{
  "id": 6650889,
  "name": "Peter G. CLARK v. Lillie B. CLARK",
  "name_abbreviation": "Clark v. Clark",
  "decision_date": "1986-11-26",
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    "judges": [
      "Cracraft, C.J., and Cooper, J., agree.",
      "Mayfield, J., concurs."
    ],
    "parties": [
      "Peter G. CLARK v. Lillie B. CLARK"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Judge.\nIn October 1985, appellee filed for divorce against appellant, alleging general indignities. While seven children had been born to the parties since 1966, the parties had not married until November 1978. Two of the children were born after the parties\u2019 marriage, but appellant acknowledges all seven are his. Appellee admitted that she had married another man in Chicago in 1962 when she was fourteen years old and had never obtained a divorce from him. Neither party knew where appellee\u2019s first husband could be located, and appellee testified that she had not seen him since 1974. Appellant admitted that he had known of appellee\u2019s prior marriage and claimed he had tried on several occasions to help appellee dissolve that marriage. The chancery court found the parties never had a valid marriage, and therefore, it could not grant a divorce or settle their property rights. Nonetheless, the court found it had jurisdiction to determine paternity, to award custody of the parties\u2019 children to appellee and to order child support in the amount of $450.00 to be paid by the appellant.\nOn appeal, appellant contends that the chancery court erred in retaining jurisdiction of this cause once he determined the parties were not legally married and no divorce could be granted. In support of his contentions, appellant urges the supreme court\u2019s holding in Stain v. Stain, 286 Ark. 140, 689 S.W.2d 566 (1985), controls the facts here. We disagree.\nIn Stain, the parties were married in November 1981, and a divorce action was commenced in September 1982. One child had been born to the parties but over a year before their marriage. In her divorce complaint, Mrs. Stain alleged her husband was the father of this child and requested child support. The husband admitted paternity but challenged the chancery court\u2019s decision that it had jurisdiction to decide the paternity issue or award child support. The supreme court agreed, relying on article 7, section 28, of the Arkansas Constitution, which provides in pertinent part that \u201c[t]he county courts shall have exclusive original jurisdiction in all matters relating to . . . bastardy. . . .\u201d Citing Higgs v. Higgs, 227 Ark. 572, 299S.W.2d837 (1957),and Rapp v. Kizer, Chancellor, 260 Ark. 656, 543 S.W.2d 458 (1976), the supreme court ruled that the Stain case involved a matter relating to bastardy and, accordingly, reversed the lower court\u2019s decision. This case differs from Stain, however, because here the validity of the parties\u2019 marriage itself is the ultimate question, not whether chancery court has jurisdiction over paternity. Obviously, if the parties\u2019 marriage is valid, the chancery court clearly has jurisdiction of appellee\u2019s divorce action. In this respect, we find the chancery judge here was clearly erroneous in determining the parties\u2019 marriage was invalid, and we remand for further proceedings consistent with this opinion.\nUnder Ark. Stat. Ann. \u00a7 55-108 (Repl. 1971), a bigamous marriage is void from its inception, and no decree of any court is required to declare it so. Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 642 (1970); Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914). However, it is a longstanding presumption of law that a marriage entered in due form is valid, and the burden of proving a marriage invalid is upon the party attacking its validity. It is presumed that, when a man and woman are married, and one has a living spouse, the former spouse has been divorced at the time of the marriage. Higgins v. Higgins, 266 Ark. 953, 588 S.W.2d 454 (1979); Lathan v. Lathan, 175 Ark. 1037, 1 S.W. 67 (1928); Cash v. Cash, 67 Ark. 278, 54 S.W. 744 (1899).\nFurther, there is the additional presumption that the former spouse was dead at the time of the second marriage. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914). The presumptions of divorce from or death of a previous spouse are so strong that they exist despite the fact that overcoming them involves proof of a negative, i.e., proof of no divorce and/or proof that the previous spouse is still living. Estes v. Merrill, 121 Ark. 361, 181 S.W. 136 (1915).\n725 S.W.2d 1\nHere, appellant failed in his burden of proving his marriage to appellee was invalid. The only testimony tending to rebut the presumption that appellee\u2019s former spouse had been divorced was that of the parties\u2019 testimony that appellee had not obtained a divorce. There was no evidence at all that appellee\u2019s former spouse had not divorced appellee. The evidence was not sufficient to overcome the presumption of divorce. Neither did appellant produce any proof that appellee\u2019s former spouse was alive, which leaves intact the presumption that he was dead.\nWe decide cases de novo on the record, and chancery cases will not be remanded for further proceedings when we can plainly determine from the record the rights and equities of the parties. Moore v. City of Blytheville, 1 Ark. App. 35, 612 S.W.2d 327 (1981). However, this court may in appropriate circumstances exercise its discretion to remand so that the pertinent facts, not fully developed, may be ascertained. Id.\nIn this divorce case, a temporary hearing and a contempt proceeding were the only proceedings held. Only the parties testified, and as we have said, appellant failed to show his and appellee\u2019s marriage was invalid. Since the chancellor erroneously found that the parties had never been married and, consequently, that he did not have jurisdiction to entertain the divorce action, this cause is remanded for further proceedings on appellee\u2019s complaint for divorce.\nReversed and remanded.\nCracraft, C.J., and Cooper, J., agree.",
        "type": "majority",
        "author": "Tom Glaze, Judge."
      },
      {
        "text": "Supplemental Opinion on Denial of Rehearing December 23, 1986\nTom Glaze, Judge.\nAppellant has petitioned for rehearing on three separate points, one of which we believe has some merit and requires a clarification of our opinion in this case issued November 26, 1986. Consequently, this supplemental opinion is issued.\nIn our earlier opinion, we held that the chancellor erred in determining that the parties had never been married and that he had no jurisdiction to entertain the parties\u2019 divorce action. That being the case, we remanded this cause for further proceedings on appellee\u2019s complaint for divorce which would include custody, support and related matters concerning the children born of the parties\u2019 marriage. Of course, the record, as appellant correctly points out, reflects that five of the parties\u2019 seven children were born prior to the marriage of the parties in 1978.\nWe previously noted that Stain v. Stain, 286 Ark. 140, 689 S.W.2d 566 (1985), holds that article 7, section 28, of the Arkansas Constitution, demands that all matters \u201crelating to . . . bastardy . . .\u201d be heard in the county courts. See Higgs v. Higgs, 227 Ark. 572, 299 S.W.2d 837 (1957); Rapp v. Kizer, Chancellor, 260 Ark. 656, 543 S.W.2d 458 (1976). The Stain, Higgs, and Rapp cases make it clear that any issues, concerning paternity, custody or support for any children of the parties born prior to the 1978 marriage lie in the county court, not chancery court. As the supreme court mentioned in Stain, we too are restrained by the provisions of the Arkansas Constitution even though the reason for placing jurisdiction in the county court no longer exists and, indeed, may seem inappropriate in a case such as this.\nThis cause is reversed and remanded for proceedings not inconsistent with this opinion and our opinion of November 26, 1986.\nMayfield, J., concurs.",
        "type": "rehearing",
        "author": "Tom Glaze, Judge."
      },
      {
        "text": "Melvin Mayfield, Judge,\nconcurring. I concur in the denial of rehearing in the above case only because the appellant did not produce any evidence to overcome the presumption that appellee\u2019s former spouse was dead.",
        "type": "concurrence",
        "author": "Melvin Mayfield, Judge,"
      }
    ],
    "attorneys": [
      "The Haskins & Hendricks Law Firm, by: Robert B. Buck-alew, for appellant.",
      "John D. Bridgeforth, P.A., for appellee."
    ],
    "corrections": "",
    "head_matter": "Peter G. CLARK v. Lillie B. CLARK\nCA 86-185\n719 S.W.2d 712\nCourt of Appeals of Arkansas Division I\nOpinion delivered November 26, 1986\n[Rehearing denied December 17, 1986.]\n[Supplemental Opinion Issued December 23, 1986.]\nThe Haskins & Hendricks Law Firm, by: Robert B. Buck-alew, for appellant.\nJohn D. Bridgeforth, P.A., for appellee.\nMayfield, J., concurs."
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