{ "id": 8722148, "name": "Cole v. Cole", "name_abbreviation": "Cole v. Cole", "decision_date": "1925-03-30", "docket_number": "", "first_page": "381", "last_page": "385", "citations": [ { "type": "official", "cite": "168 Ark. 381" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [], "analysis": { "cardinality": 573, "char_count": 9366, "ocr_confidence": 0.429, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41157457442499545 }, "sha256": "e11acf5310faf341a3fba1a9d123b5ce55c9b143e431e22cb1896dde43fac919", "simhash": "1:e44f4714164e8f7d", "word_count": 1530 }, "last_updated": "2023-07-14T17:11:28.689459+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Cole v. Cole." ], "opinions": [ { "text": "McCulloch, C. J.\nAppellant and appellee are .husband and, wife,, andt)1*? .aetion was, instituted by appellee ,{tbe .wiie^.to.tpbta,!\u00bb a .cUyorce and to obtain her dist^ibjitiyp- simara of. appellant\u2019s., property. The. action \u00a1originated. merely, as .one for division - of \u25a0 property, ,bnt subsequently appellee filed an amended complaint praying for a divorce on the ground of cruel treatment and indignities.' Appellee secured, at the commencement of the action, a temporary order from the chancery court restraining appellant from disposing of his property. It is also alleged in the complaint thait appellant had fraudulently induced her to join, in a conveyance of a tract of land to appellant\u2019s mother, Mrs. Angie Cole, and that this was done for the sole-purpose of placing the title beyond appellee\u2019s reach in securing her rights in appellant\u2019s\u2019estate. There is a prayer for a cancellation of that deed.\nAppellant filed his answer denying all the allegations of the complaint with respect to. misconduct on his part, and the cause was heard by the court on oral testimony.\nThe parties intermarried on August 24, 1919, and lived together until the month of July, 1923, when appel-lee left appellant\u2019s home and went to the home of her parents, and about a month later instituted this action. They have three children \u2014 two . girls and a boy \u2014 their ages running from three years down to about two months at the time of the commencement of the action.\nAppellee alleged in her complaint and introduced testimony tending to prove all sorts of misconduct towards her on part of appellant. She claims that he neglected her during illness, particularly at the time of the birth of her children, subjecting her to hard work in housekeeping, failure to provide clothing, abuse, epithets; that he struck her one time with a stick; that he was jealous of her association with her friends, and denied her any privileges of going into society. All of these charges were denied by appellant, and he introduced testimony tending to show that the charges were unfounded.\n\u2022 The r\u00e9cord is voluminous, and there is a large number of witnesses on each side of the controversy. No useful purpose would be served in reviewing the testimony in detail. From careful consideration of it we fail to-see. that the finding of the trial court is against rthe preponderance of the evidence. ;....\n.The contention of appellant is that appellee left of her .own accord and without , any .cause being given, and that her sole purpose was to enter upon, some career of her own, and that, when she left him, s.he gave, him a written statement absolving him from any charge of misconduct. There is some conflict. as to the circumstances under, which the statement was made, but, at. all events, it is. not conclusive and is. only to .be considered along with other testimony in the case in determining whether or not appellant was in fact guilty of.the misconduct charged.\nAppellant is shown to be a man conducting a successful business and receiving a fairly good income, and the trial court in its final decree set aside a certain .amount of personal property to .appellee as her portion, and also ordered appellant to pay an attorney\u2019s fee of $150 and also to pay to appellee the sum of thirty-five dollars per month for the support of the children. The court' also canceled the deed to appellant\u2019s mother, Mrs. Angie Cole, and appointed commissioners to set apart appel-lee\u2019s portion of one-third..\nWe. find that the testimony justified the. award of personal,property to appellee, as well as the other;allowances, but it was improper to. cancel the deed to Mrs. Cole* for the reason;.that she was not a party to the action.\nDuring the pendency of the appeal, this court made an.\u00a1order directing appellant to. pay appellee the snm of $50, to be used in payment of attorney\u2019s- fees in this court, and we reserved until final disposition of the case on the merits, the question whether or not this should be deducted from the amount allowed by the trial court. We conclude that the additional sum mentioned should not be deducted, and that the original allowance made by the trial court should stand, \u25a0 , .\nThe decree is therefore affirmed in all things except as to the cancellation of the deed to Mrs. Cole, and that part of the decree is- -reversed,'1 and the' canse -remanded with directions that, unless' appellee is advised to make Mrs. Cole a party to- the action and does \u00e1o, the complaint he dismissed* as to-the cancellation of the conveyance. It is so ordered.,", "type": "majority", "author": "McCulloch, C. J." }, { "text": "McCulloch, C: J.,\n(bn rehearing-). Appellant''has filed here a certified copy of an order jof\u2019the chahcell\u00f3r, rendered subsequent to \"th\u00e9 rendition' of the' deefeedp-pealed from, and in this1 order the custody of the children is changed'from appellee to appellant, without changing, however, the: Order previously 'made b'y! the court' with respect to-the payment of thirty-five\u2019''dollars \u00abper niori/th to appellee for the support of the 'children. It does \u2018not appear from this .supplemental record, hoW\u00e9v'\u00e9r, that the court was asked to modify the original decree in this \u25a0respect,\u2018 nor has there be\u2018en any appeal prosecuted from the order.1 We are asked to modify the decree so afeto eliminate the requirement for the payment of the monthly allowance to'appellee, or to remand the whole\u2019caufe\u00e9 for trial de novo so that' the\u2019 lower 'cohrt \u2018can make such an \u2018order and can hear' new' evidence Oh all the - issues in the'case.\nIt is alleged in the petition' for \u2018rehearing that appellant has discovered new \u2019evidence, and his' counsel insist that, inasmuch \u00e1s the cause has been remanded for\u2019further proceedings with respect to the cancellation of -the \u2019deed to Mrs. Angie Cole, we- should' remand the whole cause for further proceedings so as to afford appellant an opportunity to present this.evidence. \u2019 \u25a0 - '\u25a01\nThe 'factthat\u2019 we reversed the cause on one issue does not call for a reversal'of the 'e\u00e1\u00fcs\u00e9 On1 the'maih: issue, the evidence being sfiffieiefit ' to \u2019 support the decree \u25a0 f\u00f3r' a divorce .and for distribution: of \u2022 property- \u2019 allowance- of fees, etc. Neither does the-fact that appellant has discovered new evidence call for a reversal. We\u2019try chancery- oases hete de, novo, but upon the record made'bn. the trial below, and we have nb authbrity to consider-here, ah application for a trial d&'novo 'on. account of-newly discovered evidence,-that being'an original'proceeding.--The same may be said with reference to appellant\u2019s application to modify the decree making a monthly allowance. T,hat allowance is subject to change by the 'chancery court, and we have no authority to do so here except upon appeal from an order of the chancery court refusing to change the allowance. The question of modification of the requirement of the original decree with respect to custody of the children and allowance of alimony, etc., constitutes a new proceeding which must originate with the trial court and be brought here on appeal before we can review such proceeding. The way is open for appellant to apply to the chancery court for any change with respect to allowances that may be called for by altered circumstances of the parties.\nRehearing denied.", "type": "rehearing", "author": "McCulloch, C: J.," } ], "attorneys": [ ". ffeff;\u00c9fqtton, \u00cdQi: $$>pellanb", "for appellee.. . ." ], "corrections": "", "head_matter": "Cole v. Cole.\nOpinion delivered March 30, 1925.\n\u2022 Pl\u00bb0ECE-^CONeE\u00dcSIVENBSS > OF \u25a0 WIFE\u2019S STATEMENT.--Ip an action \u20191 fejy- \u25a0 \u00a1&> .-ywiv^e- f fQr- -divorce \u00abn. .the- {p-oppds of \u00a1cruel .treatment and ; , ^dignities, written statement, g^yen ito t him at the time she ' lefi him, in 'which-she absolved him from any charge of mist '1 \u2018\"conduct, held hot eoriclusive, but merely t\u00f3 be considered with 1\u00bb fotfett1 t\u00e9stiriliShy\u00ed- \u25a0\u25a0\u25a0' 1 -\n2'.3iD-tvttfc\u00e9E-i-c\u00c1NCEimAT\u00cd(\u00cdNi of dikbAfartteS-. \u2014 In an-\u2019 action fot i, diyfojce, eancellatien of - the husband\u2019s deed to his: mother, as in \u25a0 fpaud, n\u00a3 the .wife\u2019s rights was not justified where his ipother was not a party.\n3. DIVORCE \u2014 allowance of attorney\u2019s fee. \u2014 Where, on the' pend-of art: appeal by the\u2019husband,- the trial cotirt directed the ,'Tf-h|usha!nd -to: psa^s:$50- fet the wife\u2019s,-attorney, and-the (decree is , \u00a1 raj^tmedi ih so far, as.- ijt ,'a\u00a1llo-yvs a diy\u00a1o,ree,to.the wife, the. amwmt , of such fee will not be deducted from the property allowance '\u2018mi\u00e1i\u00edd'By-the tr'istt coii-rt.' \u2018\n4 '\u2019--SivOR\u00e9ti \u2014 EFF\u00cdsfc'd 0F-Reversal' fk PART. \u2014 Where a- decree^ in a vu* divorce cate was-reversed in so far ad it canceled- a deed from appellant \u00a1to> hue not ,a party jtq the suit, ;and,remanded for .ffyirther .proceedings .\u25a0 qn, that issue alone, this doe? not call for- a reversal (of fhe Vhole' cause nor reopen the issues' as to the 'SffbV\u00e9\u00e9,'distribution of property,'and \u00a1allowance \u00f3f C\u2019\u00f3\u00fafisel fees'.\n5. Appeal''And' error \u2014 \u00f1ewlV discovered evidence. \u2014 An apip\u00edic\u00e1'- > -;'/Mtf 'of,ngwly discovered, evidence .yijl.not \u00a1be considered on .appeal,\nfi. h^VqRQBVPROCEEBING TQ il^ODIFY -DECREE. AS .TO CUSTODY, OF , ^HJt-DREi^. \u2014 A proceeding to modify a decree; in a divorce, suit _ as to the custody of the children,\u2019 based', upon' newly discovered \u201c! 'evidence nof in \u2018the -r\u00e9cord;1 must btigihate : ih the trial'court, \u2022 \u2019Land cart - be reviewed - only' on \u25a0 appeal from its- Recree.\nAppeal, fpoin Greene^Chancery 'Court; '&am Cosien, ^p\u00e9p^\u00e1\u00ed Glj'an'ceilor'y\nreversed in part.\n. ffeff;\u00c9fqtton, \u00cdQi: $$>pellanb\nfor appellee.. . ." }, "file_name": "0381-01", "first_page_order": 399, "last_page_order": 403 }