to adopt the child were residents of Arkansas. Newkirk v. Burton, 2015 Ark. App. 627, 475 S.W.3d 573 (2015).

Residence.

The jurisdiction of the probate court to grant a petition for the adoption of an infant did not depend on evidence that the residence of the father was unknown nor on the recital thereof in the record. Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927) (decision under prior law).

Probate court, which had jurisdiction to enter original order of adoption, had a right to correct the order originally made so as to show jurisdictional fact of residence. Newell v. Black, 201 Ark. 937, 147 S.W.2d 991 (1941) (decision under prior law).

Adoption order was fatally defective where neither the petition nor the order recited that the prospective adoptive parent nor the minors sought to be adopted were residents of the county. Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962) (decision under prior law).

This section poses no permanent residency or domicile requirement. In re Adoption of Samant, 333 Ark. 471, 970 S.W.2d 249 (1998).

Research References

Ark. L. Rev.

Recent Developments, Domestic Relations — Adoption, 57 Ark. L. Rev. 697.

Note, The Confusion and Clarification of Arkansas's Adoption Consent Law: In re the Adoption of SCD, a Minor, and the Arkansas General Assembly's Response, 58 Ark. L. Rev. 735.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

Lacey Johnson, Comment: Low-Income Fathers, Adoption, and the Biology Plus Test for Paternal Rights, 70 Ark. L. Rev. 1113 (2018).

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 207.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Note: Family Law — Putative Fathers and the Presumption of Legitimacy — Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

Constitutionality.

A putative father had no standing to question the constitutionality of this section, since it was not applied to him in a discriminatory manner. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

In General.

Consent can be given either by (1) any person lawfully entitled to custody of the minor or (2) any person lawfully empowered to consent to his adoption; that person clearly need not be both lawfully entitled to custody and lawfully empowered to consent. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Trial court dismissed an adoption petition filed by mother and prospective adoptive parents due to a lack of consent by biological father after the trial court learned that the father had registered as the baby's father under the Arkansas Putative Father Registry and had legitimated the baby as provided in subdivision (a)(2) of this section. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Construction.

Statutory provisions involving the adoption of minors are strictly construed and applied. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Applicability.

Subdivision (a)(5) of this section did not apply to termination of parental rights proceedings in dependency-neglect cases, because the statute required a minor of a certain age to consent to a particular adoption, and it was therefore utilized only where the circuit court was considering a specific petition for the adoption of a child; a consent to adoption was not a necessary element of proof when a court was considering the termination of parental rights. Childress v. Ark. Dep't of Human Servs., 2009 Ark. App. 322, 307 S.W.3d 50 (2009).

It was not erroneous for a trial court to terminate a mother's parental rights to the mother's children without obtaining the children's consent, under subdivision (a)(5) of this section, to the children's adoption because (1) the issue was first raised on appeal, and (2) the statute did not apply to termination proceedings in dependency-neglect cases. Brabon v. Ark. Dep't of Human Servs., 2012 Ark. App. 2, 388 S.W.3d 69 (2012).

This section, which provides that a petition to adopt a minor over the age of 12 can be granted only if written consent to a particular adoption has been executed by the minor, unless the court in the best interest of the minor dispenses with the minor's consent, does not apply to termination of parental rights proceedings; it is used only when considering a particular petition to adopt a child—not when considering the likelihood of adoption. Hernandez v. Ark. Dep't of Human Servs., 2019 Ark. App. 449, 588 S.W.3d 102 (2019).

Grandparents.

Custodial grandparents were not required to consent to the adoption of the grandchildren, but were permitted to intervene in the adoption proceedings for the limited purpose of offering evidence on the best interests of the grandchildren. Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).

Where the biological mother gave consent to the adoptive mother to adopt her daughter, consent was not required by the maternal grandparents before the adoption could proceed. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Although the grandmother had established in loco parentis status in order to intervene in the adoption proceeding, her consent was not required for the adoption where the biological father was unknown, and the biological mother voluntarily terminated her rights to the child by properly executed relinquishment-and-termination-with-power-to-consent documents, entered an appearance, and waived all notice of summons with respect to the proceedings. Navarrete v. Creech, 2016 Ark. App. 414, 501 S.W.3d 871 (2016).

Guardians.

Circuit court properly dismissed a petition for adoption filed by a maternal grandmother and a step-grandfather because the petition did not include background checks by the Federal Bureau of Investigation, the children's birth certificates, and the consent of the Department of Human Services, as the legal guardian of the children. Mode v. Ark. Dep't of Human Servs., 2015 Ark. App. 69 (2015).

Legal Custodian.

Court properly denied appellants' petition for adoption because the state, the child's legal custodian, did not consent; additionally, the child had to repeat a grade while residing with appellants, and the child's personality, behavior, and performance at school improved following her removal from appellants' home. The court found that the adoptive parent placed and would place an emphasis on meeting the child's educational needs, that she was devoted to the child, and that she had a loving and appropriate home. Cowan v. Ark. Dep't of Human Servs., 2012 Ark. App. 576, 424 S.W.3d 318 (2012).

Failure of paternal uncle and aunt to request consent of the Department of Human Services in their petition for adoption or obtain consent or waiver from the department was a fatal error. In re Adoption of K.M., 2015 Ark. App. 448, 469 S.W.3d 388 (2015).

Minors.

A consenting minor's age may vary from ten up to 18 and the trial judge has the authority to attach more weight to the decision of a minor almost of full age than to that of a ten-year-old. Brown v. Meekins, 282 Ark. 186, 666 S.W.2d 710 (1984).

Consent of minor held unnecessary. Brown v. Meekins, 282 Ark. 186, 666 S.W.2d 710 (1984).

Absence of the consent of a minor whose consent is required is not a mere technicality, in that public policy clearly favors the consent of the person to be adopted, and the consent of the one to be adopted, as required by statute, must not be presumed. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).

Termination of a mother's parental rights was in the best interest of the children because the mother was unable to provide a safe and suitable home for the children, she failed to comply with the case plan, and she had not visited the children since May 2012. The mother had a long history of alcohol abuse, and she was likely to continue in an abusive relationship; moreover, the fact that two of the children might not have been adopted was merely one factor that was considered, and the fact that one child might not have consented to adoption was not a necessary element of proof in a termination case. Mitchell v. Ark. Dep't of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851 (2013).

Parents.

—In General.

In order to grant an adoption contrary to the wishes of a natural parent, the conditions prescribed by statute must be clearly proven and the statute construed in favor of the natural parent. Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985).

Consent of parent held necessary. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

—Efforts Thwarted.

Trial court erred in granting a petition for adoption and in holding that the putative father's consent was not required because the birth mother clearly thwarted the father's efforts to comply with subdivision (a)(2) of this section; the father not only filed with the putative-father registries in four states but also filed paternity actions in both Texas and Arkansas. In re Baby Boy B., 2012 Ark. 92, 394 S.W.3d 837 (2012).

Because the adoptive parents did not address the ground set forth in subdivision (a)(2)(F) of this section for requiring a father's consent to adopt, the Court of Appeals affirmed the circuit court's finding that the father's efforts were enough to establish a significant custodial, personal, or financial relationship in light of the mother's thwarting his efforts, and thus that the father's consent was required. Daily v. Stanley, 2019 Ark. App. 126, 573 S.W.3d 7 (2019).

Circuit court did not err in denying the adoptive parents' motion for reconsideration of its ruling that a father's consent to adoption was required; the circuit court specifically found that the father registered himself on the putative father registry, he was never informed of the whereabouts of the child or allowed contact with the child, and the father had a job, car, place to live, and insurance available for the child as well as a plan in place for support of the child. Daily v. Stanley, 2019 Ark. App. 126, 573 S.W.3d 7 (2019).

—Father.

The courts may grant a petition for adoption regardless of the arbitrary dissent by a natural father. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

Unmarried father lacking any substantial relationship with his child is not entitled to notice of the child's adoption proceeding under either the due process clause or the equal protection clause of U.S. Const. Amend. 14. In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

As one means of protecting the right of natural parents with respect to the care, custody, management and companionship of their minor children a natural father who has legitimated a child has the privilege of consenting to an adoption, unless it is found that his consent is excused. In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

Although the natural father had filed an answer to a petition for adoption of the child by a stepfather and had declined to offer his consent to the adoption, where he did not appear at the hearing and had not himself pursued an appeal of the probate judge's decision granting the adoption, the natural father did not have standing on appeal to question the probate judge's decision on the issue. In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

In vacating an adoption decree, the trial court never made a determination of whether the natural father qualified as a father whose consent was required under subdivision (a)(2) of this section, so the matter was remanded to the trial court for an analysis of the evidence on that issue. Britton v. Gault, 80 Ark. App. 311, 94 S.W.3d 926 (2003).

Where a DNA test showed the putative father was the child's biological father but he did not timely register with the putative-father registry, his consent to the adoption was not required because he had not “otherwise legitimated” the child; the father had taken no significant steps to prepare for having the baby with him if he was awarded custody. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Adoption decree in favor of the mother and the adoptive father was proper because the biological father voluntarily, willfully, arbitrarily, and without adequate excuse failed to pay child support in excess of one year as set forth under § 9-9-207(a)(2). Therefore, his consent to the adoption was unnecessary, per subdivision (a)(2) of this section. Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).

Trial court erred in granting a petition for adoption and in holding that the putative father's consent was not required because the birth mother clearly thwarted the father's efforts to comply with subdivision (a)(2) of this section; the father not only filed with the putative-father registries in four states but also filed paternity actions in both Texas and Arkansas. In re Baby Boy B., 2012 Ark. 92, 394 S.W.3d 837 (2012).

Trial court did not clearly err in finding that the father's consent was not required under this section, as the father did little besides registering as a putative father and filing a paternity action before, during, or after the one-month period after he leaned of the mother's pregnancy. T.R. v. L.H., 2015 Ark. App. 483 (2015).

Biological father's consent to the adoption was not required because the father did not fall into any of the categories set forth in subdivision (a)(2). Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Adoptive parents did not fail to comply with § 9-9-210(a)(8) because the biological father's consent to the adoption was not required, and consent to this adoption was not required of any other person. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Appellant had not shown he was a “father” within the purview of subdivision (a)(2) of this section, and thus he was not required to consent to the child's adoption; there had been no action to rebut the presumption that the mother's husband was the father before the child was adopted, and the husband consented to the adoption. Chatley v. Key (In re Adoption of Z.K.), 2018 Ark. App. 533, 565 S.W.3d 524 (2018).

—Mother.

Trial court without jurisdiction in adoption to proceed without the mother's consent. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ct. App. 1980).

Refusal to Consent.

Before an order of adoption can be held binding against a nonconsenting parent, the court rendering it must have jurisdiction of both the subject matter and the person, and the record must show upon its face that the case is one where the court has authority to act. Hughnes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946) (decision under prior law).

Because father legitimated the child by filing with the putative father registry, initiating a petition to determine paternity, and taking other actions to establish his parentage, the trial court correctly ruled that the father's consent was required before the adoption could occur; because the father did not consent to the adoption, the trial court correctly denied the adoptive parents' petition for adoption. In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004).

Where the adoptive parent left the child who suffered from an incurable skin condition alone in a motor home unattended by an adult, the trial court did not err in finding that the guardian was not unreasonably withholding her consent to the adoption of the child under subdivision (a)(3) of this section. The trial court focused on the special medical needs of the child, including her epidermolysis bullosa condition, seizures, and episodes of holding her breath and passing out. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008).

Evidence did not support a finding that the Arkansas Department of Human Services (DHS) unreasonably withheld its consent to appellants' adoption of a child under subdivision (a)(3) of this section; appellants' adult son lived in their home and an uncle lived in substandard housing on the property without DHS's knowledge while appellants were foster parents. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

Validity of Consent.

Consent found to be valid. Martin v. Ford, 224 Ark. 993, 277 S.W.2d 842 (1955) (decision under prior law).

Substantial compliance with statutory requirements found for consent to adoption. A & B v. C & D, 239 Ark. 406, 390 S.W.2d 116, cert. denied, 382 U.S. 926, 86 S. Ct. 314, 15 L. Ed. 2d 340 (1965) (decision under prior law).

Cited: Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980); Tisdale v. Seavey, 286 Ark. 222, 691 S.W.2d 144 (1985); In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986); Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987); Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

Research References

ALR.

Requirements and Effects of Putative Father Registries. 28 A.L.R.6th 349.

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Ark. L. Rev.

Note, The Confusion and Clarification of Arkansas's Adoption Consent Law: In re the Adoption of SCD, a Minor, and the Arkansas General Assembly's Response, 58 Ark. L. Rev. 735.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 207.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Constitutionality.

A putative father had no standing to question the constitutionality of this section, since it was not applied to him in a discriminatory manner. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

Subdivision (a)(11) of this section was not applied to the father in a discriminatory manner because he never registered with the Arkansas Putative Father Registry; hence, he lacked standing to challenge the constitutionality of the statute. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (2011).

Construction.

This section should be strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ct. App. 1980); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Under subdivision (a)(2) of this section, “failed significantly” does not mean “failed totally.” It only means that the failure must be significant, as contrasted with an insignificant failure. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (2011).

Phrase “failed significantly” in subdivision (a)(2) of this section does not mean “failed totally.” It denotes a failure that is meaningful or important. Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900 (2011).

Abandonment.

Abandonment of child by father held not to have been established. Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953); Walthall v. Hime, 236 Ark. 689, 368 S.W.2d 77 (1963) (preceding cases decided under prior law); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Father's indifference to his children's welfare was tantamount to voluntary abandonment, so that his consent was not needed to the children's adoption by his former wife's second husband. Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976) (decision under prior law).

Abandonment, in the sense of the adoption statutes, means conduct which evinces a settled purpose to forego all parental duties. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Where the natural mother and her new husband proved by clear and convincing evidence that the natural father failed significantly and without justifiable cause to provide for the care and support of the child, the natural father's consent to the adoption was not required. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Where the father was not precluded from making his support payments, there was no evidence that the father was financially unable to meet his obligation, and the record clearly reflected that the father voluntarily chose not to pay the support, the father's action in failing to pay support was an arbitrary act without just cause or adequate excuse, whether or not the mother interfered with his ability to observe visitation with the child. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Consent for adoption was not required where father's denial of paternity, when child support was sought in prior years, could be considered abandonment. King v. Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).

Record supported the circuit court's holding that the natural father's consent to the adoption of his minor child was not required under this section because he had failed significantly, without justifiable cause, to support the child for a period of one year, and therefore had abandoned her per § 9-9-202. Vick v. Cecil (In re A.M.C.), 368 Ark. 369, 246 S.W.3d 426 (2007).

Best Interest of Child.

The fact that, under certain circumstances, the father's consent is necessary, does not require that the adoption be granted. The court must find that the adoption is in the best interest of the child. McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983); Shemley v. Montezuma, 12 Ark. App. 337, 676 S.W.2d 759 (1984).

The mere fact that a parent has forfeited his right to have his consent to an adoption required does not mean that the adoption must be granted. The court must further find from clear and convincing evidence that the adoption is in the best interest of the child. Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992).

Where the court's finding was that step-parent adoption was not in children's best interest, the adoption was properly denied. Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992).

A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child or individual to be adopted. In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

In adoption proceedings in which the circuit court determined that the natural father's consent was not necessary, the court's findings to support the determination that allowing a minor child's stepfather to adopt her and severing the child's relationship with her natural father served the child's best interests were not clearly against the preponderance of the evidence since (1) the child had a good relationship with her stepfather, (2) prior to seeing the child in 2005, the natural father had not seen her since 2002, had a number of felony convictions, had missed child support payments, was unemployed, and lived with his mother, and (3) the natural mother and stepfather were morally fit to have the custody of the child, were physically and financially able to furnish suitable support, nurture, and education for the child, and wanted to establish a parent-child relationship with the child. Vick v. Cecil (In re A.M.C.), 368 Ark. 369, 246 S.W.3d 426 (2007).

Appellants argued that the order was clearly erroneous because they proved that the mother's consent to the adoption was not required, but the merits of this argument did not need to be reached because the trial court did not make any findings on this issue and such findings were not necessary based on the conclusion that the adoption was not in the child's best interest; furthermore, as appellants made no request for findings, they waived their right under the rule. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

If a trial court finds that an adoption is not in the best interest of a child, it is of no significance whether consent to adoption is required. If a trial court determines that consent to an adoption is not required, there can be no adoption if the trial court also finds that adoption is not in the best interest of the child, and thus the trial court in this case did not err as a matter of law in not addressing both parts of the two-part adoption analysis. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Adoption of a child over the objection of the child's parent, who was incarcerated, was appropriate because the circuit court did not err in finding that adoption by the child's successor guardians was in the child's best interest as the parent was essentially asking to place desire by the parent and the parent's family for a relationship with the child over the child's need for a stable and permanent home. Newkirk v. Hankins, 2016 Ark. App. 186, 486 S.W.3d 827 (2016).

Circuit court's best-interest determination was not clearly against the preponderance of the evidence where the adopting parents were the only family the child had known, and the child had no real relationship with either the mother or other members of the mother's family. In re Adoption of J.N., 2018 Ark. App. 467, 560 S.W.3d 806 (2018).

Trial court did not clearly err by finding that the child's mother and stepfather failed to meet their burden of showing that adoption of the child by the stepfather was in the child's best interests because there was a significant bond between the child and his paternal extended family, the father testified that as soon as he was released from jail he would be involved in the child's life, the parents were extremely young when the child was born, and the father was only 21 years at the time of the hearing. Ballard v. Howard, 2018 Ark. App. 479, 560 S.W.3d 800 (2018).

Consent Not Required.

Finding that the father's consent was unnecessary because he failed to significantly and without justifiable cause communicate with his children for more than one year was not clearly erroneous; there was evidence that the father did not make significant efforts to see his children, he admitted that he gave up seeing his children in 2012 and that his visits were sporadic, and the trial court found that the mother had not unreasonably prevented contact with the children. Sanders v. Savage, 2015 Ark. App. 461, 468 S.W.3d 795 (2015).

Because the father did not establish the necessary relationship with the child prior to the time the petition for adoption was filed, his consent was not required under this section. T.R. v. L.H., 2015 Ark. App. 483 (2015).

Biological father's consent to the adoption was not required because the father did not fall into any of the categories set forth in § 9-9-206(a)(2). Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Granting the petition for adoption of a stepson without consent was affirmed because the consent of one acting in loco parentis is not required under this section. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (2016).

Adoption of a child over the objection of the child's parent, who was incarcerated, was appropriate because the circuit court did not err in finding that the parent's consent to the adoption was not necessary, as the parent failed to support the child without a justifiable excuse. The successor guardians' failure to forward the parent's letters to the child had nothing to do with the parent's failure to support the child. Newkirk v. Hankins, 2016 Ark. App. 186, 486 S.W.3d 827 (2016).

Consent Required.

Despite the claim that the father had not seen the child for over one year, the father's consent was required for the stepfather to adopt the child, where the father claimed that the mother would not let the father see the child because the father had not been paying child support and the father's family testified the mother changed her phone number without telling them. Havard v. Clark, 2011 Ark. App. 86 (2011).

Court properly denied appellants' petition for adoption because the state, the child's legal guardian, did not consent; additionally, the child had to repeat a grade while residing with appellants, and the child's personality, behavior, and performance at school improved following her removal from appellants' home. The court found that the adoptive parent placed and would place an emphasis on meeting the child's educational needs, that she was devoted to the child, and that she had a loving and appropriate home. Cowan v. Ark. Dep't of Human Servs., 2012 Ark. App. 576, 424 S.W.3d 318 (2012).

Circuit court clearly erred in finding that a biological father's consent was not required for the adoption of his daughter where orders of protection concerning the mother effectively barred him from having contact with the child, he did not know where the child was located until the mother filed for divorce, and once the divorce decree was entered, he exercised visitation rights to the fullest extent allowed. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (2016).

Mother did not lose her right to consent to the adoption, because the mother had significant contacts with the child and had paid support. Hill v. Powell, 2016 Ark. App. 123 (2016).

Stepmother's petition to adopt stepchildren without the consent of the children's mother was properly denied because it was not clear error to find the children's father unjustifiably blocked the mother's communication and visitation with the children, such that the mother had justifiable cause for not visiting and communicating. Hrdlicka v. Hrdlicka (In re Adoption of P.H.), 2020 Ark. App. 178, 598 S.W.3d 846 (2020).

Custody of Another.

Adopting couple held to have custody of child lawfully, despite lack of valid court order awarding custody. Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983).

Evidence.

Evidence held insufficient to support trial court's granting the petition to adopt. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Failure to Communicate or Support.

In an appeal from a circuit court's determination that a stepfather could adopt his stepchild without the consent of the child's biological father, the father's claim that his lack of support and contact with his child was justified based upon medical problems and drug abuse failed because, even after the adoption petition was filed, the father made no attempt to see his child, and by that time, the father had ceased using illegal drugs. Roberts v. Brown, 103 Ark. App. 1, 285 S.W.3d 716 (2008).

Adoption decree in favor of the mother and the adoptive father was appropriate because the biological father voluntarily, willfully, arbitrarily, and without adequate excuse failed to pay child support in excess of one year as set forth under subdivision (a)(2) of this section. Therefore, his consent to the adoption was unnecessary. Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).

Trial court properly granted a mother's petition for adoption of the parties' biological child because the father's consent was not required under subdivision (a)(2) of this section due to the fact that he failed, without justifiable cause, to establish communication or financial support to the child; a $750 check was the only form of financial assistance given to the mother for the child throughout the child's life. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (2011).

Trial court erred under subdivision (a)(2) of this section in determining that a father's consent was not required to the adoption of his child by the child's stepfather because the father did not fail significantly without justifiable cause to communicate with the child; over the course of the statutory one-year period, the father saw the child on numerous occasions. The father took the child to a family reunion and a family birthday party. Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900 (2011).

One-year period set out in subdivision (a)(2) of this section may be any one-year period, not merely the one-year period preceding the filing of the adoption petition. Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900 (2011).

Because a father failed to provide child support for only nine months, his consent was required for adoption of the child under subdivision (a)(2) of this section. Havard v. Clark, 2011 Ark. App. 734 (2011).

Trial court did not err under subdivision (a)(2) of this section in granting the adoption of a child without the mother's consent because the mother failed significantly without justifiable cause to support the child for one year; she had not paid any support in several years. She made no effort to contribute to the child's support even after she obtained a job. Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580 (2012).

It is not required that a parent fail “totally” in their obligations in order to fail “significantly” within the meaning of subdivision (a)(2) of this section. It only means that the failure must be significant, as contrasted with an insignificant failure. Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580 (2012).

Trial court did not err under subdivision (a)(2) of this section in allowing a stepfather to adopt a biological father's daughter without the biological father's consent because the father had no contact with the daughter for 19 months; the father's reliance on his imprisonment to justify his failure to communicate with the daughter was misplaced. Gordon v. Draper, 2013 Ark. App. 352, 428 S.W.3d 543 (2013).

Court is unwilling to hold, for purposes of this section, that when a parent cannot have visitation with her children due to a court order, that gives the parent justifiable cause to make no effort in continuing a relationship with the children. Rodgers v. Rodgers, 2017 Ark. 182, 519 S.W.3d 324 (2017).

Circuit court erred by finding that the biological father's failure to support the child for seven years was justifiable; his imprisonment did not toll his responsibilities to support the child, he participated in a work-release program earning money yet paid no support, and neither the child support office nor the child's mother prevented him from paying support. Thus, the circuit court erred in finding that the biological father's consent to adoption was required. Johnson v. Beatty (In re Adoption of T.A.D.), 2019 Ark. App. 510, 588 S.W.3d 858 (2019).

Circuit court erred in finding that a father's consent to the adoption of his child was not required because the court clearly erred in finding that the father failed significantly and without justifiable cause to communicate with and to provide care and support for the child. The child's mother barred the father's visitations without a court order for a period of time, and the gaps in the father's child support payments did not constitute a significant failure to provide support for the child for one year and his arrears were now paid in full. Raiteri v. Nowak (In re B.R.), 2020 Ark. App. 115 (2020).

—In General.

“Failed significantly” in this section does not mean failed totally but the failure must be a significant one as contrasted with an insignificant one; it denotes a failure that is meaningful or important. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980); Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983).

In order to adopt a child without the necessity of parental consent, the conduct of a parent who has failed significantly without justifiable cause to communicate with his child or to provide for the care and support of his child as required by law or judicial decree, must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ct. App. 1980); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

Parent's consent held unnecessary due to significant, unjustifiable failure to communicate with or support child. Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981); Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983); In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984); In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Justifiable cause means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983).

Consent of the natural father to adoption of his children by their natural mother and her second husband held not to be waived. Tisdale v. Seavey, 286 Ark. 222, 691 S.W.2d 144 (1985).

The term “failed significantly without justifiable cause” does not mean that the parent must have failed totally but denotes a failure that is meaningful, important, and willful. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988).

Father's failure to communicate with his child was unjustified in spite of his claim that the lack of contact was not meaningful because of the child's young age and that he failed to visit because the mother and her new husband did not permit visitation; evidence showed that the father placed only 6 short telephone calls to the mother over a period of more than a year, and while he claimed to have written one letter to the mother it was never received; moreover the mother and her new husband asserted that they did not prevent visitation. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998).

The natural father's consent was not required where (1) the father admitted that he had no physical contact with the child for more than two years and that he did not pay court-ordered child support for almost two years, (2) he did not attempt to utilize the help of a court to enforce his visitation rights until approximately two and a half years after he learned of the first entry of adoption, and (3) he attempted to justify his failure to pay the court-ordered child support on financial trouble, including a bankruptcy, and credit-card debt. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Where father had not communicated with his children for over 12 years, the failure to communicate was not justifiable because sexual abuse allegations against the father did not prevent him from making phone calls or writing letters; thus, the step-father did not need the father's consent to adopt. McClelland v. Murray, 92 Ark. App. 301, 213 S.W.3d 33 (2005).

Trial court erred in granting a petition by step-mother to adopt her step-daughter without the mother's consent as the step-mother and father refused the mother's requests for contact with the child and the mother's gifts for the child; thus, there was not clear and convincing evidence that the mother's failure to provide for the care and support was “without justification.” Neel v. Harrison, 93 Ark. App. 424, 220 S.W.3d 251 (2005).

Under this section, it is a parent's failure to communicate with the child, not a failure to have visitation, that allows adoption to proceed without consent, as was properly permitted here; the trial court only terminated the mother's visitation, but did not issue a no-contact order, she gave no justifiable cause for failing to have any contact with her children, and once she was drug free, she further failed to petition for review of the temporary order that had suspended visitation. Rodgers v. Rodgers, 2017 Ark. 182, 519 S.W.3d 324 (2017).

“Failed significantly”, as used in subdivision (a)(2), certainly does not mean “failed totally”. It means only that the failure to communicate with the child or to provide for the care and support of the child must be significant, as contrasted with an insignificant failure. Swaite v. Steele (In re Adoption of JS and DS), 2018 Ark. App. 595, 566 S.W.3d 517 (2018).

—Sufficient Communication.

Parent held to have failed to significantly communicate with child. Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ct. App. 1979); Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987).

Evidence supported finding that parent had not failed significantly to communicate with child. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986).

A letter written by the biological mother to the appointed friend of the court, requesting visitation of her children, and a progress report sent from the custodial parents to her concerning the children did not qualify as communication with the children. In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Natural mother's consent to stepmother's adoption was required where mother's efforts to communicate with children had been frustrated by father changing his telephone and pager numbers and not furnishing them to mother and otherwise refusing to facilitate her contact with the children. Cassat v. Hennis, 74 Ark. App. 226, 45 S.W.3d 866 (2001).

Mother's consent to adoption was not required based on her failure to communicate with the child; the mother had four visits and perhaps a few phone calls with the child in the nearly three years since guardianship was granted, and she was employed and had a vehicle for at least two years before the adoption proceedings. “Failed significantly” does not mean “failed totally”. In re Adoption of J.N., 2018 Ark. App. 467, 560 S.W.3d 806 (2018).

Trial court did not err in ruling that a father's consent to a stepparent adoption was not required, because (1) it was undisputed the father had not had contact with the child for over a year, and (2) the court permissibly found no justifiable cause for the failure to communicate. Holmes v. Wilhelm, 2019 Ark. App. 120, 572 S.W.3d 873 (2019).

Appellant's petition for adoption was improperly denied on the grounds that the consent of the father was required because the incarcerated father failed to communicate with his child for a period of one year as he had no proof that he communicated with the child during 2014 or 2016; between 2015 and 2018, the father made one phone call to the telephone number associated with appellant and the child's mother; and his communications were with appellant and the child's mother, never with the child. Holloway v. Carter, 2019 Ark. App. 330, 579 S.W.3d 188 (2019).

Appellant's petition for adoption was improperly denied on the grounds that the consent of the father was required because the incarcerated father did not have justifiable cause for failing to communicate with his child; an isolated incident that occurred in 2018 could not justify his failure to communicate with the child in 2014, 2015, 2016, and 2017, and visitations with the child at the penitentiary were sporadic and were all initiated by either the child's mother or the father's wife. Holloway v. Carter, 2019 Ark. App. 330, 579 S.W.3d 188 (2019).

—Support.

The parent must furnish the support and maintenance himself and the duty is a personal one, and he may not rely upon assurance that someone else is properly supporting and maintaining the child to avoid the impact of subdivision (a)(2) of this section. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Evidence was insufficient to prove that father had unjustifiably failed to support child. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983).

Evidence held to support finding that natural parent had not failed significantly and without justifiable cause to contribute to child's support. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986).

A parent has the obligation to support a minor child, and no request for support is necessary. Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983).

Evidence sufficient to support finding that parent failed to support child. Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987).

Although no order had been entered requiring child support, the trial court did not err in finding that the mother's consent to adoption was not required where for more than one year she had failed to provide any care or support for the child despite being employed, and the father testified that the mother had never offered support and that he had never declined such support. Sharp v. Pike, 2015 Ark. App. 670, 476 S.W.3d 217 (2015).

Circuit court did not clearly err in finding that a mother's consent was not required for the father's wife to adopt the child where the mother had failed to support the child for three years, the circuit court discredited the mother's testimony that she had no knowledge of a child-support order, and her gifts to the child did not constitute any meaningful support. Childress v. Braden, 2017 Ark. App. 569, 532 S.W.3d 130 (2017).

Circuit court properly found that a father significantly and without justifiable cause failed to pay court-ordered child support for at least one year and, accordingly, that his consent to adoption of his minor children was unnecessary, even though the father was imprisoned for approximately 21 months. Evidence that on two or three occasions the father used food stamps to purchase food that he gave to the adoptive parents did not constitute support of the children in any meaningful degree. Swaite v. Steele (In re Adoption of JS and DS), 2018 Ark. App. 595, 566 S.W.3d 517 (2018).

—Time Period.

The one-year period specified in this section need not be the year immediately preceding the judgment of adoption, since it means any one-year period. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Resumption of payment of support for a brief period, after the required period of one year, is not sufficient to bar an adoption without the consent of the delinquent father by starting a new one-year period of nonsupport under the statute. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

The filing of a petition for adoption establishes the cutoff date for dispensing with the natural parent's consent where the parent has failed to communicate with the child and provide support for one year. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985); In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

One-year period, after which a parent may lose his right to consent to his child's adoption if he does not communicate with or support his child, must accrue before the adoption petition is filed. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the failure to support the child not only continued for at least one year but also that it was willful, intentional, and without justifiable cause. Because one should not be permitted to assert a right until the facts on which it is predicated have accrued, the one-year period after which the parent may lose his right to consent to the adoption must accrue before the petition for adoption is filed. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).

There was no error in the application of this state's law pertaining to the one-year period specified in this section, to circumstances occurring prior to the transfer of jurisdiction to the state, from a state where the time period was two years, instead of one year. In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Although the Supreme Court of Arkansas has held previously that the one-year period referenced in this section can be any one-year period and is not required to be the one-year period immediately preceding the filing of the adoption petition, the Supreme Court believes that circuit courts should consider the parent's conduct, particularly in the period before the filing of the petition, in determining whether the parent's consent to an adoption should be required. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (2016).

Guardian.

The law does not require a written request for consent of legal guardian. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Jurisdiction.

Father argued that the petition for adoption was defective because it was filed before the right to adoption without the father's consent had accrued; the petition for adoption was filed in January 2014, and he claimed to have seen his children in January or February 2013, but this argument was without merit because the one-year period could be any one-year period, and based on the facts, the father's argument that the circuit court lacked jurisdiction was without merit. Sanders v. Savage, 2015 Ark. App. 461, 468 S.W.3d 795 (2015).

Notice.

Under this subchapter, if consent to the adoption has been given, notice to the consenting party is not required, nor is any further participation required of them; consequently, where mother consented to adoption, she was not entitled to subsequent service of process preceding the adoption nor was a guardian ad litem required to be appointed to represent her. Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982).

Unmarried father lacking any substantial relationship with his child is not entitled to notice of the child's adoption proceeding under either the due process clause or the equal protection clause of U.S. Const. Amend. 14. In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

Where the maternal grandparents' daughter was alive and had given consent to the adoption of her child, no consent was required by the maternal grandparents nor was notice required to be given to them before the adoption could proceed. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Proof.

In an adoption proceeding contested by a natural parent the facts justifying the adoption must be established by clear and convincing evidence. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983).

Party seeking to adopt must prove by clear and convincing evidence that the nonconsenting parent has failed significantly without justifiable cause either to communicate with or to provide for the care and support of the child for the statutory period. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983); Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983); In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

When proving that a natural parent's consent is not required, the parties seeking to adopt bear the heavy burden of proving by clear and convincing evidence facts which justify dispensing with the required consent of the natural parents. In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986).

The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the parent has failed significantly or without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Heavy burden is upon party seeking to adopt a child without consent of a natural parent to prove the failure to communicate or the failure to support by clear and convincing evidence. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987); In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

In vacating an adoption decree, the trial court never made a determination of whether the natural father qualified as a father whose consent was required under § 9-9-206(a)(2), so the matter was remanded to the trial court for an analysis of the evidence on that issue; the father's consent was not required under subdivision (a)(3) of this section if it was determined that it was not required under § 9-9-206(a)(2). Britton v. Gault, 80 Ark. App. 311, 94 S.W.3d 926 (2003).

In granting a petition for a mother's husband to adopt the parties' child, a trial court did not err in finding that the father's consent was not necessary under subdivision (a)(2) of this section because, by the father's own testimony, he had not seen his child in over two years; he made no child support payments after being released from prison until he received the adoption petition. Courtney v. Ward, 2012 Ark. App. 148, 391 S.W.3d 686 (2012).

Unreasonable Withholding of Consent.

The courts may grant a petition for adoption to petitioners regardless of the arbitrary dissent by a natural father. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

Although a father had failed significantly for a period of one year to support his child without justifiable cause, that fact did not preclude him from objecting to a proposed adoption or from being fully heard in the matter, rather it meant that he could not defeat the adoption by simply withholding his consent. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

This section gives the probate court authority to decide the issue raised by the foster parents whether the Department of Human Services, as legal guardian of the minor, has unreasonably withheld its consent to adopt. The foster parents' rights in that respect are not subject exclusively to the department's policies, the Arkansas Administrative Procedure Act (§ 25-15-201 et seq.), and circuit court review. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Where the adoptive parent left the child who suffered from an incurable skin condition alone in a motor home unattended by an adult, the trial court did not err in finding that the guardian was not unreasonably withholding her consent to the adoption of the child under subdivision (a)(8) of this section. The trial court focused on the special medical needs of the child, including her epidermolysis bullosa condition, seizures, and episodes of holding her breath and passing out. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008).

Order granting foster parents' petition for adoption of a child and dismissing a maternal grandmother's petition for guardianship was proper; in finding that the Arkansas Department of Human Services had unreasonably withheld its consent to the adoption under subdivision (a)(8) of this section, the trial court did not err by giving effect to the statutory preference for adoption. Davis-Lewallen v. Clegg, 2010 Ark. App. 627, 378 S.W.3d 185 (2010).

Evidence did not support a finding that the Arkansas Department of Human Services (DHS) unreasonably withheld its consent to appellants' adoption of a child under subdivision (a)(8) of this section; appellants' adult son lived in their home and an uncle lived in substandard housing on the property without DHS's knowledge while appellants were foster parents. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

Trial court's decision that the father unreasonably withheld consent and that it was in the child's best interest to be adopted by the adoptive parents was not against the preponderance of the evidence, which included evidence that the father was marginally self-sufficient while the adoptive parents had stable employment and housing. T.R. v. L.H., 2015 Ark. App. 483 (2015).

In an adoption proceeding following termination of parental rights, the granting of the foster parents' adoption petition was affirmed, as (1) the circuit court's decision that the Department of Human Services (DHS) unreasonably withheld consent to the adoption by preferring that the child be adopted by relatives was not clearly erroneous, (2) DHS's withholding of consent was not based on maltreatment allegations, and even if it was, the trial court was entitled to judge the credibility and seriousness of those allegations, and (3) DHS did not review all evidence relevant to the child's best interest before deciding to withhold consent. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Appellate court will apply the clearly-erroneous standard to questions of whether consent to adoption was unreasonably withheld. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Cited: In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992); In re D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); Reid v. Frazee, 61 Ark. App. 216, 966 S.W.2d 272 (1998); In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004); Marshall v. Rubright, 2017 Ark. App. 548 (2017).

Research References

U. Ark. Little Rock L.J.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey — Family Law, 13 U. Ark. Little Rock L.J. 369.

Case Notes

Construction.

This section and § 9-9-220 are mutually exclusive, in that they address separate methods by which a child may be adopted and provide different means by which the relinquishment of consent or direct consent may be withdrawn. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

This section and § 9-9-209 are mutually exclusive from § 9-9-220 in obtaining the relinquishment of consent or consent to an adoption, and either one or the other should be employed based on the applicable circumstances of the adoption; and the use of both relinquishment of parental rights and consent provisions in the affidavit and consent of natural mother document was in contravention of these sections. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Where both relinquishment of parental rights and consent provisions were contained in the same document purporting to sanction the adoption of a minor child and the trial court included the ten day right to withdraw provision in its decree of adoption, the document was, in the main, a relinquishment of parental rights as embodied in § 9-9-220, and natural mother's revocation of her relinquishment five days after she signed the affidavit was effective. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Local rule imposed by chancellor blending the different statutory consent requirements of this section and § 9-9-220 was inappropriate. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Visitation Agreement.

An agreement to provide for visitation rights for a member of the natural parent's family as a basis for natural father's consent to an adoption in the absence of statute is against public policy and void and unenforceable. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978).

Cited: Brown v. Meekins, 282 Ark. 186, 666 S.W.2d 710 (1984).

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

Case Notes

Construction.

Section 9-9-208 and this section are mutually exclusive from § 9-9-220 in obtaining the relinquishment of consent or consent to an adoption, and either one or the other should be employed based on the applicable circumstances of the adoption; and the use of both relinquishment of parental rights and consent provisions in the affidavit and consent of natural mother document was in contravention of these sections. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Final Decree.

A natural parent may not withdraw his consent to adoption after entry of an order which by its terms does not require a subsequent hearing, except upon proof of fraud, duress, or intimidation. McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983); In re Dailey, 20 Ark. App. 180, 726 S.W.2d 292 (1987); Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Interlocutory Order.

Consent held not revocable after entry of interlocutory order of adoption. A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950); Bradford v. Fitzgerald, 252 Ark. 655, 480 S.W.2d 336 (1972) (preceding cases decided under prior law); McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983).

Although a mother can revoke her consent for adoption before an interlocutory order, her revocation afterwards and before the final decree is controlled by surrounding circumstances. Martin v. Ford, 224 Ark. 993, 277 S.W.2d 842 (1955) (decision under prior law).

A natural mother can withdraw her consent to the adoption of her child after an interlocutory decree has been entered but before a final decree has been entered only upon a proper showing of fraud, duress, or intimidation. Pierce v. Pierce, 279 Ark. 62, 648 S.W.2d 487 (1983).

Waiting Period.

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Clear language of subdivision (b)(3) of this section indicates that a consenting party may elect to waive the 10-day waiting period in favor of a 5-day period but not less. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Withdrawal Prior to Filing.

This section is silent as to whether consent can be withdrawn prior to the filing of adoption petition. Under this section, consent to adopt cannot be withdrawn after the entry of the final order; prior to entry of adoption decree, consent can be withdrawn if it is found to be in the best interest of the child and court orders withdrawal of consent. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Cited: Summers v. Mylan, 287 Ark. 150, 697 S.W.2d 91 (1985).

Research References

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Case Notes

Standing to Adopt.

Subdivision (a)(3) of this section provides that a petition for adoption shall state “the date the petitioner acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how petitioner acquired custody of the minor.” That language, having to do with the contents of the petition, does not mean that a person who does not have custody and with whom the child has not been “placed” has no standing; standing to adopt is conferred by § 9-9-204, and that statute does not exclude persons who have served as foster parents of the minor to be adopted. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Substantial Compliance.

A petition for the adoption of a child held a sufficient compliance. Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927) (decision under prior law); Ark. Dep't of Human Servs. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992).

A petition for adoption is valid where there is substantial compliance with the statutory requirements; strict compliance is not required. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Adoptive parents did not fail to comply with subdivision (a)(8) of this section because the biological father's consent to the adoption was not required, and consent to this adoption was not required of any other person. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Adoptive parents did not fail to comply with subdivision (a)(9) of this section because the need for an inquiry into the Putative Father Registry had already been obviated when the petition for adoption was filed, and DNA testing had already established who the child's biological father was. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Failure of an adoption petition to include all of the information required by the statute did not deprive the circuit court of jurisdiction because all of the information was made part of the record before the adoption decree was entered. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Cited: In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

Case Notes

Compliance.

Adoptive parents substantially complied with this section by filing their affidavit of expenses two business days after the first adoption hearing because the biological father failed to establish that this section sets forth a jurisdictional requirement subject to strict compliance. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Research References

Ark. L. Rev.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Legislative Survey, Family Law, 16 U. Ark. Little Rock L.J. 131.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Grandparents.

This section does not grant to grandparents a right to intervene or a right to be heard in adoption proceedings. Tompkins v. Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000).

Paternal grandparents did not have the right to be heard in an adoption proceeding by the natural mother's new husband as (1) they never had custody of the child at issue, and the natural mother had retained custody at all times, and (2) their visitation with the child was the result of a mutual agreement, rather than pursuant to a court order. Tompkins v. Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000).

Where the biological mother gave consent to the adoptive mother to adopt her daughter, neither consent nor notice to the maternal grandparents was required before the adoption could proceed. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Home Study.

For purposes of this section, appellants claimed that the failure to file a home study for the adoption of the child was jurisdictional and required reversal; however, under § 28-1-104(5), the trial court had jurisdiction to determine the child's adoption and any error in relying on appellees’ home study had to be raised in the trial court. The issue was not preserved for review, as appellees' home study was admitted without objection and appellants did not raise their argument below and it was not considered by the trial court. Wilson v. Golen, 2013 Ark. App. 267, 427 S.W.3d 723 (2013).

Adoptive parents substantially complied with this section because a home study was conducted in a timely manner; there was a guardianship in place, the home study was conducted before the adoption was granted, and the home study was filed with the circuit court. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Notice.

Party having prior custody of child was entitled to notice and was a necessary party. Siebert v. Benson, 243 Ark. 843, 422 S.W.2d 683 (1968) (decision under prior law).

Under this subchapter, if consent to the adoption has been given, notice to the consenting party is not required, nor is any further participation required of them. Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982).

Alleged father of child was not entitled to notice of adoption proceeding under this section, where he was not registered in the state putative father registry, even though he had established a substantial relationship with the child. In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

A decree of adoption would be reversed and remanded for a hearing to determine whether the natural father's consent to adoption was required where he did not receive notice of the petition to adopt and an attorney ad litem was not appointed to represent his right to receive notice. Reid v. Frazee, 61 Ark. App. 216, 966 S.W.2d 272 (1998).

The maternal grandmother was not entitled to visitation with two children adopted by the natural father's new wife under § 9-9-215(a)(1), because she was barred from filing her custody/visitation action by the one-year statute of limitations found in § 9-9-216(b) as she clearly was challenging the effect of the adoption decree by claiming visitation rights. A contrary result was not required by the fact that the grandmother was not given notice of the adoption proceeding as required by subsection (f) of this section because the Revised Uniform Adoption Act in effect at the time of the adoption proceedings did not provide for grandparent visitation rights. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).

Failure to give a natural parent the notice of an adoption proceeding required by this section violated due process and entitled the parent to have the subsequently entered decree set aside. Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002).

Where the putative father and the child's mother had a brief romantic relationship, he did not know the mother was pregnant and did not see or talk to her after the encounter, and at the time an adoption petition was filed he had not registered with the putative-father registry, the putative father was not statutorily entitled to notice of the adoption proceeding. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

In an adoption case, where the putative father was served with a summons, petition for adoption, notice of hearing, and notice of deposition on December 14, 2004, and the hearing was held on December 20, 2004, the notice given the father satisfied the requirements of due process. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Adoptive parents' failure to strictly comply with subsection (f) did not deprive the circuit court of jurisdiction because notice requirements had to do with jurisdiction of the person, not subject-matter jurisdiction. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Biological father's appeal of an adoption decree was not dismissed, because (1) as the father's Ark. R. Civ. P. 60(a) motion to vacate was filed more than 10 days after entry of the decree, the “deemed-denied” prong of Ark. R. App. P. Civ. 4 did not apply, and Ark. R. Civ. P. 60 had no such prong, and (2) it was unnecessary to decide if a trial court now lacked jurisdiction due to expiration of the 90-day period in Ark. R. Civ. P. 60(a), as the father argued the decree was void due to the father's prior adjudication as the child's father and lack of notice of or consent to the adoption. Miller v. Moore, 2017 Ark. App. 619, 535 S.W.3d 651 (2017).

Validity of Marriage.

Only argument advanced by the biological father in an adoption case was that the mother's second marriage was void because he and the mother were still validly married and the biological father was collaterally estopped from asserting that argument. The biological father failed to overcome the presumption of the validity of the marriage between the mother and the adoptive father and it followed that he failed to prove that the adoptive father was not the child's stepparent at the time of the adoption and that a home study was required under subdivision (b)(1)(A) of this section. Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).

Waiting Period.

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Waiver of Investigation.

Although the trial court did not expressly waive the investigation pursuant to subsection (c) of this section, the trial court did not err when it found that it was in the child's best interests to remain with the adoptive parents where it focused on the stability she had with the adoptive parents, especially as the adoptive parents were her grandparents and she had been in their custody for the majority of the past three years. Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000).

Cited: Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

Case Notes

Temporary Order.

Adoption decree by temporary order continued without any final decree of adoption having been issued was accepted as effecting a legal adoption under Arkansas law. Dunn v. Richardson, 336 F. Supp. 649 (W.D. Ark. 1972) (decision under prior law).

Cited: Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).

Research References

Ark. L. Rev.

Note, Strict Construction, Jurisdictional Requirements and the Arkansas Adoption Code: Martin v. Martin and a Missed Chance for Clarity, 49 Ark. L. Rev. 123.

Case Notes

Appellate Brief.

In an adoption proceeding following termination of parental rights, the Court of Appeals granted appellee foster parent's motion to strike the appellate brief of the Department of Human Services where DHS had not appealed or cross-appealed but argued in favor of the appellant relatives in its brief. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Best Interest of Child.

Facts did not necessarily show adoption to be in the child's best interest. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985).

While keeping siblings together is a commendable goal and an important consideration as a general rule, it is but one factor that must be taken into account when determining the best interest of the child. Ark. Dep't of Human Servs. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992).

Putative father's failure to formally establish paternity was not a major factor to be considered regarding the best interest of the child. In re B.L.S, 50 Ark. App. 155, 901 S.W.2d 38 (1995).

That attempted adoptive mother was on Social Security disability and drawing welfare benefits will not provide a basis for a change in custody. In re B.L.S, 50 Ark. App. 155, 901 S.W.2d 38 (1995).

Trial court did not err under subsection (d) of this section in dismissing appellants' petition for adoption of a child for whom they had been foster parents because their adult son lived in their home and an uncle lived in substandard housing on the property without the knowledge of the Arkansas Department of Human Services. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

If a trial court finds that an adoption is not in the best interest of a child, it is of no significance whether consent to adoption is required. If a trial court determines that consent to an adoption is not required, there can be no adoption if the trial court also finds that adoption is not in the best interest of the child, and thus the trial court in this case did not err as a matter of law in not addressing both parts of the two-part adoption analysis. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Trial court's finding that adoption was not in the child's best interest was not clearly erroneous; the mother's failure to provide care and support for the child was due in part to her financial problems, which she was curing, when the mother visited the child, he was happy, and the mother had made significant strides to improve her lifestyle and relationships. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Effective Date of Order.

Adoption decree is effective as of the date of the interlocutory order unless set aside for good reason at final hearing. A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950) (decision under prior law).

Adoptive parent did not timely move to vacate temporary order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Petition Denied.

Because the paternal grandmother only challenged the trial court's finding that the mother did not lose her right to consent to the adoption pursuant to § 9-9-207(a)(2), as the mother had significant contacts with the child and had paid support, but not the trial court's finding that granting the grandmother's petition for adoption was not in the child's best interest, the appellate court was left with an unchallenged basis for affirming the denial of the petition. Hill v. Powell, 2016 Ark. App. 123 (2016).

Petition Dismissed.

Circuit court properly dismissed a petition for adoption filed by a maternal grandmother and a step-grandfather because the petition did not include background checks by the Federal Bureau of Investigation, the children's birth certificates, and the consent of the Department of Human Services, as the legal guardian of the children. Mode v. Ark. Dep't of Human Servs., 2015 Ark. App. 69 (2015).

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Petition Granted.

A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and the adoption is in the best interest of the child or individual to be adopted. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

In an adoption proceeding following termination of parental rights, the granting of the foster parents' adoption petition was affirmed, as (1) the circuit court's decision that the Department of Human Services (DHS) unreasonably withheld consent to the adoption by preferring that the child be adopted by relatives was not clearly erroneous, (2) DHS's withholding of consent was not based on maltreatment allegations, and even if it was, the trial court was entitled to judge the credibility and seriousness of those allegations, and (3) DHS did not review all evidence relevant to the child's best interest before deciding to withhold consent. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Presence of Adopted Person.

Where the final decree of adoption recited “that all proper persons are before the court,” it must be assumed the finding means that the children were present at the hearing. Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ct. App. 1979).

Where the record was silent as to whether the child sought to be adopted was present at hearing, the court would indulge in the presumption that the court below had jurisdiction and acted correctly. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983).

Standard of Review.

Supreme Court reviews probate proceedings de novo and will not reverse a probate court's decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of witnesses. Personal observations of the court are entitled to even more weight in cases involving the welfare of a young child. In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

Standing in Loco Parentis.

Subsection (a) of this section is mandatory and jurisdictional and could not be complied with unless persons standing in loco parentis to child were given notice of guardianship and adoption proceedings. Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ct. App. 1980).

Subsequent Hearing.

After the natural father brought to the court's attention that the child at issue, who was seven years of age at the beginning of this process, was past the age of ten years at the time the trial was held, the probate judge properly scheduled a subsequent hearing at which he questioned the child and ascertained the child's consent to be adopted. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Circuit court did not abuse its broad discretion in holding a subsequent hearing so the adoptive parents could introduce the home study into evidence because the issue presented in the case was so grave and of such importance that it would constitute an injustice not to allow the record to be completed; the circuit court had broad discretion to reopen the case for further proof after both sides had rested, particularly to ascertain the truth of the matter to be determined on a material issue. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Cited: In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).

Research References

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Arkansas Law Survey, Saunders, Torts, 7 U. Ark. Little Rock L.J. 259.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Case Notes

Applicability.

The law in effect at the time of an ancestor's death controls the issue of inheritance, not the law in effect at the time of adoption; this section applies where the death occurs after this section's 1977 enactment, even if the adoption occurred before 1977. Wheeler v. Myers, 330 Ark. 728, 956 S.W.2d 863 (1997).

Because adoption, inheritance laws were not intended to modify the established meaning of terms used in deeds, a trial court did not err in refusing to consider § 56-109 (repealed) when determining whether or not an adopted child was entitled to a remainder interest in a deed that used the word “heirs.” Brown v. Johnson, 81 Ark. App. 60, 97 S.W.3d 924 (2003).

Disinterment.

Appellate court overruled appellants' assertion that the adoptive father's permission was not needed to disinter the decedent's remains, because either the adoptive father's consent was necessary or in cases where there was disagreement, the matter must be submitted for a judicial decision, when for all intents and purposes, the adoptive father was the decedent's legitimate blood descendent. Tozer v. Warden, 101 Ark. App. 396, 278 S.W.3d 134 (2008).

Exclusions Permitted.

Even though this section treats adopted persons as blood descendants for “all purposes,” it nevertheless allows documents or instruments to expressly exclude an adopted individual from their operation. Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997).

Finality of Decree.

Adoptive parent who did not timely appeal a temporary order of adoption did not, under Ark. R. Civ. P. 41, have an absolute right to dismiss his petition for adoption anytime prior to the entry of a final order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Once an interlocutory decree of adoption is entered, it is construed as a final decree if no subsequent hearing is required by the terms of that decree; and the natural parent cannot withdraw consent after entry of the decree unless fraud, duress, or intimidation is shown. In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).

Subsection (b) of this section provides, in the last sentence, that an interlocutory decree can be set aside. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

Inheritance.

Child adopted after execution of will stood in the position of a natural born child born subsequently to the execution of the will, and inherited accordingly. Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 359 (1937) (decision under prior law).

Where adoption was void, adopted child could not inherit real estate but was entitled to inherit personal property. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950) (decision under prior law).

Adopted son was heir of first adoptive father even though he was adopted by others prior to death of first adoptive father. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951) (decision under prior law).

Adopted son held not “heir of the body” of deceased foster parent. Davis v. Davis, 219 Ark. 623, 243 S.W.2d 739 (1951) (decision under prior law).

Children adopted by decedent shortly before his death were entitled to inherit from him even though the final decree was not entered during his lifetime. Williams v. Nash, 247 Ark. 135, 445 S.W.2d 69 (1969) (decision under prior law).

A final decree of adoption must be entered in this state if an adopted child is to inherit at all from his adoptive parents, as inheritance under the “virtual adoption” theory is unknown to the law of this jurisdiction. Wilks v. Langley, 248 Ark. 227, 451 S.W.2d 209 (1970) (decision under prior law).

The law in effect at the time of the death of the adopted child is controlling on matters of inheritance; thus, under this section, the heirs of the adoptive parents inherit to the exclusion of the blood relatives. In re Estate of Caisson, 289 Ark. 216, 710 S.W.2d 211 (1986).

Petition Denied.

Circuit court did not err in denying the adoption petition because it was the mother's burden to present credible evidence to convince the circuit judge that adoption was in the best interest of the child, and considering the circuit court's determination that the effect of this section was speculative and that the mother's allegations against the father could be afforded no weight, she failed to meet this burden. There was no corroborating testimony or evidence as to the mother's allegations regarding the father's use of alcohol and drugs or the father's abuse of his children, other than what the mother told her mother. In re Adoption of M.K.C., 2009 Ark. 114, 313 S.W.3d 513 (2009).

Termination of Legal Relationships.

Trial court erred in holding that before appellant's adoption of his wife's adopted child could go forward, appellant was required to either obtain the consent of the child's biological father or produce an order demonstrating that the biological father's parental rights had been terminated because by operation of law, the former adoption decree forever severed and held for naught the biological father's rights, responsibilities, and legal relationship with the child. In re Adoption of H.L.M., 99 Ark. App. 115, 257 S.W.3d 587 (2007).

Arkansas Supreme Court has interpreted the statute as an expression of public policy favoring a complete severance of the relationship between an adopted child and his or her biological family in order to further the best interest of the child. In re Adoption of H.L.M., 99 Ark. App. 115, 257 S.W.3d 587 (2007).

—In General.

An adoption not only terminates all legal relationships between the adopted individual and his natural parents and legally makes him a stranger to them, it also commands that all courts recognize that principle in construing all statutes. Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983).

Section 9-27-341(c)(1) and subdivision (a)(1) of this section point to a public policy which, in determining what is in the child's best interest, favors a complete severing of the ties between a child and its biological family when he is placed for adoption. Suster v. Ark. Dep't of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993); Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997).

—Grandparents.

Decree of adoption would terminate the relational status between adopted grandchildren and their grandparents. Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).

Paternal grandparents of adopted child were not entitled to obtain visitation privileges since this section terminates all legal relationships so that the adopted infant is for all legal purposes a stranger to his former relatives; it is unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring the grandparents and other blood kin who are related to the child through its deceased parent. Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981); Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983).

When the public policy favoring maintenance of grandparental ties collides with the stronger public policy to strengthen the relationships within adoptive families, the former must give way to the latter. Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983).

A grandmother's visitation and custody rights were derivative of her daughter's parental rights, and, as a result, were terminated when her daughter's parental rights were terminated. Suster v. Ark. Dep't of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993).

The biological father's consent to an adoption terminated any rights of visitation that his mother might claim. Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997).

The maternal grandmother was not entitled to visitation with two children adopted by the natural father's new wife under subsection (a)(1) of this section, because she was barred from filing her custody/visitation action by the one-year statute of limitations found in § 9-9-216(b) as she clearly was challenging the effect of the adoption decree by claiming visitation rights. A contrary result was not required by the fact that the grandmother was not given notice of the adoption proceeding as required by § 9-9-212(f) because the Revised Uniform Adoption Act in effect at the time of the adoption proceedings did not provide for grandparent visitation rights. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).

Mother's adoption by adoptive parents severed a grandmother's relationship with the mother (her daughter), and therefore, the grandmother was no longer a grandparent entitled to visitation under § 9-13-103(b)(2) with the mother's child. The circuit court erred by continuing to recognize the grandmother's visitation rights following the adoption. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427 (2013).

In a case in which the circuit court erroneously decided to forego a relative-placement option with the grandparents in favor of terminating the mother's parental rights, the Department of Human Services erred in saying that the grandparents could later become an adoptive placement for the children if they were able to meet all the necessary child protection standards and successfully petition to adopt the children because the grandparents were not parties to the termination of parental rights case and would not have standing to intervene as a matter of right in a subsequent adoption proceeding should the termination be affirmed; and, if the children were not placed with the grandparents now, it was unlikely the court would allow them to adopt the children later. Clark v. Ark. Dep't of Human Servs., 2019 Ark. App. 223, 575 S.W.3d 578 (2019).

Wrongful Death Action.

The omission of any provision for an adoptive parent's death does not show a legislative intent to deny an adopted child the right to assert a cause of action for the death of the adoptive parent. Moon Distribs., Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968) (decision under prior law).

Where the decedent's natural-born child had been adopted, the child was no longer the child of the decedent and was not one of the beneficiaries authorized to recover for the wrongful death of the decedent. Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983).

Cited: Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); J.M.E. v. Valley View Agri Sys., 2016 Ark. App. 531, 505 S.W.3d 211 (2016).

Research References

Ark. L. Rev.

Case Note, In re Adoption of Pollock: Arkansas Probate Court Jurisdiction — A Question of Policy, 41 Ark. L. Rev. 677.

Case Notes

Construction.

The one-year statute of limitations in subsection (b) of this section provides a special procedure which cannot be annulled by Ark. R. Civ. P. 41(a) or the savings statute, § 16-56-126, which allows an action dismissed without prejudice to be refiled within one year of the dismissal. In re Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997).

This section provides a maximum one-year time limit after which any action to set aside an adoption order is barred, but does not affect the 90-day limit set forth in Ark. R. Civ. P. Rule 60(a) and only serves to limit the time in which a probate court could act to set aside an order pursuant to Ark. R. Civ. P. Rule 60(c). Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).

Adoption After Termination of Parental Rights.

Ark. Sup. Ct. & Ct. App. R. 6-9 did not govern a post-termination adoption appeal, even though it originated from a dependency-neglect case, because the types of orders enumerated in the rule do not contemplate adoption proceedings, and this section mandates that adoption appeals may be taken in the manner and time provided for appeal from a judgment in a civil action. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Collateral Attack.

In a collateral attack on a foreign adoption former section setting the time upon which an adoption becomes final did not apply; where the parent was not given notice of the adoption proceeding, the section did not begin to run until the parent discovered the identity of the adopting parties. Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966) (decision under prior law).

A petition to determine heirship filed by deceased's collateral heirs was a collateral attack on the order of adoption, which was not subject to collateral attack. Williams v. Nash, 247 Ark. 135, 445 S.W.2d 69 (1969) (decision under prior law).

Probate court, in adoption proceedings, had no authority to grant visitation rights to grandmother and hence visitation portion of the adoption decree in excess of the court's authority or subject matter jurisdiction was void and subject to collateral attack. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978) (decision under prior law).

Finality of Decree.

Any decree of adoption is a final decree, no matter whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree. In re Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982).

Adoptive parent who did not timely appeal a temporary order of adoption did not, under Ark. R. Civ. P. 41, have an absolute right to dismiss his petition for adoption anytime prior to the entry of a final order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Fraud.

Where an order for the adoption of a minor child was entered in due form, the person adopting the child and all others claiming as his heirs were estopped to question the validity of the proceedings on the ground of fraud in its procurement, not found on the face of the record. Avery v. Avery, 160 Ark. 375, 255 S.W. 18 (1923) (decision under prior law).

Where a mother of minor children alleged that she consented to adoption of her children by her former husband's second wife due to fraud, duress, and intimidation, the trial court had jurisdiction to hear her petition to set aside the interlocutory adoption decree pursuant to this section; the 90-day limitation in Ark. R. Civ. P. 60 was inapplicable based on the finding of fraud. Smith v. Smith, 2012 Ark. App. 6 (2012).

Limitation of Actions.

Former section barred plaintiff's petition to vacate a final order of adoption of his former wife's natural child on procedural grounds brought four years after the issuance of the final order. Cottrell v. Cottrell, 258 Ark. 116, 522 S.W.2d 433 (1975) (decision under prior law).

Where a petition challenging an adoption was filed before this subchapter became effective, the trial court erred in applying the one-year statute of limitations under this section to the action rather than the two-year limitation under former section. Allton v. Sumter, 274 Ark. 448, 625 S.W.2d 502 (1981).

Where natural father was given no notice of the pending adoption, it would be a denial of due process to hold that the adoption decree was protected from challenge after one year from its issuance. McKinney v. Ivey, 287 Ark. 300, 698 S.W.2d 506 (1985).

The maternal grandmother was not entitled to visitation with two children adopted by the natural father's new wife under § 9-9-215(a)(1), because she was barred from filing her custody/visitation action by the one-year statute of limitations found in subsection (b) of this section as she clearly was challenging the effect of the adoption decree by claiming visitation rights. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).

It was error for the trial court to deny a motion to dismiss a petition for adoption without a hearing on the merits, notwithstanding that the motion was filed more than one year after the grant of a temporary order of adoption, since there was a question of fact as to whether the petitioner had taken custody of the child. Coker v. Child Support Enforcement Unit, 69 Ark. App. 293, 12 S.W.3d 669 (2000).

Failure to give a natural parent the required notice of an adoption proceeding in which the parent's parental rights were terminated allowed the parent to have the decree set aside after the expiration of the limitations period in subsection (b) of this section, even though the parent gained actual knowledge of the termination, albeit after the fact, before expiration of the limitations period. Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002).

Trial court correctly focused on whether an adoptive father had taken custody of the children and found that, in addition to physical custody being with the adoptive father and biological mother, the adoptive father also assumed parental duties; thus, the biological father's petition to set aside the adoption decree, which was filed more than one year after the decree was entered, was time-barred under subsection (b) of this section. Carr v. Millar, 86 Ark. App. 292, 184 S.W.3d 470 (2004).

Trial court did not err in finding that a mother's petition to set aside the interlocutory adoption decree with respect to her minor children was not barred by the one-year limitation period in this section, as the action was commenced within that time period; once the action was commenced, the limitation period was tolled. Smith v. Smith, 2012 Ark. App. 6 (2012).

Notice.

Circuit court erred in granting the grandparents' motion to dismiss the biological parents' motion to set aside an adoption decree where there was no evidence that the parents received any notice of the adoption proceedings before the entry of the decree, and a dependency-neglect proceeding merely provided notice that the parents needed to comply with the case plan to regain custody of their daughter. Clark v. Clark, 2017 Ark. App. 612, 535 S.W.3d 282 (2017).

Res Judicata.

In the father's second appeal seeking to set aside the adoption, it was clear that res judicata was applicable where: (1) the judgment entered by the trial court and subsequently affirmed by the appellate court finding no fraud and applying former statute of limitations was a final judgment on the merits; (2) there was no dispute that the circuit court had jurisdiction over the petition to annul the adoption; (3) the suit was fully contested and resulted in a final judgment that was appealed to the appellate court; (4) both suits involved the same issue, namely the annulment of the adoption decree; (5) both suits involved the exact same parties; and (6) there could have been no doubt that the father had every opportunity to challenge the adoption based on the mental-defect claim in the father's first petition to annul the adoption. McAdams v. McAdams, 357 Ark. 591, 184 S.W.3d 24 (2004).

Standing to Appeal.

State agency did not have the exclusive right to file an action for annulment of adoption proceeding, but the mother had an equal right to file suit. Gillen v. Edge, 214 Ark. 776, 217 S.W.2d 926 (1949) (decision under prior law).

An outsider or stranger could not maintain a petition to annul an order of adoption, but where petitioners occupied loco parentis relationship to the children, they could maintain the petition. Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961) (decision under prior law).

Petitioner had no standing to set aside the adoption decree and was procedurally barred from proceeding where he waited more than four years to file his motion to set aside the decree. Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), cert. denied, 514 U.S. 1065, 115 S. Ct. 1696, 131 L. Ed. 2d 559 (1995).

Cited: Martin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994).

Research References

ALR.

Restricting access to judicial records of concluded adoption proceedings. 103 A.L.R.5th 255.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Appeals.

Although this subchapter does not govern appeals of adoption cases, the court has closed records in adoption cases following the spirit of this section. In re K.F.H., 310 Ark. 53, 834 S.W.2d 647 (1992).

Cited: Ark. Dep't of Human Servs. v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994); Ark. Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

Research References

ALR.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Issues concerning guardian ad litem and counsel. 118 A.L.R.5th 561.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Applicability of Americans With Disabilities Act. 119 A.L.R.5th 351.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Evidentiary issues. 122 A.L.R.5th 385.

Parents' Physical Illness or Physical Deficiency as Ground for Termination of Parental Rights — Applicability of Americans with Disabilities Act, 27 A.L.R.7th Art. 1 (2018).

U. Ark. Little Rock L.J.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Annual Survey of Caselaw, Family Law, 26 U. Ark. Little Rock L. Rev. 913.

Case Notes

In General.

The natural relationship between parent and child is subject to absolute severance in an adoption proceeding; however, the courts are inclined to favor the maintaining of the natural relationship when the adoption is sought without the consent of a parent and against his or her protest. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983).

Construction.

Section 9-9-208 and this section are mutually exclusive, in that they address separate methods by which a child may be adopted and provide different means by which the relinquishment of consent or direct consent may be withdrawn. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Sections 9-9-208 and 9-9-209 are mutually exclusive from this section in obtaining the relinquishment of consent or consent to an adoption, and either one or the other should be employed based on the applicable circumstances of the adoption; and the use of both relinquishment of parental rights and consent provisions in the affidavit and consent of natural mother document was in contravention of these sections. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Local rule imposed by chancellor blending the different statutory consent requirements of § 9-9-208 and this section was inappropriate. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Former subdivisions of this section were not effective on the date that the father's child support order was entered and, therefore, the statute was not applicable to the father's case; the legislature intended for those non-custodial parents whose child support orders were entered after August 13, 2001, to be affected, such that the statute was meant to apply prospectively from August 31, 2001, not retroactively to May 31, 2001, the date the divorce decree was entered. Stroud v. Cagle, 87 Ark. App. 95, 189 S.W.3d 76 (2004) (decision under prior law).

Appellate Review.

Couple challenged the denial of a petition for adoption, arguing that the circuit court erred in permitting the birth mother to withdraw her relinquishment of her rights outside the time permitted by the statute, but the merits could not be decided because the couple failed to challenge the finding that adoption was not in the child's best interests. Clark v. Hall (In re I.C.), 2014 Ark. App. 513 (2014).

Custody.

It was not unconscionable for the trial court to consider a putative father as “a parent not having custody” within the meaning of subdivision (c)(3) of this section, despite the putative father's contention that he should not be considered as a noncustodial parent because he surrendered his child pursuant to a court order rather than voluntarily. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

Trial court did not err in terminating a father's parental rights to his child after his wife gave the baby up for adoption because the father did not have custody within the meaning of subdivision (c)(3) of this section, due to his frequently living with his parents rather than his wife and his failure to support or even see the baby. D.L.R. v. N.K., 2012 Ark. App. 316, 416 S.W.3d 274 (2012).

Imprisonment.

Father was not unfit simply because he was incarcerated, and there was no evidence that he posed a risk to his son, rather, evidence showed that he purchased clothing for his son before he was born and had consistently sought contact with his son even while incarcerated, which were actions consistent with a parent who was making a good-faith effort to discharge his parental duties; there were no facts showing that the child would suffer any untoward effect by allowing him to establish a relationship with his father, and there was no evidence showing that the child would be adversely affected by knowledge of or association with his father, thus, the trial court's order granting the guardian's adoption petition and terminating the father's rights was reversed. Henderson v. Callis, 97 Ark. App. 163, 245 S.W.3d 174 (2006).

Jurisdiction.

In a proceeding seeking to set aside a prior divorce decree adjudicating a purported father the legal parent of a minor child, a trial court lacked authority to terminate the father's parental rights because the action did not concern adoption. Hudson v. Kyle, 352 Ark. 346, 101 S.W.3d 202 (2003).

Revocation.

Even in the case of a final adoption decree, consent to adopt may be withdrawn upon a proper showing of fraud, duress or intimidation. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Where both relinquishment of parental rights and consent provisions were contained in the same document purporting to sanction the adoption of a minor child and the trial court included the ten day right to withdraw provision in its decree of adoption, the document was, in the main, a relinquishment of parental rights as embodied in this section and natural mother's revocation of her relinquishment five days after she signed the affidavit was effective. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Circuit court clearly erred in failing to set aside an adoption decree; although the face of the relinquishment affidavit attached to the adoption petition reflected that the biological mother may well have signed it, the text messages and testimony showed that the mother believed that the document gave a friend the temporary ability to care for the child, that she wanted to proceed with an adoption, if at all, with the misunderstanding that the friend would adopt the child and she would share custody, and that she had never met nor communicated with the adoptive couple. Thompson v. Brunck, 2018 Ark. App. 198, 545 S.W.3d 830 (2018).

Termination by Court Order.

This section does not require a separate petition for termination of parental rights but allows the parental relationship to be terminated by a court order in connection with an adoption proceeding if the requisite grounds are satisfied. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

While the primary consideration in adoption proceeding is the welfare of the child, this does not mean that courts can sever the parental rights of nonconsenting parents and order adoption merely because the adoptive parents might be able to provide a better home. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983).

While the primary consideration is the welfare of the child, the court cannot sever the parental rights of nonconsenting parents and order adoption merely because the adoptive parents might be able to provide a better home. In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).

Parent’s consent to the adoption of the parent’s child was not required because for years the child suffered irremediable abuse and neglect at the hands of the parent, who was addicted to alcohol, and the adoption of the child was in the child’s best interest. Ducharme v. Gregory, 2014 Ark. App. 268, 435 S.W.3d 14 (2014).

Unreasonable Withholding of Consent.

Evidence sufficient to find that parent unreasonably withheld consent to child's adoption. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983); In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

Psychological studies of the natural father and evidence of his antisocial behavior prior to the birth of his child were admissible in determining whether he unreasonably withheld his consent to adoption contrary to the best interests of the child. In re K.M.C., 333 Ark. 95, 62 Ark. App. 95, 969 S.W.2d 197 (1998).

Record contained no showing that a father unreasonably withheld his consent to an adoption by a guardian where the father had no obligation to consent merely because he was incarcerated or because the guardian did not want to communicate or have the child exposed to him; further, even if the father had consented to the guardianship, he would not have forfeited his parental rights in so doing and, thus, the trial court's order granting the guardian's adoption petition and terminating the father's rights was reversed. Henderson v. Callis, 97 Ark. App. 163, 245 S.W.3d 174 (2006).

Trial court's decision that the father unreasonably withheld consent and that it was in the child's best interest to be adopted by the adoptive parents was not against the preponderance of the evidence, which included evidence that the father was marginally self-sufficient while the adoptive parents had stable employment and housing. T.R. v. L.H., 2015 Ark. App. 483 (2015).

Bifurcation of proceedings under a stepmother's adoption petition into a hearing on whether the consent of the children's mother to the adoption was necessary and a hearing on whether the adoption was in the children's best interest did not deny the stepmother due process because (1) the stepmother did not object to the procedure, (2) once it was determined that the mother's consent was required, a best interest finding was unnecessary, and (3) the stepmother did not preserve the issue of whether the mother was unjustifiably withholding her consent, as the adoption petition only alleged the mother's consent was not required. Hrdlicka v. Hrdlicka (In re Adoption of P.H.), 2020 Ark. App. 178, 598 S.W.3d 846 (2020).

Cited: Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982); Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983); In re Proposed Local Rules, 284 Ark. 133, 682 S.W.2d 452 (1984); Corley v. Ark. Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994); Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997); Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005); Marshall v. Rubright, 2017 Ark. App. 548 (2017).

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Research References

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Ark. L. Rev.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

Case Notes

Grandparents.

This section does not require that notice be given to the maternal grandparents of a child where the biological mother has consented to the adoption, and nothing in this statute applies to grandparents. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Putative Fathers.

Where the putative father and the child's mother had a brief romantic relationship, he did not know the mother was pregnant and did not see or talk to her after the encounter, and at the time an adoption petition was filed he had not registered with the putative-father registry, the putative father was not statutorily entitled to notice of the adoption proceeding. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Cited: In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

Case Notes

Cited: Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

Case Notes

Cited: Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

Case Notes

State Custody.

Administrative law judge erred in finding that children were not in the state's custody for adoption subsidy purposes because, although the children were in their aunt's physical custody, the state maintained a supervisory role over the children through the context of the protective-services case that remained open on the children until their parents' rights were terminated. Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

Case Notes

Cited: Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

U. Ark. Little Rock L. Rev.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Cited: In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Research References

ALR.

Right of indigent defendant in paternity suit to have assistance of counsel at state expense. 4 A.L.R.4th 363.

Statute limiting time for commencement of action as violating child's constitutional rights. 16 A.L.R.4th 926.

Illegitimate child's right to maintain action to determine paternity. 19 A.L.R.4th 1082.

Human Leukocyte Antigen (HLA) tissue typing tests: admissibility, weight, and sufficiency in paternity cases. 37 A.L.R.4th 167.

Admissibility and weight of blood-grouping tests in disputed paternity cases. 43 A.L.R.4th 579.

Right to jury trial in paternity proceedings. 51 A.L.R.4th 565.

Necessity or propriety of appointment of independent guardian for child who is subject of paternity proceeding. 70 A.L.R.4th 1033.

Validity and construction of surrogate parenting agreement. 77 A.L.R.4th 70.

Admissibility of DNA identification evidence. 84 A.L.R.4th 313.

Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born. 84 A.L.R.4th 655.

Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights. 87 A.L.R.4th 572.

Rights of an unwed father to obstruct adoption of his child by withholding consent. 61 A.L.R.5th 151.

Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

Am. Jur. 41 Am. Jur. 2d, Illegitimate Children, § 8 et seq.

Ark. L. Rev.

Some Problems of Courts for Children in Arkansas, 9 Ark. L. Rev. 23.

Bastardy, 9 Ark. L. Rev. 391.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Fuqua, Comments: Bastardy Law in Arkansas — The Need for Revision, 33 Ark. L. Rev. 178.

Note, How a State's Interests in a Child's Welfare Are Frustrated by Indiscriminate Application of the Final Judgment Rule: Arkansas Department of Human Services v. Lopez, 44 Ark. L. Rev. 895.

C.J.S. 14 C.J.S., Children Out-of-Wedlock, § 71 et seq.

U. Ark. Little Rock L.J.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Parness, Prospective Fathers and Their Unborn Children, 13 U. Ark. Little Rock L.J. 165.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

Constitutionality.

This section is constitutional. Dobson v. State, 69 Ark. 376, 63 S.W. 796 (1901).

Purpose.

Indemnity and protection of the counties against the burden of supporting the illegitimate child, and not the punishment of the father, are the objects contemplated by the statute. Chambers v. State, 45 Ark. 56 (1885).

Child Support.

By common law the mother and not the father of an illegitimate child is bound to support him, but this section confers on the mother of the child the right to compel the father to contribute to its support; and a promise on the father's part to contribute to the child's support is a valid legal liability and is enforceable against him or, after his death, against his estate. Davis' Estate v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890).

In an action to enforce an unwritten promise to support and for annual payments, the recovery is limited to the last three years. Davis' Estate v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890) (decision prior to 1985 amendment).

The mother may enforce an implied obligation of father to support illegitimate child. Scott v. State, 173 Ark. 625, 292 S.W. 979 (1927).

Dismissal.

Because a dismissal with prejudice is void in a paternity action, such a ruling does not bar future proceedings. State Office of Child Support Enforcement v. Flowers, 57 Ark. App. 223, 944 S.W.2d 558 (1997).

Jury Trial.

Since a paternity proceeding was essentially an action at law for the recovery of money, the appellant was entitled to a jury trial on the issues of fact. Waddell v. State, 235 Ark. 293, 357 S.W.2d 651 (1962).

Nature of Action.

Although a paternity proceeding is in the name of the state, it is of a civil nature. Chambers v. State, 45 Ark. 56 (1885); Pearce v. State, 55 Ark. 387, 18 S.W. 380 (1892); Wimberly v. State, 90 Ark. 514, 119 S.W. 668 (1909); Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910); State ex rel. Woolems v. Davis, 178 Ark. 692, 11 S.W.2d 479 (1928); Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098 (1932).

Res Judicata.

Decision in an annulment proceeding brought on the ground of false representation as to paternity of child is not res judicata in either a paternity or heirship action, as child is not a party privy to the annulment proceeding. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Venue.

In a proceeding to determine the custody of a child after his mother died, venue was not proper in the county in which the father resided; instead, venue was proper in the county in which the child had resided with his mother and in which he was cared for after her death by his grandparents. Overton v. Jones, 74 Ark. App. 122, 45 S.W.3d 427 (2001).

Trial court erred in granting mother's motion to transfer a custody action because there was evidence that the father never established a residence outside of the first county, as contemplated by subdivision (f)(1)(B)(i) of this section. Stephens v. Miller, 91 Ark. App. 253, 209 S.W.3d 452 (2005).

Cited: George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983); Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985); State Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995).

Case Notes

Applicability.

This section applies to paternity tests ordered by the Office of Child Support Enforcement and not to tests ordered by the court; § 9-10-108 specifically deals with court-ordered paternity tests and, more importantly, while some language in this section incorporates the procedures of § 9-10-108, there is no language in § 9-10-108 incorporating the protections of this section. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Cited: Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981).

Research References

Ark. L. Notes.

Flaccus, A Grab Bag of Recent Arkansas Cases, 1999 Ark. L. Notes 25.

Ark. L. Rev.

Brittany Horn, Case Note: Who's Your Daddy? State v. Perry and Its Impact on Paternity and the Rights of Adjudicated Fathers in Arkansas, 66 Ark. L. Rev. 1059 (2013).

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Fifteenth Annual Survey of Arkansas Law, 15 U. Ark. Little Rock L.J. 427.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Family Law, 24 U. Ark. Little Rock L. Rev. 1021.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

In General.

It is not against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born during marriage. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Burden of Proof.

In a paternity proceeding brought against a living putative father, even in the absence of blood testing, the mother's burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Defenses.

A mother's agreement or assurances that she would not pursue a paternity action to request support cannot validly be interposed by a putative father as a defense. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Misrepresentation concerning the use of contraceptives is not a defense to paternity; to permit this defense would result in the denial of support to innocent children whom the law was designed to protect. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Adult child's complaint against her alleged father's estate to establish paternity under this section was barred by res judicata based on her mother's action brought under former § 34-702 in 1980, although the child did not seek child support, and the prior action was dismissed for the mother's failure to appear at a hearing. Mathis v. Estate of McSpadden, 2012 Ark. App. 599 (2012).

Presumptions.

Neither Lord Mansfield's Rule, which provides that the declarations of a father or mother cannot be admitted to illegitimize the issue born after marriage, nor the presumption of legitimacy of children born during the wedlock of two persons, apply where the child is born out of wedlock. Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987).

Presumption of legitimacy of a child conceived, but not born, during marriage, is rebuttable. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Chancellor did not err in ordering a paternity test pursuant to this section, as public policy does not forbid the rebuttal of the presumption of legitimacy by paternity testing. Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional equal protection rights or due process rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Procedure.

Trial court erred in dismissing a paternity complaint on the basis of collateral estoppel or res judicata when the alleged biological father of the child was not a party, and was not in privy to a party, in an earlier divorce decree proclaiming the mother's husband to be the father of the child, and the matter of paternity had not been fully or fairly litigated in the earlier divorce action. State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001).

Standing.

A child conceived and born of a marriage, and thus presumed to be the child of the marital partners, has no standing to bring a paternity action. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997).

The presumption of legitimacy of a child born during marriage is the presumption to which reference is made in subdivision (3) of this section; the General Assembly has seen fit to preserve it as a bar to an action by a child born during a marriage. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997).

Because the legislature was presumed to have known of prior Supreme Court decisions when it amended this section, a putative father had standing to bring an action to determine the paternity of a child born to a woman married to another. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).

Father who moved to annul a 1966 adoption, on grounds the father was fraudulently induced into believing the child was the father's biological child, was adjudicated to be the biological father in the adoption decree and did not fit within the statutorily-defined group of individuals upon whom standing was conferred to challenge paternity; thus, the trial court properly denied the father's request for paternity testing. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003).

Father's argument that custodian of the child did not have standing to bring a paternity action was irrelevant as the plaintiff listed in all the pleadings was the Office of Child Support Enforcement (OCSE), and the OCSE had the authority under this section to bring a paternity action. Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983); In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991); State Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995).

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Case Notes

Child Support.

A putative father in a paternity case adjudged to pay less than the statutory minimum for the child's support was held not entitled to attack the validity of the paternity statute on the ground that it does not provide for a jury to fix the amount paid. Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098 (1932).

Jury Trial.

Since a paternity proceeding was essentially an action at law for the recovery of money, the appellant was entitled to a jury trial on the issues of fact. Waddell v. State, 235 Ark. 293, 357 S.W.2d 651 (1962).

Research References

Ark. L. Rev.

Blood Tests in Paternity Proceedings, 9 Ark. L. Rev. 395.

Recent Developments, 45 Ark. L. Rev. 257.

Recent Developments, Domestic Relations — Adoption, 57 Ark. L. Rev. 697.

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Note, Evidence — Criminal Law — Evidence of DNAFingerprinting Admitted for Identification Purposes in Rape Trial, 12 U. Ark. Little Rock L.J. 543.

Survey, Miscellaneous — Evidence, 13 U. Ark. Little Rock L.J. 384.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

U. Ark. Little Rock L. Rev.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

Constitutionality.

Trial court ruling that utilizing this section to allow blood tests in evidence only to exclude paternity was not a denial of equal protection and that blood tests would not be admitted to establish paternity was evidentiary and thus not an appealable order. Story v. Hodges, 272 Ark. 365, 614 S.W.2d 506 (1981).

In General.

The claim of child support enforcement against putative father was an original action to establish paternity, as opposed to an action to modify a paternity order under § 9-10-115, and the judge correctly found paternity pursuant to subdivision (a)(6)(B) of this section. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Statute granting trial courts authority to order a paternity test made an express distinction between the type of testimony required when the mother was alive and when the mother was deceased; subdivision (a)(2)(A) of this section instructs that, upon motion of either party in a paternity action when the mother was deceased or unavailable, the trial court could order the putative father and child to submit to scientific testing for paternity. Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

Where the putative father and the child's mother had a brief romantic relationship, he did not know the mother was pregnant and did not see or talk to her after the encounter, and at the time an adoption petition was filed he had not registered with the putative-father registry, the putative father was not statutorily entitled to notice of the adoption proceeding. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Additional Tests.

Though subdivision (a)(5) of this section does not explicitly provide procedures for requesting additional court-ordered tests, the statute also does not exclude such a possibility; in light of the legislative intent that paternity of the children be established in the most expedient manner for all children of Arkansas, the circuit courts have wide discretion to take actions to resolve the question of paternity and may require a party requesting an additional paternity test to prove that the first test was defective before the court can compel a second paternity test. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Section 9-10-103 applies to paternity tests ordered by the Office of Child Support Enforcement and not to tests ordered by the court; this section specifically deals with court-ordered paternity tests and, more importantly, while some language in § 9-10-103 incorporates the procedures of this section, there is no language in this section incorporating the protections of § 9-10-103. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Admissibility.

The trial court erred in allowing into evidence two blood tests which did not exclude defendant as being the father, for the purpose of showing that he was the father. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980).

Fact of refusal to take blood test is admissible. Cox v. Farrell, 292 Ark. 177, 728 S.W.2d 954 (1987).

Blood tests inadmissible where person who verified test results did not perform them. This section requires that person performing blood test make verification thereon. Tolhurst v. Reynolds, 21 Ark. App. 94, 729 S.W.2d 25 (1987).

Where a paternity test was required to be notarized under subdivision (a)(5)(A) of this section, it was a self-authenticating document under Ark. R. Evid. Rule 902(8) and plaintiff was not required to produce any extrinsic evidence of authenticity as a condition precedent to admissibility. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Appeals.

In a suit alleging paternity, an order for the defendant to report for paternity blood testing under this section is not final, and therefore not appealable under Ark. R. App. P. Civ. 2(a). Helton v. Ark. Dep't of Human Servs., 309 Ark. 268, 828 S.W.2d 842 (1992).

Burden of Proof.

In a paternity proceeding brought against a living putative father, the mother's burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992); Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

A Roche blood-test report finding a 99.98% probability that defendant was the father of plaintiff's child, along with the corroborating testimony of plaintiff, constituted a prima facie case of establishment of paternity; defendant had the burden of rebutting this proof. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

If the results of the paternity tests conducted pursuant to subdivision (a)(2) of this section establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child, and there is corroborating testimony concerning the conception, birth, and history of the child, a prima facie case of establishment of paternity is created, and the burden of proof shall shift to the putative father to rebut such proof. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Certification.

Although subsection (a) of this section was amended to allow for certification by an expert under whose supervision or direction the test has been performed, the statements by the signatory of the report, that she was a director of the laboratory and that she had read the report, also fell short of meeting the foundational prerequisites for admission under the amended version. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Chain of Custody.

Like a challenge of the test procedures or results pursuant to subdivision (a)(5)(A) of this section, subdivision (a)(5)(B)(i) of this section requires a contest on chain-of-custody grounds within 30 days of trial. Parks v. Ewans, 316 Ark. 91, 871 S.W.2d 343 (1994).

Circuit court did not err when it admitted the seven appellees' reports of DNA test results into evidence, after finding substantial compliance with subdivision (a)(5)(B) of this section, and held that decedent was appellees' biological father, rejecting the contention of decedent's estate that strict compliance with the statutory requirements concerning chain-of-custody affidavits was required. All of the DNA test results contained supporting documentation of the collection and receipt of the samples at the testing facility, the packages containing the DNA specimens were examined for integrity upon receipt at the lab, and there was no sign of tampering during transit; and the case did not involve any challenge to the authenticity of the DNA test results or any allegation of tampering. Johnson v. Johnson, 2020 Ark. App. 9, 593 S.W.3d 33 (2020).

Corroboration.

Since subdivision (a)(6)(A) of this section requires corroborating testimony of access from the mother, where mother's affidavit providing corroboration was not proffered, the statutory presumption never arose. State v. Rogers, 50 Ark. App. 108, 902 S.W.2d 243 (1995).

Cross-Examination.

The trial court was correct in ruling that laboratory report was not admissible, since the persons who performed the blood tests at the laboratory were not available for cross-examination. Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985).

Evidence.

Although putative father attempted to rebut the evidence of paternity by offering the Affidavit of Birth Out of Wedlock and birth certificate as evidence that someone else was the father, his rebuttal failed, because under the law applicable when those documents were executed, they constituted presumptive evidence of paternity only, not conclusive evidence. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Expert Witnesses.

In a paternity action, no prejudicial error found in plaintiff's examination of expert witness who administered blood test. Bradley v. Houston, 12 Ark. App. 351, 676 S.W.2d 746 (1984).

Ark. R. Civ. P. Rule 26(e), regarding supplementation of responses concerning expert witness, did not apply where court had ordered defendant and child to undergo blood tests. Bradley v. Houston, 12 Ark. App. 351, 676 S.W.2d 746 (1984).

Defendant failed to request expert witness's appearance within a reasonable time prior to trial where defendant made the request to cross-examine the expert who lived out-of-state only six business days before trial. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Foreign Judgment.

As the North Carolina courts would give res judicata effect to its finding of paternity in a divorce judgment in its courts, the Arkansas court was required to do likewise under the constitutional command of full faith and credit in denying the defendant's motion for blood testing. Benac v. State, 34 Ark. App. 238, 808 S.W.2d 797 (1991).

Defendant failed to request expert witness's appearance within a reasonable time prior to trial where defendant made the request to cross-examine the expert who lived out-of-state only six business days before trial. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Genetic Testing.

In light of the fact that recently developed genetic testing can, with a high degree of certainty, identify the father of a child, and be viewed as conclusive by the fact-finder in paternity suits, strict adherence to the statutory foundational prerequisites is not unreasonable. Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990).

Circuit court did not err in denying the request for an additional paternity test because the Office of Child Support Enforcement presented no evidence that the first paternity test was untrustworthy or defective; however, the circuit court did not expressly determine that a dismissal with prejudice was in the best interests of the child as, at the time of the trial, paternity had not been established for the child and the only effect of a dismissal with prejudice was to permanently exclude appellee from further paternity testing. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Identity of Test-Giver.

Although the chancery court has broad discretion in determining whether blood test reports should be admitted into evidence, chancellor abused his discretion by admitting report that contained nothing to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert, and was signed by the laboratory director and scientific director respectively, but did not indicate that these two men performed the test or that they were qualified experts. Boyles v. Clements, 302 Ark. 575, 792 S.W.2d 311 (1990).

Blood test inadmissible where there was nothing in the report to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert. Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990).

Notice of Objection.

Putative father was not required to give 30 days' notice in order to object to admission of a blood test report; such notice is required only where the chain of custody, test procedures, or results are contested. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Paternity of Deceased Child.

Father's petition to establish paternity to a deceased child through DNA testing pursuant to this section was properly dismissed under Ark. R. Civ. P. 12(b)(1) and (6) as there was no provision in the statute for establishing paternity when it was the child who was deceased. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781 (2011).

Right to Counsel.

Putative father's physical liberty was not in jeopardy at the initial hearing when he was ordered to submit to a paternity test; thus, he was not guaranteed the right to counsel in the paternity proceeding. Burrell v. Ark. Dep't of Human Servs., 41 Ark. App. 140, 850 S.W.2d 8 (1993).

Sufficiency.

Evidence of blood tests was sufficient to establish that husband was not father of wife's child. Richardson v. Richardson, 252 Ark. 244, 478 S.W.2d 423 (1972).

Where the blood tests showed a 99.27% probability that the putative father was the father, he was living with the mother during the probable period of conception, and the mother stated she was not involved with anyone else at that time, this evidence gave her a statutory presumption of paternity. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

Blood test showing a 99.59% probability that defendant was the natural father, coupled with the mother's testimony regarding access during the probable period of conception, gave rise to a statutory presumption of paternity which was not rebutted by the father. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Where written blood test report did not comply with the foundational prerequisites set forth in subdivision (a)(5)(A), it could not be admitted into evidence. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Cited: George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969); Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Laden v. Morgan, 303 Ark. 585, 798 S.W.2d 678 (1990); Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Davis v. Child Support Enforcement Unit, 326 Ark. 677, 933 S.W.2d 798 (1996); Blankenship v. Office of Child Support Enforcement, 58 Ark. App. 260, 952 S.W.2d 173 (1997); In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004).

Research References

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Family Law, 17 U. Ark. Little Rock L.J. 557.

Case Notes

Construction.

Subdivision (a)(1) of this section and § 9-10-113(a) are congruous; the finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Attorney's Fees.

Both subsection (a) of this section and § 9-27-342(d) provide a statutory basis for awarding attorney's fees in paternity actions. Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993).

The plain language of subdivision (a)(1) of this section limits an award of attorney's fees to proceedings in which the court finds the putative father to be the father of the child. Child Support Enforcement Unit v. Haller, 50 Ark. App. 10, 899 S.W.2d 485 (1995).

Where there was no finding that party was the father of the child, subdivision (a)(1) of this section does not provide a statutory basis to award attorney's fees. Child Support Enforcement Unit v. Haller, 50 Ark. App. 10, 899 S.W.2d 485 (1995).

Trial court did not abuse its discretion in denying mother's motion for attorney's fees in a paternity action; the trial court considered the proper factors in deciding the mother's attorney's fee motion and she failed to show an abuse of discretion by the trial court. Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004).

Burden of Proof.

Fathers of illegitimate children should certainly bear the same burden as fathers of legitimate children born of marriage. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Custody.

Each parent has the right to request a change in custody; it is then that party's burden to show that there has been a change in circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interests of the child. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

It is not an unfair burden to require the biological father to prove a change of circumstances when the law presumes the child shall be in the custody of the mother and the paternity order establishes visitation. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Joint Custody.

“Favored” status of joint custody specifically applies in divorce cases rather than custody cases involving children born to unmarried parents but this section expressly provides that, once paternity has been established, the court is ordered to follow “the same guidelines, procedures, and requirements … as if it were a case involving a child born of a marriage in awarding custody [and] visitation.” Accordingly, in a case concerning custody of a child born to unmarried parents, the circuit court did not err in recognizing that joint custody is “favored” under § 9-13-101. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Once paternity is established, the presumption of awarding custody to the mother is erased, and the biological father is afforded the same right to establish a parental and custodial relationship with the child to which a married parent is entitled. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Jurisdiction.

Where defendant was found to be father of child in paternity case and ordered to pay support and mother subsequently filed a petition under the Revised Uniform Enforcement of Support Act seeking modification of support order, petition was to be treated just as though it were a child support proceeding subsequent to a divorce, and in such a case, the chancery court that granted the divorce is the court that has continuing jurisdiction to modify the original allowance of child support. White v. Winston, 302 Ark. 345, 789 S.W.2d 459 (1990).

Modifications.

This section authorizes modifications from time to time in the continuing order of support but it does not authorize a modification of a finding of paternity. Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982).

Public Policy.

Insofar as the agreement represented an attempt to permanently deprive the child of support, it was void as against public policy. Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991).

Cited: Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Rudolph v. Floyd, 309 Ark. 514, 832 S.W.2d 219 (1992); Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994); Doughty v. Douglas, 2017 Ark. App. 445, 527 S.W.3d 732 (2017).

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Case Notes

Constitutionality.

This section does not discriminate on the basis of sex and does not violate the equal protection clause. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Purpose.

The major purpose of Arkansas' filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Counsel.

While the statutes provide that the prosecuting attorney shall conduct the suit on behalf of the state on all appeals to the circuit court in cases of paternity, this does not mean that the mother of the child cannot have an attorney to represent her nor does it mean that the suit must be dismissed if the prosecuting attorney does not appear in the case. Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953).

Determination of Liability.

Father has no vested right to have his liability determined by law as it existed when the child was born; this is not an ex post facto law. State ex rel. Woolems v. Davis, 178 Ark. 692, 11 S.W.2d 479 (1928).

Discretion of Court.

The trial court has discretion in assessing the amount of any awards made under this section. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

The court, in awarding lying-in expenses or attorney's fees under this section, may exercise its discretion in determining the amount that father should bear, and in doing so, it may even consider the mother's financial means when making an award. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Proof.

A judgment awarding lying-in expenses and maintenance of the child would not be reversed because there was no proof as to the amount of the expenses. Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910).

Trial court did not err in denying some of the expenses included in mother's claim for lying-in expenses as this section includes expenses directly connected to the birth of a healthy infant and does not normally include items such as maternity clothes, lost wages, or counseling that are for the benefit of the mother; further, this section allows expenses to be paid to the person incurring the expense and the trial court would have considered a claim for medical expenses paid by the prospective adoptive parents, however, the mother failed to provide proof that she incurred the medical expenses allegedly paid by the adoptive parents. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court did not err in disallowing counseling expenses where nothing in the record indicated that the counseling was for her baby. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court did not err in disallowing expenses for maternity clothes since no Arkansas cases considered maternity clothes as lying-in expenses. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court did not err in disallowing medical expenses that had been paid by prospective adoptive parents where the mother failed to adequately prove that she had incurred the expenses allegedly paid. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court properly disallowed two medical bills for which a Medicaid claim was pending where the mother failed to show that the expenses had either been paid or incurred. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Cited: Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982); Davis v. Child Support Enforcement Unit, 326 Ark. 677, 933 S.W.2d 798 (1996).

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Case Notes

Counsel.

While the statutes provide that the prosecuting attorney shall conduct the suit on behalf of the state on all appeals to the circuit court in cases of paternity, this does not mean that the mother of the child cannot have an attorney to represent her nor does it mean that the suit must be dismissed if the prosecuting attorney does not appear in the case. Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953).

Determination of Liability.

Father has no vested right to have his liability determined by law as it existed when the child was born; this is not an ex post facto law. State ex rel. Woolems v. Davis, 178 Ark. 692, 11 S.W.2d 479 (1928).

The trial court was not limited to amounts actually expended for past support. Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992).

Modification.

A general reservation of jurisdiction, in the absence of fraud or another ground listed under Ark. R. Civ. P. 60(c), will permit modification of a decree after 90 days only with respect to issues that were before the court in the original action. Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993).

Noncompliance.

Commitment of the putative father of an illegitimate child to jail indefinitely for failure to pay sums to the prosecuting witness and to furnish bond was held erroneous where the evidence disclosed that it was impossible for him to comply with the order of the county court. Hemby v. State, 188 Ark. 586, 67 S.W.2d 182 (1934).

Police Power.

Imprisonment under this statute is an exercise of police powers and not for debt. Land v. State, 84 Ark. 199, 105 S.W. 90 (1907).

Retroactive Support.

Circuit court erred in declining to award retroactive child support where the basis for its decision, i.e., that the father had not been able to have visitation with the child since birth, was in violation of subsection (a) of this rule; in addition, Arkansas caselaw is clear that a parent's child-support obligation does not depend on the parent's relationship or visitation with the child. Walden v. Jackson, 2016 Ark. App. 573, 506 S.W.3d 904 (2016).

Trial court clearly erred in failing to award the mother child-support arrearages for the period between the date when the father stopped providing voluntary support for the child to the date the father filed his petition to establish paternity as the father had never disputed his paternity and had paid child support or shared expenses previously. Henderson v. Johnston, 2017 Ark. App. 620, 534 S.W.3d 196 (2017).

Trial court clearly erred in abating the father's child-support obligation for the period the mother and child were living in another country as the obligation for child support did not depend on the father's relationship or visitation with the child. Henderson v. Johnston, 2017 Ark. App. 620, 534 S.W.3d 196 (2017).

Circuit court abused its discretion by determining not to award any amount of retroactive support because an award of retroactive child support from the date of the child's birth is statutorily required. Furthermore, while the creation of a trust or educational savings account is a deviation factor under the Arkansas Child Support Guidelines, the court cannot order the creation of such accounts in lieu of an award of retroactive support. Szwedo v. Cyrus, 2019 Ark. App. 23, 570 S.W.3d 484 (2019).

Cited: Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910); Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982); Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

Research References

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Case Notes

Cited: Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992); Ark. Dep't of Human Servs. v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Arkansas Law Survey, Price, Civil Procedure, 9 U. Ark. Little Rock L.J. 91.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Seventeenth Annual Survey of Arkansas Law — Family Law, 17 U. Ark. Little Rock L.J. 557.

Case Notes

In General.

Under this section, a biological father may petition for custody, provided that he has established paternity. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Trial court did not procedurally err in considering the mother's evidence of her fitness to have custody of the child where although the mother had not filed an affirmative pleading in response to the biological father's temporary custody action, custody of the child was with the mother under this section, and thus, permanent custody was the issue to be decided at the final hearing. Deaton v. Morgan, 2014 Ark. App. 521, 443 S.W.3d 580 (2014).

Trial court did not clearly err in granting custody of the child to the mother where the testimony concerning the mother's living situation, her employment, and her attentiveness to the child did not leave the appellate court with a definite and firm conviction that a mistake had been made. Deaton v. Morgan, 2014 Ark. App. 521, 443 S.W.3d 580 (2014).

Construction.

Section 9-10-109(a)(1) and subsection (a) of this section are congruous; the finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Best Interest of Child.

Trial court did not err in awarding custody of the parties' child to the mother. There was evidence that the mother had been the primary caregiver during the child's life and was able to provide a suitable home with help from family members to care for the child. Smith v. Hudgins, 2014 Ark. App. 150, 433 S.W.3d 265 (2014).

Burden of Proof.

Each parent has the right to request a change in custody; it is then that party's burden to show that there has been a change in circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interests of the child. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Fathers of illegitimate children should certainly bear the same burden as fathers of legitimate children born of marriage. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Change in Circumstances.

It is not an unfair burden to require the biological father to prove a change of circumstances when the law presumes the child shall be in the custody of the mother and the paternity order establishes visitation. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

The chancellor did not err by charging father with showing a change of circumstances since the last custody order, which the chancellor deemed the initial determination of paternity, and adding this to the three requirements listed in subsection (c) of this section, since a “material change of circumstances” is required in other change of custody cases. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Where a child was born outside of marriage and the father petitioned for a change of custody so that he could gain custody, although the appellate court had doubts about the father's alleged drug use, the circuit court, after weighing the evidence, properly decided that evidence existed to support a finding of changed circumstances, and determined that awarding custody of the child to the father was in the child's best interests. Cranston v. Carroll, 97 Ark. App. 23, 242 S.W.3d 643 (2006).

Order awarding custody of an illegitimate child to the child's father was upheld where the trial court did not err in not requiring the father to prove a material change of circumstances prior to the entry of the custody order; although an original visitation order did not set a future date for a custody hearing, the order was temporary in nature because it did not resolve the issue of custody. Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007).

In a petition for protection, paternity, and custody, a father, before being awarded custody of his minor daughter, was not required to show a material change of circumstances under this section because no order had been entered regarding custody until the father filed his petition. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437 (2010).

Trial court erred in requiring a biological father to prove a material change of circumstances in order to obtain custody of his two children because it was an initial custody determination with the paternity action, not a change of custody action. Lane v. Blevins, 2013 Ark. App. 270 (2013).

In a custody case involving a child born to unmarried parents, a father was not required to establish a material change of circumstances; because the father filed his petition for custody before paternity was established, and a subsequent June 11, 2013, order was temporary in nature, the father only had to meet the three requirements in this section to be awarded custody. Moreover, the mother initially exhibited a lack of regard for the father's opportunity and time to be with the child, an award of joint custody was in the best interest of the child, and both parties were appropriate for the placement of the child in their care and custody. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Father of an out-of-wedlock child was required to plead and establish a material change of circumstances where a paragraph in the initial paternity judgment stated that the mother had custody until a subsequent order placed the child in the custody of another person or the child turned 18, whichever was later, that paragraph was an enforceable judicial determination that clearly established custodial rights even though it was silent as to the father's visitation rights, and nothing in the order indicated that it was temporary. Rivers v. DeBoer, 2019 Ark. App. 132, 572 S.W.3d 887 (2019).

Custody to Father.

Circuit court was in the best position to judge the witnesses' credibility in what was essentially a swearing match about who would be the better custodial parent, and the appellate court deferred to the circuit court's decision granting custody of the parties' daughter born out of wedlock to the father. The circuit court's rulings banning alcohol, drugs, and cohabitation by unwed or non-blood relatives adequately addressed any other issues about the father's custody being in his daughter's best interest. Medina v. Roberts, 2010 Ark. App. 165 (2010).

In a petition for protection, paternity, and custody, the trial court properly awarded custody of the parties' minor daughter to the father because the evidence showed that the mother's temper scared her daughter, that the mother attempted to commit suicide, and that the father was an exceptional parent. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437 (2010).

Order granting custody of the parties' child to the father following a finding of paternity was proper because the circuit court's finding that it was in the child's best interest to be in the custody of the father was not clearly erroneous. Although the circuit court recognized the mother's homosexual relationship, it was her “lifestyle choices” that resulted in the decision to award custody to the father, including the fact that she was not employed and was not progressing academically in college and yet she left the child in daycare. Brimberry v. Gordon, 2013 Ark. App. 473 (2013).

Trial court properly awarded custody to a father because he established his paternity, had provided housing and support for the child since her birth, and the mother failed to preserve her arguments regarding any “material change in circumstances.” Abo v. Walker, 2014 Ark. App. 500 (2014).

Custody to Third Party.

An award of custody of a child to the child's grandmother, with liberal visitation to the father was appropriate, where (1) the biological mother surrendered custody to the grandmother, (2) the father never voluntarily established his paternity and failed to assume his responsibilities toward the child for over 3 years, (3) the father recognized the difficulties he and his wife would face if there was an immediate removal of the child from the only home she had known, and (4) the grandmother also had custody of a half-sister of the child. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998).

Joint Custody.

“Favored” status of joint custody specifically applies in divorce cases rather than custody cases involving children born to unmarried parents but § 9-10-109 expressly provides that, once paternity has been established, the court is ordered to follow “the same guidelines, procedures, and requirements … as if it were a case involving a child born of a marriage in awarding custody [and] visitation.” Accordingly, in a case concerning custody of a child born to unmarried parents, the circuit court did not err in recognizing that joint custody is “favored” under § 9-13-101. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

In awarding a biological father joint custody and increased visitation time with a child born out of wedlock, the circuit court did not improperly predicate its child custody ruling on § 9-13-101(a)(1) where it simply acknowledged the favored status joint custody received under that statute. Gibson v. Keener, 2016 Ark. App. 363, 498 S.W.3d 760 (2016).

Circuit court did not err in finding a material change in circumstances to warrant a change of custody where the evidence showed that the father's relationship with the child had blossomed into a parent-child relationship that had not yet begun at the time of the last custody order, and although there was conflicting testimony on the father's alcohol use and how much involvement he had with the child's care, the evidence supported the circuit court's conclusion that the mother and father were reasonable parents capable of co-parenting. Gibson v. Keener, 2016 Ark. App. 363, 498 S.W.3d 760 (2016).

Parental Fitness.

The chancellor was clearly justified in denying father's motion to change custody where the clear evidence established that he had not assumed the responsibilities specified in subdivision (c)(2) of this section, even if he was deemed a fit parent in other respects. State Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998).

Court properly awarded custody of child to the father where paternity was established, the father paid child support and was a fit parent, the mother was unemployed, and she failed to aid the facilitation of a relationship between the father and the child. Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004).

Court erred by awarding child custody to a father because the mother lived within her means, was receiving child support, was receiving legitimate governmental aid, and managed to run an independent household where she could be a full-time parent. Although the father had held down a full-time job for several years, had his family to support his parenting, and had taken responsibility for the child, he lived with his parents, he had a sister who could not be left alone with the child due to drug-abuse concerns, and he had no experience in raising a child. Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788 (2007).

Trial court properly awarded custody of a child to his biological father, pursuant to subsection (a) of this section, where the father had a clean, stable, loving environment for the child; the child suffered from a dog bite wound and had dirty hygiene while in the care of his mother, whose religious beliefs and mental health were factors in the trial court's assessment of the child's best interests. Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008).

Presumption of Custody.

Before 1987, no provisions for presumption of custody were in this section, and either parent of an illegitimate child could petition for custody under the same three criteria; however, in 1987, the legislature changed this section be adding a presumption of custody in the mother and leaving the father with the right to seek custody after establishing paternity. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

The order establishing paternity gave the statutory presumption the effect of judicial determination. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Implicit in an order of paternity establishing visitation is a determination that custody should continue to rest in the mother. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Relation to Divorce Cases.

In a divorce case, a wife's argument under this section relating to children that were born out of wedlock was rejected because this section is part of the Paternity Code, and its applicability did not extend to divorce decrees; moreover, the husband alleged that he was the father of the children born out of wedlock in his divorce complaint, the allegation was uncontested by the wife, and the divorce decree stated that the husband was the father. Villanueva v. Valdivia, 2016 Ark. App. 107, 483 S.W.3d 308 (2016).

Venue.

The fact that the legislature provided for venue in two counties in § 9-10-104 (rewritten by 1989 amendment), which governs suits brought by a father to determine paternity, but only one county in this section, demonstrates that this section was intended to limit venue in custody actions to the county wherein the child resides. Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983).

Mother properly raised a venue argument in her first responsive pleading; however, the issue was without merit because the provisions of this section were inapplicable in a case where a minor child no longer resided in Arkansas. Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Jarmon v. Brown, 286 Ark. 455, 692 S.W.2d 618 (1985); Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996); Leach v. Leach, 57 Ark. App. 155, 942 S.W.2d 286 (1997); Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005).

Research References

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Case Notes

Contempt Power.

A chancery court has the power to use its contempt power to enforce its order awarding visitation to a stepparent in the context of a divorce decree. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981).

Research References

Ark. L. Rev.

Case Note, Child Support Supported: Policy Trumps Equity in Martin v. Pierce Despite Fraud and a Controversial Amendment to the Paternity Code, 61 Ark. L. Rev. 571.

Rachel A. Orr, Recent Developments: Putative Father Entitled to Paternity Test Only During the Period of Time That He Is Required to Pay Child Support, 65 Ark. L. Rev. 517 (2012).

Brittany Horn, Case Note: Who's Your Daddy? State v. Perry and Its Impact on Paternity and the Rights of Adjudicated Fathers in Arkansas, 66 Ark. L. Rev. 1059 (2013).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Purpose.

The major purpose of Arkansas' filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Previously adjudicated or acknowledged father could not be relieved of past-due child support as this statute only refers to relief from any future obligation of support and the duty to pay child support and other legal obligations is not suspended while a motion challenging the adjudication of paternity is pending; the legislature did not intend for a previously adjudicated or acknowledged father to be relieved of past-due child support upon a finding that he was actually not the legal father. State Office of Child Support Enforcement v. Parker, 368 Ark. 393, 246 S.W.3d 851 (2007).

Applicability.

Because this section should not be applied retroactively, the voluntary acknowledgment of paternity was not conclusive by operation of law under the law as it existed in 1990, and paternity was not established that would trigger the running of the statute of limitations of the former law. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Although this section had been amended, it did not overrule an appellate court decision concluding that the statute did not apply when paternity became an issue after a divorce decree had been entered. Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007).

Order holding that appellee was not the biological father of a child, setting aside an order of paternity, setting aside orders for child support, and vacating the outstanding amounts of child support was proper because the trial court applied the version of this section in effect at the time the written order was filed. Wesley v. Hall, 104 Ark. App. 50, 289 S.W.3d 143 (2008).

Authority to Modify.

A judgment may be modified only by the court which ordered it and not by any other court, especially not by a court of inferior jurisdiction. Rose v. Mahan, 29 Ark. App. 93, 777 S.W.2d 864 (1989).

The chancery court did not have the authority to grant a putative father's motion for a paternity test, and later to set aside the paternity judgment, twelve years after the original adjudication of his paternity was entered upon his failure to comply with the testing requirements. Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996).

Discretion of Court.

The trial court has discretion in assessing the amount of any awards made under this section. The court, in awarding lying-in expenses or attorney's fees under this section, may exercise its discretion in determining the amount that father should bear, and in doing so, it may even consider the mother's financial means when making an award. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

The claim of child support enforcement against putative father was an original action to establish paternity, as opposed to an action to modify a paternity order under this section, and the judge correctly found paternity pursuant to § 9-10-108(a)(6)(B). Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Effect of Amendments.

If Acts 1995, No. 1091 were applied to any type of “acknowledgment of paternity” signed before the act's effective date, a new obligation would be created and the man signing the form, by operation of law, would become the father conclusively, when before Acts 1995, No. 1091 was passed, such evidence could only be used as persuasive, presumptive evidence of paternity. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Jurisdiction.

Default judgment in a child support case should have been set aside because service was unquestionably defective where it was effectuated upon a purported father's brother; therefore, a circuit court abused its discretion when it took any action other than a dismissal of the case under Ark. R. Civ. P. 4(i). The father's subsequent participation in enforcement proceedings, including his act of filing for paternity testing, did not validate the void judgment. Foury v. Office of Child Support Enforcement, 99 Ark. App. 341, 260 S.W.3d 328 (2007).

Legislative Intent.

All legislation is intended to act prospectively unless the purpose and intent of the legislature is to give the statutes retroactive effect which is expressly declared or necessarily implied from the language used. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Modification Denied.

A petition for modification will be denied where the change in financial condition is due to the fault, voluntary wastage, or dissipation of one's talents or assets, or where the means with which to pay were reduced or eliminated by criminal activity. Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997).

Motion to Transfer.

Trial court erred in granting mother's motion to transfer a custody action because there was evidence that the father never established a residence outside of the first county, as contemplated by § 9-10-102(f)(1)(B)(i); thus, on father's motion to vacate, the trial court should have vacated the transfer under subsection (a) of this section rather than grant father a directed verdict under Ark. R. Civ. P. 60(a). Stephens v. Miller, 91 Ark. App. 253, 209 S.W.3d 452 (2005).

Paternity Testing.

Where a default judgment was entered in paternity proceedings and the adjudicated father's support obligation was established in 1995, the Office of Child Support Enforcement instituted proceedings in 2005 to recover support arrearages, and the adjudicated father requested a paternity test, the circuit court erred in granting the father's motion because the father's motion was untimely. Subdivision (e)(1)(A) of this section allows an adjudicated father one paternity test during any time period in which he is required to pay child support and the father's child support obligation terminated under § 9-14-237 when the child reached the age of majority. State v. Perry, 2012 Ark. 106 (2012).

Period of time that the father was required to pay child support ended under § 9-14-237 when the child turned 18; likewise, the period of time in which the father could seek a paternity test also ended when the child turned 18. State v. Perry, 2012 Ark. 106 (2012).

Retroactive Modification.

Since this section plainly directs the court to relieve the alleged father of only future obligation of support, an adjudicated father, later determined not to be the biological father, was not entitled to a refund of the support paid. State v. Phillippe, 323 Ark. 434, 914 S.W.2d 752 (1996).

An adjudicated father who was shown by scientific evidence not to be the biological father of the child in question was not entitled to relief from back child support under the statute since there was no evidence or contention that he ever had physical custody of the child, as required by § 9-14-234. Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998).

Order that an alleged father was not obligated to pay the unpaid balance of his support obligation from the date of the order forward pursuant to subdivision (f)(1)(C) of this section was affirmed because the circuit court correctly applied the amended version of this section and found that the alleged father's obligation had to be vacated. State v. Jones, 2009 Ark. 620 (2009).

Termination.

The changes in circumstances which gave rise to a previous modification of support cannot be used again as the basis for termination of support. Benn v. Benn, 57 Ark. App. 190, 944 S.W.2d 555 (1997).

Where scientific evidence proves that an adjudicated father is not, in fact, the biological father of the child in question, the statute mandates prospective relief from child support. Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998).

A paternity adjudication in a divorce decree is not affected by subsequent scientific testing which negates paternity. State Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999).

Cited: Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910); Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953); Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982).

Research References

Ark. L. Rev.

Lacey Johnson, Comment: Low-Income Fathers, Adoption, and the Biology Plus Test for Paternal Rights, 70 Ark. L. Rev. 1113 (2018).

Case Notes

Effect of Amendments.

If Acts 1995, No. 1091 were applied to any type of “acknowledgment of paternity” signed before the act's effective date, a new obligation would be created and the person signing the form, by operation of law, would become the father conclusively, when before Acts 1995, No. 1091 was passed, such evidence could only be used as persuasive, presumptive evidence of paternity. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Time of Execution.

Although §§ 20-18-408 and 20-18-409 were not in effect in 1990 when the “Affidavit of Birth Out of Wedlock” was signed, this section also allows a “similar acknowledgment” to suffice if it is executed during the child's minority. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Cited: Fox v. Ark. Dep't of Human Servs., 2020 Ark. App. 13, 592 S.W.3d 260 (2020).

Research References

ALR.

Validity and construction of surrogate parenting agreement. 77 A.L.R.4th 70.

Rights and obligations resulting from human artificial insemination. 83 A.L.R.4th 295.

Am. Jur. 41 Am. Jur. 2d, Illegitimate Children, § 2.

Ark. L. Rev.

Artificial Insemination, 23 Ark. L. Rev. 81.

C.J.S. 67 C.J.S., Parent & Child, § 6.

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 8 U. Ark. Little Rock L.J. 577.

Research References

Ark. L. Rev.

Brad Aldridge, Comment: A Constellation of Benefits and a Universe of Equal Protection: The Extension of the Right to Marry Under Pavan v. Smith, 72 Ark. L. Rev. 245 (2019).

Case Notes

Estoppel.

Finding that the husband was estopped from denying that twins conceived by artificial insemination were not his was proper even though the written consent required by § 9-10-202(b) had not been obtained because the husband knew the facts and acted as if he agreed to the procedure; further, he accepted the children as his own. Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003).

Even though father had been ordered to pay child support for children conceived through artificial insemination, collateral estoppel did not preclude him from raising the issue of consent in a subsequent action against a physician and a clinic alleging outrage and negligence because the issue was not dispositive in the divorce case. Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005).

Case Notes

Estoppel.

Finding that the husband was estopped from denying that twins conceived by artificial insemination were not his was proper even though the written consent required by subsection (b) of this section had not been obtained because the husband knew the facts and acted as if he agreed to the procedure; further, he accepted the children as his own. Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003).

Wrongful Birth.

Summary judgment was properly granted to a physician and a clinic in an outrage claim based on their failure to comply with subsection (b) of this section regarding an artificial insemination procedure on a wife because a wrongful birth action was not cognizable under Arkansas law. Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005).

Research References

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur. 52 Am. Jur. 2d, Marriage, § 1 et seq.

Ark. L. Rev.

Domestic Relations — Annulment by Parents When Minors Are Above Statutory Marriage Age, 8 Ark. L. Rev. 113.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

The Cause of Action for Annulment of Marriage in Arkansas, 14 Ark. L. Rev. 85.

The Uniform Marriage and Divorce Act: Analysis for Arkansas, 28 Ark. L. Rev. 175.

C.J.S. 14A C.J.S., Civil R, § 235.

38A C.J.S., Gifts, § 67.

55 C.J.S., Marriage, § 1 et seq.

65 C.J.S., Names, §§ 4-6.

Case Notes

Reputation.

Where record evidence had been destroyed by fire, reputation of marriage was admissible to establish legitimacy of issue. Farmer v. Towers, 106 Ark. 123, 152 S.W. 993 (1913).

Cited: Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).

Case Notes

Common-Law Marriage.

A common-law marriage is invalid in this state. Furth v. Furth, 97 Ark. 272, 133 S.W. 1037 (1911).

Consent of Parties.

If a man marries a woman through fear of the consequences of seduction, the marriage will, nevertheless, be valid. Honnett v. Honnett, 33 Ark. 156 (1878); Marvin v. Marvin, 52 Ark. 425, 12 S.W. 875 (1890).

Presumptions.

Where a man and woman are living together as husband and wife, a valid marriage is presumed. Fountain v. Fountain, 80 Ark. 481, 97 S.W. 656 (1906); Darling v. Dent, 82 Ark. 76, 100 S.W. 747 (1907).

Where a married man and a woman held themselves out as husband and wife, before and after his divorce, there was no presumption of a legal marriage. O'Neill v. Davis, 88 Ark. 196, 113 S.W. 1027 (1908).

Regulation.

Marriage is more than only a civil contract; it is a social and domestic relation subject to regulation under the state's police power. Dodson v. State, 61 Ark. 57, 31 S.W. 977 (1895).

Case Notes

Out-of-State Marriage.

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Parental Consent.

The Arkansas Code Revision Commission exceeded its authority when it altered the language of subsection (b) of this section to limit the right of a parent to consent to the marriage of a minor child. Porter v. Ark. Dep't of Health & Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008).

Cited: Barnett v. State, 35 Ark. 501 (1880).

Case Notes

Out-of-State Marriages.

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Cited: Barnett v. State, 35 Ark. 501 (1880).

Case Notes

Discretion of Court.

If parental consent is required for underage male or female, the trial court is entitled to exercise its discretion in determining whether marriage is to be set aside, since phrase “may be set aside” is used. Mitchell v. Mitchell, 219 Ark. 69, 239 S.W.2d 748 (1951).

Trial court did not abuse its discretion in refusing to set aside marriage where parties were underage, if neither party testified. Mitchell v. Mitchell, 219 Ark. 69, 239 S.W.2d 748 (1951).

Evidence of Nonconsent.

Evidence by parents of nonconsent to marriage was admissible under complaint by father to annul marriage of daughter where complaint alleged that daughter was underage and marriage was void. Warner v. Warner, 221 Ark. 939, 256 S.W.2d 734 (1953).

Out-of-State Marriage.

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Pregnancy.

Annulment of marriage of minor under the age of consent is not contrary to public policy notwithstanding wife's pregnancy. Hood v. Hood, 206 Ark. 1057, 178 S.W.2d 670 (1944).

Unclean Hands Doctrine.

Theory of unclean hands is not applicable to action to annul marriage on grounds of nonage, even though party seeking relief made false statement as to age in affidavit for marriage. Hood v. Hood, 206 Ark. 1057, 178 S.W.2d 670 (1944).

Cited: Barnett v. State, 35 Ark. 501 (1880).

Case Notes

Out-of-State Marriage.

Though the marriage of an underage person is void by the laws of this state, if the person is married in another state where the common law prevails the marriage will be deemed valid here. Barnett v. State, 35 Ark. 501 (1880) (decision prior to 1964 amendment).

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Cited: Mitchell v. Mitchell, 219 Ark. 69, 239 S.W.2d 748 (1951).

Case Notes

First Cousins.

A marriage between first cousins does not create “much social alarm,” so that the marriage will be recognized if it was valid by the law of the state in which it took place. Etheridge v. Shaddock, 288 Ark. 481, 706 S.W.2d 395 (1986).

Where after divorce and awarding of custody of children to father, he married his first cousin and when they discovered that such marriages were prohibited in Arkansas had such marriage annulled and got married in state permitting such marriages and returned to Arkansas, such remarriage was not a sufficient basis for change of custody. Etheridge v. Shaddock, 288 Ark. 481, 706 S.W.2d 395 (1986).

Research References

Ark. L. Notes.

Watkins, A Guide to Choice of Law in Arkansas, 2005 Arkansas L. Notes 151.

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Same-Sex Marriage — United States District Judge Kristine Baker Declares Arkansas's Marriage Laws Unconstitutional, 67 Ark. L. Rev. 1111 (2014).

Case Notes

Constitutionality.

Arkansas law violated Due Process Clause and Equal Protection Clause of Fourteenth Amendment to the United States Constitution because it precluded same-sex couples from exercising their fundamental right to marry in Arkansas, refused to recognize valid same-sex marriages from other states, and discriminated on the basis of gender. Jernigan v. Crane, 64 F. Supp. 3d 1261 (E.D. Ark. 2014), aff'd 796 F.3d 976 (8th Cir. 2015).

Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Laws denying same-sex couples the right to marry are unconstitutional. Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015).

Common-Law Marriages.

A common-law marriage contracted in another state, and valid there, is valid here. Darling v. Dent, 82 Ark. 76, 100 S.W. 747 (1907); Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914); Estes v. Merrill, 121 Ark. 361, 181 S.W. 136 (1915).

Where parties cohabited in Arkansas and temporarily sojourned in a state where common-law marriage was recognized, they could not by that conduct alone become legally man and wife. Walker v. Yarbrough, 257 Ark. 300, 516 S.W.2d 390 (1974).

Common-law marriages are not permitted in Arkansas, but the state will recognize marriages contracted in another state which are valid by the laws of that state. One seeking to prove the existence of a valid common-law marriage in another state must do so by a preponderance of the evidence. Knaus v. Relyea, 24 Ark. App. 7, 746 S.W.2d 389 (1988).

Residency in a state in which a common law marriage may be created is necessary for the recognition of the common law marriage in Arkansas. Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993).

Trial court properly found that there was no common law marriage between a decedent and his alleged spouse, who had lived together in Alberta, Canada, because Alberta statutory law did not recognize such marriages and the decedent and alleged wife had not lived as married for three years in order to meet the Alberta case law definition; hence, under subsection (a) of this section there was no valid marriage that could be recognized in Arkansas. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Circuit court did not clearly err in finding that no common-law marriage existed between the parties, because the parties lived in Arkansas, which did not recognize common-law marriages, the wedding ceremony took place in Texas without obtaining a marriage license or certificate, and there was no evidence that the parties lived together in Texas after the ceremony. Crane v. Taliaferro, 2009 Ark. App. 336, 308 S.W.3d 648 (2009).

Indian Territory.

Laws relating to marriage in the Indian Territory must be proved. Johnson v. State, 60 Ark. 45, 28 S.W. 792 (1894).

Residency.

Circuit court properly granted comity to the marriage license issued to a son's mother and her husband in 1994 and denied the son's petition to quash the husband's motion to terminate the son's guardianship over his mother; while the husband and the mother never resided in Louisiana, it was undisputed that their marriage on a boat by a captain was valid under Louisiana law. Stovall v. Preston, 2018 Ark. App. 64, 539 S.W.3d 638 (2018).

Cited: Bickford v. Carden, 215 Ark. 560, 221 S.W.2d 421 (1949); Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952); May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004).

Case Notes

Abandonment.

Evidence inconsistent with the theory of abandonment. Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971).

Burden of Proof.

It is settled that neither the fact of death nor that of absence from the state can be inferred from the bare fact of a disappearance. Petitioner has the burden of producing evidence from which the court might fairly conclude that first husband had lived continuously outside the state for at least five years before the petitioner's second marriage. Baxter v. Baxter, 232 Ark. 151, 334 S.W.2d 714 (1960).

Presumptions.

Where the presumption of death was overcome by substantial evidence, the court was warranted in finding the subsequent marriage invalid. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914).

Presumption in favor of validity of second marriage does not apply if separation from first wife was by mutual consent. Watson v. Palmer, 219 Ark. 178, 240 S.W.2d 875 (1951).

Research References

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Same-Sex Marriage — United States District Judge Kristine Baker Declares Arkansas's Marriage Laws Unconstitutional, 67 Ark. L. Rev. 1111 (2014).

Case Notes

Constitutionality.

Arkansas law violated Due Process Clause and Equal Protection Clause of Fourteenth Amendment to the United States Constitution because it precluded same-sex couples from exercising their fundamental right to marry in Arkansas, refused to recognize valid same-sex marriages from other states, and discriminated on the basis of gender. Jernigan v. Crane, 64 F. Supp. 3d 1261 (E.D. Ark. 2014), aff'd 796 F.3d 976 (8th Cir. 2015).

Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Laws denying same-sex couples the right to marry are unconstitutional. Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015).

Research References

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur. 52 Am. Jur. 2d, Marriage, § 15 et seq.

Ark. L. Rev.

The Uniform Marriage and Divorce Act: Analysis for Arkansas, 28 Ark. L. Rev. 175.

C.J.S. 55 C.J.S., Marriage, § 27 et seq.

Case Notes

Foreign License.

Arkansas residents may legally contract marriage in Arkansas with a license issued by a foreign state since the statute providing for an Arkansas marriage license for persons contracting marriage in the state is directory and not mandatory, so that a marriage was valid when performed by a duly qualified minister on the Arkansas side of Texarkana for parties who were licensed on the Texas side of the city. De Potty v. De Potty, 226 Ark. 881, 295 S.W.2d 330 (1956).

Presumption of Legitimacy of Children.

The presumption of legitimacy of children born during wedlock is not overcome by evidence that a marriage license for the parents was never issued or recorded, since marriage license statutes are merely directory and not mandatory, and, although this section provides for the procurement of a license by those contracting marriage, Arkansas has no statute providing that a marriage is void when no license is obtained. Wright v. Vales, 1 Ark. App. 175, 613 S.W.2d 850 (1981).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Research References

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Same-Sex Marriage — United States District Judge Kristine Baker Declares Arkansas's Marriage Laws Unconstitutional, 67 Ark. L. Rev. 1111 (2014).

Case Notes

Constitutionality.

Arkansas law violated Due Process Clause and Equal Protection Clause of Fourteenth Amendment to the United States Constitution because it precluded same-sex couples from exercising their fundamental right to marry in Arkansas, refused to recognize valid same-sex marriages from other states, and discriminated on the basis of gender. Jernigan v. Crane, 64 F. Supp. 3d 1261 (E.D. Ark. 2014), aff'd 796 F.3d 976 (8th Cir. 2015).

The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Laws denying same-sex couples the right to marry are unconstitutional. Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015).

Cited: Smith v. Wright, 2014 Ark. 222 (2014).

Case Notes

Purpose.

This section was enacted for the protection of the county clerk and has nothing whatever to do with the annulment of marriages for failure to first obtain consent of parents or guardians. Witherington v. Witherington, 200 Ark. 802, 141 S.W.2d 30 (1940).

Annulment.

False statement as to age in affidavit for marriage license did not estop affiant from seeking to annul the marriage on ground of nonage. Hood v. Hood, 206 Ark. 1057, 178 S.W.2d 670 (1944).

Perjury.

Making false affidavit for license is perjury. Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924).

Research References

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Case Notes

Construction.

The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965).

Revocation of Credentials.

In a suit to enjoin a church organization and the county clerk from attempting to cancel licenses and credentials filed according to this section, civil courts will not assume jurisdiction of a dispute involving church doctrine or discipline unless property rights are involved. Kinder v. Webb, 239 Ark. 1101, 396 S.W.2d 823 (1965).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Construction.

The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965).

Case Notes

Construction.

The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965).

Notary Public.

A notary public has no authority to solemnize a marriage, and it is immaterial that he told the parties he could not marry them. Pearce v. State, 97 Ark. 5, 132 S.W. 986 (1910).

Case Notes

Construction.

Failure to comply with Arkansas's licensing statutes, as distinguished from the solemnization statutes, does not void an otherwise valid marriage. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001).

Marriage Upheld.

As a failure to do a ministerial act, i.e., to return a marriage license to the county clerk within 60 days of its issuance, could not render a marriage void, the parties had solemnized their marriage by a wedding ceremony, and the minister signed the marriage license, the trial court erred in ruling on summary judgment that the parties were not married. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Research References

Ark. L. Rev.

The Best Evidence Rule — A Rule Requiring the Production of a Writing to Prove the Writing’s Contents, 14 Ark. L. Rev. 153.

Documentary Evidence —Arkansas, 15 Ark. L. Rev. 79.

Case Notes

Rebuttal.

The evidence of marriage may be rebutted by proving that any circumstances rendered indispensably necessary by law to a valid marriage were wanting. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914).

Research References

ALR.

Parties' behavior during marriage as regarding contractual rights. 56 A.L.R.4th 998.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, § 81 et seq.

C.J.S. 41 C.J.S., Husb. & Wife, § 93 et seq.

Case Notes

Acknowledgment and Recordation.

Antenuptial contract neither recorded nor acknowledged was not invalid as between the parties and their privies and could be pleaded in bar of wife's claim of homestead, dower and statutory allowances. Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24 (1942).

Cited: Galbreath, Stewart & Co. v. Cook, 30 Ark. 417 (1875).

Research References

ALR.

Validity of Postnuptial Agreements in Contemplation of Spouse's Death. 87 A.L.R.6th 495.

Validity, Construction, and Enforcement of Oral Antenuptial Agreements. 15 A.L.R.7th Art. 2 (2015).

Case Notes

Burden of Proof.

Administrator of deceased husband's estate pleading antenuptial contract in bar to widow's claim of homestead, dower and statutory allowances had burden to prove that the contract had been knowingly entered into. Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24 (1942).

Evidence.

Under this section, a postnuptial marriage settlement must be in writing and oral statements to the contrary fell short of establishing a binding property settlement. Rush v. Smith, 239 Ark. 874, 394 S.W.2d 613 (1965).

Knowledge.

Antenuptial contract signed by woman, without knowledge of its provisions, was so unjust and unequitable as not to bar widow's claim. Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24 (1942).

Evidence sufficient to prove antenuptial agreement was knowingly entered into by the wife without any fraud or misunderstanding. Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

Woman not permitted to excuse her allegedly unknowing entry into an antenuptial agreement by saying she was “in love.” Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

Partial Performance of Parol Agreement.

A parol antenuptial agreement is not void but merely unenforceable; part performance subsequently acknowledged in writing rendered it enforceable. Sims v. Roberts, 188 Ark. 1030, 68 S.W.2d 1001 (1934).

Case Notes

Cited: Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

Case Notes

Cited: Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

Case Notes

Validity Between Parties.

Failure to record acknowledged antenuptial agreement did not affect its validity as between the parties and their privies. Davis v. Davis, 196 Ark. 57, 116 S.W.2d 607 (1938).

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Research References

ALR.

Modern status of views as to validity of premarital agreements contemplating divorce or separation. 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution. 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms. 53 A.L.R.4th 161.

Parties' behavior during marriage as regarding contractual rights. 56 A.L.R.4th 998.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract. 3 A.L.R.5th 394.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

Construction and Application of Uniform Premarital Agreement Act of 1983, 33 A.L.R.7th Art. 2 (2018).

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, § 81 et seq.

Ark. L. Rev.

Maria Korzendorfer, Case Note: In re Estate of Thompson: The Shortcomings of the Arkansas Elective Share Statute, 68 Ark. L. Rev. 1089 (2016).

C.J.S. 41 C.J.S., Husb. & W., § 93 et seq.

U. Ark. Little Rock L.J.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

U. Ark. Little Rock L. Rev.

Lucy L. Holifield, Note: Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 38 U. Ark. Little Rock L. Rev. 75 (2015).

Case Notes

In General.

Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law; such agreements must be made in contemplation of the marriage lasting until death, rather than in contemplation of divorce. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

An agreement that is not solely intended to be operative upon divorce is not void merely because it mentions or is operative upon divorce, among other contingencies. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Case Notes

Acknowledgement.

Trial court properly granted a wife summary judgment on her declaratory judgment action seeking to have a prenuptial agreement declared null and void where the parties to the agreement did not include an acknowledgement as required by this section, and the inclusion of the word “acknowledge” in the body of the agreement and notary signature and seal were not the equivalent of an acknowledgement. Lyle Farms P'ship v. Lyle, 2016 Ark. App. 577, 507 S.W.3d 519 (2016) (decision under prior law).

Research References

ALR.

Validity of Postnuptial Agreements in Contemplation of Spouse's Death. 87 A.L.R.6th 495.

Case Notes

Applicability.

This section does not apply to a postnuptial agreement and, thus, such an agreement was upheld as valid under contract elements where both parties waived and released any rights as a surviving spouse to elect to take against the other's will or to have any interest in the property of the deceased spouse. Stewart v. Combs, 368 Ark. 121, 243 S.W.3d 294 (2006).

Classification of Property.

Where the agreement clearly stated that property acquired subsequent to the marriage shall be owned jointly, with each party entitled to one-half ownership in any such property, the fact that the husband bought property with his own money did not make that property his separate property. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Disclosure.

Circuit court clearly erred in invalidating the premarital agreement under subdivision (a)(2) of this section and in finding that the wife had not received a fair and reasonable disclosure of the husband's assets where the exhibits attached to the agreement showed his approximate net worth and listed his personal and real property, as well as various investment accounts. Branch v. Branch, 2016 Ark. App. 613, 508 S.W.3d 911 (2016).

Failure to Read Agreement.

Wife's failure to read the proposed agreement before she signed it did not excuse her from its consequences. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Trial court did not clearly err in finding that the decedent's wife had voluntarily signed a premarital agreement; the trial court put the responsibility on the wife, a college-educated adult, for any alleged failure to read or comprehend the agreement as a choice made at her own peril. Mays v. Mullins, 2018 Ark. App. 200, 547 S.W.3d 474 (2018).

Legal Malpractice.

When the client sued the attorney in connection with the execution of a prenuptial agreement, her complaint was barred by the three-year statute of limitations for legal-malpractice claims under § 16-56-105; there was no written contract to bring the action under the five-year statute of limitations set forth in § 16-56-111. While the prenuptial agreement contained a certification that the document was not enforceable under this section if the party did not voluntarily and expressly waive further disclosures after consulting with legal counsel, this writing did not convey written obligations upon the attorney. Pounders v. Reif, 2009 Ark. 581 (2009).

Present Value.

The chancellor's finding of the total present value of all property acquired subsequent to the marriage was clearly against the preponderance of the evidence, where he failed to consider all property acquired subsequent to the marriage. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Presumption of Concealment.

Where the provisions for the wife are disproportionate to the means of the husband, a presumption arises that there has been a designed concealment, and such presumption places a burden on the husband to show by a preponderance of the evidence that the wife had knowledge of the character and extent of his assets, or ought to have had such knowledge at the time the agreement was signed. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

The presumption was overcome by proof that the husband made available to the wife a complete list of his assets, the value thereof, and his estimated net worth; there was evidence that, before the marriage, she had been on his farm; and she admitted that no pressure had been applied to force her to sign the agreement. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Unconscionability.

Trial court did not err in concluding that the premarital agreement was not unconscionable where the parties had equal bargaining power, and the agreement disclosed the decedent's premarital real estate with particularity. Mays v. Mullins, 2018 Ark. App. 200, 547 S.W.3d 474 (2018).

Research References

ALR.

Deed to persons described as husband and wife but not legally married. 9 A.L.R.4th 1189.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Validity and effect of one spouse's conveyance to the other spouse of interest in property held as estate by entireties. 18 A.L.R.5th 230.

Property rights arising from relationship of couple cohabiting without marriage. 69 A.L.R.5th 219.

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, § 11 et seq.

Ark. L. Rev.

Personal Property — Ownership of Wedding Gifts, 8 Ark. L. Rev. 184.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

Family Torts in Automobile Cases, 13 Ark. L. Rev. 299.

Torts and the Family — Areas of Liability, 14 Ark. L. Rev. 92.

Torts — Assault and Battery — Liability of One Who Aids and Abets Where Principal Assailant Not Liable, 15 Ark. L. Rev. 201.

Res Judicata — Privity Between Husband and Wife, 18 Ark. L. Rev. 103.

Note, Imputed Negligence Under the Arkansas Comparative Liability Statute, Exception: Stull, Adm'x v. Ragsdale, 35 Ark. L. Rev. 722.

Note, Attwood v. Estate of Attwood: A Partial Abrogation of the Parental Immunity Doctrine, 36 Ark. L. Rev. 451.

C.J.S. 41 C.J.S., Husb. & Wife, § 3 et seq.

U. Ark. Little Rock L.J.

Note, Torts — Negligence — Contributory Negligence of One Parent Is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child (Stull v. Ragsdale). 5 U. Ark. Little Rock L.J. 289.

Harris, The Arkansas Marital Property Statute and the Arkansas Appellate Courts: Tiptoeing Together Through the Tulips, 7 U. Ark. Little Rock L.J. 1.

Case Notes

Cited: Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

Case Notes

In General.

This section removed the common law disability of coverture, and repealed the saving clause in statute of limitations in a woman's favor. Hershy v. Latham, 42 Ark. 305 (1883); Batte v. McCaa, 44 Ark. 398 (1884); McGaughey v. Brown, 46 Ark. 25 (1885); Garland County v. Gaines, 47 Ark. 558, 2 S.W. 460 (1886).

Conduct of Business.

This section empowers a woman to become something more than a trader in the commercial sense. The primary signification of “business” is employment and includes farming. Hickey v. Thompson, 52 Ark. 234, 12 S.W. 475 (1889).

This section confers the right to conduct business in the way and by the means usually employed in carrying on business. Cooper v. Burel, 129 Ark. 261, 195 S.W. 356 (1917).

Contracts.

Husband and wife could not, by this section, contract between themselves. Spurlock v. Spurlock, 80 Ark. 37, 96 S.W. 753 (1906).

Obligations between husband and wife incurred before marriage were not extinguished by the marriage. McKie v. McKie, 116 Ark. 68, 172 S.W. 891 (1914).

Clearly, the law in Arkansas provides that a married person can contract in his or her own right; he or she can sue or be sued in his or her own right. Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

Partnership.

Wife may form a partnership in trade with any one, except her husband, and as to her separate estate, will be bound by all the contracts of the firm and to the same extent as if she were not married. Abbott v. Jackson, 43 Ark. 212 (1884).

Under this section wife could not form a partnership with her husband. Gilkerson-Sloss Comm'n Co. v. Salinger, 56 Ark. 294, 19 S.W. 747 (1892)

Suit Against Married Woman.

The husband need not be joined in a suit against the wife. Ark. Stables v. Samstag, 78 Ark. 517, 78 Ark. 517, 94 S.W. 699 (1906); Alphin v. Wade, 89 Ark. 354, 116 S.W. 667 (1909).

The burden of proof in an action seeking to enforce liability against a married woman is upon the plaintiff to show that the contract was one which she had the power to make. Hardin v. Jessie, 103 Ark. 246, 146 S.W. 499 (1912).

This section did not mean that in every instance a married woman must be sued alone. Williamson v. O'Dwyer & Ahern Co., 127 Ark. 530, 192 S.W. 899 (1917).

Case Notes

Construction with Other Law.

Where decedent and his surviving spouse were married for only four years, the trial court did not clearly err in finding that the transfer-on-death (TOD) account was the sole and separate property of decedent's three children by a prior marriage as the named beneficiaries of the TOD account; the funds used to purchase the account were gained as the result of the sale of decedent's business, which he acquired before his marriage to the surviving spouse and continued to hold as his separate property during the course of the marriage, and the surviving spouse admittedly had no ownership interest in the business, nor was their commingling of any funds between the surviving spouse and the decedent once they were married. Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Conveyance.

A wife may convey her separate estate as a femme sole and even though conveyance is without acknowledgment it would be valid between the parties. Johnson v. Graham Bros. Co., 98 Ark. 274, 135 S.W. 853 (1911).

Curtesy.

If a woman makes no disposal of her separate property and there is issue born alive of the marriage, at her death husband's right of curtesy attaches as at common law. Neely v. Lancaster, 47 Ark. 175, 1 S.W. 66 (1886). See also Percy v. Cockrill, 53 F. 872 (8th Cir. 1893); McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

Husband's right of curtesy is superior to claim of wife's creditors. Hampton v. Cook, 64 Ark. 353, 42 S.W. 535 (1897).

Liability for Debts.

The contracts of a married woman will not be enforced against her separate estate, unless they are made in reference thereto, or for her personal benefit. Stillwell v. Adams, 29 Ark. 346 (1874).

If the obligation is for improvement or preservation of the wife's estate, it will be implied that her property is liable for the debt. Henry v. Blackburn, 32 Ark. 445 (1877).

A married woman may contract for improvements upon her separate property and such a contract become the basis of a mechanic's lien for labor and materials. Hoffman v. McFadden, 56 Ark. 217, 19 S.W. 753 (1892).

Where husband was unable to pay on contract secured by a note executed by husband and wife to secure payment, the note was a valid obligation of the wife so far as it was for the benefit of her separate estate. Crenshaw v. Collier, 70 Ark. 5, 65 S.W. 709 (1901).

Case Notes

Cited: Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832 (1916).

Case Notes

Cited: Allen v. Hanks, 136 U.S. 300, 10 S. Ct. 961, 34 L. Ed. 414 (1890).

Case Notes

Divorce.

This section does not control on the issue of marital debt associated with division of property in a divorce case. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).

Cited: Mattar Bros. v. Wathen, 99 Ark. 329, 138 S.W. 455 (1911); Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

Case Notes

Purpose.

Failure to file a schedule will not enlarge the common law estate of a husband in his wife's property. The object of the statute was to increase the wife's rights and at the same time protect her husband's creditors. Coquard v. Pearce, 68 Ark. 93, 56 S.W. 641 (1900).

Exchanged Property.

Property for which scheduled property has been exchanged is not protected by the schedule. Berlin v. Cantrell, 33 Ark. 611 (1878).

Femme Sole.

Schedules can only be filed by a married woman, and a schedule filed by a femme sole will not avail upon her subsequent marriage. Berlin v. Cantrell, 33 Ark. 611 (1878).

Money.

A married woman is not required to schedule her money. German Bank v. Himstedt, 42 Ark. 62 (1883).

Cited: Taylor v. De Lapp, 181 Ark. 1147, 24 S.W.2d 862 (1930).

Case Notes

Cited: Wallace v. Watson, 140 Ark. 430, 215 S.W. 892 (1919).

Case Notes

Burden of Proof.

The burden is upon the husband to repel the presumption even though property paid for by the wife is taken in the husband's name. Gilbert v. Gilbert, 180 Ark. 596, 22 S.W.2d 32 (1929).

Presumption.

Evidence sufficient to support presumption that husband acted as the agent of the wife. Priddy v. Wood, 245 Ark. 209, 431 S.W.2d 744 (1968).

Rebutting Evidence.

This section does not require that the rebutting evidence should show a formal gift, it being sufficient if the proof shows that the wife's property was used by the husband in such manner as to preclude the idea that she expected him to account to her as her agent or trustee. Wyatt v. Scott, 84 Ark. 355, 105 S.W. 871 (1907).

Evidence sufficient to rebut presumption that husband acted as wife's agent. Jones v. Seward, 265 Ark. 225, 578 S.W.2d 16 (1979).

Cited: Fletcher v. Dunn, 188 Ark. 734, 67 S.W.2d 579 (1934).

Research References

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur. 52 Am. Jur. 2d, Marriage, § 33 et seq.

C.J.S. 55 C.J.S., Marriage, § 43 et seq.

Research References

U. Ark. Little Rock L.J.

Survey, Family Law, 12 U. Ark. Little Rock L.J. 631.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

The Shackles of Covenant Marriage: Who Holds the Keys to Wedlock?, 25 U. Ark. Little Rock L. Rev. 261.

Raymond C. O'Brien, Family Law’s Challenge to Religious Liberty, 35 U. Ark. Little Rock L. Rev. 3 (2012).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Divorce Improperly Granted.

Circuit court granted the wife a divorce, although she did not attend the trial to prosecute her claim, based solely on testimony offered by the husband to prove and corroborate the wife's ground of adultery; the circuit court had the authority to dismiss the wife's amended complaint for failure to prosecute, or the circuit court could have continued the case, but there was no known authority to permit the husband to proceed with the wife's amended complaint, which she declined to prosecute, and the matter was reversed. Olson v. Olson, 2014 Ark. 537, 453 S.W.3d 128 (2014).

Research References

Ark. L. Rev.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

Case Notes

Void Marriage.

A marriage in violation of this section is void and no decree is necessary to avoid it. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914).

A bigamous marriage is void though one of the parties entered into it in good faith. Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914).

This section does not apply to void marriages and where wife was married prior to the granting of divorce from former husband, court had jurisdiction to annul the marriage. Bramble v. Kemper, 227 Ark. 186, 297 S.W.2d 104 (1957).

A subsequent marriage before dissolution of a prior marriage is void. Acuna v. Sullivan, 765 F. Supp. 510 (E.D. Ark. 1991).

Cited: Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 642 (1970); Clark v. Clark, 19 Ark. App. 280, 719 S.W.2d 712 (1986).

Research References

ALR.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Homosexuality, transvestitism and similar sexual practices as grounds for annulment of marriage. 68 A.L.R.4th 1069.

Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit. 32 A.L.R.5th 673.

Am. Jur. 4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq.

Ark. L. Rev.

Domestic Relations — Annulment for Failure to Reveal Family Morals, 5 Ark. L. Rev. 442.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

The Cause of Action for Annulment of Marriage in Arkansas, 14 Ark. L. Rev. 85.

C.J.S. 55 C.J.S., Marriage, § 70 et seq.

Research References

U. Ark. Little Rock L.J.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

Case Notes

In General.

A marriage may be annulled only for causes set up by statute. Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134 (1930).

Construction.

The word “void” as used in this section is used in the sense that the marriage can be avoided. Ragan v. Cox, 210 Ark. 152, 194 S.W.2d 681 (1946).

The word “void” as used in this section means voidable. Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953).

The words “want of understanding” as used in this section are broad enough to include a person of unsound mind. Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953).

Abatement on Death of Party.

Administrator of a husband's estate lacked standing to appeal the denial of his motion to be substituted as a party for the husband in the wife's annulment action because he was not a party below. Additionally, pursuant to this section, providing for annulment during the lives of the parties, the annulment action abated on the death of the husband. Stuhr v. Oliver, 2010 Ark. 189, 363 S.W.3d 316 (2010).

Alimony.

Where a guardian sues to annul a marriage between an infant husband and infant wife, wife cannot sue guardian or parent for alimony. Erwin v. Erwin, 120 Ark. 581, 180 S.W. 186 (1915).

Attorney's Fees.

Where evidence did not sustain annulment of marriage, defendant wife was entitled to award of fees for her attorney. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Burden of Proof.

Burden of proof is upon husband to establish fraud where he files an action to annul marriage on the ground of fraud. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Conflict of Laws.

The validity of a marriage must be determined by the law of the state where the marriage was contracted. Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S.W.2d 1012 (1946).

Fraud.

In action to annul marriage on the ground of fraud the plaintiff must establish the fraud with the same amount of evidence, as is required in an action to set aside a deed or other written contract on the ground of fraud. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Evidence did not justify annulment of marriage on the ground of false representation. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Minors.

This section reaffirms public policy of the state to the effect that underage marriages, valid where contracted, are not void in Arkansas until nullified by a court of competent jurisdiction. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

The public policy of Arkansas against underage marriages is not such that a marriage, valid in the state where contracted, would be void in Arkansas. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Nonresidents.

An Arkansas court has jurisdiction of a suit by a nonresident against a nonresident for the annulment of a marriage contracted between them in Arkansas. Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S.W.2d 1012 (1946).

Particular Grounds.

Marriage induced through fear of prosecution for having seduced a girl is not ground for annulling the marriage. Kibler v. Kibler, 180 Ark. 1152, 24 S.W.2d 867 (1930).

A marriage may be annulled when one of the parties is infected with syphilis. Brown v. Brown, 181 Ark. 528, 27 S.W.2d 85 (1930).

A woman who took part in a marriage ceremony at a time when by reason of intoxication she was incapable of consenting to marriage is entitled to have the marriage annulled. Bickley v. Carter, 190 Ark. 501, 79 S.W.2d 436 (1935).

Marriage induced by misrepresentation as to paternity of child may be annulled on the ground of fraud. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

In son's action for an injunction prohibiting his deceased father's wife from receiving the father's pension benefits, the son could not challenge the validity of the father's marriage on appeal where the issue of whether the marriage should be set aside on the ground of undue influence was argued before, and decided by, the trial court. Hooten v. Jensen, 94 Ark. App. 130, 227 S.W.3d 431 (2006).

Res Judicata.

Decision in an annulment proceeding brought on the ground of false representation as to paternity of child is not res judicata in either a paternity or heirship action, as child is not a party privy to the annulment proceeding. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Time of Bringing Action.

The marriage of an insane person is voidable only, and is subject to attack, only during the lifetime of both parties. Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953).

A state of marriage can only be dissolved during the lives of the parties to the marriage by annulment or by divorce. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Research References

Ark. L. Rev.

Acts of 1947. Changes in Venue Laws, 1 Ark. Law Rev. 209.

Conflict of Laws — Jurisdiction in Amendment, 22 Ark. L. Rev. 509.

Case Notes

Void Marriages.

This section does not apply to void marriages and where wife was married prior to the granting of divorce from former husband, chancery court of the county where the void marriage was performed had jurisdiction to annul the marriage. Bramble v. Kemper, 227 Ark. 186, 297 S.W.2d 104 (1957).

Research References

ALR.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Receiver for marital or community property. 15 A.L.R.4th 224.

Vacating or setting aside divorce decree after remarriage of party. 17 A.L.R.4th 1153.

Children's needs considered in making property division. 19 A.L.R.4th 239.

Escalation clause in divorce decree relating to alimony and child support. 19 A.L.R.4th 830.

Spouse's liability after divorce for community debt contracted by other spouse during marriage. 20 A.L.R.4th 211.

Appreciation in value of separate property during marriage without contribution by either spouse as separate or community property. 24 A.L.R.4th 453.

Excessiveness or adequacy of amount of money awarded as separate maintenance, alimony, or support for spouse without absolute divorce. 26 A.L.R.4th 1190.

Excessiveness or adequacy of money awarded as temporary alimony. 26 A.L.R.4th 1218.

Amount of alimony and child support combined. 27 A.L.R.4th 1038.

Amount of permanent alimony. 28 A.L.R.4th 786.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal. 33 A.L.R.4th 47.

Valuation date for property being distributed pursuant to divorce. 34 A.L.R.4th 63.

Court's authority to award temporary alimony or suit money where existence of valid marriage is contested. 34 A.L.R.4th 814.

Reconciliation of spouses affecting decree. 36 A.L.R.4th 502.

Spouse's right to discovery of closely held corporation records during divorce proceeding. 38 A.L.R.4th 145.

Dissipation of assets prior to divorce as factor in determining property division. 41 A.L.R.4th 416.

Equitable distribution doctrine. 41 A.L.R.4th 481.

Treatment or valuation of stock options for purposes of dividing marital property. 46 A.L.R.4th 640; 46 A.L.R.4th 689.

Divorced or separated spouse's living with member of opposite sex as affecting other spouse's obligation of alimony or support under separation agreement. 47 A.L.R.4th 38.

Excessiveness or adequacy of combined property division and spousal support awards. 55 A.L.R.4th 14.

Propriety of property distribution leaving both parties with substantial ownership interest in same business. 56 A.L.R.4th 862.

Divorce order requiring that party not compete with former marital business. 59 A.L.R.4th 1075.

Treatment and method of valuation of future interest in real estate or trust property not realized during marriage. 62 A.L.R.4th 107.

Prejudgment interest awards in divorce cases. 62 A.L.R.4th 156.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent. 62 A.L.R.4th 180.

Voluntary contributions to child's education expenses as factor justifying modification of spousal support award. 63 A.L.R.4th 436.

Lis pendens as applicable to suit for separation or dissolution of marriage. 65 A.L.R.4th 522.

Withholding visitation rights for failure to make alimony or support payments. 65 A.L.R.4th 1155.

Enforceability of separation agreement affecting property rights upon death of one party prior to final judgement of divorce. 67 A.L.R.4th 237.

Effect of court order prohibiting sale or transfer of property on party's right to change beneficiary of insurance policy. 68 A.L.R.4th 929.

Attributing undisclosed income to parent or spouse for purposes of making child or spousal support award. 70 A.L.R.4th 173.

Propriety of using contempt proceedings to enforce property settlement award or order. 72 A.L.R.4th 298.

Goodwill in medical or dental practice as property subject to distribution on dissolution of marriage. 76 A.L.R.4th 1025.

Goodwill in accounting practice as property subject to distribution on dissolution of marriage. 77 A.L.R.4th 645.

Accrued vacation, holiday time and sick leave as marital or separate property. 78 A.L.R.4th 1107.

Obligor spouse's death as affecting alimony. 79 A.L.R.4th 10.

What constitutes order made pursuant to state domestic law for purposes of qualified domestic relations order exemption to antialienation provision of ERISA. 79 A.L.R.4th 1081.

Court's authority to institute or increase spousal support award after discharge of prior property award in bankruptcy. 87 A.L.R.4th 353.

Spouse's right to order that other pay expert witness fees. 4 A.L.R.5th 403.

Joinder of tort action between spouses with proceeding for dissolution of marriage. 4 A.L.R.5th 972.

Consideration of tax consequences of capital gain or loss in distribution of marital property. 9 A.L.R.5th 568.

Award of interest on deferred installment payments of marital asset distribution. 10 A.L.R.5th 191.

Spouse's right to set off debt owed by other spouse against accrued spousal or child support payments. 11 A.L.R.5th 259.

Consideration of obligated spouse's earnings from overtime or “second job” held in addition to regular full-time employment in fixing alimony or child support awards. 17 A.L.R.5th 143.

Treatment of depreciation expenses claimed for tax or accounting purposes in determining ability to pay child or spousal support. 28 A.L.R.5th 46.

Worker's compensation benefits as marital property subject to distribution. 30 A.L.R.5th 139.

Full faith and credit “last-in-time” rule as applicable to sister state divorce or custody judgement which is inconsistent with the forum state's earlier judgement. 36 A.L.R.5th 527.

Validity and construction of provision for arbitration of disputes as to alimony or support payments, or child visitation or custody matters. 38 A.L.R.5th 69.

Contingent fee contracts as marital property subject to distribution. 44 A.L.R.5th 671.

Family court jurisidiction to hear contract claims. 46 A.L.R.5th 735.

Alimony as affected by recipient spouse's remarriage, in absence of controlling statute. 47 A.L.R.5th 129.

Validity, construction, and application of provision in separation agreement affecting distribution or payment of attorneys' fees. 47 A.L.R.5th 207.

Lump-sum alimony award. 49 A.L.R.5th 441.

Alimony or child-support awards as subject to attorney's liens. 49 A.L.R.5th 595.

Enforcement of claim for alimony or for attorneys' fees or costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Assumption or denial of jurisdiction of action involving matrimonial disputes based on forum non conveniens. 55 A.L.R.5th 647.

Consideration of obligor spouse's or parents' personal-injury recovery or settlement in fixing alimony or child-support. 59 A.L.R.5th 489.

Effect of same-sex relationship on right to spousal support. 73 A.L.R.5th 599.

Am. Jur. 24 Am. Jur. 2d, Divorce & S., § 1 et seq.

41 Am. Jur. 2d, Husb. & W., § 166 et seq.

Ark. L. Notes.

Laurence, Protecting Alimony: Steps to Take in Contemplation of Default under a Divorce Decree, 1985 Ark. L. Notes 57.

Ark. L. Rev.

Defenses to Divorce Actions — Excluding Jurisdiction, 13 Ark. L. Rev. 314.

The Arkansas Divorce — Do We Have Problems, 23 Ark. L. Rev. 601.

The Uniform Marriage and Divorce Act: Analysis for Arkansas, 28 Ark. L. Rev. 175.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

Killenbeck, Nothing That We Can Do? Or, Much Ado About Nothing? Some Thoughts on Bates v. Bates, Equity, and Domestic Abuse in Arkansas, 43 Ark. L. Rev. 725.

C.J.S. 27A C.J.S., Divorce, §§ 1-458.

27B C.J.S., Divorce, §§ 459-899.

27C C.J.S., Divorce, §§ 900-end.

41 C.J.S., Husb. & W., § 217 et seq., § 264 et seq.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Family Law, 4 U. Ark. Little Rock L.J. 213.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Survey, Family Law, 12 U. Ark. Little Rock L.J. 631.

Case Notes

Cited: Deal v. Deal, 212 Ark. 958, 208 S.W.2d 782 (1948); Jackson v. Bowman, 226 Ark. 753, 294 S.W.2d 344 (1956); Nickle v. Nickle, 228 Ark. 258, 306 S.W.2d 855 (1957); Coates v. Coates, 238 Ark. 1, 377 S.W.2d 824 (1964); Holt v. Taylor, 242 Ark. 292, 413 S.W.2d 52 (1967); Womack v. Womack, 247 Ark. 1130, 449 S.W.2d 399 (1970); Hughes v. Hughes, 251 Ark. 63, 471 S.W.2d 355 (1971); Lovett v. Lovett, 254 Ark. 349, 493 S.W.2d 435 (1973); Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973).

Research References

ALR.

Homosexuality as ground for divorce. 96 A.L.R.5th 83.

What Amounts to Habitual Intemperance, Drunkenness, Excessive Drug Use, and the Like Within Statute Relating to Substantive Grounds for Divorce. 101 A.L.R.6th 455 (2015).

Ark. L. Rev.

Mutual Misconduct in Arkansas Divorces, 3 Ark. L. Rev. 132.

Mental Cruelty as Grounds for Divorce, 5 Ark. L. Rev. 419.

Case Note, Roark v. Roark: An Expansion of the Application of Estoppel to Prohibit the Collection of Child Support Arrearages, 45 Ark. L. Rev. 631.

U. Ark. Little Rock L.J.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

U. Ark. Little Rock L. Rev.

Matthew L. Brunson, Family Law—Providing for Those Who Cannot Provide for Themselves: A Proposal for the Arkansas General Assembly to Follow in the Footsteps of an Already Expansive Guardianship Law and Grant Guardians the Right to File for Divorce on Behalf of a Ward, 38 U. Ark. Little Rock L. Rev. 271 (2016).

Case Notes

Constitutionality.

The act amending this statute so as to allow divorce after separation for three consecutive years was legally passed and is retroactive. White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938).

The act amending subdivision (b)(5) of this section so as to require that the husband and wife shall have lived separate and apart for three consecutive years (now 18 months) without cohabitation was not beyond the power of the legislature to enact. Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238 (1940) (decision prior to the 1991 amendments).

Act abolishing recrimination as a defense against three-year separation is not unconstitutional as impinging upon equity jurisdiction, since the court of equity has the right to grant divorces on grounds and conditions prescribed by the legislature. Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).

In General.

Where it appears that conditions between a husband and wife have become unendurable without any hope of amelioration and a preponderance of the evidence shows that the husband by his conduct is chiefly responsible, the wife is entitled to a divorce from the bonds of matrimony. Lemaster v. Lemaster, 158 Ark. 206, 249 S.W. 589 (1923).

Divorce is a statutory matter and the legislature has a right to establish the grounds and conditions of divorce. Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).

Adultery.

Where a husband sues his wife upon the ground of adultery, the alleged adultery cannot be proved by evidence tending to show that she had a general reputation for unchastity. Poe v. Poe, 93 Ark. 426, 124 S.W. 1029 (1910).

The charge of adultery may be sufficiently proved by evidence leading to an inference of guilt. While the circumstances need not be such that an inference of guilt is the only possible conclusion that can be drawn therefrom, the facts must be such as to lead a just and reasonable man to the conclusion of guilt; and they are not sufficient if they merely justify a suspicion of guilt in the absence of other incriminating circumstances. Leonard v. Leonard, 101 Ark. 522, 142 S.W. 1133 (1912).

Charges of adultery in a civil proceeding may be sufficiently proved by evidence of circumstances leading to an inference of guilt. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962).

Appeals.

Where divorce decree was granted under three-year (now 18-month) separation provision of this section, the wife's remarriage during the pendency of appeal did not estop her from appealing the grant of the divorce to the husband, the failure to award her alimony and the settlement of property rights. Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975).

Although in divorce actions the Court of Appeals reviews chancery cases de novo, it does not disturb a chancellor's finding unless it is clearly against a preponderance of the evidence. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Attorney's Fees.

The award of attorney's fees in divorce cases is a matter lying within the sound judicial discretion of the chancellor, the exercise of which will not be disturbed on appeal in the absence of its abuse. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

Chancery Court.

The chancery court has the power to decree separate maintenance to the wife. Gilliam v. Gilliam, 232 Ark. 765, 340 S.W.2d 272 (1960).

Chancery courts have the power to set aside a default divorce, even after the death of one of the parties, if property interests of the survivor are affected. Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

Comparative Fault.

Where a husband sued for a divorce, and his wife cross-claimed for a limited divorce from bed and board and both the husband and wife were at fault, nevertheless, the wife was entitled to a limited divorce as the party less at fault, since her husband was the greater and first offender. Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (Ct. App. 1980).

Cruelty.

Wife will not be granted a divorce on account of the cruelty of her husband in chastising her if she has given him serious provocation by her imprudent conduct. Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369 (1908).

Profane and abusive language employed by a husband toward his wife will not constitute legal cruelty where it does not appear that her health was impaired or her condition rendered intolerable. Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912).

Mere incompatibility of temperament or want of congeniality and the consequent quarrels causing unhappiness are not sufficient to constitute that cruelty which under the statute will justify divorce. Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912); Disheroon v. Disheroon, 211 Ark. 519, 201 S.W.2d 17 (1947).

There must be proof of specific acts of cruelty. Dunn v. Dunn, 114 Ark. 516, 170 S.W. 234 (1914).

A husband is not entitled to a divorce on account of his wife's cruelty toward his children by a former wife where it appears that her cruelty is not habitual nor exercised with the intent of causing suffering to the husband. Poe v. Poe, 149 Ark. 62, 231 S.W. 198 (1921).

Evidence sufficient to find spouse entitled to a divorce on the ground of cruelty. Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804 (1922).

There were grounds for a divorce based on cruel and barbarous treatment where husband lunged at wife through the window of her car, grabbed her neck, pushed her against the seat, and strangled her to the point that she could not breathe and felt as if she were choking. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Divorce from Bed and Board.

A limited divorce is called divorce from bed and board in the statute; it is also known as divorce a mensa et thoro. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

The grounds on which a divorce from bed and board may be granted are the same as those specified for an absolute divorce. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979); Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).

The statutory remedy of limited divorce (divorce mensa et thoro) is available only on proof of one of the statutory grounds. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).

Foreign Decree.

Decree for wife in husband's suit for divorce in another state charging habitual indulgence in violent and ungovernable fits of temper and extreme cruelty was held res judicata in subsequent suit in Arkansas charging indignities rendering husband's condition in life intolerable. Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 (1940).

Decree for wife in husband's suit for divorce in another state on grounds of ungovernable temper and extreme cruelty would not be res judicata in subsequent suit in Arkansas on ground of desertion if the desertion occurred after the adjudication of former action. Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 (1940).

Former adjudication in other states wherein the legal right created by this section was not available was held not res judicata in husband's suit for divorce. Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225 (1941).

Where husband and wife lived separate and apart without cohabitation for more than three years, husband was entitled to a divorce on that ground notwithstanding former decree in favor of wife in separate maintenance suit in another state. Brickey v. Brickey, 205 Ark. 373, 168 S.W.2d 845 (1943).

Divorce, granted in Arkansas, was reversed, case dismissed and the parties remanded to state which granted a prior separate maintenance agreement for any orders for maintenance. Swanson v. Swanson, 212 Ark. 439, 206 S.W.2d 169 (1947).

Habitual Drunkenness.

One is addicted to habitual drunkenness who has a fixed habit of frequently getting drunk. Brown v. Brown, 38 Ark. 324 (1881).

To be a habitual drunkard within the meaning of this section, a person does not have to be constantly drunk nor incapacitated from doing business; it is sufficient if he has a fixed habit of frequently and repeatedly getting drunk when the opportunity presents itself or has lost the will power to resist temptation in that respect. O'Kane v. O'Kane, 103 Ark. 382, 147 S.W. 73 (1912).

Evidence insufficient to show that spouse was a habitual drunkard. Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

Indignities.

Personal indignities contemplated by the statute as grounds for divorce include rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumeliousness, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule and every other plain manifestation of settled hate, alienation, and estrangement. Rose v. Rose, 9 Ark. 507 (1849); Kurtz v. Kurtz, 38 Ark. 119 (1881).

The indignities to the person need not consist of personal violence. They may consist of unmerited reproach, rudeness, contempt, studied neglect, open insult, and many other things, habitually and systematically pursued, which may, according to the habits of the parties and their condition in life, be just as effectually within the statute as personal violence. Haley v. Haley, 44 Ark. 429 (1884). See also Cate v. Cate, 53 Ark. 484, 14 S.W. 675 (1890).

Evidence of indignities was sufficient to show entitlement to divorce. McGee v. McGee, 72 Ark. 355, 80 S.W. 579 (1904); Bell v. Bell, 179 Ark. 171, 14 S.W.2d 551 (1929); Bullington v. Bullington, 194 Ark. 1155, 106 S.W.2d 185 (1937); Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078 (1941); Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Want of congeniality and consequent quarrels are not sufficient to constitute indignities. Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912).

The remedy of absolute divorce contemplated by subdivision (b)(4) of this section is for evils which are unavoidable and unendurable and which cannot be relieved by any exertions of the party seeking the aid of the courts. Meffert v. Meffert, 118 Ark. 582, 177 S.W. 1 (1915).

To authorize a divorce for indignities, conduct of the offending party must indicate settled hate and manifestation of alienation and estrangement and must have been conducted habitually through a period of time sufficient to show that the conduct arose through settled malevolence rendering it impossible to discharge the duties of married life and making one's condition in life intolerable. Preas v. Preas, 188 Ark. 854, 67 S.W.2d 1013 (1934).

Testimony held insufficient to warrant a divorce for indignities. Welborn v. Welborn, 189 Ark. 1063, 76 S.W.2d 98 (1934); Fine v. Fine, 209 Ark. 754, 192 S.W.2d 212 (1946); Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981).

Person to whom a divorce is granted on the ground of indignities does not have to be wholly blameless. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).

Condonation of indignities is not a defense if indignities cover a period of time until final separation. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).

The statutory requirement that indignities of the offending spouse must be such as to make the other's condition intolerable was not satisfied. Lipscomb v. Lipscomb, 226 Ark. 956, 295 S.W.2d 335 (1956).

Indignities may mean a number of things in various circumstances, but to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962).

The charge of sexual promiscuity or infidelity is probably the most offensive charge which one spouse can make against the other, and it has been frequently held that to make such a charge without basis is an indignity entitling the person charged to a divorce. Relaford v. Relaford, 235 Ark. 325, 359 S.W.2d 801 (1962).

Drunken conduct may be proved along with other acts to establish indignities rendering the plaintiff's life intolerable in which case it is not necessary to show habitual drunkenness for a period of at least a year. Carmical v. Carmical, 246 Ark. 1142, 441 S.W.2d 103 (1969).

Although the scope of the indignities ground has undergone considerable expansion throughout the years, it is still necessary that the conduct relied upon manifest hate, alienation, and estrangement and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

In contested cases, indignities do not exist absent habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979).

Drunken conduct may be proved, along with other acts, to establish the general indignities which have rendered the plaintiff's marital life intolerable. Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982).

A divorce will be granted when one spouse proves that the other had offered such indignities to her person as to render her condition in life intolerable; personal indignities may consist of rudeness, unmerited reproach, contempt, studied neglect, open insult and other plain manifestations of settled hate, alienation, or estrangement so habitually, continuously, and permanently pursued as to create an intolerable condition. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

The ground of indignities to the person must be proved by evidence of specific acts and conduct. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989).

Where wife asserted indignities as grounds in her complaint for divorce but the chancellor granted the divorce on the grounds of “spousal abuse,” the appellate court found no reversible error as the term “spousal abuse” was, under the circumstances, equivalent to the recognized ground of cruel and barbarous treatment. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Trial court did not clearly err in granting a wife a divorce on the ground of general indignities pursuant to subdivision (b)(3)(C) of this section because the wife showed that the husband frequently directed his wrath toward her in a manner that embarrassed, humiliated, and frightened her; that he publicly and privately harangued her over minor matters; that he acted in a dismissive and suspicious manner by leaving the house for hours without explanation, making a late-night phone call without saying to whom he was speaking, and being in possession of a romantic card from another woman; that he gambled frequently; and that she could not account for a large portion of the couple's joint funds. Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204 (2009).

Circuit court did not err by awarding the wife a divorce based on the ground of indignities under subdivision (b)(3)(C) of this section, because the wife offered evidence of her husband's ongoing affair, rudeness, unmerited reproach, and studied neglect that amounted to “settled hate” rendering her condition in life intolerable. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599 (2012).

Where a husband appealed a circuit court’s divorce decree, the wife proved a prima facie case of general indignities, and, as required, she corroborated the general indignities. The wife offered proof of a continuing pattern of disrespectful, controlling behavior. Walton v. Walton, 2014 Ark. App. 105 (2014).

Even if the wife's testimony that the husband had made her feel inadequate and belittled for quite a while was sufficient to establish the ground for divorce based on general indignities, the trial court erred in granting a decree for an absolute divorce on that ground as the wife failed to provide any proof corroborating that ground because her sister's testimony was based on what the wife told her, not what she witnessed; and there was no other evidence tending to show general indignities on the part of the husband. Lundy v. Lundy, 2014 Ark. App. 573, 445 S.W.3d 518 (2014).

Wife was not entitled to a divorce on the ground of general indignities because she did not corroborate her allegations, as the allegedly corroborating testimony of her husband was insufficient to satisfy the corroboration requirement. Mayland v. Mayland, 2019 Ark. App. 390, 586 S.W.3d 179 (2019).

Trial court's award of joint child custody was not inconsistent with the court's grant of a divorce on general indignities grounds because different considerations were required to make general-indignities and joint-custody findings. Cunningham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38 (2019).

Insanity.

A divorce for incurable insanity granted to a spouse who is guardian for the insane requires service on the superintendent or physician in charge of the institution where the insane is confined and on a guardian ad litem and lack of representation by guardian ad litem and service thereon renders the divorce voidable and subject to direct attack on the ground of unavoidable casualty even after the death of the spouse to whom the divorce was granted, his or her personal representative and attorney being proper parties defendant in the action to vacate the divorce decree. Jackson v. Bowman, 226 Ark. 753, 294 S.W.2d 344 (1956).

Where a divorce was granted on grounds of the wife's insanity, the trial court's determination that the balance of the wife's attorney's fees should be paid from the wife's estate because of her independent financial resources was reversed as the insane spouse is entitled to every reasonable protection of her interests, including the finest legal services that can be obtained for her, at her husband's expense. Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965).

Nonsupport.

Evidence insufficient to show that spouse lacked the common necessities of life. Saugey v. Saugey, 228 Ark. 110, 305 S.W.2d 856 (1957); Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

Pleadings.

Party in a divorce proceeding prior to trial of the action may amend his complaint and allege the maturity of a cause of action since the filing of the original complaint. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

If evidence is introduced during the trial of a divorce proceeding showing a different cause of action from the one alleged in the complaint, the defendant may waive the right to object to the new cause of action. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

Where plaintiff's complaint for divorce alleges one ground, evidence introduced at trial shows a cause of divorce on another ground, and defendant objects to the new cause of action, court must dismiss the suit as to first ground but without prejudice to the right of the plaintiff to file a new suit on the new ground. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

Where a wife amended her original divorce complaint to seek instead only separate maintenance, that was the only type of decree which could have been entered by the trial court; the chancellor erred in granting the wife a divorce from bed and board and erred in dividing the marital property under § 9-12-315. Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982).

Proof.

Husband was entitled to reversal of a divorce decree granted on the ground of general indignities; although the husband waived corroboration of grounds and failed to object to the sufficiency of proof of grounds at trial, the wife was required to offer sufficient, non-conclusory proof of grounds, which she failed to do. She offered only a general affirmative response to her attorney's question as to whether the husband had treated her in such a manner as to render her condition in life intolerable. Dee v. Dee, 99 Ark. App. 159, 258 S.W.3d 405 (2007).

—Admissibility of Evidence.

Ex parte affidavit of a third person cannot be used as independent evidence. Such affidavit cannot be received as independent testimony or as corroboration in a divorce cause. Wood v. Wood, 232 Ark. 812, 340 S.W.2d 393 (1960).

—Burden of Proof.

Marriage contract should not be severed except upon clear proof of one or more of the grounds prescribed by this section. Fania v. Fania, 199 Ark. 368, 133 S.W.2d 654 (1939).

In an action for divorce the burden was on the plaintiff to show by corroborative evidence and a preponderance thereof, separation for three years (now 18 months) without cohabitation. Ross v. Ross, 213 Ark. 742, 213 S.W.2d 360 (1948).

Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in this section; in other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

—Corroboration.

Testimony held to be insufficiently corroborated. Ledwidge v. Ledwidge, 204 Ark. 1032, 166 S.W.2d 267 (1942); Stimmel v. Stimmel, 218 Ark. 293, 235 S.W.2d 959 (1951).

Allegation of separation for three years (now 18 months), which was admitted by the defendant, required corroboration. Allen v. Allen, 211 Ark. 335, 200 S.W.2d 324 (1947).

Corroborating evidence held to be sufficient. Obennoskey v. Obennoskey, 215 Ark. 358, 220 S.W.2d 610 (1949); Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Corroboration is as essential to the granting of a divorce on the grounds of three-year (now 18-month) separation as it is in any other case, but, where it is plain that the divorce action is not collusive, the corroboration may be comparatively slight; nonetheless, there must be corroboration to some substantial fact or circumstance independent of the testimony of the party asserting the claimed separation period which would lead an impartial and reasonable mind to believe that the material testimony is true. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982).

Res Judicata.

The rule of res judicata in divorce suits applies only when the second suit is on the same cause of action as the first suit. Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620 (1961).

Separation.

Pleadings and affidavits supported the statutory grounds of 18 months' continuous separation without cohabitation, and the trial court erred as a matter of law by denying the husband's counterclaim for absolute divorce. White v. Shepard, 2015 Ark. App. 223, 459 S.W.3d 333 (2015).

—In General.

Divorce granted on grounds of separation. Clarke v. Clarke, 201 Ark. 10, 143 S.W.2d 540 (1940); Day v. Langley, 202 Ark. 775, 152 S.W.2d 308 (1941); Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225 (1941); McCall v. McCall, 204 Ark. 836, 165 S.W.2d 255 (1942); Carty v. Carty, 222 Ark. 183, 258 S.W.2d 43 (1953); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

Subdivision (b)(5) of this section makes a decree of divorce mandatory on the court at the suit of either party, where the conditions of the statute have been met, no matter what caused the separation. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098 (1940); McCormick v. McCormick, 246 Ark. 348, 438 S.W.2d 23 (1969) (decision prior to the 1991 amendments).

Where husband left wife and child with the understanding that after he established himself they would join him, there was not a separation under subdivision (b)(5) of this section until they ceased to correspond with each other; and husband, praying for a divorce on that ground in cross-complaint to wife's suit for maintenance, had burden to show separation. Bockman v. Bockman, 202 Ark. 585, 151 S.W.2d 99 (1941).

If plaintiff files suit for divorce on statutory ground of desertion for three years (now 18 months) the court cannot consider any defense by the defendant based on the ground of misconduct of the plaintiff, as this section is mandatory. Warren v. Warren, 214 Ark. 379, 216 S.W.2d 398 (1949).

Husband is entitled to divorce on ground of separation if separated from wife for three years (now 18 months), regardless of fault upon his part. Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1949).

In a suit for divorce on the ground of three years' separation (now 18 months' separation), the question of who was the injured party may only be considered in settlement of property rights and the question of alimony. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W.2d 633 (1950); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

In action by wife to set aside divorce granted on grounds of separation, allegation that separation was result of husband having deserted wife constituted meritorious defense even though wife admitted separation. Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

—Cohabitation.

Evidence established that husband and wife were not living separate and apart from each other within subdivision (b)(5) of this section. McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943); Varnell v. Varnell, 207 Ark. 711, 182 S.W.2d 466 (1944); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

When the legislature used the word “cohabitation,” the popular sense purporting sexual intercourse, rather than the literal or derivative meaning of living together, was intended. McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943); Varnell v. Varnell, 207 Ark. 711, 182 S.W.2d 466 (1944).

Where access to a spouse is admitted, marital relations will be presumed. Hancock v. Hancock, 222 Ark. 823, 262 S.W.2d 881 (1953).

—Evidence.

Proof of alleged misconduct occurring more than five years before filing suit was admissible to show injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Evidence of incidents which happened after separation was admissible to show who was the injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Where for all outward appearances, the husband and wife lived separate and apart, and not as husband and wife, for over three years (now 18 months) immediately prior to the decree of divorce, the wife's stay of four nights at the motel where the husband lived did not break the continuity of their separation where, during the stay, the parties slept apart, and the husband denied having sexual relations with the wife. Santostefano v. Santostefano, 18 Ark. App. 173, 712 S.W.2d 324 (1986).

—Mutuality.

Subdivision (b)(5) of this section must be construed as though it read “when they have lived apart for three consecutive years [now 18 months]” so as to contemplate an agreement or understanding that they will act in concert of purpose, voluntarily living apart for three years, at the end of which period either may obtain a divorce from the other by alleging and establishing mutuality of the separation. White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938).

Insane wife cannot be said to have voluntarily lived apart from her husband, and there was no element of mutuality in the separation which established a ground for divorce under subdivision (b)(6) of this section. Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242 (1939).

Subdivision (b)(5) of this section assumes that the period of living apart without cohabitation for three years (now 18 months) must have been the conscious act of both parties and the purpose is not to grant divorce on ground of insanity of either party. Serio v. Serio, 201 Ark. 11, 143 S.W.2d 1097 (1940); Wilder v. Wilder, 207 Ark. 414, 181 S.W.2d 17 (1944).

Husband was entitled to a divorce under subdivision (b)(5) of this section where parties had lived apart without cohabitation for three years (now 18 months) even though separation was involuntary upon wife's part and was under his coercion. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098 (1940).

—Time Period.

Supreme Court has no authority to exclude from separation contemplated by subdivision (b)(5) of this section period of time during which parties lived apart under separation decree. Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238 (1940).

Time spent in military service may be included in statutory period required for separation. Mogensky v. Mogensky, 212 Ark. 28, 204 S.W.2d 782 (1947); Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1949).

Cited: Parrish v. Parrish, 195 Ark. 766, 114 S.W.2d 29 (1938); Smith v. Smith, 219 Ark. 278, 242 S.W.2d 350 (1951); Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951); Bishop v. Lucas, 220 Ark. 871, 251 S.W.2d 126 (1952); McIntire v. McIntire, 270 Ark. 381, 605 S.W.2d 474 (1980).

Case Notes

In General.

A state of marriage can only be dissolved during the lives of the parties to the marriage by annulment or by divorce. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Alimony.

An independent action for alimony will lie. Wood v. Wood, 54 Ark. 172, 15 S.W. 459 (1891); Shirey v. Hill, 81 Ark. 137, 98 S.W. 731 (1906); Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912); Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096 (1922); Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).

The chancery court and the Supreme Court on appeal had jurisdiction to award suit money and alimony to a wife notwithstanding a denial of a divorce to the husband. Gabler v. Gabler, 209 Ark. 459, 190 S.W.2d 975 (1945).

Enforcement of a contract for alimony is an action for alimony and not for debt, even though the obligation existed by reason of agreement between the parties. McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946).

This section allows independent proceeding for the division of marital property or alimony when neither the division nor alimony could have been considered in the divorce action. Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985).

Income from a spendthrift trust can be reached by means of equitable garnishment or other means to satisfy a judgment for an arrearage in alimony. Council v. Owens, 28 Ark. App. 49, 770 S.W.2d 193 (1989).

Jurisdiction.

The chancery court has exclusive jurisdiction of all cases involving matters of child support; neither the municipal nor circuit court has concurrent jurisdiction with chancery court to enforce an agreement for child support. Boren v. Boren, 318 Ark. 378, 885 S.W.2d 852 (1994).

Mental Capacity.

The mere fact that a man had been adjudged incompetent under Uniform Veterans Guardian Act and a guardian appointed for his estate did not affect his capacity to marry or sue for divorce. Lovett v. Lovett, 254 Ark. 349, 493 S.W.2d 435 (1973).

Cited: Jackson v. Jackson, 253 Ark. 1033, 490 S.W.2d 809 (1973).

Research References

Ark. L. Rev.

Clarification of Vacation Divorce Decrees on Constructive Service, 13 Ark. L. Rev. 345.

Grounds for Venue in Arkansas — A Survey, 25 Ark. L. Rev. 468.

Recent Developments, Child Support Decrees — Uniform Enforcement of Foreign Judgments Act, Mathews v. Mathews, 59 Ark. L. Rev. 803.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Family Law, 29 U. Ark. Little Rock L. Rev. 883.

Case Notes

Concurrent Venue Improper.

Under subsection (c) of this section, where the initial action filed in Pulaski County was still pending on appeal when the second suit was filed in Saline County, Pulaski County was the county of proper venue, and the Saline County court erred in refusing to dismiss the action filed in that court. Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996).

Cross-Complaint.

Where wife instituted suit in a county other than her county of residence, and husband, who resided in that county, filed a cross-complaint without questioning the jurisdiction of the court on the complaint, court was held to have acquired jurisdiction of the parties and subject matter of the suit under the cross-complaint. Laird v. Laird, 201 Ark. 483, 145 S.W.2d 27 (1940).

Foreign Jurisdiction.

The law will not presume that a husband invoked the aid of a foreign jurisdiction and obtained a divorce from the fact that he cohabited with another woman. Orsburn v. Graves, 213 Ark. 727, 210 S.W.2d 496 (1948) (decision prior to 1963 amendment).

Fraud.

Where complainant was not a resident of the county and constructive service was fraudulently attempted on the defendant, the court had no jurisdiction of the cause, and could not proceed on the original suit in an action by the defendant to vacate the decree. Corney v. Corney, 79 Ark. 289, 95 S.W. 135 (1906).

Where husband obtained a divorce decree in a county by fraudulently claiming that he was a resident of the county and also fraudulently claiming that the defendant was a nonresident of Arkansas, the divorce decree was an absolute nullity and wife was entitled to bring a suit for support and maintenance in the county of her residence. Cloman v. Cloman, 229 Ark. 447, 316 S.W.2d 817 (1958).

Residence.

Trial court erred in dismissing the husband's complaint for divorce which he filed in the county where he resided before his wife filed, because the plain language of this section placed venue where the complainant resided and granted the venue determination to the first Arkansas resident to file. Parker v. Parker, 2013 Ark. 236 (2013).

—In General.

This section contemplates actual residence. Vanness v. Vanness, 128 Ark. 543, 194 S.W. 498 (1917).

The court was without jurisdiction when evidence showed that residence was acquired solely for the purpose of obtaining a divorce. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W.2d 571 (1936); Allen v. Allen, 211 Ark. 335, 200 S.W.2d 324 (1947).

The provisions of this law may be availed only by one who actually and in good faith became and was a resident of this state for the period of time prescribed by this section, but the actual residence, once established, is not lost by temporary absence from the state. Tarr v. Tarr, 207 Ark. 622, 182 S.W.2d 348 (1944).

In suit based on three-years' (now 18 months') separation plaintiff did not establish a bona fide domicile in Arkansas where evidence showed that in prior litigation it had been determined by courts in other states that he had established a domicile in another state. Smith v. Smith, 219 Ark. 278, 242 S.W.2d 350 (1951).

There must be a bona fide intention to make county in which suit is filed the residence of the complainant. Smith v. Smith, 219 Ark. 876, 245 S.W.2d 207 (1952).

Residence under this section means domicile. Smith v. Smith, 219 Ark. 876, 245 S.W.2d 207 (1952).

Regardless of the defendant spouse's residence, once a plaintiff spouse has filed for (1) absolute divorce, (2) limited divorce, or (3) separate maintenance, the defendant spouse can no longer go to a different court (division or county) to file any one of the 3 named marital-related actions, but must file any new marital cause of action in the same action the plaintiff spouse has already initiated. Tortorich v. Tortorich, 333 Ark. 15, 968 S.W.2d 53 (1998).

—Duration.

No certain length of time is necessary to fix the residence contemplated by this statute, but it must be such, with the attendant circumstances surrounding its acquirement, as to manifest a bona fide intention of making it a fixed and permanent place of abode. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W.2d 571 (1936).

The brevity of a wife's residence, of course, was relevant to her intention, but not controlling, in view of the fact that no particular length of time is required for the establishment of a domicile. Moon v. Moon, 265 Ark. 310, 578 S.W.2d 203 (1979).

No particular length of time is required for the establishment of a domicile, but there must be residence attended by such circumstances surrounding its acquirement as to manifest a bona fide intention of making it a fixed and permanent place of abode. Moon v. Moon, 265 Ark. 310, 578 S.W.2d 203 (1979); Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981).

—Evidence.

Evidence sustained the conclusion that husband's move from county where he formerly resided to county where he instituted suit for divorce was not made in good faith. Hillman v. Hillman, 200 Ark. 340, 138 S.W.2d 1051 (1940).

Evidence was held to show that plaintiff, who went to another state, continued his residence in this state. Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078 (1941).

Evidence insufficient to establish that complainant was bona fide resident. Barth v. Barth, 204 Ark. 151, 161 S.W.2d 393 (1942).

Evidence sufficient to establish that complainant was resident. Feldman v. Feldman, 205 Ark. 544, 169 S.W.2d 866 (1943); Cole v. Cole, 233 Ark. 210, 343 S.W.2d 561 (1961); Puterbaugh v. Puterbaugh, 254 Ark. 61, 491 S.W.2d 386 (1973).

—Separate Domicile.

A wife may acquire a separate domicile from that of her husband and at that domicile she may institute proceedings for divorce. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W.2d 571 (1936).

Trial court had jurisdiction of suit for divorce by wife based on three years' (now 18 months') separation, where wife left state for residence in sanatorium outside of state due to tuberculosis, since domicile was not changed by absence from state for purpose of benefiting health. Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951).

Waiver.

Venue of an action may be waived. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987).

Cited: Isely v. Isely, 287 Ark. 401, 700 S.W.2d 49 (1985).

Research References

Ark. L. Rev.

Clarification of Vacation Divorce Decrees on Constructive Service, 13 Ark. L. Rev. 345.

Case Notes

Purpose.

In a contested divorce case the corroboration may be relatively slight since the purpose of the requirement is to prevent collusion. Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944); Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S.W.2d 577 (1957); Anderson v. Anderson, 234 Ark. 379, 352 S.W.2d 369 (1961).

Cited: Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 642 (1970); McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Arkansas Law Survey, Morgan, Family Law, 8 U. Ark. Little Rock L.J. 169.

Case Notes

Contested Cases.

Although this section removed the need for corroboration in uncontested divorce suits it did not remove the requirement in contested suits. Adams v. Adams, 252 Ark. 20, 477 S.W.2d 183 (1972).

In contested suit wife's testimony was not corroborated and she was therefore not entitled to a divorce. Peter v. Peter, 10 Ark. App. 292, 663 S.W.2d 744 (1984).

In contested cases where corroboration has not been waived but there is no intimation of collusion, the corroborating evidence of grounds for divorce may be relatively slight. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989).

Circuit court did not err by awarding the wife a divorce based on the ground of indignities under § 9-12-301(b)(3)(C), because the wife offered evidence of her husband's ongoing affair, rudeness, unmerited reproach, and studied neglect that amounted to “settled hate” rendering her condition in life intolerable. Evidence of his indignities was corroborated under this section by her mother who indicated that her husband was rude, inattentive, and did not care about her; additionally, his misuse of marital funds, purchase of diamonds, and hotel bills provided some inference that he was engaged in studied neglect, open insult, and alienation and estrangement. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599 (2012).

Residence.

An issue of residence deals directly with the authority, power and right of the trial court to act and therefore, the corroborating evidence, although relatively slight, should not be speculative and vague in scope. Hingle v. Hingle, 264 Ark. 442, 572 S.W.2d 395 (1978).

Proof of residency held corroborated. Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987).

Residency must be corroborated and proven in every instance, despite admission by a defendant. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

The purpose of the corroboration of residency rule is to prevent procurement of divorce by collusion, and when there is no collusion, the corroboration required is slight. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Proof of residency in a divorce action may not be dispensed with or supplied by the express and direct action of the parties, and it may not be supplied by their indirect actions through application of the doctrine of estoppel. Araneda v. Araneda, 48 Ark. App. 236, 894 S.W.2d 146 (1995).

Trial court had jurisdiction to grant a divorce as the necessary corroboration of the wife's residency was supplied by the wife's daughter, who testified that the wife had been a resident in the county for 9 or 10 years before filing for divorce and reiterated her previous testimony that the wife was a resident of the county for at least 3 months preceding the entry of the divorce decree. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Husband was ordered to file a substituted brief in his appeal to the supreme court in which he challenged the circuit court's jurisdiction to enter the divorce decree as he failed to abstract his wife's testimony pursuant to Ark. Sup. Ct. & Ct. App. R. 4-2 regarding the residency requirements of § 9-12-307(a)(1)(A) and subdivision (c)(1) of this section. Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (2009).

At the hearing on a divorce complaint filed in 2005, a witness testified that the wife had continuously resided in Pulaski County, Arkansas, from 1999 to 2006 for purposes of the residency requirement of § 9-12-307(a)(1)(A); because the wife provided corroborated proof under subdivision (c)(1) of this section, the circuit court had jurisdiction to enter the divorce decree. Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886 (2009).

Corroboration of a wife's residence in Arkansas by her adult daughter as required for divorce jurisdiction under § 9-12-307(a)(1)(A) was sufficient under subdivision (c)(1) of this section. Freeman v. Freeman, 2013 Ark. App. 693, 430 S.W.3d 824 (2013).

Separation.

Although subdivision (c)(1) of this section requires that proof of separation and continuity of separation without cohabitation be corroborated, it relates only to those grounds found in § 9-12-301(b)(5) and (6) in which separation without cohabitation is an element, or cases in which cohabitation is an affirmative defense. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Stipulation or Waiver of Grounds.

Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce; in other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984).

Oral waiver made in open court and recorded by the reporter is as valid as though transcribed and executed. Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987).

A judgment of divorce was reversed and the case was dismissed without prejudice where the plaintiff wife failed to corroborate her grounds for divorce and she also did not provide an expressed waiver of the requirement of corroboration. Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000).

Cited: Holden v. Holden, 269 Ark. 850, 601 S.W.2d 247 (Ct. App. 1980); Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981); Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989).

Research References

Ark. L. Rev.

Conflict of Laws, 3 Ark. L. Rev. 20, 29.

Conflict of Laws and Family Law, 14 Ark. L. Rev. 47.

Case Notes

Constitutionality.

Subsection (b) of this section does not violate the full faith and credit clause or the due process clause of the federal Constitution.Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958).

Construction.

As used in subdivision (a)(1)(A) of this section, “before” is defined as preceding; while “next” is defined as adjoining in a series: immediately preceding or following in order. With these definitions in mind and applying them to the instant legislation, it is clear that the General Assembly intended that a divorce plaintiff must prove residence in the state by either the plaintiff or defendant for sixty days immediately preceding, or next before, the filing of a complaint for divorce and, in addition, residence in the state for three full months preceding, or before, the entry of the divorce decree. Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886 (2009).

Purpose.

Subsection (b) of this section substitutes a simple requirement of residence, which can be proved with certainty, for the nebulous concept of domicile, which usually cannot be proved. Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958).

Subsection (b) of this section was intended to restore the rule of Squire v. Squire, 186 Ark. 511, 54 S.W.2d 281 (1932), that only residence, not domicile, is required under this section. Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958).

Cause Arising Outside State.

Although desertion had not continued for necessary period to obtain divorce under laws of state where desertion first occurred, where plaintiff had in good faith moved to this state after desertion, and desertion continued after the required residence period elapsed, divorce could be granted. Mullenband v. Mullenband, 137 Ark. 505, 208 S.W. 801 (1919).

Months.

Where this statute says months, it means calendar months. Parseghian v. Parseghian, 206 Ark. 869, 178 S.W.2d 49 (1944).

Notice.

One spouse should not come into this state and obtain a divorce under this act without seeing to it that the nonresident spouse receives a notice of the pendency of the divorce suit in time to appear and defend the case if he or she desires to do so. Stinson v. Stinson, 203 Ark. 888, 159 S.W.2d 446 (1942).

Residence.

Trial court had jurisdiction to grant a divorce as the necessary corroboration of the wife's residency was supplied by the wife's daughter, who testified that the wife had been a resident in the county for 9 or 10 years before filing for divorce and reiterated her previous testimony that the wife was a resident of the county for at least 3 months preceding the entry of the divorce decree. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Husband was ordered to file a substituted brief in his appeal to the supreme court in which he challenged the circuit court's jurisdiction to enter the divorce decree as he failed to abstract his wife's testimony pursuant to Ark. Sup. Ct. & Ct. App. R. 4-2 regarding the residency requirements of subdivision (a)(1)(A) of this section and § 9-12-306(c)(1). Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (2009).

At the hearing on a divorce complaint filed in 2005, a witness testified that the wife had continuously resided in Pulaski County, Arkansas, from 1999 to 2006; because the wife provided sufficient proof of the residency requirement of subdivision (a)(1)(A) of this section, the circuit court had jurisdiction to enter the divorce decree. Roberts v. Roberts, 2009 Ark. 567, 349 S.W.3d 886 (2009).

Corroboration of a wife's residence in Arkansas by her adult daughter as required for divorce jurisdiction under subdivision (a)(1)(A) of this section was sufficient under § 9-12-306(c)(1). Freeman v. Freeman, 2013 Ark. App. 693, 430 S.W.3d 824 (2013).

—In General.

Residence for the required period in this state is jurisdictional. Parseghian v. Parseghian, 206 Ark. 869, 178 S.W.2d 49 (1944); Porter v. Porter, 209 Ark. 371, 195 S.W.2d 53 (1945); Troillet v. Troillet, 227 Ark. 624, 300 S.W.2d 273 (1957).

Domicile or residence is sufficient for jurisdiction in divorce cases. Weaver v. Weaver, 231 Ark. 341, 329 S.W.2d 422 (1959).

The purpose of the corroboration of residency rule is to prevent procurement of divorce by collusion, and when there is no collusion, the corroboration required is slight. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Residency must be corroborated and proven in every instance, despite admission by a defendant. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Circuit court had jurisdiction over the parties' divorce because it was clear that the mother had abandoned her domicile in Arizona, had no intention of returning to Arizona, and intended to make Arkansas her new domicile, and thus, she was domiciled in Arkansas. Adams v. Adams, 2014 Ark. App. 67, 432 S.W.3d 49 (2014).

—Appearance.

Wife's appearance before court did not confer jurisdiction upon the court if jurisdiction did not otherwise exist. Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876 (1943).

Wife could not file petition to set aside decree on the ground that husband was not a resident of county when decree was entered where she had filed a waiver and secured an attorney who represented her at trial and from which no appeal was taken. Anderson v. Anderson, 223 Ark. 571, 267 S.W.2d 316 (1954).

—Evidence.

Evidence insufficient to find residence requirement for jurisdiction purposes under this section was complied with. Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242 (1939); Gilmore v. Gilmore, 204 Ark. 643, 164 S.W.2d 446 (1942); Cassen v. Cassen, 211 Ark. 582, 201 S.W.2d 585 (1947); Walters v. Walters, 213 Ark. 497, 211 S.W.2d 110 (1948); Stimmel v. Stimmel, 218 Ark. 293, 235 S.W.2d 959 (1951); May v. May, 221 Ark. 585, 254 S.W.2d 957 (1953); Troillet v. Troillet, 227 Ark. 624, 300 S.W.2d 273 (1957); Graham v. Graham, 254 Ark. 646, 495 S.W.2d 144 (1973).

Residence in the state for two months before filing suit for divorce and for one month thereafter before the rendition of the decree is sufficient under this statute. Brickey v. Brickey, 205 Ark. 373, 168 S.W.2d 845 (1943).

Evidence sufficient to find that residence requirement for jurisdiction purposes under this section was complied with. Buck v. Buck, 205 Ark. 918, 171 S.W.2d 939 (1943); Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944); Birnstill v. Birnstill, 218 Ark. 130, 234 S.W.2d 757 (1950); Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981).

—Military Service.

A soldier stationed in this state must have a residence in the state, apart from the military service, for a period of two months before filing a suit for divorce. Kennedy v. Kennedy, 205 Ark. 650, 169 S.W.2d 876 (1943).

Constitutional provision that no soldier, sailor or marine shall acquire residence by reason of being stationed on duty in the state, means that he may not acquire residence from mere fact of being stationed in the state, but, apart from that service, he must have a residence in the state for a period of two months before filing a suit for divorce. Mohr v. Mohr, 206 Ark. 1094, 178 S.W.2d 502 (1944).

Army officer held not to have established a residence in Arkansas. Mohr v. Mohr, 206 Ark. 1094, 178 S.W.2d 502 (1944).

Time of Cause.

Action for divorce may be maintained more than five years after desertion by offending party since desertion is continuing in its nature. Poe v. Poe, 125 Ark. 391, 188 S.W. 1190 (1916).

Evidence was sufficient to show that cause of divorce occurred up to and after the separation which took place one month before suit for divorce. James v. James, 211 Ark. 531, 201 S.W.2d 14 (1947).

Evidence as to occurrences prior to five years before commencement of suit was admissible where its purpose was to show who was the injured party under the three year separation statute (now 18 months separation). Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Cause of divorce occurring five years prior to the filing of defendant's complaint for divorce did not make the granting of a divorce to plaintiff erroneous where there was evidence of other causes. Alston v. Alston, 242 Ark. 804, 415 S.W.2d 578 (1967).

Cited: Hensley v. Hensley, 213 Ark. 755, 212 S.W.2d 551 (1948); Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Stewart v. Stewart, 16 Ark. App. 164, 698 S.W.2d 516 (1985).

Case Notes

Collusion.

Where both parties are guilty of collusion and fraud on the court, both parties are precluded from relief of any kind connected with a divorce decree. Oberstein v. Oberstein, 217 Ark. 80, 228 S.W.2d 615 (1950).

Fault of Parties.

No relief will be afforded to either party if the testimony discloses that they are equally in fault. Cate v. Cate, 53 Ark. 484, 14 S.W. 675 (1890); McCollum v. McCollum, 227 Ark. 735, 301 S.W.2d 565 (1957).

The court has discretion in an action wherein both parties ask for absolute divorce to grant a divorce from bed and board to the party least at fault, although neither party is entirely blameless. Crews v. Crews, 68 Ark. 158, 56 S.W. 778 (1900).

Husband was not entitled to divorce for cause alleged in complaint where he was guilty of adultery. Evans v. Evans, 219 Ark. 325, 241 S.W.2d 713 (1951).

Since it appeared to the court that both parties seeking a divorce were guilty of adultery, the decree granting a divorce must be reversed. Moore v. Moore, 230 Ark. 213, 322 S.W.2d 77 (1959).

Cited: In re Thomas, 331 B.R. 798 (Bankr. W.D. Ark. 2005).

Research References

Ark. L. Rev.

Insanity Procedure in Cases of Contempt for Default in Family Support Payments, 5 Ark. L. Rev. 361.

Taxability of Attorneys' Fees as Costs, 9 Ark. L. Rev. 70.

Support — Alimony, Suit Money and Property Settlement, 14 Ark. L. Rev. 61.

Note, A Secured Party's Right to Recover Attorney's Fees and Expenses: Svestka v. First National Bank in Stuttgart, 35 Ark. L. Rev. 579.

U. Ark. Little Rock L.J.

Hawthorne, Note: Family Law — Divorce — Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 U. Ark. Little Rock L.J. 123.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Note, Constitutional Law — Equal Protection — Arkansas' Gender-Based Statutes on Dower, Election, Statutory Allowances, and Homestead Are Unconstitutional, Hess v. Wims; Stokes v. Stokes, 4 U. Ark. Little Rock L.J. 361.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Note. Some of the following cases were decided prior to the 1979 amendment to this section that made maintenance, etc., available to the husband as well as the wife in divorce proceedings.

Constitutionality.

A husband's liability for the attorney's fee of his wife in a divorce suit is statutory and not a debt by contract within Ark. Const., Art. 9, § 1, exempting personalty of an unmarried person as against debts by contract. Walker v. Walker, 148 Ark. 170, 229 S.W. 11 (1921).

Where this section (prior to its 1979 amendment) granted rights to temporary alimony, maintenance and attorney's fees only to wives and not to husbands, this section contained a gender-based classification which, as compared to a gender-neutral one, generated additional benefits only for those it had no reason to prefer, and therefore, this section was unconstitutional as a violation of the equal protection clauses of the United States and Arkansas Constitutions. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979) (decision prior to 1979 amendment).

In General.

In a suit for divorce, a chancellor has power to award alimony pendente lite to the wife; in the absence of any proof of separate property in the wife, it is just and reasonable to compel the husband to furnish the means for her to prosecute or defend the suit and with necessaries suitable to her station in society and his means. Glenn v. Glenn, 44 Ark. 46 (1884).

A husband may not defeat his wife's right to support during the pendency of her divorce action by offering to return to the home and support her. Womack v. Womack, 247 Ark. 1130, 449 S.W.2d 399 (1970).

Trial court properly considered the factors to be used in determining an award of alimony and properly found that the ex-wife was entitled to a lifetime award where (1) she remained at home throughout the majority of her 25-year marriage; (2) she had not worked for the past 20 years, ever since the parties' child was born; (3) her only employment experience came from jobs paying at or slightly more than minimum wage; (4) she did not have a college degree and she did not think she had the skills to return to college at her age; and (5) the husband had the ability to pay the alimony award. Hiett v. Hiett, 86 Ark. App. 31, 158 S.W.3d 720 (2004).

Sufficient evidence supported the trial judge's findings that the relationship between the wife and her boyfriend was not one of sharing economic responsibility, and that he was neither a member of her household nor a member of her family; the boyfriend and wife had no joint bank accounts, credit cards, or other financial holdings, obligations, or ties, and whether or not they were romantically involved was not determinative of whether termination of alimony was appropriate. Gibson v. Gibson, 87 Ark. App. 62, 185 S.W.3d 122 (2004).

Increase in alimony to wife was proper as wife proved a material change in circumstances; her diagnosis of rheumatoid arthritis affected her ability to supplement her income as she had done in the past by being a massage therapist and limited her potential employment in other fields. Weeks v. Wilson, 95 Ark. App. 88, 234 S.W.3d 333 (2006).

Applicability.

Where a petition is filed to set aside a default decree obtained on constructive service alleging that the decree was procured by fraud, the court may allow the defendant temporary alimony and attorney's fees. Stewart v. Stewart, 101 Ark. 86, 141 S.W. 193 (1911).

An action to vacate a divorce decree is not governed by this section. Floyd v. Isbell, 211 Ark. 631, 201 S.W.2d 755 (1947).

Acts 1979, No. 705, which amended this section to make it gender-neutral, could not be retroactively applied absent clear legislative intent to that effect, and since there was no indication of such intent, the act was only prospective in its application. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Amount of Allowance.

A court of chancery in estimating the allowance to be made the wife, pendente lite, on a bill for divorce, will take into consideration her expenses to be incurred during the progress of the suit; where an allowance has been made for her, it will be presumed that her counsel's fee was considered in fixing the amount. Bauman v. Bauman, 18 Ark. 320 (1857).

In a separate maintenance suit award for support of wife as temporary allowance was reduced. McGuire v. McGuire, 231 Ark. 613, 331 S.W.2d 257 (1960).

Trial court did not abuse its discretion in refusing to allow plaintiff more money for alimony and attorney's fees pending further litigation since the allowances made were only temporary and there was no way of knowing pending a full and final hearing the needs of plaintiff or the financial status of defendant. Yohe v. Yohe, 238 Ark. 642, 383 S.W.2d 665 (1964).

Attorney's fees of $8,000 awarded in child custody modification action under the authority of subsection (a) of this section. Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997).

In a divorce case, the trial court did not err by ordering former husband to pay former wife $100 per month in alimony because the evidence showed that he had the ability to pay, he was not responsible for child support after the child's graduation from high school, and the child's college expenses were not considered; moreover, husband's arguments concerning wife's decision to move and her accountability for her financial situation were rejected. Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006).

Trial court abused its discretion in ordering husband to pay wife alimony in the amount of $250 per week for six months from the date of the divorce decree where the wife's needs far outweighed the husband's ability to provide alimony for six months; the wife, who was unemployed but seeking employment, had no assets, other than those awarded by the trial court, upon which to rely for support. Bailey v. Bailey, 97 Ark. App. 96, 244 S.W.3d 712 (2006).

In a divorce action, an alimony award to a former wife was proper when the wife chose to home-school two minor children, was a stay at home mother under an agreement between the parties, and had no marketable skills or meaningful employment history. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).

Appeal.

An appeal from an order for ad interim alimony may be taken immediately. Casteel v. Casteel, 38 Ark. 477 (1882).

A decree for alimony pendente lite is a final decree which is appealable. Glenn v. Glenn, 44 Ark. 46 (1884).

As incident to its appellate jurisdiction, the Supreme Court has power pending an appeal in a divorce suit to make an order allowing a wife costs and suit money. In re Smith, 183 Ark. 1025, 39 S.W.2d 703 (1931).

Husband in appeal from divorce action has no standing to raise any question about the constitutionality of allowing alimony and attorney's fees where no allowance was made. McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977).

Attorney's Fees.

Attorney's fees allowed. Stearns v. Stearns, 211 Ark. 568, 201 S.W.2d 753 (1947); Cook v. Cook, 233 Ark. 961, 349 S.W.2d 809 (1961); Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962); Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965); Grumbles v. Grumbles, 245 Ark. 77, 431 S.W.2d 241 (1968); Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).

Attorney’s fees not allowed. Warren v. Warren, 215 Ark. 567, 221 S.W.2d 407 (1949).

Order of court requiring plaintiff to deposit a stated sum for attorney's fees and expenses of wife in the defense of action before wife was required to plead was within court's discretion. Goynes v. Goynes, 231 Ark. 47, 328 S.W.2d 258 (1959).

Awarding of attorney's fees was a matter for the sound discretion of the trial court. Where evidence supported it, it was not an abuse of discretion for the trial court to award attorneys' fee. Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972).

Attorney's fees were not awarded under this section as a matter of right, the granting or denial of the fees being within the sound discretion of the chancellor; evidence sufficient to find that chancellor did not abuse his discretion in refusing to award fees. Ryan v. Baxter, 253 Ark. 821, 489 S.W.2d 241 (1973).

During the pendency of an action for an absolute divorce or a limited one, the chancery court has the authority to allow attorney's fees to either spouse upon a showing of circumstances warranting it. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).

Chancellor had authority under this section to grant attorney's fees to either party where the circumstances warranted the relief; wife's amendment to her complaint eliminating her prayer for divorce did not deprive the court of its authority with respect to attorney's fees on the husband's pending cross-complaint for divorce. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).

Disparity of the parties' respective incomes, while relevant, cannot alone justify an award of attorney's fees. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990).

The chancellor did not abuse his discretion by declining to award wife attorney's fees and costs, despite her claim of disparity in the parties' incomes and ability to pay these amounts. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).

The chancellor abused her discretion in awarding attorney's fees to a wife where (1) the case involved a marriage of more than 30 years and complex property-division issues, and the chancellor herself had a crowded docket that complicated timely scheduling of ample hearing time to address all of the property-division issues, (2) the grounds upon which the divorce was granted, 18 months' separation of the parties, did not accrue until just days before the final hearing, and (3) the chancellor awarded each party an equal share of the marital property despite the fact that the husband was retired and was living on a pension that was less than half of the wife's income. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000).

Trial court did not abuse its discretion in awarding mother attorney's fees of $1,000 where father was in contempt of court for making child support payments payable to the minor children rather than to the mother, for failing to make child support payments in a timely fashion, for failing to pay drug and dental expenses, and for failing to furnish mother with the required copies of his W2 and 1099 tax forms. Martin v. Scharbor, 95 Ark. App. 52, 233 S.W.3d 689 (2006).

In a domestic relations case, the trial court appropriately granted an ex-wife's motion for attorney's fees pursuant to § 16-22-308 and this section, because her ex-husband, in challenging the attorney's fee award, offered only his own reasoning and the language of the statutes in support of his argument; he cited no legal authority in support of his position, which was a sufficient reason to affirm the trial court's ruling. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007).

Given the trial court's great discretion as to the issuance of an attorney's fee award in alimony cases, the trial court properly awarded the wife attorney's fees and expenses under subsection (b) of this section, since the evidence supported the finding that a substantial change in circumstances, particularly the husband's ability to pay and the wife's need, existed to modify the parties' divorce decree to continue and increase the wife's alimony. Bettis v. Bettis, 100 Ark. App. 295, 267 S.W.3d 646 (2007).

In a divorce and custody matter, the trial court did not abuse its discretion in its award of attorney's fees to the mother where the father earned over twice as much as the mother earned. Poole v. Poole, 2009 Ark. App. 860, 372 S.W.3d 420 (2009).

On appeal from a divorce decree, considering the disparity in the parties' income, there was no abuse of discretion in the trial court's award of $2,000 in attorney's fees to the wife under subdivision (a)(2) of this section. Page v. Page, 2010 Ark. App. 188, 373 S.W.3d 408 (2010).

Trial court did not abuse its discretion in awarding a wife a partial attorney's fee of $12,000 given that the husband had paid his attorneys mainly in cash from the account of the marital business, that the award to the wife was less than half the amount that the husband expended from the marital-business account, and that there was income and earning power disparity between the husband and wife. Wright v. Wright, 2010 Ark. App. 250, 377 S.W.3d 369 (2010).

In dissolution proceedings, a trial court did not abuse its discretion in not awarding attorney's fees and costs to a wife, pursuant to subdivision (a)(2) of this section, because even though the husband had considerably more assets than the wife, she also had considerable assets; the wife's net worth at the time of the divorce was $600,050, and the wife received $500,000 in marital property and $155,000 in alimony for five years. Barnes v. Barnes, 2010 Ark. App. 822, 378 S.W.3d 766 (2010).

Circuit court did not abuse its discretion by awarding attorney's fees to a mother, pursuant to subsection (b) of this section, for having to respond to a father's motions for reconsideration regarding modification of child support obligations because of the economic disparity between the parties and the father's former counsel was familiar with the arguments and issues presented to the circuit court while new counsel was not; the father changed attorneys after the matter was tried but before the order was entered. McDougal v. McDougal, 2011 Ark. App. 13, 378 S.W.3d 813 (2011).

Where the wife was granted a divorce based on indignities, the circuit court abused its discretion by awarding her $11,376.12 in attorney's fees under this section because she did not file an affidavit for attorney's fees, she failed to mention the requested expenses in the decree, and the amount awarded was in excess of the amount sought. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599 (2012).

Issue of attorney's fees had to be viewed in light of the alimony and property distribution issues in order to determine whether the circuit court achieved a fair and equitable result; the ex-wife received permanent alimony and an equal share of the substantial marital property, and it was equitable and within the circuit court's broad discretion to order each party to pay for their own attorney's fees. Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265 (2014).

Circuit court did not abuse its discretion by awarding attorney's fees and litigation-related expenses to the wife; the billing statement did not include fees for work the wife's attorney did in connection with the divorce hearing, post-hearing briefing, or preparation of the proposed order. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

Circuit court did not err in awarding an ex-wife attorney's fees for services rendered in a dispute regarding the proper amount of child support due by the ex-husband under the parties' divorce decree because it had the inherent authority in domestic-relations proceedings to award attorney's fees independent of the statute. Hudson v. Hudson, 2018 Ark. App. 379, 555 S.W.3d 902 (2018).

Trial court had evidence of the relative financial abilities of the parties and did not abuse its discretion in awarding $10,800 in attorney's fees to the wife; in part, the trial court was familiar with the protracted nature of the litigation, which included contempt motions against the husband, there was evidence that the wife was a substitute teacher and was also taking college courses, and there was evidence of the husband's income from the temporary hearing. Deline v. Deline, 2019 Ark. App. 562, 591 S.W.3d 365 (2019).

Child Custody Proceedings.

Where petition for modification of divorce decree relates only to child custody, the allowance of attorney's fees is within the sound judicial discretion of the court. Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S.W.2d 586 (1956).

Where father brought suit against ex-wife for contempt with regard to her actions in violating a custody agreement by secreting their child outside the jurisdiction of the Arkansas Chancery Court, award of attorney's fees incurred in the contempt proceeding, even though such a proceeding is not specifically included in this section is proper, since the chancery court had the inherent power and jurisdiction to do so in an equity proceeding. Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981).

Costs and Expenses.

Circuit court did not err by awarding litigation-related expenses, such as court-reporter fees and postage, in addition to attorney's fees; Ark. R. Civ. P. 54(d)(2) states that other expenses specifically authorized by statute are allowed, and subdivision (a)(2) of this section provides that in a divorce action, the circuit court may award either the wife or the husband costs of court, in addition to a reasonable attorney's fee. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

Discretion of Court.

Grant of alimony, maintenance, attorney's fees, etc., is within sound discretion of trial court and will not be disturbed on appeal absent an abuse of discretion. Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W.2d 246 (1943); Lewis v. Lewis, 222 Ark. 743, 262 S.W.2d 456 (1953); McGuire v. McGuire, 231 Ark. 613, 331 S.W.2d 257 (1960); Johnson v. Johnson, 240 Ark. 657, 401 S.W.2d 213 (1966).

In a separate maintenance and custody suit in which the wife was unsuccessful, it was within the court's discretion to deny the wife's request for attorney's fees. Tilley v. Tilley, 210 Ark. 850, 198 S.W.2d 168 (1946).

Trial court did not abuse its discretion in denying wife's motion for costs, maintenance, and attorney's fees where she failed to obey order of court. Relbstein v. Relbstein, 220 Ark. 783, 249 S.W.2d 847 (1952).

The questions of the allowance of alimony, attorney's fees and suit money to a wife pending a husband's divorce action are within the sound discretion of the court where commensurate with the husband's ability and duty to pay and the wife's needs, except that it must give a decree for alimony under a properly certified and authenticated copy of a decree of another state. Kearney v. Kearney, 224 Ark. 484, 274 S.W.2d 779 (1955).

An award of attorney's fees is within the discretion of the trial court in a divorce case and will not be reversed absent an abuse of discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Order that husband pay wife's attorney's fees in a divorce case upheld where chancellor determined that the husband was in a much better financial position. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998).

Trial court's decrease in husband's alimony payments was proper even though husband indicated that the relief was not great enough as, given that the trial court's findings indicated it looked at the wife's needs and the husband's ability to pay, the trial court did not abuse its discretion in reducing the obligation by only 30%. Valetutti v. Valetutti, 95 Ark. App. 83, 234 S.W.3d 338 (2006).

Enforcement.

Courts of chancery have jurisdiction to enforce payment of alimony by all means by which courts usually compel obedience, including dismissal of complaint for disobedience to the order. Casteel v. Casteel, 38 Ark. 477 (1882).

This section and § 9-12-313 provides adequate remedy for the enforcement of decrees for alimony and maintenance. East v. East, 148 Ark. 143, 229 S.W. 5 (1921).

A final decree granting a divorce supersedes an order for temporary alimony. Tracy v. Tracy, 184 Ark. 832, 43 S.W.2d 539 (1931); Lewis v. Lewis, 222 Ark. 743, 262 S.W.2d 456 (1953).

Where husband filed notice of appeal from trial judge's order in divorce proceeding and wife filed notice of cross-appeal but neither party filed supersedeas bond, trial court had not lost jurisdiction and could enforce order by contempt proceeding. Kearney v. Butt, 224 Ark. 94, 271 S.W.2d 771 (1954).

Husband was not guilty of contempt for refusing to pay monthly payments he had been ordered to pay for maintenance resulting from prior proceedings in which no divorce had been requested after the husband was granted a divorce in proceedings in which the wife was not personally served. Smith v. Smith, 236 Ark. 141, 365 S.W.2d 247 (1963).

Trial court was ordered to enforce the original alimony award of $350 per month for 12 months, plus a $5,000 lump sum, because the original chancellor had the authority to enforce that alimony award; those sums accrued prior to the entry of the decree in the instant case and were therefore not subject to modification. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Marital Property.

Where trial court had entered a temporary order pursuant to this section, and that order did not deal with or affect the distribution of the parties' properties, § 9-12-315(b)(3) was not applicable. Allen v. Allen, 17 Ark. App. 38, 702 S.W.2d 819 (1986).

Trial court did not purport to divide any future, non-vested employment benefits pursuant to the divorce decree but, rather, based the award of future alimony on a percentage of the ex-husband's net income, including any bonuses or stock options that the husband received in the future as part of the definition of his net income; thus, it was not error for the trial court to include stock options that might be exercised by the husband in the future as part of his net income for alimony purposes, given that all sources of income had to be considered in determining alimony. Hiett v. Hiett, 86 Ark. App. 31, 158 S.W.3d 720 (2004).

Minors.

In an action by an infant husband, brought by his guardian and parent to annul a marriage with another infant, a judgment cannot be rendered against the guardian and parent for alimony. Erwin v. Erwin, 120 Ark. 581, 180 S.W. 186 (1915).

Modification.

Modification of alimony was warranted where a wife's income and education level had increased, she was able to afford a nice home and automobiles, she received $400,000 in assets from the property distribution, and she was only supporting one child. Parker v. Parker, 97 Ark. App. 298, 248 S.W.3d 523 (2007).

Setting Aside.

Where a wife brought suit for divorce, a temporary order allowing her alimony, attorney's fees, and cost money may be set aside at a subsequent term of court. Poe v. Poe, 93 Ark. 426, 124 S.W. 1029 (1910).

Showing of Merit.

In a proceeding for divorce, where the plaintiff applies for alimony pendente lite and an allowance for attorney's fees, she must make some showing of merit by affidavit or otherwise, if the allegations of her complaint are denied by the answer supported by the affidavits of witnesses. Countz v. Countz, 30 Ark. 73 (1875).

The wife must make a showing of merit before the court will allow temporary alimony and suit money. Slocum v. Slocum, 86 Ark. 469, 111 S.W. 806 (1908).

Cohabitation that occurred during misconduct of spouse and prior to separation of the parties is not an available defense to ad interim allowances under this section. Brabham v. Brabham, 240 Ark. 172, 398 S.W.2d 514 (1966).

Trial court did not err in awarding a wife $1 per year in alimony because she received over $1 million in assets, with a substantial amount of cash. Cummings v. Cummings, 104 Ark. App. 315, 292 S.W.3d 819 (2009).

Order awarding a wife alimony in the amount of $1,500 per month in a divorce action was proper because the trial court considered the proper factors, including the wife's significant health problems impacting her ability to earn an income; the husband's good health; the likelihood that the husband would continue working until retirement age; and the husband's 2007 projected gross earnings. Jackson v. Jackson, 2009 Ark. App. 238, 303 S.W.3d 460 (2009).

Trial court properly denied a wife's request for alimony in a divorce action because there was evidence introduced showing that, while the wife arguably had a need for alimony, the husband's financial situation was not as robust as his salary alone would indicate; the husband still maintained a house payment and car payments for himself and the children while the wife, pursuant to an agreed upon property division, had no debt, no house payment, and no car payment. Whitworth v. Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269 (2009).

Trial court did not err under subdivision (a)(2) of this section in awarding attorney's fees to a wife in a divorce action because the husband's financial position was stronger. Delgado v. Delgado, 2012 Ark. App. 100, 389 S.W.3d 52 (2012).

Cited: Kuespert v. Roland, 222 Ark. 153, 257 S.W.2d 562 (1953); Lewis v. Lewis, 222 Ark. 743, 262 S.W.2d 456 (1953); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981); Russell v. International Paper Co., 2 Ark. App. 355, 621 S.W.2d 867 (1981); Elkins v. Coulson, 293 Ark. 539, 739 S.W.2d 675 (1987); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995); Valentine v. Valentine, 2010 Ark. App. 259, 377 S.W.3d 387 (2010).

Case Notes

Cited: Douglas v. Douglas, 227 Ark. 1057, 304 S.W.2d 947 (1957).

Case Notes

Cited: Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620 (1961); Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981); Tuck v. Ark. Dep't of Human Servs., 103 Ark. App. 263, 288 S.W.3d 665 (2008).

Research References

ALR.

Propriety of equalizing income of spouses through alimony awards. 102 A.L.R.5th 395.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement. 3 A.L.R.6th 447.

Ark. L. Notes.

Beard, Transfers of Property between Spouses and Former Spouses — An Overview of Income Tax Issues and a Suggested Analytical Approach to Such Issues, 1990 Ark. L. Notes 1.

Ark. L. Rev.

Bond for Child Support, 5 Ark. L. Rev. 360.

Divorce and Property Awards, 7 Ark. L. Rev. 367.

Notes, Towery v. Towery: Has the “Flexible” Child Support Rule Lost Its Stretch?, 39 Ark. L. Rev. 539.

U. Ark. Little Rock L.J.

Note: Duty of Continued Child Support Past the Age of Majority, 1 U. Ark. Little Rock L.J. 397.

Hawthorne, Note: Family Law — Divorce — Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 U. Ark. Little Rock L.J. 123.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Survey of Arkansas Law, Family Law, 5 U. Ark. Little Rock L.J. 143.

Legislative Survey — Family Law, 8 U. Ark. Little Rock L.J. 577.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey — Family Law, 13 U. Ark. Little Rock L.J. 369.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 371.

Case Notes

Note. Some of the following cases were decided prior to the 1979 amendment to this section that made the statute gender-neutral.

Constitutionality.

Prior to the 1979 amendment, this section was undisputedly gender-based and therefore unconstitutional as violative of equal protection rights. This section, as amended by Acts 1979, No. 705 is gender-neutral rather than gender-based and therefore is constitutional. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Unconstitutionality of this section as it existed prior to 1979 amendment did not affect the validity of alimony awarded prior to declaration of unconstitutionality since the wife's rights to alimony were vested by the decree of the court and not by the statute. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).

Supreme Court would not consider husband's challenge to constitutionality where the challenge was made two years after the original divorce decree because he waited too long to assert it, even though this section had since been declared unconstitutional because of its gender-based classification. Schmidt v. Schmidt, 268 Ark. 382, 596 S.W.2d 690 (1980).

This section, which permits a court to require child support past majority while the child remains a high school student, is not unconstitutional. McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994).

Former wife failed to show that subdivision (a)(2)(D) of this section relating to alimony and cohabitation violated due process because her argument was based on a misinterpretation of the plain language of the statute; the party attacking a statute bears the burden of making a clear argument demonstrating unconstitutionality. According to the plain language of the statute, the court still has discretion to award alimony even if a party is involved in an intimate cohabitation and the parties are allowed to form an agreement concerning alimony under those circumstances as well. Zimmerman v. Pope, 2015 Ark. App. 499, 471 S.W.3d 646 (2015).

Former wife failed to show that subdivision (a)(2)(D) of this section relating to alimony and cohabitation amounted to an equal protection violation in disproportionately affecting women; the statute passes the rational-basis test, as the reasonable governmental purpose of the statute is to help settle the economic imbalance between the parties by assessing whether the facts of a case show a need for alimony. Zimmerman v. Pope, 2015 Ark. App. 499, 471 S.W.3d 646 (2015).

Former wife failed to show that subdivision (a)(2)(D) of this section relating to alimony and cohabitation violated the fundamental right to privacy under the strict-scrutiny test; there is a compelling state interest in determining the need for alimony, and delving into the private lives of the parties is the least restrictive method, and indeed the only method, the court has to determine the circumstances of the parties and the need for alimony. Zimmerman v. Pope, 2015 Ark. App. 499, 471 S.W.3d 646 (2015).

In General.

This section was not repealed by § 9-12-315. Williams v. Williams, 150 Ark. 319, 234 S.W. 169 (1921).

Although wife did not plead her claim for alimony properly, where it was apparent on the record that throughout the proceeding the parties litigated the case with the full knowledge of wife's desire for alimony, the court erred in granting husband's motion to set aside the award of alimony. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).

Construction.

The General Assembly intended the right of support for the wife, and children, to be construed in the same manner. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957).

Mandatory termination language added to this section by Acts 2013, No. 1487 does not apply retroactively to automatically terminate alimony awards entered before the 2013 amendment (answering certified question from the Court of Appeals). Mason v. Mason, 2017 Ark. 225, 522 S.W.3d 123 (2017).

Amendment to this section by Acts 2013, No. 1487 concerning automatic termination of alimony awards, including the provision that alimony automatically terminates on cohabitation, does not automatically terminate alimony awards entered before August 16, 2013; nothing in the statute or the legislative history indicates that the General Assembly intended for the amendment to apply to previous alimony awards (answering certified question from the Court of Appeals). Mason v. Mason, 2017 Ark. 225, 522 S.W.3d 123 (2017).

Applicability.

Acts 1979, No. 705, which made this section gender-neutral, could not be retroactively applied absent clear legislative intent to that effect, and since there was no indication of such intent, the act was only prospective in its application. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

When support has been previously set in a decree, a change of circumstances must be found before this section is applicable. McKiever v. McKiever, 305 Ark. 321, 808 S.W.2d 328 (1991).

Agreement of Parties.

An agreement by the mother to pay child support to her husband following a divorce was not invalid as being inequitable and contrary to public policy on the grounds that the agreement relieved the father of his obligation to support his children since the obligation belonged to both parents. Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972).

Power of a court to modify a decree for the support of minor children cannot be defeated by an agreement between the parties, even if incorporated in the decree. Williams v. Williams, 253 Ark. 842, 489 S.W.2d 774 (1973).

Where the final decree of divorce found that the parties had agreed that one-third of the personal property and crops amounted to a certain sum and an order was entered awarding that amount to the wife, the husband had no grounds to complain that the division of personal property was not exactly one-third. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).

The trial court was not bound by the property settlement agreement as to alimony because the court has the authority to make an initial award of alimony when a divorce decree is entered. Womack v. Womack, 16 Ark. App. 108, 697 S.W.2d 930 (1985).

Prior to 1987, agreements between former spouses reducing the amount of child support payments did not bind the court, but the court could recognize such an agreement (1) if the agreement was supported by a valid consideration, or (2) if it were inequitable to do otherwise; thus, where the mother gave up the right to 32% of the father's income as previously ordered but gained an increase in the fixed amount of support from $200 to $250 per month over a period of time there was valid consideration and the chancellor did not err in recognizing the agreement as to the amount of arrearages due before the 1987 amendment to § 9-12-314. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), superseded by statute as stated in, Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), superseded by statute as stated in, Branch v. Carter, 54 Ark. App. 70, 923 S.W.2d 874 (1996).

Alimony.

The award of alimony in a divorce action is not mandatory, but is a question which addresses itself to the sound discretion of the chancellor, and the chancellor's decision will not be disturbed absent a clear abuse of that discretion. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988); Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988); Busby v. Busby, 39 Ark. App. 108, 840 S.W.2d 195 (1992).

The chancellor erred when he ordered that alimony would terminate only upon the death of either party and that alimony would not terminate upon the remarriage of the recipient wife where his stated purpose for such award was to substitute alimony for an interest in the husband's unvested military retirement. Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000).

When the original divorce decree was entered, the circuit court judge failed to address the issue of alimony; two years later upon the wife's motion for reconsideration, the circuit judge had subject-matter jurisdiction under this section to enter a supplemental divorce decree awarding alimony. Edwards v. Edwards, 2009 Ark. 580, 357 S.W.3d 445 (2009).

Nothing in subdivision (a)(1) of this section or applicable case law requires a spouse to attempt to obtain public housing before a trial court may award alimony. Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147 (2012).

In a divorce decree, the trial court did not abuse its discretion in awarding $642 per month to the wife in permanent alimony under subdivision (a)(1) of this section. The trial court considered the appropriate factors and observed that while the husband's income was $2,440 per month, the wife's income was $440 per month; the court also noted that the wife did not work outside the home during the nineteen-year marriage. Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147 (2012).

Trial court was permitted to modify a divorce decree beyond the expiration of ninety days because Ark. R. Civ. P. 60 was not applicable as the second order merely corrected an oversight in the divorce decree and clarified: (1) the date alimony previously awarded under subdivision (a)(1) of this section would begin; (2) that the Social Security Administration would withhold the payments from the husband's Social Security disability payments; and (3) that alimony payments would continue until remarriage or an appellate ruling. Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147 (2012).

Circuit court did not abuse its discretion by entering a monthly award of alimony for a period of 30 years in a decree of divorce because the court made findings regarding the amount of alimony and had the authority to set the duration of the award of alimony. Moreover, there was no evidence to support the idea that the alimony award was meant to be punitive, based on the husband's addictions and other detrimental behavior having placed the parties in financial hardship. Trucks v. Trucks, 2015 Ark. App. 189, 4599 S.W.3d 312 (2015).

Denial of a former spouse's petition to eliminate alimony payments was appropriate because the circuit court did not abuse its discretion (1) by considering that the parties had planned that the obligee was to stay at home with the children and (2) in finding that the obligee spouse had a need for alimony until the oldest child graduated from high school, at which time the alimony was to begin to be phased out. Hix v. Hix, 2015 Ark. App. 199, 458 S.W.3d 743 (2015).

Trial court specifically increased monthly alimony over the years commensurate with the amount of decreasing child support, and as such, child support and alimony were inextricably intertwined; because the case was reversed and remanded for recalculation of the father's child-support obligation, the issue of alimony was also remanded. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18, 465 S.W.3d 18 (2015).

Awarding the husband permanent alimony of $3,787 was an abuse of discretion where the parties had equal earning capacities as lawyers and shared joint custody with equal physical custody, and the law did not require the wife to pay permanent alimony to support the husband's choice to earn less so he had more flexibility. Grimsley v. Drewyor, 2019 Ark. App. 218, 575 S.W.3d 636 (2019).

Rehabilitative alimony award for seven years was affirmed where the court had considered the disparity in the parties' incomes, the fact that the wife had worked in the husband's business the entire length of the marriage, and the parties' health. Perser v. Perser, 2019 Ark. App. 467, 588 S.W.3d 395 (2019).

Permanent alimony award to the wife was affirmed where the circuit court heard evidence of the wife's need, the husband's ability to pay, the spendable incomes of the parties, and the wife's standard of living to which she had become accustomed during the marriage, as well as other evidence. Carr v. Carr, 2019 Ark. App. 513, 588 S.W.3d 821 (2019).

Trial court did not abuse its discretion in awarding the ex-wife permanent alimony because the ex-husband's claim that the wife was capable of earning considerably more income than she did at present was not supported by the proof as, after the parents' special-needs child was born, the wife became a stay-at-home mom to care for him; at the time of the parties' divorce, the wife was an hourly employee making $12.75 an hour, while the husband earned a $45,000 salary; and there was evidence that the husband's earning potential was higher than his current salary given that he had worked at a significantly higher salary at previous teaching jobs and had a master's degree that qualified him to be a school principal. Medlen v. Medlen, 2020 Ark. App. 159 (2020).

—In General.

The amount of support must always depend upon the particular facts in each case, such as husband's earnings and ability to pay as well as the needs of the wife. Dean v. Dean, 222 Ark. 219, 258 S.W.2d 54 (1953).

Where property awards were sufficient wife was not entitled to alimony. Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957).

Fact that wife has more income than husband does not, within itself, preclude her right of recovery, though the fact that a wife has more income than the husband may be taken into consideration in making an award. White v. White, 228 Ark. 732, 310 S.W.2d 216 (1958).

Chancery courts have the power to grant the wife, as a part of her alimony, an interest in her husband's real property where he secures the divorce. Cook v. Cook, 233 Ark. 961, 349 S.W.2d 809 (1961).

When awarding alimony, the chancellor should give proper consideration to (1) the financial condition of the parties such as the husband's ability to pay, the wife's financial needs, and the wife's ability to support herself; (2) the station in life of the parties, that is, the manner and style of living to which the wife has become accustomed; and (3) the character of the parties bearing on the cause of the separation. Sutton v. Sutton, 266 Ark. 451, 587 S.W.2d 67 (1979).

A decree for alimony is binding and conclusive on the parties as to the amount of alimony and as to all conditions or facts existing when it was rendered. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).

Section 9-12-301 allows independent proceeding for the division of marital property or alimony when neither the division nor alimony could have been considered in the divorce action. Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985).

If either spouse is entitled to alimony, the chancellor must comply with this section by making that decision when the decree is entered. If circumstances prevent the spouse who is to pay the alimony from being able to do so, then the court may recite that fact and decline to award a specific amount; thereafter, if circumstances change in a way that will permit the payment of alimony, the party who has been determined to be entitled to it may petition the court. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988).

Where chancellor's order said alimony award was not a distribution of marital property or given in lieu of such a distribution, but it then referred to the discrepancy in income which would result from the difference in profit potential between two properties, reversal of the award gave the chancellor appropriate flexibility in reconsidering the distribution of marital property, if he chose to do so, rather than readopt the unequal distribution with an explanation as § 9-12-315 requires. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).

The ability of a party to pay and the need of the other party are primary factors to be considered in awarding alimony. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Where spouse ordered to pay alimony has the ability to generate substantial earnings and a past history of doing so, but, at the time of the divorce, is engaged in lesser employment, the trial court need not award a token amount of alimony in the decree in order to reserve to the other spouse the right to petition for a reasonable amount of alimony when the circumstances permit. Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996).

Chancellor abused his discretion in failing to award husband alimony, where marriage was of long duration, husband was unemployed, without independent financial means, in declining health and ordered to sell farm he had been operating, and wife had a secure job, was beneficiary of a trust fund, retained the main instrumentality enabling her to earn her livelihood and in better health than husband. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).

The statute is not determinative with regard to the termination of alimony provided for in an incorporated agreement. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998).

—Cohabitation.

There was no abuse of discretion in denying alimony as the circuit court would not have awarded alimony to the wife under either the previous or current version of subdivision (a)(2)(D) of this section; moreover, the testimony and exhibits went beyond the issue of cohabitation and concerned income, earning capacity, age, health, and expenses. Zimmerman v. Pope, 2015 Ark. App. 499, 471 S.W.3d 646 (2015).

Trial court erred by terminating the wife's alimony award as subdivision (a)(2)(D) did not automatically terminate alimony awards that were entered before the provision was enacted (applying Mason v. Mason, 2017 Ark. 225, 522 S.W.3d 123). Mason v. Mason, 2017 Ark. App. 683, 536 S.W.3d 657 (2017).

—Discretion of Court.

An award of alimony lies within the discretion of the chancellor and will not be reversed absent an abuse of that discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Where party seeks award of alimony and greater share of marital property, alimony and property settlements are complimentary devices that a chancery court must employ to make the dissolution of a marriage of long standing as equitable as possible. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).

Trial court did not abuse its discretion in its initial alimony award of $3,500 a month for 36 months and thereafter $1,500 a month for 60 months or upon the wife's remarriage because the wife had recently acquired a job making $39,000 a year; the husband had a net monthly income of $15,000 to $16,000 at the time of the final hearing, but he was also making the parties' $5,884 mortgage payment; and the court considered the wife's need for alimony, the husband's ability to pay, the length of the marriage, the incomes and expenses of both parties, the financial circumstances of the parties, the amount and nature of the income, both current and anticipated, of both parties, and the extent and nature of the resources and assets of both parties. Mason v. Mason, 2017 Ark. App. 683, 536 S.W.3d 657 (2017).

—Duration.

The chancery court was not wrong in not extending alimony until 56-year-old wife was eligible for Social Security, rather than just for five years; where the wife had marketable skills, and therefore had the means to support herself, that fact joined with the alimony award and other property given her in the divorce was evidence that the chancery court weighed the relevant circumstances, and acted well within its discretion in awarding alimony “for a specified period of time.” Ducharme v. Ducharme, 316 Ark. 482, 872 S.W.2d 392 (1994).

The chancellor erred when he ordered that alimony would terminate only upon the death of either party and that alimony would not terminate upon the remarriage of the recipient wife where his stated purpose for such award was to substitute alimony for an interest in the husband's unvested military retirement. Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000).

—Modification.

When a decree is entered fixing and allowing alimony for the support and maintenance of the wife, that decree limits and defines the extent of the husband's obligation in that respect, but the allowance is always subject to modification by the court to meet the changed situation and conditions of the parties in interest. Pledger v. Pledger, 199 Ark. 604, 135 S.W.2d 851 (1940).

Trial court contemplated the wife inheriting from her mother at the time the original alimony award was given, and thus her ultimately doing so was not a material change in circumstances for alimony modification purposes; the trial court was free not to believe the husband's assertion that the wife's net worth was greater than $1.3 million, and the trial court did not abuse its discretion in rejecting the husband's request to terminate or reduce his alimony obligation. Berry v. Berry, 2017 Ark. App. 145, 515 S.W.3d 164 (2017).

Trial court erred in refusing to modify the wife’s alimony because the evidence showed that the husband's income increased dramatically following the entry of the divorce decree; that his obligations to the wife decreased as his obligation to make the house payment terminated; and that neither party received the anticipated payoff from the sale of the house — a factor the trial court clearly considered important to the initial alimony determination. Mason v. Mason, 2017 Ark. App. 683, 536 S.W.3d 657 (2017).

—Specific Provisions.

Circuit court's finding that the issue of alimony could be revisited in four years did not constitute an escalator clause because the court did not order that alimony would automatically increase when child-support payments ceased. The court explicitly stated that in four years, when child support abated, the wife could petition the court to review the issue of alimony based on the facts at that time. Nauman v. Nauman, 2018 Ark. App. 114, 542 S.W.3d 212 (2018).

Appeal.

Husband in appeal from divorce action has no standing to raise any question about the constitutionality of allowing alimony and attorney's fees where no allowance was made. McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977).

Appellant had standing to challenge the constitutionality of this section where he was financially obligated to his wife under decree rendered pursuant to this statute. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Indebtedness which spouse was required to pay as maintenance and support not dischargeable in bankruptcy. Barker v. Barker, 271 Ark. 956, 611 S.W.2d 787 (1981).

Bond.

There is no language in this section which authorizes the seizure of one's property without limitation under the guise of a bond; accordingly, one spouse in a divorce action was not entitled to have all of the other spouse's property impounded as a bond under this section, particularly where the second spouse had never been ordered nor attempted to make a bond. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981) (supplemental opinion).

Child Support.

Circuit court did not clearly err in finding that the husband's income for child-support purposes was that reflected on his tax returns; it was clear that the husband's ownership in the limited partnership was a significant portion of his net worth; thus, that ownership interest would be a proper consideration. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Court abused its discretion in failing to order parents to pay child support to a grandmother who was awarded custody of their child at the time their divorce was granted, as required by subdivision (a)(1) of this section, where the court had ample evidence of the mother's income and evidence that the father was on active duty in the U.S. Army National Guard. Bass v. Weaver, 101 Ark. App. 367, 278 S.W.3d 127 (2008).

Where the father was awarded child custody and the mother was ordered to pay child support based on the child-support chart rate set forth in Ark. Sup. Ct. Admin. Order No. 10, she was not entitled to a reduction in child support based on allegations that she could not make ends meet while the father was placing some of the child support funds into his savings account. The mother did not show a change of circumstances, nor did she rebut the presumption that the amount of child support awarded under the family-support chart was reasonable in accordance with this section. Hubanks v. Baughman, 2009 Ark. App. 585 (2009).

Trial court did not err in denying a mother's motion to increase a father's child-support obligation because all of the children's needs were being met from the father's support payments, with over $3,000 left over each month, and the mother's approximate $46,000 annual income from her part-time jobs did not even factor into the children's expenses; the father was not the only parent required to support the children because in accordance with Administrative Order of the Supreme Court No. 10, the mother's income was also a relevant factor to consider in awarding child support. Kemp v. Kemp, 2011 Ark. App. 354, 384 S.W.3d 56 (2011).

It was error for the court to calculate the husband's income based on his tax returns after determining that the tax returns were not credible, because the court found that the husband was earning more than his reported $40,000 salary and questioned him regarding his underemployment. John v. Bolinder, 2013 Ark. App. 224 (2013).

In a child support modification case, a trial court did not err by relying on a father's tax record in determining his monthly income when it determined that there was a material change of circumstances to support the modification under § 9-14-107(a)(1); there was no need to consider the net-worth approach. Cowell v. Long, 2013 Ark. App. 311 (2013).

Because the father was unemployed, there existed a rebuttable presumption that the child support should be based on his zero income as applied to the support chart; the trial court could have rebutted that presumption by making written findings that the application of the support chart would be unjust or inappropriate, but the trial court did not make such findings and consequently erred in its calculation of child support. The trial court has the discretion to impute income, however, and the child support award was reversed and remanded for reassessment. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18, 465 S.W.3d 18 (2015).

Requiring the wife to make a one-time payment of $1.25 million in child support to the husband per a provision in the divorce decree was error where the assets of the wife's inheritance did not constitute income under Ark. Sup. Ct. Admin. Order No. 10, § II, and there was no evidence of the children's needs. None of the assets that were part of the $5 million inheritance had been liquidated and the parties had joint custody. Grimsley v. Drewyor, 2019 Ark. App. 218, 575 S.W.3d 636 (2019).

Award of child support was affirmed where the court disbelieved the husband as to why he was earning half of what he had earned for the three or more years before he filed for divorce, the husband owned his medical practice and was in sole control of his salary, and the court did not believe that the husband's tax returns showed the correct amount of his earnings. Perser v. Perser, 2019 Ark. App. 467, 588 S.W.3d 395 (2019).

Circuit court erred in allocating the tax exemptions for the parties' children; the circuit court was not bound by the parties' earlier contractual agreement that was made part of the judicial-separation case, and giving tax allocations to a noncustodial parent is considered a deviation from the child-support chart amount, which requires findings, and the necessary findings were lacking. Callan v. Callan, 2020 Ark. App. 205, 599 S.W.3d 145 (2020).

—In General.

Where chancery court did not pass on the question of support of the children, but merely denied the wife alimony, children are not barred from bringing suit against their father, and whether they would recover or not would depend upon all the facts and circumstances. Upchurch v. Upchurch, 196 Ark. 324, 117 S.W.2d 339 (1938).

It is duty of father to support minor child even though custody is awarded to mother, and misconduct of mother cannot be allowed to prejudice the child's right to support. Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644 (1955).

Order for the payment of allowances for child support is not a final decree upon which an execution may be issued, or which might become a lien on real estate. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957).

Action to recover delinquent child support payments was not timely where instituted more than five years after the last payment became due. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940 (1957).

A mother's obligations to her child for support do not come into existence only when the father is impoverished. Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972).

The power of a chancery court to order child support payments under this section does not create in the court an implied authority to impose a lien on the other spouse's property for future child support, and equity courts have no inherent authority to grant one. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981) (supplemental opinion).

To declare that Perkins v. Perkins, 15 Ark. App. 82, 690 S.W.2d 356 (1985), or this section effectively eliminates the necessity of the need for equity or a chancellor in child support cases is utterly without foundation. Borden v. Borden, 20 Ark. App. 52, 724 S.W.2d 181 (1987).

While there is no specific provision identifying “earning capacity” as an element to be considered when ordering child support, it is nevertheless recognized as a factor. In determining the amount to be contributed for child support, the chancellor should consider the needs of the children, the resources of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects, and any other factors that will aid the court in reaching a just and equitable result. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988).

Where custodial parent did not interfere with former spouse's visitation rights, nor defy the divorce decree, but did delay in pursuing her rights to obtain judgment for the accrued child support payments, delay did not defeat right to accrued child support. Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 941 (1988).

The list of factors set out by the Supreme Court for determining whether an amount specified by the chart is unjust or inappropriate, is not exclusive. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

The language “other income or assets available to support the child from whatever source” is intended to expand, not restrict, the sources of funds to be considered in setting child support. Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992).

The chancellor correctly based the amount of child support ordered on a monthly income which included noncustodial Veterans' Administration disability benefits. Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992).

In a divorce action, a trial court did not err when it relied on a former husband's total net income and averaged the husband's salary to determine income for child support payments, which were presumptively proper under the guidelines and family support chart of this section and Ark. Sup. Ct. Admin. Order No. 10. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).

Trial court's order from which the father appealed failed to comply with Administrative Order No. 10 and this section in that it did not contain the court's determination of the father's 2015 income, it did not recite the amount of support required under the guidelines, and it did not recite whether the court deviated from the Family Support Chart and why it deviated. Newton v. Newton, 2018 Ark. App. 525, 565 S.W.3d 493 (2018).

—Beyond Eighteenth Birthday.

Even after a handicapped child reaches age 18, a parent should provide further support for educational purposes to prepare the child to pay his medical bills, and support himself if the financial condition of the parent allows. Elkins v. Elkins, 262 Ark. 63, 553 S.W.2d 34 (1977).

This section gave the chancellor the authority to direct noncustodial parent to continue making payments on the custodial parent's house until the parties' child graduated from high school. Keesee v. Keesee, 48 Ark. App. 113, 891 S.W.2d 70 (1995).

—Chart.

Courts are required to refer to chart but are not bound to set support payments in accordance with exact terms thereof; degree of dependence upon chart is left to sound discretion of the chancellor. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987).

The Family Support Chart is to be used as a guide and is not intended to be binding. Borden v. Borden, 20 Ark. App. 52, 724 S.W.2d 181 (1987).

Award of support based upon Family Support Chart was not abuse of discretion. Borden v. Borden, 20 Ark. App. 52, 724 S.W.2d 181 (1987); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Although the chancellor was not required to use the family support chart in setting child support the fact that his order of support was in conformity with the chart indicated that it was not erroneous. Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989) (preceding decisions prior to 1989 amendment by No. 948).

Where chancellor made specific findings on the record spelling out why the support chart was inappropriate, considering all relevant factors, it was sufficient to rebut the presumption that the amount of child support calculated pursuant to the family support chart was correct. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990).

Reference to the Family Support Chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991).

Where the chancellor's order failed to indicate whether he indeed referred to the chart in making his decision, he projected a support chart amount premised on the defendant's monthly income, and he presumed that amount to be correct, the case was remanded for the chart to be considered. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991).

While there is a rebuttable presumption that the amount of support according to the chart is correct, the chancellor in his discretion is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case. However, when deviating from the chart, the chancellor must explain his or her reasoning by the entry of a written finding or by making a specific finding on the record. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991).

Where the end result reached by the chancellor represented only a slight deviation from the chart amount, the findings made by the chancellor on the record were sufficient to rebut the presumption that the amount of support according to the chart was correct. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991).

The child support chart and the criteria used for deviating from it are not mandatory, but there is a rebuttable presumption that the amount specified in the chart is the appropriate amount; applying the specific chart amounts is not mandatory if it would be unjust or inequitable, and if written findings are made to that effect. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

The child support chart specifically takes into account payments made under court order to support other children, and allows these payments to be deducted from weekly take home pay. The chart does not refer to support of children not under court order, but a payor spouse's ability to pay can be considered, and necessarily includes other children the parent is legally obligated to support. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

Given the presumption that the chart amount is reasonable, it is incumbent on the trial courts to give a fuller explanation of their reasons for rejecting the chart; it was not sufficient to state merely that the amount was “unreasonable.” Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992).

Where there was no evidence regarding defendant's weekly take home pay during the relevant time period, the support was set at the minimum level required of an unemployed person. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Where the chancellor found that the chart called for $51.00 per week child support, which would quadruple the noncustodial parent's payments, and considering his expenses, would be devastating to increase by four times the amount of his support payments, an increase of the weekly payment to $30.00 instead of $51.00 followed the requirements, and applied the rules set out in the Supreme Court's per curiams by avoiding a modification that would work undue hardship on that party. Howard v. Wisemon, 38 Ark. App. 27, 826 S.W.2d 314 (1992).

Reference to the child support chart is mandatory. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

The child support chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

The presumption that the child support chart correctly estimates support may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate; the relevant factors include food, shelter, utilities, clothing, medical and education expenses, accustomed standard of living, insurance, and transportation expenses. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

The family support chart is structured so that the amount of support per child decreases in proportion to the number of added dependents. Ark. Dep't of Human Servs. Child Support Enforcement Unit v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994).

Chancellor erroneously applied father's income figure of $270.00 to the chart under the column for three dependents, which showed support of $101.00, and then divided that figure by three, to arrive at support of $35.00 for the one child before the court; the chart should be applied to the child that is before the court, and it was improper for the chancellor to have applied the chart based on three dependents and then divide that amount by three. Ark. Dep't of Human Servs. Child Support Enforcement Unit v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994).

Reference to the family support chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by express findings stating why the chart amount is unjust or inappropriate. McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996).

Where the chancellor failed to make any reference to the family chart in his comments or the order, the chancellor failed to comply with this section and the award was improper. McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996).

Reference to the family support chart is mandatory; although a trial court's order did not specifically reference the family support chart, the appellate court held that the trial judge in his bench ruling referenced the chart by ordering the incarcerated father to pay the minimum amount. Allen v. Allen, 82 Ark. App. 42, 110 S.W.3d 772 (2003).

Given the evidence of the father's affluence, exceptional generosity to his girlfriend and sisters, and extravagant lifestyle, the trial judge did not abuse his discretion in setting child support in the divorce proceeding in accordance with the presumptive amount derived from the family support chart. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).

Father was properly ordered to pay a percentage of his salary as child support, pursuant to the child support guidelines, where his income exceeded the amount of income shown on the family support chart as the child was entitled to a lifestyle similar to that of his father's and said monies were going toward the child's college education; thus, the trial court did not abuse its discretion in not deviating from the family-support guidelines and in not ordering father to pay less than 15 percent of his monthly income in child support. Ceola v. Burnham, 84 Ark. App. 269, 139 S.W.3d 150 (2003).

—Custody.

If the divorce decree grants the custody of a minor child to the mother but makes no provision for the child's support and the mother thereafter supports the child and supplies the child with necessaries, the father, if financially able, should repay the mother for the reasonable value of the support or necessaries thus furnished. Wilder v. Garner, 235 Ark. 400, 360 S.W.2d 192 (1962).

Where parents have physical custody of one child each, the court should determine whether each parent should pay child support for the other child and, if not, should make specific findings as provided by this section. Lonigro v. Lonigro, 55 Ark. App. 253, 935 S.W.2d 284 (1996).

—Deviation from Chart.

Given the presumption in this section that the chart amount is reasonable, it is incumbent on the chancellor to give a full explanation of his reasons for rejecting the chart. Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993).

The chancellor did not abuse his discretion in considering father's other two illegitimate children as justification for deviating from the child support chart, even though father was not under a court order to support those children. Ark. Dep't of Human Servs. Child Support Enforcement Unit v. Forte, 46 Ark. App. 115, 877 S.W.2d 949 (1994).

Where chancellor awarded the noncustodial parent the right to claim the children as dependents for income tax purposes, the chancellor essentially deviated from the child support chart without providing the required written findings. Fontenot v. Fontenot, 49 Ark. App. 106, 898 S.W.2d 55 (1995).

Chancellor's deviation from family child support chart without making appropriate findings of fact did not relieve parent of his support obligation, but child-support issue would be remanded to chancery court to reconsider support obligation consistent with this section. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997).

By omitting that portion of a depreciation deduction which represented spendable income to noncustodial parent without entering a specific finding on the record that it would be unjust or inappropriate to calculate the support based on its inclusion, the chancellor in effect deviated from the child-support chart without making the requisite written findings. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997).

The chancellor did not commit error in declining to deviate from the presumptively correct support amount where the father asserted that the amount required by the statute exceeded what was a reasonable requirement for child support for a very young child and sought to prove his contention through cross-examination of the wife as to her utility bills, cost of food, and the costs associated with living in her trailer home, as well as those expenses on her affidavit of financial means, which had been prepared before the child was born. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000).

Trial court properly dismissed client's malpractice action even though the attorney committed malpractice by failing to perfect client's appeal of the trial court's child-support award as the client would not have prevailed on appeal because the trial court properly adhered to guidelines of Arkansas Family Support Chart when it deviated from presumptive amount; although the trial court was required to consider the guidelines, the court did not have to use the chart amount where the circumstances of the parties indicated another amount would be more appropriate. Davis v. Bland, 367 Ark. 210, 238 S.W.3d 924 (2006).

Trial court did not abuse its discretion in deviating from the child support chart provided by Administrative Order of the Supreme Court No. 10 and by disallowing a mother's request for a $3,000 allowance per month so that she could work part-time or not at all because considering the child support chart, evidence, testimony, and exhibits, the trial court determined that the increase to $10,317 per month was reasonable and allowed both homes to provide for the children in like manner; the trial court found that the presumptive amount of monthly support provided by the family support chart was rebutted based on credible evidence, the testimony, the exhibits, and the needs of the children. Gilbow v. Travis, 2010 Ark. 9, 372 S.W.3d 319 (2010).

There was no abuse of discretion in the circuit court's decision to deviate upward from the family support chart; although the father testified that he lived on a sailboat, he acknowledged that he also had another, land-based home, and the court was permitted to consider the father's investment assets themselves in deviating from the support chart. Guthrie v. Guthrie, 2015 Ark. App. 108, 455 S.W.3d 839 (2015).

—Modification.

Any increase in the allowance for the support of children must be based upon a showing that conditions have changed since the entry of the decree of divorce. Haney v. Haney, 235 Ark. 60, 357 S.W.2d 19 (1962).

Where child support payments pursuant to written order were at variance with those previously announced orally by the chancellor, the chancellor was at liberty to reconsider his first conclusion. Schaefer v. Schaefer, 235 Ark. 870, 362 S.W.2d 444 (1962).

Remarriage of the husband was not in itself sufficient change in circumstances to justify a reduction of child support payments. Pults v. Pults, 236 Ark. 434, 367 S.W.2d 120 (1963).

Change in custody constitutes a change in circumstances under which a court has the right to review and modify awards for support of children, increasing or reducing the awards as warranted. Williams v. Williams, 253 Ark. 842, 489 S.W.2d 774 (1973).

Trial court always has right to review and modify child support payments in accordance with changing circumstances and may increase or reduce the payments as warranted in each case, but it is error to change amount of support where there is no evidence submitted to show a change in circumstances. Matters which should be considered in determining whether there has been a change in circumstances warranting adjustment in child support include remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change of custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and child support chart. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987).

It is error to change the amount of child support where there is no evidence submitted to show a change in circumstances. Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989).

Chancellor's determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact; this finding will not be reversed unless it is clearly erroneous. Hunt v. Hunt, 40 Ark. App. 166, 842 S.W.2d 470 (1992).

Because this section and § 9-14-234 specifically provide that any decree which contains a provision for the payment of child support shall be a final judgment until either party moves to modify the order, where father did not file his petition to reduce support until over a year after the decree was entered, the unpaid support accrued as originally ordered, until the motion to modify the judgment was filed. Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993).

Whether provisions regarding child support are in a divorce decree or property settlement contract, the court always retains authority and jurisdiction to modify child support obligations. Warren v. Kordsmeier, 56 Ark. App. 52, 938 S.W.2d 237 (1997).

A child-support obligation cannot be modified based solely on the current chart amount without there also being proof of a change in circumstances, and where the appellant failed to introduce evidence of appellee's income when the order was entered, a change in circumstances could not be shown. Ritchey v. Frazier, 57 Ark. App. 92, 940 S.W.2d 892 (1997).

Material change of circumstances occurred when the child's custody changed from the mother to the father and the child began attending a military academy; thus, the trial court was not bound by the one-half division of education expenses it directed in its first order, which contemplated the child attending a different school. Hyden v. Hyden, 85 Ark. App. 132, 148 S.W.3d 748 (2004).

Two large judgments received by father constituted “income” under Ark. Sup. Ct. Admin. Order No. 10 and, thus, the trial court did not err by ordering the father to pay a percentage of the judgments as a one-time child support obligation; it was irrelevant to the modification proceeding that the father had agreed to repay discharged bankruptcy debts, and the father's monthly obligation was not increased due to the judgments. Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005).

Father was allowed to claim the youngest child as a dependent and receive a tax exemption where the circuit court determined that the mother had not been employed since the birth of the last child and that the support of $4,653.00 per month for the child in the mother's custody was more than 50% of the support required to maintain the child in her lifestyle. Hill v. Kelly, 368 Ark. 200, 243 S.W.3d 886 (2006).

In reducing father's child support obligation from $1000 to $525 per month, the trial judge specifically noted that the child's accustomed life style was being accommodated and that the father was in fact earning no income whatsoever; the chart amount was not deemed to be unjust or inappropriate based upon the criteria applied to the facts, and the trial court did not err in setting an equitable amount of child support. McKinney v. McKinney, 94 Ark. App. 100, 226 S.W.3d 37 (2006).

Trial court lacked jurisdiction to modify payments for parochial school education because the parties' agreement on that subject was an independent contract separate from child support; tuition payments in this case did not support or care for the children where they were in addition to a support payment, and there was no deviation based on the tuition. An independent property-settlement agreement, if approved by a court and incorporated into a divorce decree, cannot be subsequently modified by the court. Fischer v. Fischer, 2015 Ark. App. 116, 456 S.W.3d 779 (2015).

Trial court did not abuse its discretion in reducing a father's child support obligation; there was an undisputed reduction in the father's income, and the 50-50 custody arrangement and expenses the father paid for the children justified a substantial deviation from the chart amount. Guin v. McWhorter, 2017 Ark. App. 463, 528 S.W.3d 326 (2017).

Circuit court clearly erred in finding that a father's increased expenses due to his agreement to have primary custody of a child was a material change of circumstances warranting modification of child support; not only was the circumstance that the father would have more time with, and therefore more expenses for, the child known at the time of the entry of the agreed order, it was a circumstance that the father created by agreeing to it. Higdon v. Roberts, 2020 Ark. App. 59, 595 S.W.3d 19 (2020).

Circuit court did not err in modifying a father's child support because the inconsistency between the chart amount of the mother's child support and the agreed order without supporting reasons constituted a material change in circumstances sufficient to petition for modification of child support under § 9-14-107. Higdon v. Roberts, 2020 Ark. App. 59, 595 S.W.3d 19 (2020).

Disability.

Although the Guidelines for Child Support Enforcement do not specifically address the situation where a parent with a disability is required to provide support for an adult handicapped child who also receives disability income in his or her own right, the guidelines do provide that for Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient's spouse and/or children. Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994).

A custodial parent, who is himself disabled, is still obligated by this section to support a disabled child. Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994).

Circuit court did not err by finding that a father's child support obligation did not automatically terminate at the age of majority due to the fact that the child at issue was disabled. There was no error in addressing the issue at the time modification was sought because the child at issue was disabled at the time he reached the age of majority and still resided with his mother at the time of the modification attempt. Miller v. Ark. Office of Child Support Enforcement, 2015 Ark. App. 188, 458 S.W.3d 733 (2015).

Earning Capacity.

The court may consider the fact that a supporting spouse voluntarily changes employment so as to lessen earning capacity and, in turn, the ability to pay alimony and child support. The court may, in proper circumstances, impute an income to a spouse according to what could be earned by the use of his or her best efforts to gain employment suitable to his or her capabilities. Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988).

As there could be found no Arkansas case holding that prior tax refunds paid months before a divorce hearing must be included in income, there was no error in the chancellor's refusal to include receipt of one-half of an income tax refund in calculating income. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

Award of alimony to the wife was properly denied where the husband was 64 years old and in relatively poor health, unable to do much farm work other than bookkeeping; the wife was 58 years old, in good health, and was currently employed managing an RV park. Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003).

In an action to increase husband's child support obligation, the trial court did not err in allowing the husband to claim the tax deduction for the parties' daughter because the trial court performed the required weighing and made the required findings when it stated that the benefit to the husband substantially outweighed the benefit to the wife. White v. White, 95 Ark. App. 274, 236 S.W.3d 540 (2006).

Trial court erred in determining a husband's income for child support and alimony purposes under subdivision (a)(2) of this section and Administrative Order No. 10 by failing to account for depreciation in the husband's business and using only one year of tax returns. Wright v. Wright, 2010 Ark. App. 250, 377 S.W.3d 369 (2010).

Fault.

Fault is not a factor in deciding whether to award alimony unless it relates to need or the ability to pay. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Eighty-five-year-old former husband was ordered to pay alimony to his former wife based on evidence that showed he used the wife's salary to fund his extramarital relationships with several women since the diversion of funds related to the wife's need, and the amount awarded was within his ability to pay since he was still employed. Dykman v. Dykman, 98 Ark. App. 145, 253 S.W.3d 23 (2007).

Life Insurance.

Trial court had the authority to require the husband to maintain life insurance for the benefit of the wife and children. Rudder v. Hurst, 2009 Ark. App. 577, 337 S.W.3d 565 (2009).

Medical Expenses.

The term “support and maintenance” includes necessary medical attention. Pledger v. Pledger, 199 Ark. 604, 135 S.W.2d 851 (1940).

Evidence sufficient to show that court should have modified decree so as to require husband to pay his wife's doctor, hospital, nursing, and medical bills. Pledger v. Pledger, 199 Ark. 604, 135 S.W.2d 851 (1940).

Rehabilitative Alimony.

After granting a husband a divorce on the ground of general indignities, a trial court did not err in its award of rehabilitative alimony to the wife; the trial court looked at the husband's four-year income picture and considered the wife's alleged physical limitations due to a prior car accident, but noted that she had worked as a substitute teacher long after the accident and that she made approximately $50 per day doing so. Hickman v. Hickman, 2010 Ark. App. 704 (2010).

Language in the amended version of subsection (b) of this section does not indicate that the Legislature intended different factors to apply to rehabilitative alimony. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

Circuit court did not err in interpreting this section or in finding that a wife was entitled to rehabilitative alimony because it specifically found after analyzing all of the appropriate factors, including the financial circumstances of both parties, that the wife's proposed plan was reasonable; the circuit court was correct in considering the wife's history as a homemaker in deciding whether she was entitled to rehabilitative alimony. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

Legislature expressly chose not to make a rehabilitative plan a mandatory prerequisite to an award of rehabilitative alimony, nor did the Legislature choose to impose specific requirements on the recipient of rehabilitative alimony, such as education or training. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

There is no requirement in this section that a rehabilitation plan contain specific goals or requirements regarding education or training on the part of the payee; subdivision (b)(3) merely allows the payor to petition the court for a review if the requirements of a rehabilitative plan are not being met, and this section does not mandate that a plan be submitted, nor does it require that any plan that is submitted contain specific, measurable requirements. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

There was no abuse of discretion by the circuit court with regard to the amount or the duration of the rehabilitative alimony awarded to the wife because it was not unreasonable to allow the wife 10 years in which to become completely self-supporting given that she had contributed to the development of the husband's career during their 12-year marriage by being the primary caregiver to their three children. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808 (2016).

Calculation of the three-year rehabilitative alimony award to the wife was affirmed where, inter alia, the wife waiving a right to an interest in a marital asset in the property settlement agreement did not impact consideration of her earning ability and the husband's bonuses in calculating alimony; and this section does not mandate that a rehabilitative plan be submitted and the husband did not request one. Carr v. Carr, 2019 Ark. App. 513, 588 S.W.3d 821 (2019).

Remarriage.

Remarriage of the divorced wife is sufficient grounds to entitle the husband to a termination of alimony payments upon proper application to the court granting the original decree but the remarriage does not of itself terminate the obligation. Wear v. Boydstone, 230 Ark. 580, 324 S.W.2d 337 (1959).

Subsequent judgments on original decree were not void because of remarriage of wife but husband was entitled to proceed for modification of judgments where it did not appear that chancellor was aware of wife's remarriage at the time he allowed the judgments. Wear v. Boydstone, 230 Ark. 580, 324 S.W.2d 337 (1959) (preceding decisions prior to 1989 amendment by No. 100).

This section clearly requires that remarriage of the person who is awarded alimony must be specifically mentioned in the divorce decree or alimony agreement if the automatic cessation of liability for alimony is not to occur upon such event. Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993).

Former wife's cohabitation with another man could not be viewed as the equivalent to marriage for purposes of determining whether she was entitled to continue receiving alimony payments from the former husband where there was no evidence that the former wife had assumed the man's name, that she held herself out publicly as his wife, or that he had assumed responsibility for her care and maintenance. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998).

By using the words “unless otherwise … agreed by the parties,” the General Assembly clearly indicated that it is permissible for a divorcing couple to contractually agree to continue alimony even after one of the parties has children with another person and is obligated to pay child support. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998).

Husband's argument that the wife was not entitled to alimony payments under subsection (a) of this section because she had remarried was rejected where the payments at issue were properly characterized as periodic distributions of marital property and not alimony. Surratt v. Surratt, 85 Ark. App. 267, 148 S.W.3d 761 (2004).

In a domestic relations case, the trial court did not err in refusing to terminate an ex-husband's alimony obligation upon his ex-wife's remarriage pursuant to this section because the parties had contracted for the ex-husband's alimony obligation to continue beyond the ex-wife's remarriage, so the statute's automatic termination provision regarding remarriage was not applicable. Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007).

Circuit court did not abuse its discretion in finding that the wife still had a need for alimony despite remarrying; although the wife's expenses had been reduced as a result of the marriage, she was still falling short every month, and the husband had the ability to pay the reduced amount. Dace v. Doss, 2017 Ark. App. 531, 530 S.W.3d 893 (2017).

Modification of subsection (b) of this section by Acts 2013, No. 1487, concerning rehabilitative alimony, did not call into question the validity of permanent alimony awards; and, in any event, in this case, the parties were divorced before August 16, 2013. Dace v. Doss, 2017 Ark. App. 531, 530 S.W.3d 893 (2017).

Circuit court properly denied an ex-husband's request for automatic termination of alimony payments upon the remarriage of his ex-wife; while the trial court erred in finding that the “alimony” payments in the decree were provisions of a property-settlement agreement and not, in actuality, alimony payments, both parties admitted to an agreement regarding the payment of alimony to cover the remaining balance of an automobile loan and agreed to alimony payments of a designated sum for a designated period of time. Martens v. Blasingame, 2018 Ark. App. 96, 541 S.W.3d 492 (2018).

Provisions of this section providing for the automatic termination of alimony when the receiving spouse remarries or cohabitates do not apply to an agreement for the payment of alimony over a term of years, even when the decree does not specifically address the effect of remarriage or cohabitation on the alimony obligation. Martens v. Blasingame, 2018 Ark. App. 96, 541 S.W.3d 492 (2018).

Res Judicata.

Where a judgment is based upon rights conferred by a statute later declared unconstitutional, the doctrine of res judicata bars the relitigation of the case in which it was rendered, or the reopening of the judgment after it has become final. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980).

Where husband waited four years after the divorce decree to argue that this section was violative of the equal protection clause of the Fourteenth Amendment, the husband plainly did not raise nor pursue the constitutional issue with diligence and the matter was res judicata. Mensch v. Mensch, 268 Ark. 1022, 597 S.W.2d 859 (Ct. App. 1980) (decision prior to 1979 amendment).

Temporary Rehabilitative Alimony.

An award of temporary rehabilitative alimony, which required the husband to pay for tuition, books, and fees for the wife to attend college for up to five years, was not an abuse of discretion, notwithstanding the wife's assertion that she was the mother of four children, had a full time job, and did not have time to go to school, where the wife was a school teacher and earned only slightly less than the husband, and the husband paid more child support than the support chart indicated, even though he had custody of one of the children. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

Trial court's ruling that estate was liable for husband's temporary alimony payments was reversed as, under this section, the husband's obligation for the payment of temporary alimony terminated upon his death; however, the estate was liable for the amount the husband was in arrears up to the point of his death. Estate of Carpenter v. Carpenter, 93 Ark. App. 441, 220 S.W.3d 263 (2005).

Torts.

A spouse involved in a divorce, having a cause of action in tort against his or her spouse, is not required to bring that action in the divorce case and can pursue the claim in circuit court. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).

Trusts.

The statute does not give a chancellor the authority to establish a trust for a child with the support funds paid out of the amount established for child support. Smith v. Smith, 341 Ark. 590, 19 S.W.3d 590 (2000).

Written Findings.

Where noncustodial parent's income exceeds the amount for which there is a specific entry on the child-support chart, necessitating a separate calculation made in accordance with the child-support guidelines, the same imperative applies regarding written findings for deviation from the level of support indicated by the guidelines. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997).

Trial court erred in awarding to the mother, the noncustodial parent, the right to claim a child for tax exemption purposes without providing the requisite written or specific findings to support the decision; an award of a tax exemption to a noncustodial parent resulted in a deviation from the child support chart. Dumas v. Tucker, 82 Ark. App. 173, 119 S.W.3d 516 (2003).

Where the husband's income of $540,217.00 was reduced to an annual salary of $476,171.00 and the trial court deviated downward from the family support chart in reducing his child support to $7607.75 a month, the award was reversed because the trial court failed to make specific findings supporting a deviation. Morehouse v. Lawson, 94 Ark. App. 374, 231 S.W.3d 86 (2006).

Circuit court erred in ordering a father to pay child support and child support arrearage because the circuit court's order did not contain a determination of the father's income, did not refer to the guidelines pursuant to this section or the support amount required thereunder, and did not recite whether it deviated from the family-support chart as required under Administrative Order of the Supreme Court No. 10, § I; under § I, the circuit court's order shall (1) contain the circuit court's determination of the payor's income, (2) recite the amount of support required under the guidelines, and (3) recite whether the circuit court deviated from the family support chart. Bradford v. Johnson, 2010 Ark. App. 492 (2010).

Cited: Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970); Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989); Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996); Sanderson v. Harris, 330 Ark. 741, 957 S.W.2d 685 (1997); Guest v. San Pedro, 70 Ark. App. 389, 19 S.W.3d 62 (2000); Weir v. Phillips, 75 Ark. App. 208, 55 S.W.3d 804 (2001); In re Admin. Order No. 10: Ark. Child Support Guidelines, 347 Ark. 1064 (2002); Johnson v. Cotton-Johnson, 88 Ark. App. 67, 194 S.W.3d 806 (2004).

Case Notes

Ability to Pay.

One held under order of the chancery court in a divorce which directs that he be detained in custody until he has executed a bond for performance of the court's orders in regard to the payment of alimony and suit money will not be released on habeas corpus in the circuit court at least if there is no showing that he is unable to perform the judgment of the chancery court. Ex parte Caple, 81 Ark. 504, 99 S.W. 830 (1907).

Court had authority to sequestrate or impound husband's property to secure alimony payments. Harbour v. Harbour, 230 Ark. 627, 324 S.W.2d 115 (1959).

This section grants to a chancery court the authority to sequester a divorced obligor's property to secure future child support payments, subject to proper notice to the obligor. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981) (supplemental opinion).

Income from a spendthrift trust can be reached by means of equitable garnishment or other means to satisfy a judgment for an arrearage in alimony. Council v. Owens, 28 Ark. App. 49, 770 S.W.2d 193 (1989).

Agreements Between Parties.

Court of equity has power to modify award for child support when required for changed conditions and best interests of child even though award is based in agreement of parties. Reiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644 (1955).

Chancery court may enforce by contempt proceedings property settlements made part of divorce decree by reference. Thomas v. Thomas, 246 Ark. 1126, 443 S.W.2d 534 (1969).

Trial court which granted divorce has no power to issue contempt citation for failure to comply with property settlement agreement which was not incorporated in divorce decree. Henry v. Henry, 247 Ark. 771, 447 S.W.2d 657 (1969).

Chancery courts are no longer to recognize private agreements modifying the amount of child support after July 20, 1987. Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993).

Questions relating to the construction of separation agreements between husband and wife are governed by the rules generally applicable to other contracts. Krupnick v. Ray, 61 F.3d 662 (8th Cir. 1995).

A chancellor had power to enforce the parties' separation agreement, even though no decree of divorce had been entered, where the agreement indicated that it was entered into in contemplation of separation and determined the rights and obligations of the parties during their separation. Grider v. Grider, 62 Ark. App. 99, 968 S.W.2d 653 (1998).

Because it is within the trial court's sound discretion to approve, disapprove, or modify a separation agreement the court also has the authority to refuse to enforce the agreement. Rutherford v. Rutherford, 81 Ark. App. 122, 98 S.W.3d 842 (2003).

In a divorce case, the court erred by ordering the husband to pay a lump sum in monthly installments because it resulted in an impermissible modification of the parties' property settlement agreement; the fact that the husband entered into an agreement that later appeared improvident was no ground for relief. Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178 (2012).

Trial court's order regarding repayment of an arrearage did not modify the terms of the parties' alimony agreement because the payment schedule was merely a method of enforcing the husband's agreement to pay the wife monthly alimony. Jenkins v. Jenkins, 2017 Ark. App. 642 (2017).

Bankruptcy.

Payments ordered pursuant to a divorce decree are debts to the spouse for bankruptcy purposes. Johnston v. Henson, 197 B.R. 299 (Bankr. E.D. Ark. 1996); Schmitt v. Eubanks, 197 B.R. 312 (Bankr. W.D. Ark. 1996).

Change of Circumstances.

Trial court found that, due to the reconciliation, passage of time, and later acquired property, equity demanded that the Marital Dissolution Agreement be deemed null and void, and the husband did not argue that he was not given proper credit for the payments he made pursuant to the agreement, and nothing showed that the ruling was clearly erroneous; it was within the trial court's discretion to reject the agreement due to changed circumstances. Walls v. Walls, 2014 Ark. App. 729, 452 S.W.3d 119 (2014).

Decrees or Orders.

After a decree has been rendered for permanent alimony, payment thereof may be enforced by attachments or orders committing for contempt. Ex parte Hall, 125 Ark. 309, 188 S.W. 827 (1916).

Where a decree of divorce ordered a husband to pay a certain amount as alimony to the wife and the husband in a proceeding to compel performance of the order admitted that he had sufficient funds at the time of the decree, it devolved upon him to account for them and the chancellor was not bound to accept as true his unsupported statement that the funds had been stolen from him. East v. East, 148 Ark. 143, 229 S.W. 5 (1921).

Courts of chancery have the inherent power to enforce their decrees awarding alimony and may do so by punishing the recalcitrant husband as for contempt. Ex parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923).

There was sufficient evidence of husband's willful disobedience of the court ordered maintenance and support to hold him in contempt of court under this section. Barker v. Barker, 271 Ark. 956, 611 S.W.2d 787 (1981).

Jurisdiction.

Where the court had made an order for monthly payments to the wife for maintenance, the fact that an appeal had been prayed did not deprive the court of jurisdiction to enforce its order. Gray v. Gray, 202 Ark. 1154, 155 S.W.2d 575 (1941).

Pursuant to parties' property-settlement agreement, which was incorporated into their divorce decree, as the husband agreed to retire the debts of the parties' businesses, a court had authority to simply enforce its own decree along with the performance of the written agreement pursuant to this section. French v. French, 2011 Ark. App. 612 (2011).

Trial court had subject matter jurisdiction to preside over a wife's action seeking to enforce the terms of a property settlement and find the husband in contempt given the authority granted to courts of equity under this section to enforce written agreements between husbands and wives. Peace v. Peace, 2016 Ark. App. 406, 500 S.W.3d 169 (2016).

Trial court had subject matter jurisdiction to enter a contempt order because this section granted the court the authority to enforce written agreements between spouses made in contemplation of divorce; the husband was on notice of the allegations, and his failure to raise any notice or procedural defect waived the argument for purposes of appeal. Jenkins v. Jenkins, 2017 Ark. App. 642 (2017).

No Binding Agreement.

Trial court erred in its conclusion that the wife was a party to a binding agreement, because the parties had no written agreement under which the trial court could order performance, when the parties initial recitation of their agreement was unilateral and was not conducted in open court; the wife never assented to the oral stipulations of the agreement in open court, and vigorously refuted the existence of an agreement. Jenkins v. Jenkins, 103 Ark. App. 21, 285 S.W.3d 704 (2008).

Security for Payment.

The chancery court in a proper case may require a recalcitrant husband to furnish security for payment of future installments of alimony. Ex parte Caple, 81 Ark. 504, 99 S.W. 830 (1907); Ex parte Coulter, 160 Ark. 550, 255 S.W. 15 (1923).

Cited: Reynolds v. Tassin, 212 Ark. 1020, 208 S.W.2d 987 (1948); Lewis v. Lewis, 222 Ark. 743, 262 S.W.2d 456 (1953); Strasner v. Strasner, 232 Ark. 478, 338 S.W.2d 679 (1960); Latty v. Latty, 235 Ark. 802, 362 S.W.2d 676 (1962); Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984).

Research References

ALR.

Retirement of husband as change of circumstances warranting modification of divorce decree — Prospective retirement. 110 A.L.R.5th 237.

Retirement of Husband as Change of Circumstances Warranting Modification of Divorce Decree — Early Retirement. 36 A.L.R.6th 1.

Ark. L. Notes.

Beard, Transfers of Property between Spouses and Former Spouses — An Overview of Income Tax Issues and a Suggested Analytical Approach to Such Issues, 1990 Ark. L. Notes 1.

Ark. L. Rev.

Constitutional Law and Conflict of Laws — Effect of Divorce on Prior Foreign Support Decrees, 4 Ark. L. Rev. 90.

Recent Developments in the Law of Judgments in Arkansas, 10 Ark. L. Rev. 468.

Note, Divorce and the Division of Marital Property in Arkansas — Equal or Equitable?, 35 Ark. L. Rev. 671.

Case Note, Roark v. Roark: An Expansion of the Application of Estoppel to Prohibit the Collection of Child Support Arrearages, 45 Ark. L. Rev. 631.

U. Ark. Little Rock L.J.

Note: Duty of Continued Child Support Past the Age of Majority, 1 U. Ark. Little Rock L.J. 397.

Hawthorne, Note: Family Law — Divorce — Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 U. Ark. Little Rock L.J. 123.

Survey of Arkansas Law: Family Law, 6 U. Ark. Little Rock L.J. 159.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 371.

Case Notes

Applicability.

The 1979 amendment to this section could not be retroactively applied, absent clear legislative intent to that effect, and since there was no indication of such intent, the act was only prospective in its application. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Agreements Between Parties.

The chancery court cannot modify a contract for alimony in a specific sum. Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908) (decision prior to 1987 amendment); Meffert v. Meffert, 118 Ark. 582, 177 S.W. 1 (1915).

An alimony agreement entered into between the parties prior to the decree, but subsequently made a part of the divorce decree, could not be modified. McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946) (decision prior to 1987 amendment).

The power of a court to modify a decree for the support of minor children cannot be defeated by an agreement between the parents even when the agreement is incorporated in the decree. Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).

Where the parties to a divorce action merely agree upon the amount the court should fix by its decree as alimony or support, without intending to confer on the wife an independent cause of action, the agreement becomes merged in the decree and loses its contractual nature so that a court may modify the decree. Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).

Where a decree for alimony or support is based on an independent contract between parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court's award and is not subject to modification except by consent of the parties. Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).

Waiver, signed by husband alone, which provided that amount payable for support of child and alimony to wife was to be modified if there was a change in conditions, was not binding on the court. Adams v. Adams, 223 Ark. 656, 267 S.W.2d 778 (1954).

Where only evidence in the record of an agreement between the parties as to alimony and support was a recital in the decree of the fact and terms of the agreement, agreement not regarded as an independent contract but merely as a stipulation as to the amounts to be allowed by the court and, therefore, subject to modification. Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970).

Evidence insufficient to show that divorce decree was an independent contract between parties and therefore alimony award could be modified. Songer v. Songer, 267 Ark. 1075, 594 S.W.2d 33 (Ct. App. 1980) (preceding decisions prior to 1987 amendment).

Prior to 1987, agreements between former spouses reducing the amount of child support payments did not bind the court, but the court could recognize such an agreement (1) if the agreement was supported by a valid consideration, or (2) if it were inequitable to do otherwise; thus, where the mother gave up the right to 32% of the father's income as previously ordered but gained an increase in the fixed amount of support from $200 to $250 per month over a period of time there was valid consideration and the chancellor did not err in recognizing the agreement as to the amount of arrearages due before the 1987 amendment to this section. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), superseded by statute as stated in, Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), superseded by statute as stated in, Branch v. Carter, 54 Ark. App. 70, 923 S.W.2d 874 (1996).

Whether provisions regarding child support are in a divorce decree or property settlement contract, the court always retains authority and jurisdiction to modify child support obligations. Warren v. Kordsmeier, 56 Ark. App. 52, 938 S.W.2d 237 (1997).

Trial court erroneously recognized agreement to reduce child support between parties; evidence on record did not show equitable estoppel on the part of the father. Shroyer v. Kauffman, 75 Ark. App. 267, 58 S.W.3d 861 (2001).

Parties' temporary-support agreement was not an independent contract and was modifiable by the circuit court on an appropriate change in circumstances to be determined by the circuit court, including a change in the parties' employment circumstances, because the record did not indicate that the parties intended for the agreement to be an independent contract. Instead, the parties merely had an agreement to stipulate to some issues on a temporary basis to avoid putting on proof until the final hearing. Chambers v. Chambers, 2017 Ark. App. 429, 527 S.W.3d 1 (2017).

Application to Modify.

Decrees for continuing alimony are always subject to the modification of the court upon application of either party. Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851 (1944).

Notice of application to modify allowance of alimony need only be such as is reasonably calculated to give the opposite party knowledge of the proceeding and opportunity to be heard. Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851 (1944).

Where modification of allowance of alimony is sought, the application should be made in the original suit and not in an independent proceeding. Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851 (1944).

Petition for modification is not precluded by petitioner's arrearage in alimony and child support payments. Barnes v. Barnes, 246 Ark. 624, 439 S.W.2d 37 (1969).

Order awarding mother past-due child support was upheld because the father had not filed any motion to modify the order on the basis that a later case prohibited child support payments based on income from federal SSI benefits. Jones v. Billingsley, 88 Ark. App. 131, 195 S.W.3d 380 (2004), aff'd, 363 Ark. 96, 211 S.W.3d 508 (2005).

Calculation.

Trial court erred when it failed to include a prior judgment entered in favor of a mother in a child support case, pursuant to this section and § 9-14-234, when it was calculating a father's arrearage; a remand was necessary to determine whether the judgment was applied to the arrearage. If the amount was not applied, the arrearage amount had to be amended to reflect an inclusion of the judgment amount. Office of Child Support Enforcement v. Harper, 2013 Ark. App. 171, 426 S.W.3d 544 (2013).

Change in Conditions.

—In General.

Allowance of alimony is subject to modification by the court to meet changed conditions. McConnell v. McConnell, 98 Ark. 193, 136 S.W. 931 (1911).

When a decree is entered fixing and allowing alimony for the support and maintenance of the wife, that decree limits and defines the extent of the husband's obligation in that respect, but the allowance is always subject to modification by the court to meet the changed situation and conditions of the parties in interest. Pledger v. Pledger, 199 Ark. 604, 135 S.W.2d 851 (1940).

The amount allowed for child support is subject to modification when required by changed conditions. Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962).

The father could not of his own volition reduce the monthly payment made for his children when one of his children became of age; the court alone had the right to change the amount of the award for the support of the minor children. Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92 (1962).

A decree for maintenance and support is always subject to modification by application of either party upon a showing of a change in circumstances. Barnes v. Barnes, 246 Ark. 624, 439 S.W.2d 37 (1969).

—Not Shown.

Former husband was not entitled to cease payment of alimony where former wife lived with a man but did not marry him. Byrd v. Byrd, 252 Ark. 202, 478 S.W.2d 45 (1972).

A change in circumstances sufficient to support a modification of alimony was not shown where the former wife began to cohabitate with another man in her home, but the former wife's financial condition was the same as it was at the time of the divorce and the man's financial contributions to household expenses were no greater than contributions made by the former wife's father, who lived with her from the time of the divorce until his death. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998).

Husband did not show that the trial court's decision denying a modification in alimony was arbitrary or groundless where there was no evidence or allegation that the wife did not continue to have a need for $1,059 in monthly alimony, and despite being unemployed, the husband had the ability to pay from the resources available to him, including retirement savings and other accounts. Becker v. Becker, 2019 Ark. App. 230, 575 S.W.3d 608 (2019).

—Remarriage.

Chancellor had jurisdiction to change the order providing for maintenance where wife remarried. Perry v. Perry, 229 Ark. 202, 313 S.W.2d 851 (1958).

Remarriage is a circumstance to be considered in determining a change in circumstances. Barnes v. Barnes, 246 Ark. 624, 439 S.W.2d 37 (1969).

—Shown.

Change in conditions held to warrant modification. Ray v. Ray, 205 Ark. 765, 170 S.W.2d 681 (1943).

Chancellor did not abuse his discretion in holding that there has been a change in wife's circumstances. Bracken v. Bracken, 302 Ark. 103, 787 S.W.2d 678 (1990).

Trial court did not abuse its discretion in awarding the wife an increase in alimony where the wife was being treated for the progressive disease of rheumatoid arthritis, which her doctor testified had become worse since the last hearing, and she was unable to pay for the treatment at this time; furthermore, her doctor testified that it was his opinion that she was unable to hold a regular job, and in setting the $4500 monthly alimony, the trial court took into consideration both the wife's need for a new vehicle and some major home repairs that were going to need to be made. Matthews v. Matthews, 2009 Ark. App. 400, 322 S.W.3d 15 (2009).

Continuing Jurisdiction.

An order for alimony may be set aside at a subsequent term. Poe v. Poe, 93 Ark. 426, 124 S.W. 1029 (1910).

Court that granted divorce to husband had jurisdiction to modify the order after it had been affirmed on appeal and mandate was filed in the chancery court after institution of proceeding to modify. Sheppard v. Sheppard, 192 Ark. 298, 90 S.W.2d 960 (1936).

The chancery court granting a divorce has continuing jurisdiction to modify the original allowance for maintenance of the minor children of the divorced parents and will do so upon a showing of changed conditions. Watnick v. Bockman, 209 Ark. 696, 192 S.W.2d 131 (1946).

The chancery court has continuing jurisdiction to modify child support and custody orders, but only when the moving party has demonstrated a change in circumstances requiring modification. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997).

Duration of Alimony.

A decree ordering that alimony would terminate only upon the death of either party violated statutory and case authority that, in the absence of a settlement agreement to the contrary, an award of alimony is always subject to modification, upon application of either party, notwithstanding that the decree also stated that the court would retain jurisdiction of the alimony issue. Holaway v. Holaway, 70 Ark. App. 240, 16 S.W.3d 302 (2000).

Failure to Modify.

Since the defendant did not file a motion to modify child support when his son turned 18, the chancellor should not have retroactively reduced the defendant's child support arrearages which had become final judgments. Ark. Dep't of Human Servs. v. Porter, 306 Ark. 190, 810 S.W.2d 949 (1991).

Trial court did not err in awarding mother past-due child support where the original order of support in 1995 was made prior to the ruling in Davis, which held that Arkansas courts could not order child support payments based on income from federal SSI benefits; further, because the case was a one-issue case, which was tried on the pleadings and did not involve child custody, the trial judge did not abuse his discretion in denying father's motion to transfer. Jones v. Billingsley, 88 Ark. App. 131, 195 S.W.3d 380 (2004), aff'd, 363 Ark. 96, 211 S.W.3d 508 (2005).

Court affirmed the trial court's order concerning the support of appellant's minor child because appellant's assertion that she was entitled to interest under § 9-14-233 and to attorney's fees was barred by res judicata, and res judicata also barred relitigation of the child-support arrearage issue as the question had already been reduced to judgment by the trial court's original support order under this section and § 9-14-234. Williams v. Nesbitt, 2012 Ark. App. 408, 421 S.W.3d 320 (2012).

Insurance Policy.

Provisions that award the ex-wife the benefit of some interest in a policy of insurance on an ex-husband's life do not violate public policy, because the insurance policy is not a wagering policy taken out by one with no insurable interest on the life of another, but is one taken out by the husband, who may take out a policy on his own life and name anyone he pleases as beneficiary. Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992).

Where a written property settlement in contemplation of divorce provided the husband would maintain his present life insurance program and name the wife irrevocable beneficiary, the insurance policy was a bargained-for item and therefore should be replaced if allowed to lapse. Dodson v. Dodson, 37 Ark. App. 86, 825 S.W.2d 608 (1992).

Marital Property.

To the extent a spouse acquires an enforceable right during the marriage to recover fees under a contingency fee contract, the spouse acquired marital property; any difficulty in valuing contingency fee contracts may be solved by reserving jurisdiction in the trial court in order to await the outcome of the underlying actions. McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999).

Credit card debts incurred by one party during the period of the parties' legal separation were marital debts that the chancellor had discretion to divide between the parties. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999).

Funds acquired by one party and deposited into the parties' joint checking account prior to their divorce are marital property subject to division by the court. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999).

Medical Insurance.

Even though wife filed no claim for relief in response to husband's motion for modification of support order, husband was properly ordered to continue to maintain a policy of hospitalization and medical insurance on the eldest son. James v. James, 52 Ark. App. 29, 914 S.W.2d 773 (1996).

Past Due Support.

Mother estopped from collecting past due child support from father, where the parents continued to live together after the divorce, and the father was the children's primary supporter subsequent to the divorce and until the parents separated. Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993).

A child support judgment would also be subject to the equitable defenses that apply to all other judgments. Ramsey v. Ramsey, 43 Ark. App. 91, 861 S.W.2d 313 (1993).

Real Party in Interest.

For purposes of determining the real party in interest in a situation where the custodial parent has assigned his or her child support rights to the Office of Child Support Enforcement, it is immaterial whether the custodial parent is receiving public assistance on behalf of the child. Office of Child Support Enforcement v. Terry, 336 Ark. 310, 985 S.W.2d 711 (1999).

Cited: Kirkland v. Wright, 247 Ark. 794, 448 S.W.2d 19 (1969); Carter v. Clausen, 263 Ark. 344, 565 S.W.2d 17 (1978); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980); White v. Winston, 302 Ark. 345, 789 S.W.2d 459 (1990); Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998); Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999).

Research References

ALR.

Divorce and separation: Workers' compensation benefits as marital property subject to distribution. 30 A.L.R.5th 139.

Divorce decree or settlement agreement as affecting divorced spouse's right to recover as named beneficiary on former spouse's individual retirement account. 99 A.L.R.5th 637.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property. 109 A.L.R.5th 1.

Division of lottery proceeds in divorce proceedings. 124 A.L.R.5th 537.

Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement. 3 A.L.R.6th 447.

Inherited Property as Marital or Separate Property in Divorce Action. 38 A.L.R.6th 313.

Divorce and Separation: Appreciation in Value of Separate Property During Marriage with Contribution by Either Spouse as Separate or Community Property (Doctrine of “Active Appreciation”). 39 A.L.R.6th 205.

Social Security Spousal Benefits in Equitable Property Division in Divorce Proceedings. 44 A.L.R.7th Art. 1 (2019).

Ark. L. Notes.

Malone, For Richer or Poorer, 'til Decree Do Us Part — A Spouse's Entitlement to Division of Pension Funds and Professional Degrees as Marital Property, 1984 Ark. L. Notes 47.

Beard, Transfers of Property between Spouses and Former Spouses — An Overview of Income Tax Issues and a Suggested Analytical Approach to Such Issues, 1990 Ark. L. Notes 1.

Brill, Equity and the Restitutionary Remedies: Constructive Trust, Equitable Lien, and Subrogation, 1992 Ark. L. Notes 1.

Ark. L. Rev.

Valuation of Life and Remainder Interests in Property, 5 Ark. L. Rev. 373.

Domestic Relations — Restoration of Property Obtained in Consideration or by Reason of Marriage upon Divorce, 7 Ark. L. Rev. 64.

Divorce and Property Awards, 7 Ark. L. Rev. 367.

Tenancies by the Entirety — An Estate Planner's Dilemma (A Study of Unintended Result), 23 Ark. L. Rev. 44.

Ante-Nuptial Agreements in Arkansas — Divorce Provisions, 29 Ark. L. Rev. 480.

Note, Divorce and the Division of Marital Property in Arkansas — Equal or Equitable?, 35 Ark. L. Rev. 671.

Wagoner v. Wagoner: Division of Property Upon Divorce — The Classification of Returns from Separate Property, 42 Ark. L. Rev. 173.

Scott, The Revocable-Irrevocable Trust — The Way Out?, 42 Ark. L. Rev. 713.

Note, Bunt v. Bunt: Arkansas Extends the Scope of Marital Property, 42 Ark. L. Rev. 735.

Henry, Recent Developments, McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999), 52 Ark. L. Rev. 527.

Comment, Arkansas Marriage: A Partnership Between a Husband and Wife, or a Safety Net for Support?, 61 Ark. L. Rev. 735.

U. Ark. Little Rock L.J.

Hawthorne, Note: Family Law — Divorce — Constitutionality of Arkansas Property Settlement and Alimony Statutes, 2 U. Ark. Little Rock L.J. 123.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Survey of Arkansas Law, Family Law, 5 U. Ark. Little Rock L.J. 143.

Survey of Arkansas Law: Family Law, 6 U. Ark. Little Rock L.J. 159.

Harris, The Arkansas Marital Property Statute and the Arkansas Appellate Courts: Tiptoeing Together Through the Tulips, 7 U. Ark. Little Rock L.J. 1.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Notes, Domestic Relations — Arkansas Supreme Court Defines Marital Property to Include Future Pension Benefits. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), 7 U. Ark. Little Rock L.J. 661.

Arkansas Law Survey, Price, Civil Procedure, 9 U. Ark. Little Rock L.J. 91.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 207.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey — Family Law, 12 U. Ark. Little Rock L.J. 213.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Annual Survey of Caselaw, Family Law, 24 U. Ark. Little Rock L. Rev. 1021.

Annual Survey of Caselaw, Family Law, 26 U. Ark. Little Rock L. Rev. 915.

Case Notes

Note. Some of the following cases were decided prior to the 1979 amendment to this section which made the section apply equally to both husband and wife and provided for an equal division of property rather than the 1/3 of the husband's real and personal property previously allotted to the wife.

Constitutionality.

This section is not violative of the Equal Protection Clause, either facially or as applied. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994).

The classification of a pension plan as marital property does not violate the equal protection clause. Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999).

In General.

Section 1-2-120(c) which provides that no action pending at the time any statutory provision is repealed shall be affected by the repeal was not applicable to the amendment of the section by Acts 1979, No. 705, which made this section gender-neutral, as the amendment did not repeal the prior statutes, but merely replaced statutes already clearly void for unconstitutionality. Noble v. Noble, 270 Ark. 602, 605 S.W.2d 453 (1980).

In a divorce action, the trial court is not required to divide in kind every piece of personal property. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982).

Although Arkansas is not truly a community property state, this section makes it so for all practical purposes when it is utilized in dissolution of marriage and distribution of assets. Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), overruled in part, Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986).

Independent action, subsequent to divorce decree, does not lie for division of marital property, for this section mandates that marital property be divided at the time the divorce is granted. Arkansas Supreme Court has carved out exceptions to the requirement that marital property be divided at the time the divorce decree is entered in cases where the parties specifically agree to postpone division of the property to a later date and where a divorce is granted by a foreign court lacking jurisdiction to divide Arkansas marital property. Mitchell v. Meisch, 22 Ark. App. 264, 739 S.W.2d 170 (1987).

This section does not compel mathematical precision in the distribution of property, rather, it simply requires that marital property be distributed equitably. Coombe v. Coombe, 89 Ark. App. 114, 201 S.W.3d 15 (2005).

Construction.

Court did not abuse its discretion in refusing to reopen the record or in denying the motion for new trial, because while subdivision (a)(1) of this section required that property be valued at the time of the divorce, it did not require the trial court to reopen the record or set aside a decree and hold an additional hearing for the purpose of receiving the most up-to-date evidence. Dew v. Dew, 2012 Ark. App. 122, 390 S.W.3d 764 (2012).

Purpose.

The purpose of this section is to effect the equitable distribution of property upon divorce. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985); Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986); Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988).

Applicability.

Act 1979, No. 705, which made this section gender-neutral, could not be retroactively applied absent clear legislative intent to that effect, and since there was no indication of such intent, the act was only prospective in its application. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), overruled in part, Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Acts 1979, No. 705, which amended this section, did not abolish § 9-12-317, the entirety property statute which had no constitutional infirmities as did this section; accordingly, this section does not apply to property owned as tenants by the entirety. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981) (decided prior to 1997 amendment, adding § 9-12-317(c)).

Acts 1979, No. 705, which amended this section, was applicable to property division where memorandum opinion was issued prior to amendment but final decree was issued after amendment. Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982) (decided prior to 1997 amendment, adding § 9-12-317(c)).

This section is not applicable to property held as tenants by the entirety. Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992) (decided prior to 1997 amendment, adding § 9-12-317(c)).

Although the chancellor's determinations that the houseboat purchased with husband's inheritance was marital property and the joint checking account was husband's separate property may have appeared inconsistent, they underscored the fine factual distinctions that often characterize marital-property divisions. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).

Statute did not apply to property held as tenants by the entirety. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002).

Arkansas law was clear that the law regarding marital property did not apply in situations other than divorce; thus, defendant's wife could not rely on the law of Arkansas marital property to establish an ownership interest in the 93 weapons. United States v. One Assortment of 93 NFA Regulated Weapons, 897 F.3d 961 (8th Cir. 2018).

Adequacy of Division.

For cases discussing adequacy or appropriateness of specific divisions of property in particular circumstances, see Morgan v. Morgan, 193 Ark. 454, 100 S.W.2d 978 (1937); Coltharp v. Coltharp, 218 Ark. 215, 235 S.W.2d 884 (1951); Turner v. Turner, 219 Ark. 259, 243 S.W.2d 22 (1951); Hewitt v. Morgan, 220 Ark. 123, 246 S.W.2d 423 (1952); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Koury v. Koury, 230 Ark. 536, 323 S.W.2d 554 (1959); Palmer v. Palmer, 238 Ark. 690, 384 S.W.2d 256 (1964); Mickle v. Mickle, 252 Ark. 468, 479 S.W.2d 563 (1972); Grant v. Grant, 254 Ark. 1060, 497 S.W.2d 255 (1973); Johnson v. Johnson, 265 Ark. 925, 582 S.W.2d 32 (1979); Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979); Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Belanger v. Belanger, 276 Ark. 522, 637 S.W.2d 557 (1982); Duncan v. Duncan, 11 Ark. App. 25, 665 S.W.2d 893 (1984).

The fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).

Where the chancellor stated he was relying on the reasons cited in subdivision (a)(1) of this section for not equally dividing the marital property, and the main reasons were that it was the wife who contributed to their acquisition and the husband was able to support himself, he then read into the record the nine factors listed under this subdivision, and the decree stated the grounds for the unequal division were those stated orally by the court at the conclusion of the trial, the chancellor sufficiently complied with subdivision (a)(1) of this section in stating his reasons for not equally dividing the marital property at the conclusion of the trial. Jones v. Jones, 17 Ark. App. 144, 705 S.W.2d 447 (1986).

If the chancellor intended that improvements to the wife's separate property be held to be marital property, he failed to adequately explain the basis for his unequal division, as required by subdivision (a)(1) of this section; therefore, the action was remanded. Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986).

Where appellate court was unable to determine whether it was error for the trial court to make what was essentially a grossly disproportionate distribution of the marital retirement assets remaining after the settlement in favor of a wife because the record was not fully developed, reversal of the trial court's division of the parties' retirement and pension funds was warranted; on remand, the trial court could permit the introduction of such additional evidence as was necessary to make findings regarding the valuation of all of the parties' assets and the factors to be considered, clearly articulate whether it was making an equal or unequal distribution of assets and, if unequal, the reasons why such distribution was equitable. Copeland v. Copeland, 84 Ark. App. 303, 139 S.W.3d 145 (2003).

Trial court's property distribution in divorce proceedings was not improper because, although the wife argued that the husband's explanations about undisclosed accounts were inconsistent, the trial court nonetheless clearly accepted his testimony that the funds in the accounts belonged to a company and not to him personally; the trial court's conclusions were not clearly erroneous. Conlee v. Conlee, 370 Ark. 89, 257 S.W.3d 543 (2007).

After granting a husband a divorce on the ground of general indignities, a trial court did not err in its award of rehabilitative alimony to the wife; the trial court looked at the husband's four-year income picture and considered the wife's alleged physical limitations due to a prior car accident, but noted that she had worked as a substitute teacher long after the accident and that she made approximately $50 per day doing so. Hickman v. Hickman, 2010 Ark. App. 704 (2010).

If the circuit court intended to give each party an equal share, the problem was the husband was given all income-producing assets, while the wife was forced to rely on a series of periodic payments, requiring her to wait years to receive the full value of her share, which appeared contrary to the intent of this section, and remand was required; by allowing the husband to pay the wife for her share over an extended period of time, they would be forced to maintain a connection. Moreover, the circuit court failed to consider the time value of money or order security on the award. Farrell v. Farrell, 2014 Ark. App. 601 (2014).

Ordering the husband to reimburse the wife $1,500 was not error where, despite the lack of an exacting calculation, the husband admitted taking trips and spending money on his girlfriend and her children during the marriage. Karolchyk v. Karolchyk, 2018 Ark. App. 555, 565 S.W.3d 531 (2018).

Award of the wife's moving expenses was affirmed where the wife had moved out of the marital home because of the husband's adultery, and the court had discussed in detail the wife's poor health and upcoming needs. Karolchyk v. Karolchyk, 2018 Ark. App. 555, 565 S.W.3d 531 (2018).

Trial court did not clearly err in awarding the wife compensation for the marital contributions toward the improvements made to the husband's separate property and any reduction in debt on the home; the husband put on no evidence to demonstrate that the reduction in debt was not attributable to marital funds. Karolchyk v. Karolchyk, 2018 Ark. App. 555, 565 S.W.3d 531 (2018).

Adverse Possession.

Where wife pursuant to divorce decree was granted “use and occupancy of premises during her lifetime” grantee of wife under warranty deed could not establish adverse possession as against husband, since latter was not entitled to possession until death of wife. Pierce v. Lowe, 221 Ark. 796, 256 S.W.2d 43 (1953).

Agreement of Parties.

A wife's agreement to relinquish all rights to her husband's property, if made for a wholly inadequate consideration, will be set aside on that account. Leonard v. Leonard, 101 Ark. 522, 142 S.W. 1133 (1912).

A divorce, reciting that alimony should be paid in full accord of the wife's right, title and interest in any property of the husband, was held to show that the parties agreed on a sum to be paid in lieu of the wife's right to a division of property under this section. Erwin v. Erwin, 179 Ark. 192, 14 S.W.2d 1100 (1929).

Where husband agreed that wife should have half of his property he became trustee as to wife's rights under the agreement and the court had power to compel specific performance against contention that wife was confined to an action for debt. Orr v. Orr, 206 Ark. 844, 177 S.W.2d 915 (1944).

Reconciliation agreement failed to effectively exclude the subject properties from the marital property law. Schichtel v. Schichtel, 3 Ark. App. 36, 621 S.W.2d 504 (1981).

There are two types of agreements concerning the payment of alimony: (1) the agreement on the amount of alimony which is an independent contract which cannot be modified by the court; and (2) an agreement upon an amount that the court should fix as alimony and which the court can modify. Shipley v. Shipley, 305 Ark. 257, 807 S.W.2d 915 (1991).

Trial court erred by awarding a former wife an interest in land that her former husband inherited from his mother because a postnuptial agreement was not binding since the parties' marriage was not adequate consideration; moreover, there were no mutual obligations since the wife was not required to do anything. Simmons v. Simmons, 98 Ark. App. 12, 249 S.W.3d 843 (2007).

Case law does not require a court to consider the factors in this section when deciding whether to enforce a settlement agreement. A circuit court must follow this section in dividing the marital property only if it concludes that a settlement agreement is unenforceable. Fallin v. Fallin, 2016 Ark. App. 179, 492 S.W.3d 525 (2016).

Circuit court did not err in enforcing the couple's property settlement agreement where case law did not require consideration of the factors in this section in deciding whether to enforce such an agreement; there was no requirement that the settlement agreement had to equitably divide the property. Fallin v. Fallin, 2016 Ark. App. 179, 492 S.W.3d 525 (2016).

Subdivisions (a)(1) and (b)(4) of this section provide that at the time a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable except property excluded by valid agreement of the parties. Thus, this section contemplates partial settlement agreements. Fallin v. Fallin, 2016 Ark. App. 179, 492 S.W.3d 525 (2016).

Circuit court did not err in enforcing the couple's property settlement agreement with respect to ownership of a tractor company where the agreement clearly contemplated only the shares of the tractor company owned by the husband. Fallin v. Fallin, 2016 Ark. App. 179, 492 S.W.3d 525 (2016).

This section did not apply to the proceeding because the parties' retirement accounts were agreed to be marital and evenly divisible, and the 2012 settlement agreement equated to a stipulation of fact between the parties; appellant entered into a binding contractual agreement that was approved by the trial court in the divorce decree, and that he found years later that the agreement appeared to be improvident was no ground for relief. Goodwin v. Goodwin, 2016 Ark. App. 233, 490 S.W.3d 661 (2016).

Authority of Court.

The chancellor is given broad powers under this section to distribute all property in divorce, nonmarital as well as marital, to achieve an equitable division; the only requirement is that if he divides marital property other than evenly, or nonmarital property other than by returning it to the original owner, he will consider the nine factors specified in the statute, and fully explain his reasons for the record. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).

The marital-property law vests in the trial court a marked measure of flexibility in apportioning the couple's total assets. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).

It is not an abuse of chancellor's discretion to ascertain extent of marital property as of date of the divorce, and evaluate it as of that date as well. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

Chancellor has no authority to dispose of property rights in an award of separate maintenance. Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987).

The chancellor is given broad powers under this section to distribute all property in divorce, nonmarital as well as marital, to achieve an equitable division. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990).

Chancellor's award on remand need not necessarily correspond to the findings regarding the extent of the separate and marital interests of the parties. Cate v. Cate, 35 Ark. App. 79, 812 S.W.2d 697 (1991).

Although this section provides a list of factors for the court to consider in dividing the marital property, the trial court did not err in permitting the parties to equally share in the proceeds of the sale of the marital home and the equity resulting from the wife's payment of the mortgage during the divorce proceedings because a trial court has discretion to determine whether an offset is appropriate when parties to a divorce expend funds to preserve marital property during the pendency of proceedings; however, the parties were ordered to equally share expenses for repair to the marital residence that exceeded the minimum amount specified by the trial court. Cole v. Cole, 89 Ark. App. 134, 201 S.W.3d 21 (2005).

Trial court has the flexibility to distribute both marital and nonmarital property to make an equitable division of marital property. Marks v. Marks, 2014 Ark. App. 174, 432 S.W.3d 698 (2014).

Because the circuit court was required to reexamine the division of property pursuant to the mandate, it was entitled to also consider the division of debts, including the deficiency of the marital home. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655 (2014).

Conflict of Laws.

Where a divorce decree rendered in another state divested the wife of all right and title in the husband's real estate, the wife was not entitled to husband's land in Arkansas since this section has no application to decrees rendered in other states. Gwynn v. Rush, 143 Ark. 4, 219 S.W. 339 (1920).

Where realty located in another state was acquired by the parties during their marriage and where the law of the other state does not recognize a wife's inchoate right of dower in her husband's separate property, the law of the other state would apply in determining the parties' rights in that property in a divorce proceeding. Strang v. Strang, 258 Ark. 139, 523 S.W.2d 887 (1975).

Contribution of Parties.

Where wife was employed during most of the time of her marriage and contributed her earnings to the acquisition of furniture and other personal property, chancellor was justified upon granting divorce to wife in holding that wife had an equal claim on the items so acquired. Carr v. Carr, 226 Ark. 355, 289 S.W.2d 899 (1956).

Article 9, § 7 of the Constitution was meant to put a wife on an equal footing with her husband in the acquisition and transfer of property, but it does not purport to clothe the wife with superior property rights in the event of a divorce; accordingly, the trial court did not err when it ordered an equal division of all the marital property despite the wife's contention that it was inequitable because her earnings had formed the greater part of the purchase price. Stuart v. Stuart, 280 Ark. 546, 660 S.W.2d 162 (1983).

When one spouse makes significant contributions of time, effort and skill which are directly attributable to the increase in value of nonmarital property, the presumption arises that such increase belongs to the marital estate. Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), overruled, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

In a divorce decree, the trial court did not err under subdivision (a)(1)(B) of this section in awarding the wife a 40 percent interest in the value of improvements to a house that was built during the marriage on the husband's lot because she testified that she helped work on the house and that she paid for materials; the parties lived in her nonmarital residence while the house was under construction. Johnson v. Johnson, 2011 Ark. App. 276, 378 S.W.3d 889 (2011).

Conveyance to Spouse.

This section does not apply to property which the husband conveyed to his wife on voluntary separation. McNutt v. McNutt, 78 Ark. 345, 78 Ark. 346, 95 S.W. 778 (1906); Harbour v. Harbour, 103 Ark. 273, 146 S.W. 867 (1912); Apple v. Apple, 105 Ark. 669, 152 S.W. 296 (1912).

This section does not apply to property which the husband conveyed to his wife for love and affection. Dickson v. Dickson, 102 Ark. 635, 145 S.W. 529 (1912).

Where husband obtained a divorce for cause, it was held that the wife was not entitled to return of the land which she had deeded to husband. Price v. Price, 127 Ark. 506, 192 S.W. 893 (1917).

A decree of divorce awarding to the wife real estate conveyed to her by the defendant as a gift in consideration of love and affection, was held erroneous as depriving her of dower on account of gifts theretofore made to which this section has no application. Glover v. Glover, 153 Ark. 167, 240 S.W. 716 (1922).

This statute is not applicable to gifts or advancements made by the husband to his wife; where a husband purchases land and takes the deed therefore in the name of his wife, there is a presumption that he intends to make an advancement to her and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased, or to hold the same in trust for him. Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32 (1944).

A conveyance by the husband in anticipation of the wife's suit for divorce, and to prevent her from recovering alimony, is fraudulent and may be set aside. Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344 (1944).

Presumption of a gift of the money to the wife was overcome by the fact that deed to property subsequently acquired was taken in the husband's name. Angelletti v. Angelletti, 209 Ark. 991, 193 S.W.2d 330 (1946).

Deed interest in lease by husband to wife in consideration of dismissal of divorce proceeding by wife and as evidence of good faith of husband was not a deed in consideration or by reason of their marriage. Turner v. Turner, 219 Ark. 259, 243 S.W.2d 22 (1951).

In suit for divorce by wife the husband was not entitled to recover on cross-complaint for return of real estate transferred to wife during marriage, if transfer was for the purpose of defrauding the creditors of the husband. McClure v. McClure, 220 Ark. 312, 247 S.W.2d 466 (1952).

Evidence sufficient to support the trial court's finding that the transfer of money to wife was not a gift, voluntarily made, but rather was the product of a confidence betrayed or influence abused. Marshall v. Marshall, 271 Ark. 116, 607 S.W.2d 90 (1980).

Where evidence showed that after the parties separated and the husband filed for divorce the husband conveyed his interest in their home to her it was properly held that upon their subsequent divorce the home was not marital property but was the wife's separate property because the husband had freely and voluntarily executed the conveyance to her. Smith v. Smith, 6 Ark. App. 252, 640 S.W.2d 458 (1982).

House held to be wife's separate property where husband signed deed, transferring real property to wife, and filed it for record, where although he continued to reside there, wife paid all real estate and personal property taxes, insurance and the mortgage, and where there was no evidence wife said she would deed the home back. Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996).

Trial court erred in declaring that couple's home was marital property where it had been deeded to the wife in 1982; there was no evidence that the wife agreed to do anything as an inducement or consideration for the transfer of property, the deed was immediately recorded, and there was no discussion of the wife deeding the property back to the husband. Horton v. Horton, 92 Ark. App. 22, 211 S.W.3d 35 (2005).

Debts.

Where the divided property is mortgaged, each takes subject thereto. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337 (1915).

Where debts were joint debts of marriage, wife required to share equally in income tax indebtedness on corporate fund. McMurtray v. McMurtray, 275 Ark. 303, 629 S.W.2d 285 (1982).

In a divorce action, chancellor was not required to divide the parties' debts, that is, to consider each debt and assign a party to pay; however, he was obligated to consider those debts in deciding the questions of alimony, support for the children, and perhaps the division of the property. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982).

A chancellor has the power to adjust marital debts as between the parties although this authority is not expressly given by the Code. Warren v. Warren, 33 Ark. App. 63, 800 S.W.2d 730 (1990).

If, during the parties' marriage, the indebtedness held against one spouse's non-marital properties was greatly reduced through payments made with marital funds, this section permits the chancellor to award the other spouse one-half of the reduction in indebtedness, either as an increase in value of non-marital property, or as a transformation of non-marital property into marital property through the investment of marital funds. Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993).

A chancellor has no authority to determine the validity of an obligation to a third party who is not a party to the divorce. Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996).

Questions about marital debts, and whether they should be “considered” as liabilities under subdivision (a)(1)(A)(vii) of this section in assigning marital property, are questions of fact. Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996).

Credit card debts incurred by one party during the period of the parties' legal separation were marital debts that the chancellor had discretion to divide between the parties. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999).

The trial court did not err when it held each party responsible for half of a stock margin debt where the husband testified that the debt was incurred to finance cost overruns on the construction of the parties' residence, for furnishing the house, and generally to pay for the parties' lifestyle and living expenses, and the wife did not refute this in her own testimony and, indeed, confirmed the high cost of the house and the furnishings. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).

Although this section did not expressly give the chancellor the power to allocate marital debts as between the parties, the power was implied and to ignore debts would nullify divorce effectiveness and leave an essential item of divorce dispute unresolved. Ellis v. Ellis, 75 Ark. App. 173, 57 S.W.3d 220 (2001).

This section does not apply to the division of marital debts, hence, in Arkansas, there is no presumption that an equal division of debts must occur; accordingly, the trial judge's unequal division of the marital debts due to the disparity between the parties' incomes and their relative abilities to pay the debts was affirmed. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).

This section does not apply to the division of marital debts and there is no presumption that an equal division of debts must occur; thus, where the parties had only a brief marriage and the wife plainly had preexisting medical bills, her failure to present testimony or medical bills indicating which bills were incurred after the parties married justified the trial court's decision that the husband was not responsible for a portion of those bills. Weatherly v. Weatherly, 87 Ark. App. 291, 190 S.W.3d 294 (2004).

Trial court abused its discretion in ordering the parties to each pay one-half of the marital debt in a divorce proceeding as it was not economically feasible for the wife to use the property awarded to her as half of the marital property in order to pay half of the debt; the husband had the ability to earn substantially more income than she did. Bailey v. Bailey, 97 Ark. App. 96, 244 S.W.3d 712 (2006).

Trial court did not err in not awarding a husband interest accrued on a credit card after holding that the husband was entitled to a payment from his former wife in the amount of $1,413 because the husband admitted that he had charged additional items on the credit card, which were included in the payoff, although he did not have any documentation of the amounts that he charged. Lyons v. McInvale, 98 Ark. App. 433, 256 S.W.3d 512 (2007).

Trial court erred in finding that a wife owed a husband for expenditures he made to the wife's duplex, which was nonmarital property, because the amount the wife allegedly owed the husband included a sum for a bedroom suite and mortgage payments made to the wife's mortgagee, while husband's daughter and her family were living in the duplex. Wise v. Wise, 2010 Ark. App. 12, 371 S.W.3d 718 (2010).

Trial court did not err in finding that 85 percent of a wife's student loan was a marital debt because it was used to pay household debts when the parties' income was insufficient to support them, nor in finding that the husband should pay 40 percent of that debt and the wife 60 percent, using the factors set out in subdivision (a)(1)(A) of this section. Easley v. Easley, 2010 Ark. App. 73 (2010).

In a divorce and property distribution action, the trial court did not err in refusing to give a husband credit for payments he claimed to have made on marital debts during the divorce proceedings to preserve the marital estate as the trial court's allocation of the marital debt was supported by the husband's admission that the only marital debt he paid was the mortgage on property that the parties owned in Alabama. Friend v. Friend, 2010 Ark. App. 525, 376 S.W.3d 519 (2010).

Because the circuit court was required to reexamine the division of property pursuant to the mandate, it was entitled to also consider the division of debts, including the deficiency of the marital home. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655 (2014).

Trial court was not clearly erroneous in finding that credit-card debt was marital to be equally divided between the parties because its findings were primarily credibility findings, which the court of appeals did not disturb; the trial court credited the wife's testimony that the husband knew about the credit cards, that he occasionally made payments on them, and that she only used them to pay for marital items. Fell v. Fell, 2015 Ark. App. 590, 473 S.W.3d 578 (2015).

One store debt was incurred solely to pay for repairs and improvements to the husband's premarital property that he retained after the divorce, and thus he would be the only beneficiary, while the wife only lived briefly in the home and did not take any of the items purchased at the store when she left, and there was no evidence or argument that the windows she purchased were a gift; the division of the store debt, requiring the husband to pay the debt and reimburse the wife for the amount she spent, was not clearly erroneous. Fields v. Fields, 2015 Ark. App. 143, 457 S.W.3d 301 (2015).

Circuit court did not clearly err by finding that the husband was solely responsible for a lease arrearage because the wife testified that, pursuant to an agreed temporary order, the wife paid a portion of the lease directly to the husband, who was responsible for paying the leasing agent, but the husband did not make the lease payments and could not explain where the money went. In addition, the appellate court could not say that the circuit court erred in allotting the husband's personal tax debt to the husband, given the parties' conflicting testimony and the circuit court's superior position to determine the credibility of witnesses. Rawls v. Yarberry, 2018 Ark. App. 536, 564 S.W.3d 537 (2018).

Husband's student-loan debt was properly divided where past student-loan repayment, the allocation of retirement accounts, and current student-loan debt were considered in determining how to apportion the debt. Friedly v. Friedly, 2020 Ark. App. 167, 597 S.W.3d 135 (2020).

Designation by Decree.

This section will not affect a husband's ownership of property, upon a divorce being granted to his wife, until the property is designated by the decree. Hix v. Sun Ins. Co., 94 Ark. 485, 127 S.W. 737 (1910).

A decree of divorce which provides that “all property not disposed of at the commencement of this action which either party hereto obtained from or through the other during the marriage” shall be restored, refers only to the separate property of the parties. Dawson v. Mays, 159 Ark. 331, 252 S.W. 33 (1923).

Division by Summary Judgment.

Without evidence of whether property and debts were marital or nonmarital and without a hearing on the statutory factors to be considered for an inequitable division of marital property, the division of property and debt by an order of summary judgment was both an abuse of discretion and an error of law. White v. Shepard, 2015 Ark. App. 223, 459 S.W.3d 333 (2015).

Division Inadequate.

While a husband was assessed the bulk of the parties' marital debt, pursuant to subdivision (a)(1) of this section, reversal was necessary as his continued receipt of his entire military retirement benefits would result in a substantial windfall to him. Bellamy v. Bellamy, 2011 Ark. App. 433 (2011).

Dower and Curtesy.

Divorce bars dower. Wood v. Wood, 59 Ark. 441, 27 S.W. 641 (1894).

The purpose of this statute was to put an end to all controversies as to dower rights. Beene v. Beene, 64 Ark. 518, 43 S.W. 968 (1898); Kendall v. Crenshaw, 116 Ark. 427, 173 S.W. 393 (1915).

Generally a divorce by a court having jurisdiction terminates all obligations of either party to the other, cutting off the wife's right of dower and the husband's tenancy by the curtesy. Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32 (1944).

Wife who obtained a divorce could not claim dower for the first time on appeal. Orr v. Orr, 206 Ark. 844, 177 S.W.2d 915 (1944).

In considering who is the injured party under § 9-12-301(5) (subsequently amended in 1991), the court is not required to make a full award of dower but may reduce the dower in keeping with the equities of the case. Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620 (1961).

The statutory property division is considered as dower. Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972).

Election of Remedy.

Where wife brought an action for annulment of the marriage and for establishment of a constructive trust and reformation of a deed in her favor and where the proof was insufficient to support the equitable lien theory, she could not then attempt to claim any of the benefits available to divorced persons under this section either directly or indirectly. McIntire v. McIntire, 270 Ark. 381, 605 S.W.2d 474 (1980).

Equal Division.

Husband failed in his burden to present sufficient evidence to divide the marital accounts in any other manner than one-half to each party; the two factors that supported his request did not convince the trial court that equity required an unequal division or that it would be justifiable, and he failed to demonstrate that the trial court clearly erred. Barron v. Barron, 2015 Ark. App. 215 (2015).

Circuit court did not err on remand in ordering the same equal division it had ordered in the parties' divorce decree for every item of marital property because the order was not in derogation of the appellate court's earlier decision and was in keeping with this section. The circuit court did not exceed the appellate mandate on remand by determining the issue initially presented to it — the division of marital property — which remained unresolved, and its finding that an equal division would not be inequitable did not require consideration of the statutory factors for an inequitable distribution. Bradford v. Isom, 2015 Ark. App. 278 (2015).

Even if there was an unequal distribution, it was clear that the circuit court at least considered the relevant statutory factors for distribution of marital property, specifically discussing factors such as the length of the marriage, sources of income, contribution to the marriage, and the circuit judge did not clearly err. Fry v. Fry, 2015 Ark. App. 339, 463 S.W.3d 738 (2015).

This section did not compel mathematical precision in the distribution of property, but nevertheless, a study of the property values distributed in the instant case, which had to be accepted as correct, showed near mathematical precision. Accepting the figures as true, the net value received by appellant was $434,839.26, and by appellee, $436,312.73, the difference in awards was almost nominal, and thus there was an equal distribution of the parties' property. Fry v. Fry, 2015 Ark. App. 339, 463 S.W.3d 738 (2015).

Circuit court's division of marital property was affirmed as there was no requirement that marital debt be equally divided, the marital assets were equally divided, and the husband had not pointed to any evidence of fraud that would have warranted a reduction in the wife's share of the marital assets to compensate for the value of the Goldendoodle dog or the money that she gave to one of her paramours. Goodson v. Bennett, 2018 Ark. App. 444, 562 S.W.3d 847 (2018).

Trial court's division of marital property was not clearly erroneous where it divided the property and debt in an effort to make as equal an overall division of the marital estate as possible, and the net value of the parties' property after the division left the husband with approximately 48% of the net value. Banks v. Banks, 2019 Ark. App. 166, 574 S.W.3d 187 (2019).

Even though the marriage was very short and each party requested an unequal division, the circuit court's decision to equally divide the marital assets was not clearly erroneous because it clearly considered the factors listed in this section and determined that an equal distribution of marital assets would be equitable; and the circuit court awarded the wife only a fraction of the rehabilitative alimony that she requested. Chekuri v. Nekkalapudi, 2020 Ark. 74, 593 S.W.3d 467 (2020).

Findings Required.

Divorce case was remanded in part because the trial court did not specify whether assets, including the investment interests and household furnishings, were marital property or nonmarital property, and it did not state its reasons for every unequal division of marital property or any distribution of nonmarital property to the non-owning spouse. Wilson v. Wilson, 2016 Ark. App. 256, 492 S.W.3d 534 (2016).

Circuit court erred in ordering the husband to maintain a survivor benefit plan where it did so without providing a justification for why the husband had to shoulder a share of the costs when he received none of the benefits. Pelts v. Pelts, 2017 Ark. 98, 514 S.W.3d 455 (2017).

Because a divorce decree did not set forth a circuit court's reasoning for the unequal division of marital property, the case had to be remanded for the circuit court to enter an order that satisfied the statutory requirements. Chambers v. Chambers, 2017 Ark. App. 429, 527 S.W.3d 1 (2017).

Trial court erred in its property distribution because the court did not address the distribution of numerous items of personal property requested in a husband's pretrial contempt motion and testified to at trial, some of which were of significant value, making it impossible for an appellate court to determine if marital property was equally distributed. Garcia v. Garcia, 2018 Ark. App. 146, 544 S.W.3d 96 (2018).

In dividing marital property, the trial court clearly erred in failing to place a value on an LLC where the court awarded the LLC to the husband to offset the award to the wife of the parties' home and the proceeds from the sale of another marital asset. Steeland v. Steeland, 2018 Ark. App. 551, 562 S.W.3d 269 (2018).

Fraud.

Though this section does not authorize a division of personal property fraudulently removed from the state by the husband, a court of equity has power to declare the lien under its general power to grant relief from fraud. Austin v. Austin, 143 Ark. 222, 220 S.W. 46 (1920).

Where a husband, in contemplation of his wife's suit for divorce, fraudulently conveyed his land and departed from the state, taking his personal property with him, the value of the personal property should be considered in determining her share of his property and the value of the real property declared to be a lien on the land. Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742 (1924).

Evidence did not clearly show a fraudulent plan or scheme on part of the wife to obtain husband's property and was not sufficient to support a finding of fraud authorizing cancellation of deed to property voluntarily conveyed to wife. Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32 (1944).

Where testimony supported finding that chattel mortgage was executed in fraud of and to defeat the wife's marital rights, the wife was entitled to her interest in the personalty free from the mortgage. Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344 (1944).

In a federal diversity action by a judgment creditor to recover fraudulently transferred assets, the district court was under no obligation to consider that a state court approved a property settlement agreement as equally dividing the divorcing parties' assets. FDIC v. Bell, 106 F.3d 258 (8th Cir. 1997), cert. denied, 523 U.S. 1022, 118 S. Ct. 1304, 140 L. Ed. 2d 470 (1998).

Given the paucity of evidence of any intent by appellee to defraud appellant, and the trial court's superior position to assess credibility, the trial court did not clearly err in making an equal division of the marital property. Wainwright v. Merryman, 2014 Ark. App. 156 (2014).

In a divorce case, where a husband argued for an unequal division of marital property because of the wife's alleged fraudulent dissipation of assets, there was no error because a $67,000 payment that a wife made to her mother was legitimate compensation for her participation in the wife's business, there was evidence that the business was not successful, and the husband waived his argument relating to the statutory factors. The fact that the wife's mother then lent the daughter $50,000 to purchase a home and new business one month before the divorce was granted did not alter this result. Davis v. Davis, 2016 Ark. App. 210, 489 S.W.3d 195 (2016).

Circuit court's award to wife of one-half of the marital funds the husband spent during the parties' separation was not clearly erroneous under the facts of the case because the husband's cash withdrawals increased after the separation and the cash balance in his accounts decreased by the time of the divorce hearing, and there was evidence from which the circuit court could conclude that the husband spent the funds with the intent to defraud the wife because he had no documentation to support the majority of his expenses. Chekuri v. Nekkalapudi, 2020 Ark. 74, 593 S.W.3d 467 (2020).

Jurisdiction.

The filing of a complaint describing real property gives the court jurisdiction over it for the purpose of making an award in accordance with the statute; no attachment or other method of sequestration is necessary in order for the court to acquire jurisdiction. Allen v. Allen, 126 Ark. 164, 189 S.W. 841 (1916).

Description of property in pleadings is unnecessary to confer jurisdiction. Hegwood v. Hegwood, 133 Ark. 160, 202 S.W. 35 (1919).

Where a wife's complaint for divorce asked a division of property, the court acquired jurisdiction in rem of the husband's property, though there was no personal service on the defendant nor seizure of the property under attachment or otherwise. Austin v. Austin, 143 Ark. 222, 220 S.W. 46 (1920).

A chancellor loses the authority to distribute property not mentioned in the original decree after the decree has become final. Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988).

This section does not authorize a division of marital property after the divorce decree has been entered, in the absence of fraud or other grounds for relief from the original judgment. Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988).

To the extent a spouse acquires an enforceable right during the marriage to recover fees under a contingency fee contract, the spouse acquired marital property; any difficulty in valuing contingency fee contracts may be solved by reserving jurisdiction in the trial court in order to await the outcome of the underlying actions. McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999).

Legislative Intent.

Nothing in this section suggests the legislature intended this provision to have any effect except with respect to divorce. Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 83 (1994).

Specific enumeration of the factors in subdivision (a)(1) of this section does not preclude a trial court from considering other relevant factors where exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow the court to make an equitable division of property. Coombe v. Coombe, 89 Ark. App. 114, 201 S.W.3d 15 (2005).

Loan or Gift Between Spouses.

Wife failed to prove by clear and convincing evidence that she rebutted the presumption that her payments to the husband were gifts; therefore, the trial court erred in finding that the wife had loaned the husband money for his law firm where the only evidence of a loan was the wife's testimony and there was no evidence she had demanded repayment during the marriage. Sanders v. Passmore, 2016 Ark. App. 370, 499 S.W.3d 237 (2016).

Marital Property.

Increase in value of the husband's limited partnership's stock brokerage accounts was not his separate property where the husband's efforts, which resulted in the increase in the value of the accounts, caused the increase to be classified as marital property. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Circuit court complied with this section when it stated the factors it considered in concluding that the division of the parties' personal property was equitable where (1) there was scant evidence in the record as to the value of the personal property; and (2) the circuit court was not required in every case to mechanically divide the marital property in kind. Gilliam v. Gilliam, 2010 Ark. App. 137, 374 S.W.3d 108 (2010).

Trial court erred in finding that a hunting club membership was nonmarital property as: (1) the husband's self-serving testimony did not rebut the presumption under this section that the property was marital property; (2) the property was purchased two years after the parties were married, and marital funds were used to pay the annual fees; and (3) the origination of the funds used for the purchase was not evidenced by the fact that the partnership document named the husband as a limited partner, or by a check from the husband's mother dated well after the purchase. Carroll v. Carroll, 2011 Ark. App. 356, 384 S.W.3d 50 (2011).

Property that was given to the husband as a gift prior to marriage was not marital property and it would have qualified as an exception in any event; the trial court clearly believed the husband's testimony, the wife's name was not on the deed, and the trial court did not clearly err in awarding the property to the husband. Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389 (2013).

Reversal of a circuit court's finding that the funds in a brokerage account held as tenants by the entirety were the separate property of the husband was appropriate because the court erred in failing to recognize the rights of the husband and wife as tenants by the entirety in the account held as joint tenants with right of survivorship. The circuit court, on remand, was to consider whether an equal distribution of the funds was inequitable. Bradford v. Bradford, 2013 Ark. App. 615 (2013).

In a divorce action, the court did not err under subdivision (b)(1) of this section in finding that a promissory note for the sale of the husband's Nevada law firm was marital property because the record showed that he was only able to devote the majority of his time and energy to the success of the law practice because the wife was taking care of the children and the home. Blalock v. Blalock, 2013 Ark. App. 659 (2013).

In a property division case in which a husband argued that the circuit court erred by not awarding him an interest in a home that was nonmarital property, he failed to show marital contributions and an increase in value. Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36 (2014).

Trial court erred when it refused to consider appellee's testimony that no money had been exchanged and the property was a gift because to do so would have contradicted the recitation in the deed that the property had been sold for a few dollars; the case was remanded for the trial court to consider the matter in light of the holding in case law that recitation in a deed of consideration did not preclude a finding of a gift. Wainwright v. Merryman, 2014 Ark. App. 156 (2014).

Trial court did not err in its division of property, given that the parties' verbal agreement did not constitute a valid agreement to exclude the properties at issue from marital property, and the facts surrounding the placement of both names on the deeds were more convincing that joint ownership was intended rather than providing clear and convincing evidence that it was not; titling the properties jointly was sufficient in itself to raise the presumption that a gift was thereby made to the other spouse, and the wife's own testimony that it was done in anticipation of death supported that presumption. Robinson v. Lindsey, 2015 Ark. App. 148 (2015).

When a husband and his father jointly opened certificates of deposit (CDs) during the husband's marriage, the circuit court did not clearly err in finding that the CDs were marital property because nothing conclusively established that the CDs were property acquired by gift or by reason of the death of another under subsection (b) of this section. McGahhey v. McGahhey, 2018 Ark. App. 597, 567 S.W.3d 522 (2018).

—In General.

Marital property is marital property whether it is voluntarily or involuntarily acquired. Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985).

This section requires that marital property be divided at the time the divorce is granted. Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988).

Where transactions result in great difficulty in tracing the manner in which nonmarital and marital property have been commingled, the property acquired in the final transaction may be declared marital property. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988).

Contribution of each party in the acquisition of marital property is a factor to be considered by the trial judge in making a division of marital property, however, it should not be the sole factor considered; thus, the court stated that, to the extent that Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982), was in conflict with this opinion, it was overruled. Baxley v. Baxley, 92 Ark. App. 247, 212 S.W.3d 8 (2005).

Nonmarital Property.

The fact that this section provides that the increase in value of property acquired by one party prior to the marriage is nonmarital property does not mean that the chancellor must award the entire amount of the increase to the party that acquired the property prior to the marriage; instead, subdivision (a)(2) of this section expressly provides that the court may make some other division that it deems equitable. If the trial court does determine that it is equitable to divide nonmarital property between the parties, however, this section requires that the court take into consideration those factors listed in subdivision (a)(1)(A) of this section and that the court state in writing its reasons. Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988).

Husband claimed the trial court clearly erred in awarding the wife his nonmarital property because they lived together as a married couple for only a few months, but the record showed they had a much longer and more involved history, plus subdivision (a)(2) of this section authorized the trial court to distribute the husband's nonmarital property to the wife based on the equities of the situation, and the trial court did not clearly err in awarding the wife the husband's nonmarital real property, where she had lived for 20 years. Marks v. Marks, 2014 Ark. App. 174, 432 S.W.3d 698 (2014).

Husband cited no authority for his argument that subdivision (a)(2) of this section did not apply when there was no marital property to be divided, and the statute instead authorized the trial court to do what it did, plus in distributing the husband's nonmarital property, the trial court complied with the statute by taking into consideration the factors enumerated in subdivision (a)(1) and stating in writing the basis and reasons for not returning the property to him. Marks v. Marks, 2014 Ark. App. 174, 432 S.W.3d 698 (2014).

Although the trial court incorrectly declared that a home was marital property, it did not equally divide the $35,000 equity in the home and it treated the home as nonmarital property. Under subdivision (a)(2) of this section, and consistent with the correct conclusion that the home was nonmarital property, the trial court awarded husband his $11,000 down payment on the home, made prior to the marriage, and then equally divided the remaining $24,000 between the husband and wife. Fell v. Fell, 2015 Ark. App. 590, 473 S.W.3d 578 (2015).

Trial court did not clearly err in awarding the wife a $12,000 interest in the equity of the nonmarital home because marital funds were used to pay the mortgage and make improvements on the husband's house; thus, the wife was entitled to some benefit. Fell v. Fell, 2015 Ark. App. 590, 473 S.W.3d 578 (2015).

“Active appreciation” rule conflicts with the plain language of subdivision (b)(5) of this section, which provides that the “increase in value of property acquired prior to marriage” is nonmarital; therefore, Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006), and Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008), are overruled to the extent they redefine marital property through the “active appreciation” rule. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Because the husband's interest in his company was acquired before his marriage to the wife, it was a nonmarital asset, and the trial court erred in considering it marital property and awarding the wife half of the growth of the business. The trial court did not make findings under subdivision (a)(2) of this section to justify a distribution of nonmarital property. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Trial court erred in finding that a certain investment was a marital asset because it was acquired prior to the marriage. Although the wife testified that it was the intent of the parties to make a joint investment, the husband purchased the interest by himself prior to the marriage; the stock-purchase agreement reflected that the husband purchased the interest in his name, and the evidence showed that the initial capital contribution came from his checking account. Wilson v. Wilson, 2016 Ark. App. 256, 492 S.W.3d 534 (2016).

Husband had acquired the home before the marriage, and there was no evidence that it was purchased with the intent to make it the couple's marital home; the circuit court erred in treating the house as marital property, no reason was provided why the house should not be returned to the husband, and remand was required. Thurmon v. Thurmon, 2016 Ark. App. 497, 504 S.W.3d 675 (2016).

In dividing marital property, the trial court clearly erred in awarding the marital home to the wife where the husband had acquired the home prior to the marriage, and the property was not transformed into marital property by its use as collateral for loans. On remand, the trial court was to make findings concerning the benefit that the wife may be entitled to if marital funds were expended to pay off debt on the property or to pay for improvements on the property that increased its value. Steeland v. Steeland, 2018 Ark. App. 551, 562 S.W.3d 269 (2018).

Circuit court's award to wife of $100,000 from husband's separate nonmarital medical practice was affirmed; the wife had worked for the medical practice before the parties were married and during the marriage as the office manager and marital funds were used to pay debts of the medical practice. Perser v. Perser, 2019 Ark. App. 467, 588 S.W.3d 395 (2019).

Circuit court properly awarded the wife $52,000 from the home, which the parties agreed was the husband's separate property, where marital funds and funds from the sale of the wife's premarital home were used to pay the debt on the husband's separate property; in this case, the circuit court ordered an equitable distribution to the wife of the husband's nonmarital business and home, as well as alimony, and the court specifically stated in making the award that it had considered that the husband retained the home. Perser v. Perser, 2019 Ark. App. 467, 588 S.W.3d 395 (2019).

Pleadings.

Chancellor erred in dividing the marital property under this section where only separate maintenance was sought in amended pleading. Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982).

Chancellor is not required to divide any asset equally between the parties if reasons for not doing so are stated. Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988).

Property.

—Accounts.

There was no error in the division of accounts, given that one account bore both parties’ names and the wife had also made deposits to and withdrawals from the account, and the accounts the wife claimed as nonmarital property were held in her name only; the trial court’s decision complied with the statutory requirement that all marital property be equally divided. Walls v. Walls, 2014 Ark. App. 729, 452 S.W.3d 119 (2014).

Trial court did not clearly err in deeming certain accounts to be marital property, as the husband did not rebut the presumption that the accounts, which were held in the parties' joint names during the marriage, were marital; the source of the funds was of minimal value because the monies were converted into marital funds by virtue of their placement into joint accounts and by virtue of their joint access and usage. Barron v. Barron, 2015 Ark. App. 215 (2015).

Imputing income of $2,500 to the wife's bank account on the entry date of the divorce decree was clear error where the wife had simply taken the money from the account prior to the divorce decree, as was permitted, the money she spent from the account was used to pay bills, and thus, depositing the money into the account following the entry of the divorce decree was not evasive and was irrelevant. Langston v. Brown, 2016 Ark. App. 535, 506 S.W.3d 261 (2016).

Circuit court did not err by failing to equally divide a bank account because the court's order acknowledged that the sole purpose of the account on the advice of a financial advisor was to pay income tax for the wife, whose employer did not make tax deductions, and the decision effected an equitable distribution of marital property. Rawls v. Yarberry, 2018 Ark. App. 536, 564 S.W.3d 537 (2018).

—Accounts Receivable.

Accounts receivable are marital property. Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986).

Husband's investment in a business operated by his sons was marital property because the money came from a joint account and the wife could be awarded portion of accounts receivable from the sons' failed business venture as it was not equitable to the wife to have the classification of this asset turn on the enmity between the parties, and the fact that a receivable may not be collectable reduced its net value but did not make it non-marital property. Farr v. Farr, 89 Ark. App. 196, 201 S.W.3d 417 (2005).

—Bonus.

Where husband's bonus accrued and, therefore, was acquired during his marriage to wife, chancellor abused his discretion in finding that none of bonus was marital property. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

Bonus which accrued during the parties' marriage is marital property subject to division. Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995).

—Business.

There was evidence that the husband's sweat equity was his consideration for his interest in a company, and the trial court did not clearly err in determining that he gave consideration for his interest in the company, and thus the property was not a gift excepted from the parties' marital assets. Massey v. Massey, 2014 Ark. App. 111, 432 S.W.3d 134 (2014).

By not requiring the husband to buy the wife's interest in the marital business at the value assigned by the circuit court and allowing a reverse auction between the parties, the circuit court awarded an unequal distribution, yet did not state its basis for doing so; if the circuit court intended this unequal distribution, its basis for the award had to be stated. Ballegeer v. Ballegeer, 2019 Ark. App. 269, 577 S.W.3d 66 (2019).

Funds deposited into the corporate account during the pendency of the divorce action were not funds belonging to the martial business, and many funds were payments for services rendered, equipment, and materials that were filtered through the business; if the corporate accounts had been divided, the marital business would have been insolvent, and thus the circuit court's decision to keep the corporate account intact was not clearly erroneous. Ballegeer v. Ballegeer, 2019 Ark. App. 269, 577 S.W.3d 66 (2019).

Circuit court did not clearly err when it found that a portion of a partnership was marital property, when the husband owned the business before the marriage with his brother and father, and subsequently, during the marriage, the husband and his brother signed a promissory note for $275,000 to buy out their father's interest, and the husband failed to put on proof in the divorce action concerning the value of the interest. Perry v. Perry, 2020 Ark. App. 63, 594 S.W.3d 126 (2020).

—Capital Accounts.

Where there was no evidence that the former husband had a vested interest in the capital account with his employer that was fully distributive upon the date of the parties' divorce, the former wife was not entitled to any portion of that account. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982).

—Coins.

Testimony regarding a gold coin was conflicting, and the trial court believed the husband, and there was no clear error in finding that it was marital property. Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389 (2013).

—Commissions.

Insurance policy renewal commissions were income generated by corporation which was nonmarital property, and thus, the corporation's insurance policy renewal commissions were themselves, pursuant to subdivision (b)(7) of this section, exempt from the definition of marital property. Dalrymple v. Dalrymple, 74 Ark. App. 372, 47 S.W.3d 920 (2001).

—Disability Income.

Disability payments received by the husband did not lose their status as separate property when they were deposited in a joint checking account where the husband testified that the wife only wrote checks on the joint checking account after first discussing it with him, that the parties understood the separate nature of their checking accounts, and that he had not intended to give the wife an interest in the funds in the joint checking account. McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999).

Where monthly disability income benefits had accrued to former husband, the benefits were a marital asset subject to division, and trial court erred in finding they had no cash value and awarding the asset solely to former husband. Frigon v. Frigon, 81 Ark. App. 314, 101 S.W.3d 879 (2003).

—Employment Compensation.

A cash advance paid to husband by husband's employer, acquired after the parties separated, was compensation for future services and contingent upon husband's future performance; thus, it was not earned during the marriage and was not marital property. O'Neal v. O'Neal, 55 Ark. App. 57, 929 S.W.2d 725 (1996).

When husband was awarded Federal Employee Liability Act proceeds as a result of permanent disabilities he suffered as a railroad engineer, the chancery court did not err in determining that these proceeds were non-marital property, and that husband was entitled to all the proceeds. Collins v. Collins, 347 Ark. 240, 61 S.W.3d 818 (2001).

Money accumulated in the husband's Deferred Retirement Option Plan during the parties' marriage constituted marital property of which the wife was entitled to a 50 percent interest. Dial v. Dial, 74 Ark. App. 30, 44 S.W.3d 768 (2001).

—Enhanced Business Career.

A husband's enhanced business career did not qualify as marital property subject to distribution. Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 (1984).

Medical degree, license or increased earnings capacity did not qualify as marital property. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

—Estates by Entirety.

Where wife's property prior to the marriage was conveyed to husband and wife after marriage as tenants by the entirety but not in consideration of the act of marriage, the wife was not entitled to be restored as sole owner. Phillips v. Phillips, 236 Ark. 225, 365 S.W.2d 261 (1963).

Where promissory notes arising out of the sale of a farm were payable to both parties and thus were entireties property, it was error for the chancery court to award the husband a greater share of the notes than the wife as a means of equalizing differences in value of real property awarded the parties. Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975).

Where the chancellor set aside the conveyance by husband which created an estate by the entirety in certain property, the property reverted to ownership by husband individually and the trial court could properly determine that the property was not “marital property” and that the wife should not share in it. Chrestman v. Chrestman, 4 Ark. App. 281, 630 S.W.2d 60 (1982).

This section is not applicable to property owned as tenants by the entirety. Bramlett v. Bramlett, 5 Ark. App. 217, 636 S.W.2d 294 (1982) (decided prior to 1997 amendment, adding § 9-12-317(c)).

This section does not require that a home owned as an estate by the entirety be sold at the time of the divorce. Bratcher v. Bratcher, 5 Ark. App. 250, 635 S.W.2d 278 (1982).

The division of property held as tenants by the entirety is governed by § 9-12-317 rather than this section; § 9-12-317 is the only statutory authority for the division of tenancies by the entirety, and it provides for an equal division of the property without regard to gender or fault. Therefore chancellor erred in dividing property pursuant to this section. Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985) (decision under prior law).

When property, personal or real, is placed in the names of a husband and wife, the presumption arises that they own the property as tenants by the entirety, and thus clear and convincing evidence is required to overcome the presumption that a spouse depositing money in joint account did not intend a gift or one-half interest to the other spouse. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988).

Where parties' residence is held as a tenancy by the entirety, that estate is automatically dissolved when the final decree is rendered, unless the chancellor specifically provides otherwise, pursuant to § 9-12-317. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996).

Bank account held not to be owned as tenants by the entirety. Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996).

—Exchange for Property.

In considering subdivision (b)(2) of this section, the “exchange” provision, only that portion of the property acquired during marriage in exchange for the nonmarital property should be set aside as nonmarital property. An exchange of a nonmarital interest for other property after marriage will yield only a nonmarital interest proportionate in value in the newly acquired property. Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989).

—Farm Equipment.

Farm equipment was separate property of the husband where he either owned it prior to the marriage or acquired it in exchange for other equipment owned prior to the marriage. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).

—Furniture.

Where, in a divorce suit, it was shown that the wife with her own means paid half of the price of furniture, a decree awarding the furniture to the husband was erroneous, the wife being entitled to an equal interest therein. McIlroy v. McIlroy, 191 Ark. 45, 83 S.W.2d 550 (1935).

Trial court did not clearly err in concluding that the husband gifted the furniture and firearm to the wife; she presented evidence that the husband voluntarily transferred the items to her and ceased to exercise control over them, the trial court found her testimony credible, and the court deferred to that credibility finding. Marks v. Marks, 2014 Ark. App. 174, 432 S.W.3d 698 (2014).

—Gifts.

Where a husband advances money to improve his wife's separate property there is a rebuttable presumption that a gift was intended. Carrick v. Carrick, 13 Ark. App. 42, 679 S.W.2d 800 (1984).

A gift acquired by either spouse subsequent to the marriage is excluded from the definition of marital property which is subject to division upon divorce. Lyons v. Lyons, 13 Ark. App. 63, 679 S.W.2d 811 (1984).

Evidence insufficient to find that property acquired by husband was anything other than a gift. Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), overruled, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

This section does not authorize a chancellor to divide gift property received by one spouse during marriage. Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992).

Where husband received gift property during marriage, which he volunteered as security for a loan consolidation, it was appropriate for the chancellor to apply the gift property to satisfy the loan consolidation debt, but not to pay any other marital debts. Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992).

Where it was clear from the facts and circumstances that husband had made some sort of gift to wife of a ring, valued at $1,105, before the marriage, he divested himself of any interest in the ring; thus, the trial court erred in awarding the ring to the husband. Weatherly v. Weatherly, 87 Ark. App. 291, 190 S.W.3d 294 (2004).

Ex-husband's real property was properly considered nonmarital property where although the trial court erred in relying on the fact that the property was never titled in the wife's name, the testimony supported the finding that the property was a gift from his parents, and thus, was excepted under subdivision (b)(1) of this section. Dozier v. Dozier, 2014 Ark. App. 78, 432 S.W.3d 82 (2014).

—Goodwill.

For goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual — an asset which may be sold, transferred, conveyed, or pledged. Whether goodwill is marital property is a fact question, and to establish goodwill as marital property and divisible as such, a party must produce evidence establishing salability or marketability of that goodwill as a business asset of a professional practice. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

Husband's professional association had no goodwill value independent of husband's presence and reputation. A solo professional practice may have business goodwill independent of the personal goodwill of the practitioner. Wife had the burden of proving that husband's professional association had business goodwill independent of husband's personal goodwill if it was to be considered a marital asset. Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995).

—Homestead.

The court in granting a divorce may treat the homestead as any other property. Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32 (1944).

In the absence of statutory provisions to the contrary, the wife has no homestead rights in the husband's property after a divorce unless the right thereto is reserved to her by the decree and it makes no difference whether the decree was obtained by the husband or by the wife. Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32 (1944).

Courts granting decrees of divorce may award the possession of the homestead to either of the parties for such time and upon such terms and conditions as appear to be equitable and just. Orr v. Orr, 206 Ark. 844, 177 S.W.2d 915 (1944); Schaefer v. Schaefer, 235 Ark. 870, 362 S.W.2d 444 (1962).

Decree allowing homestead to husband was proper. Orr v. Orr, 206 Ark. 844, 177 S.W.2d 915 (1944).

A divorce decree giving a wife homestead rights to lands and personal property did not violate section. Whaley v. Whaley, 224 Ark. 632, 275 S.W.2d 634 (1955); Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S.W.2d 577 (1957).

Portion of divorce decree refusing to award alimony and ordering sale of homestead was against the preponderance of the evidence, and wife would be permitted to maintain residence until children were older with husband paying alimony which would be used to make partial mortgage payments on home. Warren v. Warren, 270 Ark. 163, 603 S.W.2d 472 (Ct. App. 1980).

—Identification.

The trial court had authority to identify and determine what was marital property and, therefore, properly required that the landlords of a store operated by the husband be made parties to the divorce action and that they be enjoined from selling the inventory of the store in order to recover rent due from the husband. Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001).

—Improvements.

A spouse is entitled to improvements made during the marriage on nonmarital property if the spouse can prove he or she helped make them. Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986).

The improvements made to the wife's house and yard, whether paid for by the joint tax refund checks or by the wife's income earned during the marriage, were marital property. Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986).

It would be inequitable to give the husband an interest in the improvements to the wife's separate property because, while the wife continued to make the mortgage payments thereon, the husband did not contribute to these payments although he was saving approximately $250 in rent each month. Camp v. Camp, 18 Ark. App. 87, 710 S.W.2d 842 (1986).

A co-owner who makes improvements to the property is generally awarded the resulting increase in the value of the property, and not the actual costs of the improvements. Flucht v. Villareal, 28 Ark. App. 1, 770 S.W.2d 187 (1989).

Where parties were only married three years before separating, the husband was entitled to some benefit by reason of marital funds having been used to improve the wife's property that she brought into the marriage. Weatherly v. Weatherly, 87 Ark. App. 291, 190 S.W.3d 294 (2004).

Trial court did not err in finding that a 60-acre tract that had been conveyed to a husband by his mother, while originally nonmarital property, had lost its status as nonmarital property because of the substantial improvements made to the property with marital funds and the wife's nonmarital funds and in equitably dividing the tract. Coatney v. Coatney, 2010 Ark. App. 262, 377 S.W.3d 381 (2010).

—Income.

Any accumulation of income during the marriage from the husband's nonmarital property constituted marital property; thus, the rental income on the husband's farmland the year after his separation from his wife was not an increase in value of his nonmarital property under subdivision (b)(5) of this section. Speer v. Speer, 18 Ark. App. 186, 712 S.W.2d 659 (1986) (decision prior to 1989 amendment).

“Active appreciation” rule conflicts with the plain language of subdivision (b)(5) of this section, which provides that the “increase in value of property acquired prior to marriage” is nonmarital; therefore, Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006), and Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008), are overruled to the extent they redefine marital property through the “active appreciation” rule. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Income accumulated from nonmarital certificate of deposit accounts held to be marital property. Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987); Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988) (decisions prior to 1989 amendment).

Wife's salary check and stipend, earned subsequent to the marriage, are clearly marital property, and should be divided pursuant to this section as the chancellor believes the equities require. Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988).

“Active appreciation” rule conflicts with the plain language of subdivision (b)(5) of this section, which provides that the “increase in value of property acquired prior to marriage” is nonmarital. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

—Inheritance.

There was no transfer to the husband of an interest in a money market certificate purchased with proceeds from inheritance so as to make the certificate subject to division upon divorce. Hayse v. Hayse, 4 Ark. App. 160, 630 S.W.2d 48 (1982).

Tract of land inherited by the husband during the marriage was not subject to division in a divorce action. Busby v. Busby, 39 Ark. App. 108, 840 S.W.2d 195 (1992).

Husband failed to produce clear and convincing evidence to rebut the presumption that inheritance money placed in joint account was separate property where the records showed that although wife did not deposit or withdraw funds from the joint account, husband engaged in several actions that support a finding that he either bestowed a gift of the money to wife, or created a tenancy by the entirety in it. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996).

The chancellor's finding that the husband gave the wife an interest in a houseboat was not clearly erroneous, notwithstanding the husband's contention that he used the proceeds of an inheritance to purchase the houseboat and did not intend to make a gift of an interest in it to the wife, where the husband testified that, after he talked with the seller of the houseboat, the seller prepared the bill of sale in both parties' names and that he did not object because “she was my wife.” McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999).

Although the houseboat was purchased from inheritance, it was held jointly and the court found that a gift had been made. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).

Circuit court did not err in finding that the wife's inheritance money was not separate property and in allocating the inheritance account as marital property and dividing it equally between the parties because the wife failed to produce clear and convincing evidence that she did not intend to bestow a gift of the inheritance money to rebut the presumption of gift that arose when she placed the husband's name on her inheritance account. Adams v. Adams, 2014 Ark. App. 67, 432 S.W.3d 49 (2014).

Trial court erred in awarding the husband an investment account as his nonmarital property because: (1) although the evidence showed that the account was funded by the husband with proceeds from an inheritance from his father, the account was maintained in both parties' names; (2) although the husband stated that he never contributed any marital funds to the account, the wife stated that she handled the parties' finances and used the account to pay bills during the marriage and that they would use the account to pay for anything that had been purchased if the balance on a certain credit card was too high; and (3) the husband did not present distinct and detailed information about the account and how it was used to rebut the presumption that the account was marital property when it was maintained in both parties' names. Mason v. Mason, 2017 Ark. App. 683, 536 S.W.3d 657 (2017).

—Insurance Proceeds.

Where wife received proceeds of her son's insurance policy after her marriage took place but the son had died before the marriage took place, insurance proceeds were the separate property of the wife. Wright v. Wright, 29 Ark. App. 20, 779 S.W.2d 183 (1989).

Where defendant's employer during the marriage provided a long-term disability insurance plan for its executives; where these benefits were in lieu of workers' compensation, and were not awarded as benefits for a permanent disability or for future medical costs; and where the disability entitling the defendant to collect the benefits provided by the plan occurred during the marriage, the property was acquired during the marriage and was marital property as defined by statute. Dunn v. Dunn, 35 Ark. App. 89, 811 S.W.2d 336 (1991).

Appellant's disability benefits did not meet one of the statutory exceptions contained in this section and were therefore marital property. Scott v. Scott, 86 Ark. App. 120, 161 S.W.3d 307 (2004).

Although the court concluded that an insured and her ex-husband were equal co-owners of a fire-destroyed house, it exercised its discretion under subdivision (a)(1)(A) of this section and awarded the insured 69% of the funds deposited by an insurance company with the court: (1) the insured sued the insurance company after it refused to pay her claim under her property insurance policy; (2) the ex-husband intervened in the suit after the judgment entered against the company was affirmed on appeal; (3) the insured was entitled to a credit for the post-fire mortgage payments that she made because she was not legally obligated to make those payments and they benefitted the ex-husband, as those payments increased the amount of insurance policy proceeds available after the mortgage balance was paid off; (4) the insured was entitled to receive $15,000 to compensate her for her time and expense in suing the insurance company; (5) the insured was also entitled to recover the entire 12% penalty paid by the company under § 23-79-208(a)(1), given the fact that the ex-husband had not actively participated in attempting to obtain payment from the insurance company; and (6) the insured could not recover attorney's fees from the ex-husband pursuant to § 23-79-208(a)(1) or § 23-79-209(a) because those statutes allowed the recovery of fees from insurance companies. Tweedle v. State Farm Fire Cas. Co., No. 4:04-CV-608, 2008 U.S. Dist. LEXIS 63324 (E.D. Ark. July 22, 2008).

Life insurance proceeds did not constitute marital property that were subject to division in a divorce case; pursuant to this section, life insurance proceeds were property acquired by reason of the death of another and were exempt from the definition of “marital property” for purposes of division of assets. Hargrove v. Hargrove, 2015 Ark. App. 45, 453 S.W.3d 683 (2015).

—Joint Enterprise.

Wife is entitled to half interest in real estate and business where she paid portion of consideration, regardless as to who held the legal title. Price v. Price, 217 Ark. 6, 228 S.W.2d 478 (1950).

Where it was obvious from the evidence that it was the joint efforts of the parties which acquired property, it would be inequitable to deprive the wife of the legal and equitable ownership of one-half interest in the property. Nelson v. Nelson, 267 Ark. 353, 590 S.W.2d 293 (1979).

—Livestock.

It was error for the chancellor to award $50,000 in an investment account, which represented the proceeds from a sale of cattle which occurred after the parties' marriage, to the husband since there was no proof that the cattle were the same as owned by the husband prior to the marriage and since the wife actively assisted the husband in his cattle farming operation. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).

In a divorce action, the court erred in determining that cattle were not marital assets because the cattle were purchased by the husband during the parties' marriage and while they were separated; the court should have divided the value of the cattle equally pursuant or provided an explanation why such a division would not be equitable under the circumstances. Coombe v. Coombe, 89 Ark. App. 114, 201 S.W.3d 15 (2005).

Circuit court did not err in awarding the wife half the value of the presumed offspring of marital animals under the circumstances of the case, as the husband violated an order to sell the marital animals within 60 days. Moore v. Moore, 2019 Ark. 216, 576 S.W.3d 15 (2019).

—Marital Home.

In the property division following a divorce, the couple's marital residence was the wife's separate property because the husband deeded the house to her and there was nothing to indicate that the husband would regain an interest in the house or that the wife agreed to do anything in consideration for the transfer. Horton v. Horton, 92 Ark. App. 22, 211 S.W.3d 35 (2005).

Trial court's finding that a husband and wife intended to create a tenancy by the entirety when property was purchased was not clearly erroneous because the husband used his non-marital funds to purchase the property and to build a home, but the warranty deed conveyed title to both parties as husband and wife; in finding that the husband made a gift to the wife of the property and funds used to construct the home, the trial court expressly rejected the husband's claim that the parties intended the land and home to remain his separate property. McCracken v. McCracken, 2009 Ark. App. 758, 358 S.W.3d 474 (2009).

Trial court's valuation for property distribution purposes of a marital home, which was built during the parties' marriage upon the wife's non-marital land, was not clearly erroneous where there was no evidence of the before-and-after value of the property to show the existence and extent of any increase in the value of non-marital property. Poole v. Poole, 2009 Ark. App. 860, 372 S.W.3d 420 (2009).

Trial court did not clearly err in failing to make an unequal division of the equity in the divorcing parties' house due to a home equity loan that was received almost a year before the parties separated pursuant to this section, as the wife provided testimony that the money had already been spent and that she used it for extra nursing school expenses, her own medical expenses, and various living expenses. Grantham v. Lucas, 2011 Ark. App. 491, 385 S.W.3d 337 (2011).

In this divorce action, the order finding that the parties' home was marital property was affirmed because while the wife might have intended to maintain the status of her separate property, she did not; the deed to the house was to the parties jointly, as husband and wife. McClure v. Schollmier-McClure, 2011 Ark. App. 681 (2011).

In a divorce action, the trial court did not err under subsection (a) of this section in awarding the husband the first $90,000 from the sale of the marital home and equally dividing the remaining proceeds because the parties had received a credit of $90,000 toward the property's purchase price when they traded a property the husband owned prior to the marriage for the marital property. McCormick v. McCormick, 2012 Ark. App. 318, 416 S.W.3d 770 (2012).

Trial court did not clearly err in awarding the husband the marital home, along with its debt; the property was given to him as a gift prior to marriage, and the court found the omission of a directive for refinancing was inadvertent, as the wife should not have been obligated to repay the mortgage on the home awarded to the husband. Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389 (2013).

Circuit court did not err in denying the mother's petition to order a sale of the marital home because the father never ceased living in the former marital residence with the children and did not abandon it; and the residence was being used “in a manner for the children” under the settlement agreement and previous modification order. Neumann v. Smith, 2016 Ark. App. 14, 480 S.W.3d 197 (2016).

Circuit court did not abuse its discretion in equally dividing the marital home and then giving the wife a credit for the time she alone made the mortgage payments after the parties separated, and in giving the wife a credit for the five-acre lot proceeds that the husband used to pay his personal debts. Holloway v. Holloway, 2019 Ark. App. 375, 586 S.W.3d 173 (2019).

Although the wife used nonmarital funds toward the construction of the marital home, the appellate court did not find clear error in the circuit court's award of equal division of the marital home given the statutory presumption favoring equal division of marital property and the husband had countered that he made substantial contributions in the form of “sweat equity” toward the home's construction. Holloway v. Holloway, 2019 Ark. App. 375, 586 S.W.3d 173 (2019).

—Miscellaneous Personal Property.

In a divorce action, a trial court erred when it found that a travel trailer in which a former husband lived with his girlfriend was marital property under subsection (b) of this section when there was no evidence that indicated that the husband had any ownership interest in the trailer. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007).

Appellee left the box springs and mattress when she entered the marital home, and took objects she thought were hers, and under the circumstances, the trial court's conclusion that she abandoned her claim to the box springs and mattress was reasonable. Wainwright v. Merryman, 2014 Ark. App. 156 (2014).

Where husband contended that at least some of the guns in the large gun collection were his separate property, the conflicting proof on this issue was for the trial court to resolve and the trial court expressly found that the husband's testimony on this matter was not credible. Davis v. Davis, 2016 Ark. App. 210, 489 S.W.3d 195 (2016).

Circuit court erred in finding that a tractor was the husband's separate nonmarital property where it was purchased during the marriage with the parties' credit card, and the husband had submitted no evidence supporting the assertion that the tractor was purchased with funds from his mother. Moody v. Moody, 2017 Ark. App. 582, 533 S.W.3d 152 (2017).

Husband claimed that nothing in the record indicated that the “Can Am” and the “ATV” were one and the same; because there was no proof in the record to settle the matter, the circuit court's ultimate decision to award the husband the Can Am as he requested was neither unreasonable nor clearly erroneous. Ballegeer v. Ballegeer, 2019 Ark. App. 269, 577 S.W.3d 66 (2019).

—Partnership Assets.

Where husband and wife operated store as partners during the marriage the husband was not entitled to the sole ownership of the store. Phillips v. Phillips, 236 Ark. 225, 365 S.W.2d 261 (1963).

In awarding a divorce to the wife, the chancellor should determine the value of a husband's interest in a partnership, treating accounts receivable as assets having a provable fair net present value, resulting in a monetary decree in the wife's favor, to be enforced if necessary by a charging order. Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967); Warren v. Warren, 12 Ark. App. 260, 675 S.W.2d 371 (1984).

The trial court clearly erred when it ordered a former wife's interest in the parties' marital home to be applied to the net worth of a partnership, a business in which she had a lesser interest. Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982).

A former wife's interest in a partnership and its assets, acquired during her marriage, constituted marital property, despite the wife's contention that she owned no property used in the partnership but instead only had a right to half the earnings of the partnership. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).

Circuit court properly awarded a wife half of the husband's one-third interest in a family limited partnership because the partnership was created during the parties' marriage and the husband used marital funds to invest in the partnership. Jez v. Jez, 2016 Ark. App. 594, 509 S.W.3d 1 (2016).

Finding that a wife's law firm partnership interest was marital property was affirmed where the wife cited no authority for her argument that the partnership interest, acquired during the marriage, was not marital property, and she provided no authority that, as a matter of law, the use of nonmarital funds to satisfy the debt obligation on a marital asset converted the asset from marital to nonmarital. Grimsley v. Drewyor, 2019 Ark. App. 218, 575 S.W.3d 636 (2019).

—Personal Injury Claims.

The $110,000.00 certificate of deposit, which represented a lump-sum payment for injury to the husband and which was titled in the names of both the husband and wife, should have been divided equally between the husband and wife upon divorce. McDonald v. McDonald, 19 Ark. App. 75, 716 S.W.2d 788 (1986).

The two future installments of the husband's personal injury settlement were properly classified as marital property. McDonald v. McDonald, 19 Ark. App. 75, 716 S.W.2d 788 (1986).

The chancellor's refusal to award the wife any portion of the two future installments of the husband's personal injury settlement was not against the preponderance of the evidence, where the chancellor recited the factors set forth in subdivision (a)(1) of this section and particularly mentioned the severity of the husband's injury and the likelihood he would not work again, while the wife maintained her ability to work. McDonald v. McDonald, 19 Ark. App. 75, 716 S.W.2d 788 (1986).

To the extent spouse acquired an enforceable right during the marriage to recover for personal injury, he acquired marital property. Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988).

Except for those benefits from an unliquidated personal injury claim that would be for any degree of permanent disability or future medical expenses, the remaining benefits or elements of damage from one's personal injury claim are subject to division as marital property pursuant to subdivision (a)(1)(A) of this section. Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988).

Wife's claim, that settlement proceeds of a personal injury to her late husband were marital property, held without merit; the funds belonged to his estate, to be distributed pursuant to probate law. Ellis v. Ellis, 315 Ark. 475, 868 S.W.2d 83 (1994).

Although former husband was permanently impaired from any type of gainful employment, since the ultimate source of his disability could have been traced back to the wounds he suffered in World War II rather than to a specific “personal injury” sustained while employed or in consequence of a tortious act, his claim for his physical condition did not constitute a claim for “personal injury” as contemplated by subdivision (b)(6) of this section and therefore did not fall within the statutory marital-property exemption. Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513 (1995).

Trial court did not err in a divorce action in awarding the husband all of a $1.6 million settlement from his FELA personal injury claim because the FELA proceeds were not marital property, as defined under subdivision (b)(6) of this section; the trial court found that the entire settlement was for a degree of permanent disability and future medical expenses. Palmer v. Palmer, 2012 Ark. App. 607 (2012).

—Presumption.

Property acquired by either spouse during the marriage carries the presumption of being marital property; the date of the acquisition is the key factor, and property acquired separately or jointly remains as such and must be divided accordingly at the time of divorce, unless the court finds it is not equitable. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988).

Once property, whether personal or real, is placed in the names of persons who are husband and wife, without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety and it takes clear and convincing evidence to overcome that presumption. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988).

Once property is placed equally, in the names of both husband and wife, such property is presumed to be held by them as tenants by the entirety and, thus, marital property. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).

—Property Acquired After Separation.

Wife could not exclude properties deeded to her after temporary order as marital property acquired by a spouse after a legal separation, since there is no authority to hold that a temporary order is equivalent to legal separation. Schichtel v. Schichtel, 3 Ark. App. 36, 621 S.W.2d 504 (1981).

Where husband purchased a home while separated from his wife, but before any divorce or maintenance decree had been entered, the house was marital property subject to division. Lee v. Lee, 12 Ark. App. 226, 674 S.W.2d 505 (1984).

Where trial court had entered a temporary order prior to divorce action and that order did not deal with or affect the distribution of the parties' properties, subdivision (b)(3) of this section was not applicable and property acquired by the spouse after the order was marital property to be distributed one-half to each party, unless the court found the division inequitable. Allen v. Allen, 17 Ark. App. 38, 702 S.W.2d 819 (1986).

Assets acquired after separation and prior to a grant of divorce are marital property and are to be divided giving due consideration to the factors enunciated in subdivision (a)(1)(A) of this section. Franklin v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988); Cavin v. Cavin, 308 Ark. 109, 823 S.W.2d 843 (1992).

When a chancellor declines to award a divorce and enters nothing more than a support order necessitated by a family breakup, there is no divorce from bed and board, and there is no basis for holding that property acquired by the parties thereafter is other than marital property unless it falls within some other exception found in this section. Hadden v. Hadden, 320 Ark. 480, 897 S.W.2d 568 (1995).

Funds acquired by one party and deposited into the parties' joint checking account prior to their divorce are marital property subject to division by the court. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999).

There was no error in the trial court's failure to award the husband an interest in the home and business that the wife purchased shortly before the divorce trial where she used money borrowed from her mother; although assets acquired after separation but before divorce are marital assets, there was no divisible equity in either property, they were purchased with borrowed funds, and the wife was held responsible for all indebtedness. Davis v. Davis, 2016 Ark. App. 210, 489 S.W.3d 195 (2016).

—Property Acquired Before Marriage.

In the division of property on granting a divorce to the wife, it was error to award to the wife sum as restoration of a sum received from her by her husband in consideration of marriage under this section where the sum was obtained before marriage. Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928).

Although this section provides that the increase in value of property acquired prior to the marriage remains that party's sole and separate property, the chancellor may make some other division that he deems equitable. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990).

Although the increase in value in property acquired prior to marriage is not marital property, it is appropriate to recognize a spouse's contributions toward that increase in value when making a property division. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990).

—Real Property.

Finding that wife was entitled to receive one-half of husband's equitable interest amount, was not clearly erroneous or clearly against the preponderance of the evidence. Warren v. Warren, 270 Ark. 163, 603 S.W.2d 472 (Ct. App. 1980).

Chancellor was correct in finding that wife had a marital interest in one half of “marital profit,” or appreciated value, of house, but erred in failing to give her credit for that part of the purchase price which she contributed through the use of a joint down payment. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).

Where husband owned house, prior to marriage, which was destroyed and rebuilt during marriage, the lot remained his separate property and was not “marital property”; the rebuilt dwelling did constitute marital property to the extent that joint funds were used to acquire the property. Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983).

Where the former wife acquired property from her mother during the existence of the marriage for which the wife paid consideration, and where after acquiring title to the land the wife sold the timber thereon and handed the proceeds over to her mother, the chancellor did not err in treating the transaction as a loan and partial repayment and holding the acreage was marital property subject to division. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).

Where the court found that the husband had made an original investment in a home prior to marriage, the division of the proceeds of the home was modified to allow him credit for his investment. Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985).

Proceeds inherited under the contracts for the sale of real properties are not marital property as defined in this section, nor were they held as tenants by the entirety since wife did not deposit them into an account so held; therefore, this amount is the sole and separate property of the wife. Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988).

Without evidence of the before-and-after value of the property to show the existence and extent of any increase in the value of the nonmarital property, any reduction in debt on nonmarital property was not considered to be marital property to be divided equally; instead, the non-owning spouse was simply entitled to have the marital contribution considered in balancing the equities involved in the property division. Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003).

Trial court did not err in a divorce action in equally dividing, as marital property, 20 acres of land between the parties where a quitclaim deed executed by the husband's father to the parties, as husband and wife, was presumed delivered because it was recorded. The husband failed to rebut the presumption of delivery. Baldridge v. Baldridge, 100 Ark. App. 148, 265 S.W.3d 146 (2007).

There was no clear error in the trial court's determination that the property of a husband and wife had already passed out of the marital estate and had been gifted to their sons because two sons had moved onto the property, and at least one son had paid for the improvements on the property; the trial court had authority to decide the parties' rights to the three six-acre parcels, which were determined to be out of the marital estate as the result of gifting the property to the sons several years earlier. Wise v. Wise, 2010 Ark. App. 12, 371 S.W.3d 718 (2010).

Trial court had no authority to order a husband and wife to deed property to their sons without making them parties to the divorce action. Wise v. Wise, 2010 Ark. App. 12, 371 S.W.3d 718 (2010).

There was considerable evidence relied on by the trial court tending to show that the farm was not a gift to the husband, but instead constituted marital property. given in part that there was a loan to purchase the farm, the husband and wife signed a mortgage on the property, and tax returns showed note payments produced mortgage deductions claimed by the husband and wife; the court found no error. Massey v. Massey, 2014 Ark. App. 111, 432 S.W.3d 134 (2014).

Circuit court did not clearly err by failing to provide a basis for its order that the house be sold and the proceeds divided equally where the house was clearly acquired during the parties' marriage, and thus, it met the definition of marital property. Branch v. Branch, 2016 Ark. App. 613, 508 S.W.3d 911 (2016).

—Retirement Plans, Pensions, Etc.

A husband's interest in the retirement plan sponsored by his employer is marital property subject to allocation under this section in a divorce action. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

Earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in marital property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984).

A pension is the result of direct or indirect efforts expended by one or both parties to the marriage; it is additional compensation for services rendered for the employer and a right acquired during the marriage. Hence, equitable considerations mandate its inclusion for distribution, where the employee has already qualified for benefits, and the other spouse, during the marriage, has foregone enjoyment of that additional compensation represented by the cost of the plan, whether or not it requires employee contributions. Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 (1984).

Disability retirement benefits are marital property. Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985).

The fact that disability retirement benefits are paid out of one's own contributions plus the contributions of all others who are not disabled does not mean they are not marital property. Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985).

Since the decision in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), which held that husband's interest in retirement plan sponsored by his employer is marital property subject to allocation under this section, military retirement benefits payable in the future may be considered marital property and subject to division under this section. Womack v. Womack, 16 Ark. App. 139, 698 S.W.2d 306 (1985).

Vested retirement benefits not yet due and payable are marital property subject to division on divorce when based on contributions made or services rendered during the marriage; thus, retirement benefits based on service of the husband prior to the marriage were his separate property, and those benefits based on service after marriage were not mere increase in value of separate property, but were marital property subject to division. Womack v. Womack, 16 Ark. App. 139, 698 S.W.2d 306 (1985).

Although husband's military pension plan was noncontributory, the pension was nevertheless, in effect, part of the consideration of husband's employment contract with the military, i.e., a wage substitute. As it was consideration earned during the marriage, it constituted marital property. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986).

Although husband entered military service prior to his marriage, subsequent military pension benefits accrued during marriage were marital property. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986).

It was not an abuse of the chancellor's discretion to award the wife one-half of a fractional interest in the husband's retirement pay, the fraction having a numerator of the number of years the parties were married during his military service and the denominator being the number of years the husband had served upon retirement. Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986).

Nonvested right in military retirement did not constitute property under this section. Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).

The decisions in Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) and Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986), which held that military retirement benefits constitute marital property to be equally distributed upon divorce, would not be applied retroactively to a divorce decree which became final four years prior to those decisions, because it would work a great hardship on the parties and would defeat the purposes underlying the doctrine of res judicata. Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986).

Federal law did not permit state courts to divide military retirement pensions pursuant to a divorce settlement until the Uniformed Services Former Spouses' Protection Act in 1983; however, this act was retroactive only to June 26, 1981. Where the parties were divorced in February, 1981, the chancellor was not in error in dismissing the portion of the wife's petition concerning the military retirement pension, because the decree reflected the law as it existed at the time of the divorce. Hendricks v. Hendricks, 18 Ark. App. 41, 709 S.W.2d 827 (1986).

Contributions by employer were not marital property when made to ex-spouse's profit sharing and pension plans after the date of divorce. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).

Spouse's interest in a Major Needs Fund, in which all contributions were made by his employer, was vested and marital property. Guinn v. Guinn, 35 Ark. App. 199, 816 S.W.2d 629 (1991).

A spouse upon divorce is entitled to share in cost of living adjustments in retirement benefits applicable to the percentage of retirement benefits awarded to the spouse in the divorce decree. Brown v. Brown, 38 Ark. App. 99, 828 S.W.2d 601 (1992).

The language of this section does not include nonvested military benefits. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Wife who remarried her first husband was entitled to a percentage of the military retirement pay based upon the total number of years she was married to husband, not just for the number of years of the second marriage. Christopher v. Christopher, 316 Ark. 215, 871 S.W.2d 398 (1994).

Where husband placed pension funds in the parties' joint account, the presumption imposed by law was that he intended to create a true joint tenancy with wife, which presumption was not overcome by his subsequent withdrawal of funds and placement of them in IRA accounts in his individual name. Mathis v. Mathis, 52 Ark. App. 155, 916 S.W.2d 131 (1996).

For a case showing a detailed account of how to calculate wife's share of husband's military retirement pay, see Cherry v. Cherry, 55 Ark. App. 178, 934 S.W.2d 936 (1996).

Enhancements to a retirement often increase in the later years and it might be inequitable to allow a person who had supported the spouse through the lean years to be deprived of those later awards, and the chancellor has considerable discretion to divide marital property other than one-half to each party when it is equitable to do so; thus the chancellor properly considered the increases in wife's salary following the separation and divorce in deciding that they constituted legitimate adjustments for retirement benefits in which husband could participate. Brown v. Brown, 332 Ark. 235, 962 S.W.2d 810 (1998).

Where the parties were married for the last seven of the 33 years that the wife was employed, the husband was entitled to half of seven thirty-third's of the wife's monthly pension benefit. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).

Where the parties were married for the last seven of the 33 years that the wife was employed, the increase in value of the wife's pre-marriage contributions to her 401(k) plan did not constitute marital property. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).

Where the wife's pension plan was a contribution plan, the court properly used the total contribution method to divide the plan, keeping in mind the difference in ages between the two parties. Gray v. Gray, 352 Ark. 443, 101 S.W.3d 816 (2003).

Pension-plan benefits are marital property to the extent that a spouse had a vested interest in those benefits; non-vested pension plans are not marital property. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004).

Court erred in awarding both retirement accounts to the wife where the wife's disability and need for financial security was not more pressing than the husband's disability and similar need simply because she was the “primary breadwinner” and made contributions to the retirement accounts. Baxley v. Baxley, 92 Ark. App. 247, 212 S.W.3d 8 (2005).

Property owned individually by a debtor and co-owned with his non-debtor wife became part of the bankruptcy estate; accordingly, where a debtor's non-debtor wife had filed for divorce post-petition and the state court had not entered a divorce decree and divided the marital property, the wife could not claim any rights or “exemptions” to the debtor's retirement funds as the wife's rights to the retirement funds were inchoate at best. In re Thomas, 331 B.R. 798 (Bankr. W.D. Ark. 2005).

Trial court erred in holding that a wife had no marital interest in her former husband's full retirement benefits that had vested during marriage because the decree provided that the parties were to “divide equally the retirement which accrued during the marriage” and the wife was entitled to share in all of the husband's retirement benefits that accrued prior to the date the decree was filed, not as of the date of the hearing as the husband claimed. Allen v. Allen, 99 Ark. App. 292, 259 S.W.3d 480 (2007).

In a divorce action, the trial court did not err in determining that the wife was entitled to one-half of the husband's civil service retirement benefits; the trial court was not required to consider the amount the husband might have drawn if participating in the Social Security system. Jackson v. Jackson, 2009 Ark. App. 238, 303 S.W.3d 460 (2009).

Trial court properly ruled that a wife was not entitled to a husband's funds because they were disability income rather than retirement income; the wife's entitlement to retirement benefits, as contemplated under the divorce decree, would occur when the husband was paid benefits that were vested, irrevocable, or permanent in nature instead of tied to whether or not he could work. Hatch v. Hatch, 2009 Ark. App. 337, 308 S.W.3d 174 (2009).

Division of a retirement account between the husband and wife was appropriate pursuant to subdivision (b)(1) of this section because the formula used by the trial court took the premarital contribution into account. The appellate court was not left with a definite and firm conviction that the trial court made a mistake in dividing the retirement account and the sums that were withdrawn from that account. Atchison v. Atchison, 2012 Ark. App. 572 (2012).

Associated gain or loss of marital contributions is marital property. Where the trial court awarded the husband only half of the contributions made to the wife's 401(k) during the marriage and the husband contended he was also entitled to any associated gain or loss, the trial court on remand was to either divide the entire marital interest equally or state its basis for some other division. Wilson v. Wilson, 2016 Ark. App. 256, 492 S.W.3d 534 (2016).

Circuit court did not specify whether all, or part, of the 401(k)'s assets were marital property, and it could not be determined from the decree whether the circuit court equally divided marital property or distributed nonmarital property to a nonowning spouse for some reason; given this uncertainty, remand was ordered. Thurmon v. Thurmon, 2016 Ark. App. 497, 504 S.W.3d 675 (2016).

Award to a former wife of a portion of the former husband's active-duty retirement could not stand because the husband's active-duty retirement was not vested at the time of the divorce; reserve-duty and active-duty retirement are not unified retirement systems but should be viewed separately for purposes of marital-property division. Myers v. Ridgley, 2017 Ark. App. 411 (2017).

Trial court erred in its property distribution because the court did not make an unequivocal finding that a wife had a vested interest in a pension plan or designate the portion to which each party was entitled. Garcia v. Garcia, 2018 Ark. App. 146, 544 S.W.3d 96 (2018).

Circuit court's equal distribution of the retirement accounts was not clearly erroneous where it divided the retirement accounts equally as of the date of divorce rather than on the date of separation; although the husband argued that the wife did not make any contributions to the accounts after the separation, there was no indication that the husband could not have filed for divorce sooner. Dac Tat Pham v. Anh Thuy Nguyen, 2019 Ark. App. 500, 588 S.W.3d 427 (2019).

In a divorce case, the circuit court did not clearly err by failing to award the ex-wife a portion of the ex-husband's military retirement benefits because she failed to present evidence to support a finding that the husband was vested in his military retirement at the time of the divorce. Tompkins v. Tompkins, 2020 Ark. App. 122 (2020).

—Stock.

Stock acquired with funds from joint account held to be marital property where evidence did not permit having of funds. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988).

Sale of stock is not authorized by this section. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Where stock, acquired before marriage was exchanged for the balance existing in a profit sharing trust on the date of the plaintiff's retirement, and there were substantial increases in the value of both the profit sharing account prior to distribution and the stock obtained at the time of distribution, the chancellor erred in ruling that all of the stock was marital property under Arkansas law. Cate v. Cate, 35 Ark. App. 79, 812 S.W.2d 697 (1991).

It was error for the chancellor to find that shares of stock and certificates of deposit were separate nonmarital property where they were held jointly by the parties and there was no evidence to rebut the presumption that they were held as tenants by the entirety. Thomas v. Thomas, 68 Ark. App. 196, 4 S.W.3d 517 (1999).

Husband's stock in corporation he obtained in exchange for assets of his sole proprietorship, which he had operated for nearly 30 years before marrying the wife, was nonmarital property under subdivision (b)(2) of this section, as husband testified that strictly nonmarital property, the sole proprietorship's assets, was used to acquire the stock and the wife did not dispute that assertion. Dalrymple v. Dalrymple, 74 Ark. App. 372, 47 S.W.3d 920 (2001).

Trial judge did not err in crediting the value of the husband's appraiser over the wife's appraiser in determining the fair market value of the husband's medical clinic and surgery center. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).

Trial court did not err in valuing stock for the purpose of distribution by including a minority discount by taking the price per share that had been used in a previous sale and used in other offers and sales of the company's stock. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Although stock the wife acquired before the marriage was not marital property, the increase in value of the stock was a marital asset and an unequal distribution of that asset of 20 percent to the husband was equitable because the initial $25,000.00 for the purchase of the stock was paid from marital funds subsequent to the parties' marriage, and the increase in the value of the stock was not totally attributable to the efforts of the wife but was due in large part to her efforts. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Where wife had acquired stock before the marriage, under the “source of funds” rule, it was not marital property even though marital funds had been used to repay the loan from her grandparents for the purchase of the stock. Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Trial court erred in a divorce action in finding that a wife's stock interest in a family company was nonmarital property because the stock was marital property under subsection (b) of this section; the wife received the stock during the marriage. The stock was not acquired in exchange for nonmarital property or income; instead, it was exchanged for a note receivable. Kelly v. Kelly, 2011 Ark. 259, 381 S.W.3d 817 (2011).

Subdivision (a)(4) of this section requires the trial court to determine the fair market value of securities if the trial court awards money or other property in lieu of a division of stocks, bonds, and other securities; although the value of the businesses was within the range provided by expert testimony, this section requires the trial court to expressly find the value of this type of property, and it was necessary to remand this question for such a finding. Farrell v. Farrell, 2013 Ark. App. 23, 425 S.W.3d 824 (2013).

Trial court erred in dividing the parties' marital property because it did not assign a value to the shares of a golf course in accordance with subdivision (a)(4) of this section when it awarded the stock to the husband. Brown v. Brown, 2016 Ark. App. 172 (2016).

Circuit court did not err in awarding each party one-half of the stock in each of the four corporations given the options provided in subdivision (a)(4) of this section. Sherman v. Boeckmann, 2016 Ark. App. 567, 506 S.W.3d 899 (2016).

Circuit court erred in allowing the husband to pay a substantial portion of the wife's share of marital property over a multi-year period. Although the parties' stock was held in closely held corporations with limited marketability, the circuit court was not relieved of its obligation to make an equitable division at the time of the divorce by its finding that the husband lacked the ability to borrow sufficient funds with which to pay the wife for her interest; under subdivision (a)(4) of this section, the court on remand should order an immediate equal division of the stock. Farrell v. Farrell, 2017 Ark. App. 7, 510 S.W.3d 787 (2017).

Portion of the stock that was purchased during the marriage was marital property; the stock was acquired in exchange for a note, and paying for the property with nonmarital funds did not change the character of the property. McGahhey v. McGahhey, 2018 Ark. App. 597, 567 S.W.3d 522 (2018).

—Stock Options.

Where a former husband held options to purchase shares of stock the chancellor properly found that the value of the options was the difference between the cost of exercising them and the worth of the stock, and he properly awarded the former wife one-half of that amount as marital property. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983).

Trial court did not err in ruling that a husband's vested stock options were marital property subject to division between the husband and his wife because its application of a North Carolina case, which held that stock options that were not exercisable as of the date of separation and that could be lost as a result of an event occurring thereafter were not vested and had to be treated as the separate property of the spouse for whom they could vest at some time in the future, was not clearly erroneous; however, the wife was not entitled to half of the proceeds from the sale of the options subsequent to the dissolution of the marriage because she was entitled to half of what the trial court determined to be “vested” or “marital” property but only as to that percentage determined to be marital as described by the trial court's order. Pianalto v. Pianalto, 2010 Ark. App. 80, 374 S.W.3d 67 (2010).

Circuit court did not err in its division of husband's stock options because the court found that the wife's interest in the stock awards was a quantifiable, proportional percentage of the deferred payment for the husband's past performance for his employer during the marriage. The court's percentage-based division of the property was appropriate and necessary as the value of the property was not immediately ascertainable at the time of the divorce. Nauman v. Nauman, 2018 Ark. App. 114, 542 S.W.3d 212 (2018).

Stock options were divisible marital property in part even though husband's right to the options was dependent on his continued employment; the husband's estate would receive the awards should he die and he acquired the right to the stock options from his employer when he began employment. The circuit court's 2016 division was upheld, which allocated as marital property 80% of awards exercisable in 2016, 40% of awards exercisable in 2017, and none of the awards exercisable in later years. Nauman v. Nauman, 2018 Ark. App. 114, 542 S.W.3d 212 (2018).

—Trust Property.

The chancellor was correct in refusing to award the wife one-third of the corpus of the trust from which the husband was entitled only to monthly payments. Kroha v. Kroha, 265 Ark. 170, 578 S.W.2d 10 (1979).

The wife was entitled to one-third absolutely of the husband's interest in a trust, since his interest was viewed as being personal property due to its alienability. Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979).

It was improper for court to deny wife interest in husband's vested rights in a profit-sharing trust agreement. Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981).

—Valuation.

The chancellor's use of a “fair market value” standard for valuing the parties' interest in an ongoing business was not clearly erroneous. Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000).

In a divorce action, the trial court erred by valuing the former husband's 50 percent interest in a surgery center based on his buy-sell agreement with another shareholder instead of by determining the fair market value as required by this section; hence, on appeal the court reversed the decree as to the division of the marital estate and remanded the case for a proper valuation of the surgery center followed by redistribution of the marital estate in compliance with this section. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003).

Trial court did not err by refusing to award a former wife any interest in a limited liability company founded by a former husband and others because the valuation of the husband's interest was merely speculative; the company had no operational history or goodwill. Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004).

Trial court erred by deducting overhead expenses from accounts receivable in order to determine the valuation of a surgical practice because it amounted to a double deduction from the same asset; moreover, while the trial court was permitted to impose a tax rate on the receivables, it erred by applying a higher rate than the former husband was required to pay. Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004).

In a divorce action, the trial court did not err in awarding the wife half of the value of the husband's construction business because the trial court's valuation of the business was within the range of expert testimony; the trial court did not assign any goodwill to the value it found for the business. Cummings v. Cummings, 104 Ark. App. 315, 292 S.W.3d 819 (2009).

Valuation of the shares of the husband's business, including consideration of the prior owner's goodwill, was not clearly contrary to the preponderance of the evidence in the parties' divorce action; the appellate court defers to the superior position of the circuit judge to determine the credibility of witnesses and the weight to be given their testimony. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15 (2013).

Husband failed to preserve any objection to the valuation date, so that issue could not be addressed. Walls v. Walls, 2014 Ark. App. 729, 452 S.W.3d 119 (2014).

—Work in Progress.

“Work in progress” is marital property subject to division in a divorce action. Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986).

Redivision of Property.

Wife's false statement during the course of negotiation concerning marital property that she had spent money her husband had given her for living expenses when in fact she had used it to make an interest-free loan to a third party in return for which she received a promissory note should not have been considered by the trial court as a significant factor in the redivision of the parties' property and doctrine of unclean hands should not have been applied. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990).

Chancellor should not have considered the fact that wife's needs had diminished because of her death as a significant factor in redistributing the parties' property. Estate of Houston v. Houston, 31 Ark. App. 218, 792 S.W.2d 342 (1990).

Relationship to Alimony.

Division of marital property and the award of alimony are complementary devices that a circuit judge may employ to make the dissolution of a marriage as equitable as possible. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15 (2013).

Under the unique facts of this case, the circuit court did not err in ordering temporary alimony payments as a complementary device to offset the unequal distribution of marital property. The husband’s business was a ready source of income (circuit court awarded entire 33% interest in business to husband and ordered alimony payments of $11,370 per month for 24 months to wife, a sum that on full payment was approximately equal to the value of the wife’s share of the business). Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15 (2013).

In the parties' divorce action, an award of alimony was not in actuality a “forced buy” of stock because the alimony and division of marital property were not the same thing. Russell v. Russell, 2013 Ark. 372, 430 S.W.3d 15 (2013).

Remarriage.

Chancellor's finding that the parties intended to abrogate the property settlement which they had made in at the time of their first divorce upon their remarriage was not clearly erroneous; thus, all of the property involved in the first property settlement was marital property which was subject to an equal division at the time of their second divorce. McMurtray v. McMurtray, 275 Ark. 303, 629 S.W.2d 285 (1982).

Where parties had been married and divorced twice, it was not error for the chancellor to find that wife was entitled to some benefit by reason of marital funds having been used to pay off debts on two nonmarital farms; however, her interest should be limited to the amounts paid on the farms subsequent to the second marriage because she had been paid for her interest at the time of the first divorce. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984).

Where the parties settled the case after the trial had commenced and advised the chancellor of the terms of their property settlement as well as the terms of their alimony and child support settlement; but no formal agreement was dictated into the record, they did not state that they intended to create an independent contract for alimony, and the chancellor did not treat it as an independent contract, the chancellor could modify the decree ten years later and cease payments as a result of the wife's remarriage. Shipley v. Shipley, 305 Ark. 257, 807 S.W.2d 915 (1991).

Res Judicata.

This section contemplated a division of the husband's property when a decree of divorce was granted and that, if the wife failed to ask for and obtain the relief when the decree was granted, the matter became res judicata. Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922).

Where husband and wife both sued for divorce and the wife asked for a division of the property the court should have heard the evidence and decided the question of property rights, but having failed to do so Supreme Court would affirm decree for the wife without prejudice to her right to maintain a suit for any interest she may have in property. Parrish v. Parrish, 195 Ark. 766, 114 S.W.2d 29 (1938).

Divorce decree was not res judicata of suit for possession of personal property. Swanson v. Johnson, 212 Ark. 340, 212 Ark. 349, 205 S.W.2d 702 (1947).

Denial of former wife's motion for a portion of her former husband's military retirement was proper because the parties had been divorced and their property had been divided in a final manner; thus, res judicata was applicable because the division of military retirement could have been litigated at the divorce hearing. Foster v. Foster, 96 Ark. App. 109, 239 S.W.3d 1 (2006).

Return of Nonmarital Property.

If there is any deviation from returning nonmarital property to the original owner the reasons given by the trier of fact must be sufficiently specific. Canady v. Canady, 285 Ark. 378, 687 S.W.2d 833 (1985).

Wife owned the windows that were installed in the husband's home, and it was not practical to return them to her, nor did she request such; the circuit court ordered the husband to pay the wife a certain amount, which represented the amount she spent from her personal funds for the windows placed in his house, and this division complied with the requirements of this section. Fields v. Fields, 2015 Ark. App. 143, 457 S.W.3d 301 (2015).

Sale of Lands.

Where divorce is granted to wife and if it is necessary that real estate in which she was granted a life estate be sold, the value of the life estate should be ascertained and that amount turned over to the wife from the proceeds of the sale; it is improper to turn one-third of the proceeds over to the wife. Allen v. Allen, 126 Ark. 164, 189 S.W. 841 (1916).

Where husband had title to certain lands in fee and he and his wife had only a life estate in other lands and lands were not susceptible of division in kind, it was proper to order the lands sold but it was error to direct the sale of the lands in solido. Dowell v. Dowell, 207 Ark. 578, 182 S.W.2d 344 (1944).

In a divorce settlement of property rights the trial court is not bound to order immediate sale of land purchased by the husband during coverture, so that it was not abuse of discretion where the court awarded exclusive possession of the land to the wife for three years subject to taxes and retained jurisdiction to effect sale of the property, division of proceeds and enforcement of property rights and alimony award. Jarrett v. Jarrett, 226 Ark. 933, 295 S.W.2d 323 (1956).

Tract of land which was purchased after 1947 but which formed only connection between tract of land purchased prior to 1947 and highway, would not be ordered sold by court, since both parcels should be handled together and land purchased prior to 1947 could not be sold. Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957).

Separate Property.

Husband provided clear and convincing evidence that the checking account funds remained his separate property despite the account existing in both names. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000).

A home owned by the husband prior to the parties' marriage was his separate property where both parties owned homes prior to their marriage. Dial v. Dial, 74 Ark. App. 30, 44 S.W.3d 768 (2001).

In a dissolution of marriage case, the court properly awarded the interest in a condominium to the husband where: (1) the condominium was acquired by the sole contribution of the husband, (2) he was the only party at risk on the purchase of the condominium, (3) he did not use undisclosed marital funds to purchase the condominium, (4) he did not take title to it until after the divorce was final, and (5) he intended to use the condominium as his post-marital residence. Page v. Anderson, 85 Ark. App. 538, 157 S.W.3d 575 (2004).

In a divorce action, the trial court did not err under subdivision (a)(2) of this section in not awarding the husband an interest in properties that the wife owned prior to their marriage because the decree awarded the husband full ownership in an entity that was titled in both parties' names, and awarded him full ownership of an investment account that he created with pre-divorce income. Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204 (2009).

Circuit court did not err in awarding the wife $20,000 for a down payment on a home where the money was the wife's separate property from her inheritance, and there was no difficulty in tracing the use of that nonmarital money to help with the down payment on the marital home. Karolchyk v. Karolchyk, 2018 Ark. App. 555, 565 S.W.3d 531 (2018).

Social Security Benefits.

State courts are without power to take any action to enforce a private agreement dividing future payments of Social Security benefits; such an agreement violates the federal statutory prohibition, 42 U.S.C. § 407(a), against transfer or assignment of future benefits. Gentry v. Gentry, 327 Ark. 266, 938 S.W.2d 231 (1997).

Standard of Review.

Overall distribution of the parties' property in the divorce proceeding was not clearly erroneous, because the wife erroneously included the children's money and the 2008 tax overpayment in her list of assets purportedly awarded to the husband, the wife did not account for the businesses' liabilities, and the testimony and exhibits introduced by the husband more than adequately demonstrated that the court equally distributed the marital estate. Dew v. Dew, 2012 Ark. App. 122, 390 S.W.3d 764 (2012).

While the ex-husband claimed that the circuit court should have considered his ability to pay any amount due before directing the payment thereof, he cited to no authority for his proposition, which was sufficient reason not to address his ability-to-pay claim. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655 (2014).

Issue of attorney's fees had to be viewed in light of the alimony and property distribution issues in order to determine whether the circuit court achieved a fair and equitable result; the ex-wife received permanent alimony and an equal share of the substantial marital property, and it was equitable and within the circuit court's broad discretion to order each party to pay for their own attorney's fees. Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265 (2014).

Tax Consequences.

The tax consequences which subsequently evolve from a property division should not be permitted to operate inequitably, and where there were doubts as to fairness of imposition on husband of tax liability on sales of property, court should retain jurisdiction until tax results could be ascertained. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984).

Where there was no demonstrable federal income tax consequence resulting from the division of the property, the decree did not require a sale, and there was no evidence that a sale was imminent, the Chancellor erred in subtracting from the value of a business asset the amount of federal tax that would have to be paid in the event the asset were sold. Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996).

Circuit court should have considered the federal income-tax consequences of the court's division of property, and by calling the payments to the wife alimony, the circuit court potentially saddled her with additional tax liabilities; equitable distribution is merely a division of the marital property of each spouse and does not constitute income to either party, and the matter was remanded for the trial court to comply with this section's requirements. Farrell v. Farrell, 2014 Ark. App. 601 (2014).

Timing.

A portion of a divorce decree which permitted a husband to delay payment of his wife's share of property until the sale of the home following their minor child's attaining majority or graduation from high school was not consistent with the requirement of this section that property be distributed at the time the decree is entered; therefore, the decree was modified to require the husband to pay the wife's share within a reasonable period of time. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982).

Where the parties in a divorce action specifically agreed that no property division was to be made at the time the limited divorce decree was entered, the trial court did not err in not ordering a property division at the time he granted the limited divorce, despite the language of this section to the effect that all marital property is to be distributed at the time the divorce decree is entered. Forrest v. Forrest, 279 Ark. 115, 649 S.W.2d 173 (1983).

It was not an abuse of the chancellor's discretion to ascertain the extent of marital property and evaluate it as of the date of the divorce. Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986).

To the extent the Chancellor may have divided marital property as of the date the first divorce complaint was denied, it was error to do so; the marital property should have been divided and distributed at the time the divorce decree was entered as provided in subsection (a) of this section. Hadden v. Hadden, 320 Ark. 480, 897 S.W.2d 568 (1995).

The chancellor acted correctly in using the date of divorce, rather than the date of a remand hearing, as the date on which to value marital property. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001).

Husband's failure to object to the trial court's use of a later valuation date for the parties' assets, contrary to this section, at either his divorce hearing or a later contempt hearing, precluded appellate review of his objection. Roberts v. Yang, 2010 Ark. 55, 370 S.W.3d 170 (2010).

When a husband raised the issue of valuation of a joint account in a motion for a new trial, the trial court correctly ordered the account be divided as of the date of the divorce, pursuant to subdivision (a)(1)(A) of this section, and the date of the entry of the divorce decree be used for valuation of the account. Barnes v. Barnes, 2010 Ark. App. 822, 378 S.W.3d 766 (2010).

Circuit court did not err in failing to divide the marital property when a divorce was granted where the husband and wife had agreed to delay the disposition of their property, the court was not at liberty to overrule Forest v. Forest, 279 Ark. 115, 649 S.W.2d 173 (1983), and alleged error had been invited by both parties. Wyatt v. Wyatt, 2018 Ark. App. 177, 545 S.W.3d 796 (2018).

Circuit court did not err in valuing the property as of the parties' separation date given that the husband's unilateral actions of disposing of property were done specifically with the wife's detriment in mind. Wyatt v. Wyatt, 2018 Ark. App. 177, 545 S.W.3d 796 (2018).

Tort Action.

A spouse involved in a divorce, having a cause of action in tort against his or her spouse, is not required to bring that action in the divorce case and can pursue the claim in circuit court. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).

Undue Influence.

Record contained testimony that the ex-husband commanded a dominating influence over the ex-wife and that he badgered, threatened, and belittled her to accede to his demand for an interest in the ex-wife's property at a time when she was in a weakened condition, both physically and emotionally, due to the illness of her father and the death of her son; the trial court's findings of undue influence were not clearly erroneous and the court affirmed the setting aside of the deed, and the court noted that a review of case law did not reveal any time restraints for seeking to set aside a transaction that was not freely made. Young v. Young, 101 Ark. App. 454, 278 S.W.3d 603 (2008).

Unequal Division.

Trial judge did not abuse its discretion in denying the husband's request for an unequal division of the marital property in his favor and instead, distributing the marital property unevenly in the wife's favor because this section did not compel mathematical precision in the distribution of property; this section simply required that marital property be distributed equitably and the trial judge could consider whether the parties to the divorce needed to use marital funds to meet necessary expenses incurred during the pendency of the action, and whether the amount used was reasonable, whether fraud or overreaching occurred, and whether an offset was appropriate. Williams v. Williams, 82 Ark. App. 294, 108 S.W.3d 629 (2003).

Circuit court did not err in unequally dividing the stock proceeds where the order showed that both the length of the marriage and the contribution of the parties to the acquisition of the stock proceeds formed the basis for its decision to divide the property unequally; the lower court was not required to list all the factors and was entitled to weigh the factors differently in reaching its decision. Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007).

Trial court properly considered the factors in this section when it declined to award a former wife an unequal division of marital property because the wife had deposited her large personal injury settlement into a joint account, and she used the proceeds to make purchases of property titled in both parties' names. Moreover, equity did not compel a different result since the wife used the proceeds to purchase non-essential items, despite knowing that she was uninsurable and that she had suffered business losses over the past three years. Singleton v. Singleton, 99 Ark. App. 371, 260 S.W.3d 756 (2007).

Circuit court, in reaching a determination as to the equitable division of marital property under subdivision (a)(1)(A) of this section, was free to consider the husband's interest in the limited partnership, and his opportunity to double the size of his estate upon the death of his mother, and the limitation on the husband's interest in the partnership, in the form of the usufruct, was of no relevance, as the opportunity to add to his estate was a proper consideration. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Trial court considered the factors in subdivision (a)(1)(A) of this section in making an unequal distribution of marital assets, and while the ex-husband was correct that simply reciting the statutory factors did not satisfy the requirement of the statute, the trial court covered this issue in detail in its oral ruling from the bench, and this met the requirements of the statute. Young v. Young, 101 Ark. App. 454, 278 S.W.3d 603 (2008).

Trial court did not err by considering the husband's actions in making an unequal division of marital property, because the trial court considered the wife's diminished state of health after the husband shot her and found that the husband's violent attack left the wife without the ability to earn a living, and the husband dissipated marital assets by twice setting fire to the marital home and by transferring items of marital property, namely the tractor and vehicle, to the parties' son. Frost v. Frost, 2009 Ark. App. 290, 307 S.W.3d 41 (2009).

Evidence of record showed that the husband's ability to pay far exceeded that of the wife; therefore, the trial court's allocation of marital debt was not clearly erroneous and its assignment of tax liability was not arbitrary or groundless. Rudder v. Hurst, 2009 Ark. App. 577, 337 S.W.3d 565 (2009).

Circuit court had to make additional findings regarding whether it considered a four-wheeler marital or nonmarital property under this section, and had to recite its basis and reasons for the unequal division of property in its order, under subdivision (a)(1)(B) of this section; the circuit court did not state why it considered the four-wheeler nonmarital or why it did not divide the stimulus check equally between the parties. Whitehead v. Whitehead, 2009 Ark. App. 593 (2009).

Upon disposing of the parties' real property in a marital dissolution proceeding, the trial court did not err by awarding the husband no financial benefit from the residence. It was the wife's separate property, and she testified that she paid 99.9% of the bills. Rasberry v. Rasberry, 2009 Ark. App. 594, 331 S.W.3d 231 (2009).

Trial court did not clearly err under this section by making an unequal division and allowing a wife to keep all of her retirement benefits in the parties' divorce action, as such was an equitable distribution because during their 10-year marriage, the husband had purposely worked below his full earning capacity and remained purposely, chronically underemployed. Grantham v. Lucas, 2011 Ark. App. 491, 385 S.W.3d 337 (2011).

In a divorce proceeding, the trial court erred under subdivision (a)(1)(A) of this section in failing to award the husband any portion of the value of the wife's gift-store inventory; while the court attempted to make as close to a 50/50 distribution of the entire marital estate as possible, the distribution of business assets was uneven, depriving the husband of $9,000. Bamburg v. Bamburg, 2011 Ark. App. 546, 386 S.W.3d 31 (2011).

Division of property was proper, because the court considered all of the relevant statutory factors under this section, and made specific findings concerning its reason for the unequal division of property; the husband acknowledged that the court was correct to consider the contributions of each party in deciding how to divide property. Waggoner v. Waggoner, 2012 Ark. App. 286, 423 S.W.3d 117 (2012).

Inequitable division of the property was permitted under this section, given evidence of the husband's arrests, dissipation of assets, and assault of the wife causing her to lose income. Freeman v. Freeman, 2013 Ark. App. 693, 430 S.W.3d 824 (2013).

There was evidence and argument on all factors to be considered in an unequal division, and the trial court discussed most of those factors in its divorce decree; the unequal division of real property gave the wife, who was within two years of retirement, a house to reside in and a means of generating income from rental property, and the trial court did not clearly err in the findings that supported awarding the wife three of the four houses. Colquitt v. Colquitt, 2013 Ark. App. 733, 431 S.W.3d 316 (2013).

Circuit court may order an unequal distribution of marital property if the court finds an equal division to be inequitable; in such cases, the court shall recite its basis and reasons for not dividing the marital property equally. Colquitt v. Colquitt, 2013 Ark. App. 733, 431 S.W.3d 316 (2013).

Ex-wife, as the prevailing party on the issue of certain stock, was not required to assert alternatively to the circuit court or the court on appeal that were the stock marital, an unequal distribution should be made, and she was not barred by the law of the case doctrine from seeking an unequal distribution after the holding in the case on the first time on appeal that the stock was marital property. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655 (2014).

—In General.

Where chancellor's order said alimony award was not a distribution of marital property or given in lieu of such a distribution, but it then referred to the discrepancy in income which would result from the difference in profit potential between two properties, reversal of the award gave the chancellor appropriate flexibility in reconsidering the distribution of marital property, if he chose to do so, rather than readopt the unequal distribution with an explanation as this section requires. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).

Where the chancellor awarded wife a share of various retirement benefits of husband, but stated that if she predeceased husband her share was to revert back to the husband, in effect, she was given only a life estate in the benefits, but there was no error in awarding such a life estate as part of an unequal distribution. Franklin v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988).

Default judgment was set aside under Ark. R. Civ. P. 55(c)(3) where a former husband deceived his former wife into thinking a compromise had been reached and procured her non-attendance and failure to answer a complaint; the distinction between intrinsic and extrinsic fraud had been abolished. Moreover, her assertion that she received nothing in a property distribution was sufficient to raise a meritorious defense due to the presumptions under subdivision (a)(1)(A) and subsection (b) of this section. West v. West, 103 Ark. App. 269, 288 S.W.3d 680 (2008).

Circuit court erred in ordering an unequal division of the parties' marital property because it did not consider the statutory factors; the court’s written order, which controlled over its oral pronouncements from the bench, found the property to be marital property. Tipton v. Tipton, 2017 Ark. App. 601 (2017).

—Factors Considered.

The specific enumeration of certain factors for the chancellor to consider in distributing the marital property other than equally should not prevent consideration of the fact that one spouse has been convicted of conspiring to kill the other. Stover v. Stover, 287 Ark. 116, 696 S.W.2d 750 (1985).

Support of an adult, college student child does not fall directly within any of the nine items listed in this section to be considered in reaching an unequal distribution of a marital asset. Hadden v. Hadden, 320 Ark. 480, 897 S.W.2d 568 (1995).

In a divorce case, the trial court did not err in the division of the couple's property; the wife was awarded the entire value of her retirement account and one-half of her husband's business interests due to her husband's superior earning ability. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004).

Division of property and debt after a divorce was affirmed because the circuit court complied with this section when it discussed the factors that went into its decision to make an unequal division of the marital property; by awarding the wife 58% of the retirement and bank accounts instead of a specific sum, the circuit court was taking into consideration any fluctuations in the market. Horton v. Horton, 2011 Ark. App. 361, 384 S.W.3d 61 (2011).

That the circuit court on remand found it appropriate to award stock to the ex-wife as an unequal distribution following the previous unequal award in the ex-husband's favor failed to show that a mistake was made, nor did he demonstrate error by showing that the circuit court's decision was arbitrary or groundless. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655 (2014).

While the ex-wife sought an unequal distribution of marital assets, the circuit court found that an unequal division was not appropriate under this section, and the decisions regarding alimony and property division were to be reviewed together because ultimately the circuit court is to make a just allocation to achieve an equitable distribution; the distribution was not clear error, as the ex-wife was not responsible for certain debts, she had a place to live rent-free, and the ex-husband acknowledged withdrawing funds but did so to pay off marital debt, a plan with which the ex-wife was in agreement at the time. Webb v. Webb, 2014 Ark. App. 697, 450 S.W.3d 265 (2014).

Trial court did not clearly err in awarding the wife all of a wealth management account that she jointly owned with her now-deceased mother where it did not base the division solely on the fact that the wife was the sole contributor, but considered many of the subdivision (a)(1)(A) factors and explained why they supported awarding the wife full interest in the account. Sanders v. Passmore, 2016 Ark. App. 370, 499 S.W.3d 237 (2016).

—Motor Vehicles.

There was no error in the chancellor's decision awarding to wife a vehicle that was debt-free, while awarding to husband a vehicle with indebtedness; this section does not compel mathematical precision in property distribution, only that marital property be distributed equitably. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996).

In a property division case, a husband unsuccessfully argued that the circuit court erred in its division of the marital vehicles because the Mercedes was worth $22,000 while the two trucks had a combined value of $13,000. The circuit court gave the wife the vehicle that she drove, and it awarded the husband the two trucks that he used in the heating-and-air business. Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36 (2014).

—Reversed.

A division of marital property was improper and would be reversed where the chancellor intended to divide the property 60/40, but the actual division was much more unequal because he failed to reduce the worth of a business awarded to the husband by a substantial debt owed to a bank and because he arbitrarily added a 50 percent enhancement to the value of the business. Hoover v. Hoover, 70 Ark. App. 215, 16 S.W.3d 560 (2000).

—Statement of Reasons.

Appellate court would not review the alleged trial court error in the division of the marital property until the trial court complied with the requirement to state the basis and reasons for not dividing the property equally. Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (Ct. App. 1980).

Where an equal division of property was made, there was no necessity for the chancellor to state his reasons for not so dividing the property. Ausburn v. Ausburn, 271 Ark. 330, 609 S.W.2d 14 (1980).

Where the trial court failed to provide any reasons in its order dividing the marital property that indicated the bases for awarding the former wife's one-fourth marital property interest in a partnership to her former husband, and there was nothing in the record which showed that the former wife received anything in return for the partnership interest taken from her by the court, the former wife's one-fourth interest in the partnership would be reinstated. Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982).

Any exception to the rule of equal distribution will always depend upon the specific facts as reflected by the trial court's findings and conclusions. Gentry v. Gentry, 282 Ark. 413, 668 S.W.2d 947 (1984); Cavin v. Cavin, 308 Ark. 109, 823 S.W.2d 843 (1992).

If the chancellor had specific reasons for not equally dividing the parties' marital savings, he failed to state those reasons in compliance with this section. Duncan v. Duncan, 11 Ark. App. 25, 665 S.W.2d 893 (1984).

The trial court sufficiently stated its reasons for an unequal distribution of the parties' premarital and marital property pursuant to the issuance of a divorce decree. Pennybaker v. Pennybaker, 14 Ark. App. 251, 687 S.W.2d 524 (1985).

Where appellant maintained that there was an unequal division of marital property and that the court failed to state the basis for the unequal division, the burden was upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986).

Where the trial court failed to award wife her interest in two notes which husband owned or in which he had an ownership interest, and wife clearly had a right to her marital interest in those notes, the trial court should have given its basis and reasons for not having awarded her one-half interest pursuant to subdivision (a)(1) of this section; therefore, the trial court's action was reversed. Allen v. Allen, 17 Ark. App. 38, 702 S.W.2d 819 (1986).

Where chancellor stated that he found an unequal division to be “appropriate” rather than “equitable,” the appellate court could find no such significance in his choice of words and could not say that the chancellor's findings that the circumstances warranted an unequal division of property were clearly erroneous. Franklin v. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988).

Where the trial court allowed wife to keep investment accounts as the wife's sole and separate property because they were from her sole earnings, while some evidence may have supported an unequal division of marital property, the trial judge failed to state reasons in the written order supporting the unequal division; the written order listed the factors to be considered such as length of marriage and the age and health of the parties, however, the order failed to include findings explaining why such factors supported an unequal division of marital property and reversal and remand was required. Baxley v. Baxley, 86 Ark. App. 200, 167 S.W.3d 158 (2004).

It was necessary to remand a divorce case because the trial court failed to comply with subdivision (a)(1)(B) of this section by giving a comprehensive explanation of why it divided the parties' marital property unequally; the trial court did not address the wife's claim that the husband took marital funds for his personal use and that she should be compensated for her share. Watkins v. Watkins, 2012 Ark. App. 27, 388 S.W.3d 53 (2012).

In a marital dissolution action, the court erred under subdivision (a)(1)(B) of this section in not dividing the marital equity in a certificate of deposit held in the husband's name; the court did not recite any reasons in its decree as to why its decision was equitable. Wadley v. Wadley, 2012 Ark. App. 208, 395 S.W.3d 411 (2012).

Trial court did explain its division in the letter opinion, but the trial court did not incorporate that opinion in the decree, and thus the court had to remand this issue for the trial court to satisfy subdivision (a)(1)(B) of this section. Farrell v. Farrell, 2013 Ark. App. 23, 425 S.W.3d 824 (2013).

Circuit court specifically stated that the ex-wife was entitled to an award of all of certain stock as an unequal distribution and that this award was equitable and warranted, and this explanation was not insufficient or inadequate, as the circuit court was not required to list each factor in its order; this section requires the circuit court to explain its reasons for not dividing the marital property equally, and the circuit court did just that. Kelly v. Kelly, 2014 Ark. 543, 453 S.W.3d 655 (2014).

There was uncertainty as to whether the circuit court's order requiring the husband to pay the wife $13,000 per month was a payment for her share of marital property or was a payment of alimony to equalize an unequal distribution of the marital estate, and the circuit court was to clarify on remand; the circumstances left the husband with approximately 90 percent of the marital estate and the wife with approximately 10 percent, and such an unequal division required an explanation. Farrell v. Farrell, 2014 Ark. App. 601 (2014).

While the trial court set forth in detail its reasoning for making the distribution in its letter opinion, the letter opinion was not incorporated into the divorce decree, and the decree did not repeat the trial court's detailed findings for the division of the marital property that had been stated in the trial court's letter opinion; therefore, the case was remanded. Brown v. Brown, 2016 Ark. App. 172 (2016).

In a divorce case, the circuit court's order distributing the parties' marital property was entered in error because it failed to consider or recite any of the factors in subdivision (a)(1)(A) of this section when it did not equally divide the ex-husband's military retirement as such benefits were marital property; the circuit court's distribution of the ex-wife's 401(k) account was unclear as the decree first stated that the parties would split the account equally, but then stated that all 401(k) accounts would be the parties' separate property; and, although the decree stated that the parties would each be responsible for debts in their individual names, no findings were made concerning joint debt, and the circuit court did not distribute the joint debt. Hayden v. Hayden, 2020 Ark. App. 152, 594 S.W.3d 912 (2020).

—Tax Consequences.

The court rejected the husband's argument that the chancellor found the marital property to be unequally divided but failed to take tax consequences into account; although the chancellor declined to require the wife to share in the tax consequences, neither the court's findings nor its order reflected that the chancellor failed to consider such tax consequences; rather, they reflected only that he decided that the wife did not have to share in them. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001).

—Upheld.

Where the trial judge, in a divorce action, based the unequal property distribution upon the fact that the husband was blind and unemployable, while the wife was employable and had always worked outside the home, and the judge further found that the wife had not contributed to the home expenses or payments and had not used her money for the family's benefit, the evidence supported unequal division of property. Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982); Cantrell v. Cantrell, 10 Ark. App. 357, 664 S.W.2d 493 (1984).

The wife was properly awarded more than half of the marital estate where (1) the parties were married for 17 years, (2) the husband earned significantly more money than did the wife, and (3) the husband was vested one-third beneficiary of an undistributed trust worth $250,000, and was the sole heir to his mother's one-million-dollar estate. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000).

Circuit court's unequal distribution of property was affirmed where the circuit court considered the amount of money from marital assets the husband had spent on a girlfriend, in addition to the great disparity in the parties' incomes, the wife's reliance on food stamps, the parties' levels of education, and their respective roles in the marriage. Nelson v. Nelson, 2016 Ark. App. 416, 501 S.W.3d 875 (2016).

In dividing marital property, the circuit court adequately weighed the factors listed in this section where it explained its reasoning for the unequal division, noted the court's ability to award alimony but that the husband's ability to pay was unclear, and rather than awarding alimony, found that the wife's need was met by an unequal distribution of the marital assets and debts in order to balance the equities between the parties. Doss v. Doss, 2018 Ark. App. 487, 561 S.W.3d 348 (2018).

Unequal division of marital property on remand did not violate the appellate court's mandate as the appellate court's opinion invited a division and nothing in the opinion barred an unequal distribution if the lower court made the requisite statutory findings; and, under the circumstances of the case, the lower court did not clearly err in distributing the marital property unequally on remand, as the wife was disabled while the value of the husband's nonmarital property increased greatly and consideration of the husband's postdivorce income increase was statutorily allowed. Moore v. Moore, 2019 Ark. 216, 576 S.W.3d 15 (2019).

Trial court's unequal distribution of the parties' marital property was not clearly erroneous because the court considered the four-year duration of the marriage and the contributions of each party, the court stated that it could not determine whether the improvements to the marital residence and lot caused a corresponding increase in the value of the property of the same amount, and the court considered the fact that the wife earned 75% of the parties' combined income and used that percentage in dividing the bank accounts. Pratt v. Pratt, 2019 Ark. App. 264, 576 S.W.3d 511 (2019).

It was not clear error for the circuit court to make an unequal distribution by awarding the wife $167,236 out of the husband's share of his 401k, this representing one-half of the parties' marital interest in a partnership. It was not clear error to find that there was some portion of the partnership that was marital, nor was it error to consider that marital portion when making an unequal distribution by awarding the husband all the marital interest in the partnership and awarding the wife a portion of the husband's 401k, as the circuit court considered the statutory factors in writing. Perry v. Perry, 2020 Ark. App. 63, 594 S.W.3d 126 (2020).

Waiver.

Wife waived any rights she may have had in retirement fund by failing either to assert those rights in divorce action or to appeal from court's failure to effect the statutorily mandated property division in the divorce decree. Mitchell v. Meisch, 22 Ark. App. 264, 739 S.W.2d 170 (1987); Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988).

Husband's claim that a business was not subject to division by the trial court was moot because the husband waived the claim by voluntary payment of the judgment prior to his appeal; the husband's payment to the wife of the entire amount was voluntary and constituted a waiver of the issue on appeal because he did not file a supersedeas bond or make an attempt to stay the judgment until an appeal could be made. Beck v. Beck, 2017 Ark. App. 311, 521 S.W.3d 543 (2017).

Cited: Biddle v. Biddle, 206 Ark. 623, 177 S.W.2d 32 (1944); Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); White v. White, 228 Ark. 732, 310 S.W.2d 216 (1958); Horn v. Horn, 232 Ark. 723, 339 S.W.2d 852 (1960); Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965); Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969); Walker v. Walker, 248 Ark. 93, 450 S.W.2d 1 (1970); Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970); McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Pendergist v. Pendergist, 267 Ark. 1114, 593 S.W.2d 502 (1980); Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695 (1980); Barron v. Barron, 1 Ark. App. 323, 615 S.W.2d 394 (1981); Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983); Mitchell v. Mitchell, 278 Ark. 619, 648 S.W.2d 51 (1983); Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983); Coleman v. Coleman, 7 Ark. App. 280, 648 S.W.2d 75 (1983); Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983); Boyle v. Donovan, 724 F.2d 681 (8th Cir. 1984); Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984); Carrick v. Carrick, 13 Ark. App. 42, 679 S.W.2d 800 (1984); Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985); Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985); Glover v. Glover, 15 Ark. App. 79, 689 S.W.2d 592 (1985); Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986); Harvey v. Harvey, 298 Ark. 308, 766 S.W.2d 935 (1989); Layman v. Layman, 300 Ark. 583, 780 S.W.2d 560 (1989); Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990); Nowell v. Nowell, 31 Ark. App. 78, 787 S.W.2d 698 (1990); Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990); Mulling v. Mulling, 323 Ark. 88, 912 S.W.2d 934 (1996); Grider v. Grider, 62 Ark. App. 99, 968 S.W.2d 653 (1998); Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999); Cooper v. Cooper, 2013 Ark. App. 748, 431 S.W.3d 349 (2013).