{ "id": 1444162, "name": "Barth v. Barth", "name_abbreviation": "Barth v. Barth", "decision_date": "1942-04-27", "docket_number": "4-6720", "first_page": "151", "last_page": "156", "citations": [ { "type": "official", "cite": "204 Ark. 151" }, { "type": "parallel", "cite": "161 S.W.2d 393" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "78 S. W. 759", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "72 Ark. 161", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505610 ], "opinion_index": 0, "case_paths": [ "/ark/72/0161-01" ] }, { "cite": "200 Ark. 340", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0340-01" ] }, { "cite": "54 S. W. 2d 281", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "186 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723394 ], "opinion_index": 0, "case_paths": [ "/ark/186/0511-01" ] } ], "analysis": { "cardinality": 620, "char_count": 8841, "ocr_confidence": 0.52, "pagerank": { "raw": 2.810413535156302e-07, "percentile": 0.8375268210617685 }, "sha256": "e7938c95bc33c39b00f7298884e3d407714a5796588692ee0cccb0d68fcba6a7", "simhash": "1:ac1462b9020055e2", "word_count": 1501 }, "last_updated": "2023-07-14T21:22:22.082665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Barth v. Barth." ], "opinions": [ { "text": "Griffin Smith, O. J.\nThe appeal is from the court\u2019s action in declining to vacate a divorce decree granted Paul M. Barth, a dentist serving in the army with the rank of major. His complaint of July 7, 1941, bore fruit September 1. The wife, Gayle, was informed by her husband\u2019s father, through her daughter, that a divorce had been granted. She promptly moved, as she contended, to protect rights that had been destroyed by a court having, prima facie, jurisdiction of the parties, but in fact being without power to render the decree because of the major\u2019s fraudulent conduct.\nGayle and Paul, citizens of Iowa, were married in 1917. Wyllis Glee, an only child, was nineteen years of age in 1941.\nTestifying in opposition to the motion, Major Barth asserted that he had been separated from Gayle since June, 1936, and cohabitation between them had not been reestablished. The court asked what caused separation, to which there was the response: \u201cWe just couldn\u2019t get along. I will take half of the blame. \u2019 \u2019\nIn June, 1939, Major Barth endeavored to procure a divorce in Polk county, Iowa. His wife, then living at Boone, answered and cross-complained. She alleged her mate\u2019s misconduct, consisting in the main of perilous proclivities for Polly Powell, whose propensities for paramours entailed substantial and continuous contributions. Professionally, Polly ivas a strip-tease dancer. Whether the lady\u2019s finesse in disrobing had the effect, constructively or actually, of alienating Paul from his own fireside, or whether artistic dancing filled his soul with memories of King David, is not as satisfactorily revealed as was Polly\u2019s shapely form.\nBe this as it may, the Major quite suddenly developed an appreciation of the aesthetic \u2014 musical or otherwise\u2014 and followed the apparition to Des Moines, where Polly\u2019s professional business required her physical presence. Thereafter matrimonial sedition seethed. It was difficult for Mrs. Barth to believe that \u201cthe good girl\u201d Paul represented Polly to be could appear on the public stage in rakish costume for introductory purposes, and then, without violation of .modesty\u2019s mandates, bid garment by garment a gentle adieu while remaining insensible to Apollo\u2019s prototype symbolized by an erring family man who mentally measured distance and longed to participate in vociferous applause.\nThe Iowa court, on agreement of the parties, gave judgment for separate maintenance and dismissed the Major\u2019s complaint. Appellee returned to his assignment at Port Leonard Wood, Missouri, 175 miles distant from Harrison. Payments were made until the Arkansas decree was procured. Thereafter he sent money to the daughter.\nIt is denied that appellee\u2019s residence here was bona fide. His testimony on this issue is substantially as follows:\nHaving been sent to Port Wood, (May 1,1941) Barth was directed to report at Camp Robinson for manoeuvres, which continued until August 11 or 12. Appellee became ill and spent two days in a hospital. Military manoeuvres were conducted at Camp Robinson; also in South Arkansas, and in Louisiana. After being\u2019 assigned to Port Wood, appellee voluntarily came to this state \u201cfrom a little town near Poplar Bluff. \u2019 \u2019 Prom the hospital \u2018 \u2018 somewhere in Louisiana\u201d appellee returned to Camp Robinson, remaining ten days from September 17. He then returned to Port Wood, where he had been stationed until time of trial, and where, with the exception of a 14-day leave, he remained.\nMajor Barth testified he selected Harrison as a home \u201cbecause I expected to start practicing as a dentist if I g\u2019ot out of the service within the next year.\u201d The residence, appellee said, was established May 15, 1941. When not on army duty, spare time was spent \u201cin or about Harrison.\u201d The day of trial appellee went from Little Rock to Harrison and remained from Tuesday night until Friday noon. Although the record at one place shows that appellee \u201cestablished\u201d his residence at Harrison May 15, at another place May 5 is given, \u201cand I am very sure I was here two times before that. \u2019 \u2019\nDuring May appellee engaged a room because he wanted to establish a residence \u201cfor the purpose of divorce.\u201d He did not remain all night, but paid a month\u2019s rent and left a suit of clothes. Second and third trips were made during May, the visitor remaining over night. He did not know the hotel proprietor\u2019s name, nor was he acquainted with the mayor, any county official, the postmaster, or anyone else. When asked regarding frequency of visits during June, appellee replied: \u201cI will tell you the honest truth: I would bring Major Cottrell to his place and then I would come down here and stay all night.\u201d Such trips were made \u201ctwo or three times\u201d in June. Appellee was in Harrison \u201ctwo or three times\u201d in July, and on one of these occasions probably spent three hours. Being on manoeuvres during August, he was unable to spend much time in the rented room, but did patronize it overnight.\nResidence in good faith for sixty days before filing suit, and ninety days before a decree may be issued, are statutory requirements. In Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281, the appellant admitted she came to Arkansas to obtain a divorce, intending to remain if she could secure employment. It was held that \u201ceven though [one moved] to this state to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction.\u201d It was then added that the residence must be actual, and acquired in good faith.\nThe holding in Hillman v. Hillman, 200 Ark. 340, 138 S. W. 2d 1051, is that a plaintiff seeking divorce may file his or her complaint in the chancery court of the county of such plaintiff\u2019s residence, but residence-must not be colorable, nor may the venue be sought as a mere pretext.\nIn commenting upon \u00a7 1618 of Sandels & Hill\u2019s Digest, Mr. Justice Hughes, after saying that meaning of the statute might have been made plainer by particularity in the use of language, was of opinion that \u201cit is easily understood by anyone who does not want to misunderstand, and the court has no difficulty in determining what it means.\u201d Furth v. State, 72 Ark. 161, 78 S. W. 759. So, here, the court has no difficulty in finding that the legislature did not intend to extend facilities of the state\u2019s divorce courts to a nonresident who paid a month\u2019s room rent, deposited a suit of clothes, and almost immediately returned to army headquarters where his presence was required.- That he made a few trips from Little Rock to Harrison for the admitted purpose of qualifying under \u00a7 4386 of Pope\u2019s Digest is of but slight importance in view of his status as an officer of the armed forces.\nTestimony relating to appellee\u2019s conduct toward his wife was not improperly admitted. It tended to explain why the particular forum was selected.\nThe decree is reversed. Directions are that the order of divorce be vacated.\nThis testimony was given in the trial which resulted in a decree of divorce, and not in the hearing to set the decree aside.\nPope\u2019s Digest, \u00a7 4386. [For statutory provision regulating acquirement of domicile, see Act 355, approved March 26, 1941.]", "type": "majority", "author": "Griffin Smith, O. J." }, { "text": "McHaney, J.,\n(concurring). The only question presented by this appeal is whether appellee had been a bona fide resident of this state for ninety days within the meaning of our divorce statute when the divorce was granted him. I agree that he had not. It is undisputed that he and appellant had lived separate and apart for more than three years, and that he would be entitled to obtain a divorce in this state-on that ground, if he had established a bona fide residence here sufficient to give the court jurisdiction, and we all agree that he had not.\nMy objection to the opinion of the majority is that it reflects upon appellee, who is a major in the armed forces of the United States, when it is wholly unnecessary to a decision of his case to do so. The critical and flamboyant language concerning his previous conduct is wholly beside the point, is obiter diota, and serves no useful purpose in a decision of the question of his residence. Whatever his previous conduct may have been, whether good or bad, does not disentitle him to a divorce under our three-year separation statute, if he is a resident of this state. I do not think it is the province of this court to criticize and castigate a litigant in this court when it is not necessary to do so in the opinion, even though the evidence may support such criticism.\nI, therefore, concur in the opinion of the majority holding appellee had not established a residence in this state. I am authorized to say Mr. Justice Holt and Mr. Justice G-reenhaw concur also.", "type": "concurrence", "author": "McHaney, J.," } ], "attorneys": [ "Doran, Doran <& Doran and Shouse & Shouse, for appellant.", "G. T. Bloodworth, for appellee." ], "corrections": "", "head_matter": "Barth v. Barth.\n4-6720\n161 S. W. 2d 393\nOpinion delivered April 27, 1942.\nDoran, Doran <& Doran and Shouse & Shouse, for appellant.\nG. T. Bloodworth, for appellee." }, "file_name": "0151-01", "first_page_order": 169, "last_page_order": 174 }