{ "id": 1653112, "name": "McClain v. McClain", "name_abbreviation": "McClain v. McClain", "decision_date": "1953-11-30", "docket_number": "5-195", "first_page": "729", "last_page": "737", "citations": [ { "type": "official", "cite": "222 Ark. 729" }, { "type": "parallel", "cite": "263 S.W.2d 911" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "221 S. W. 463", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "144 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "6 S. W. 2d 21", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "177 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720240 ], "opinion_index": 0, "case_paths": [ "/ark/177/0250-01" ] }, { "cite": "215 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464718 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/215/0509-01" ] }, { "cite": "213 Ark. 755", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1466995 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0755-01" ] }, { "cite": "201 Ark. 741", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724123 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/201/0741-01" ] }, { "cite": "219 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609206 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/219/0325-01" ] }, { "cite": "21 A. L. R. 2d 1267", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 1 }, { "cite": "159 A. L. R. 734", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "63 A. L. R. 1132", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "249 S. W. 589", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 1 }, { "cite": "158 Ark. 206", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1355687 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/158/0206-01" ] }, { "cite": "67 S. W. 2d 1013", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "188 Ark. 854", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428265 ], "opinion_index": 1, "case_paths": [ "/ark/188/0854-01" ] }, { "cite": "90 S. W. 845", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "77 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499068 ], "opinion_index": 1, "case_paths": [ "/ark/77/0094-01" ] }, { "cite": "97 S. W. 659", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "80 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1491150 ], "opinion_index": 1, "case_paths": [ "/ark/80/0451-01" ] }, { "cite": "88 S. W. 840", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "76 Ark. 28", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501019 ], "opinion_index": 1, "case_paths": [ "/ark/76/0028-01" ] }, { "cite": "299 S. W. 38", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "175 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403630 ], "opinion_index": 1, "case_paths": [ "/ark/175/0330-01" ] }, { "cite": "24 A. L. R. 912", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "242 S. W. 804", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 1 }, { "cite": "154 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1361192 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/154/0401-01" ] }, { "cite": "112 S. W. 369", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "87 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519108 ], "opinion_index": 1, "case_paths": [ "/ark/87/0175-01" ] }, { "cite": "98 S. W. 975", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "56 S. W. 778", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "opinion_index": 1 }, { "cite": "68 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1333977 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/68/0158-01" ] }, { "cite": "68 Am. Dec. 171", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 1 }, { "cite": "18 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726266 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/18/0320-01" ] }, { "cite": "237 S. W. 1096", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "152 Ark. 129", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364100 ], "opinion_index": 1, "case_paths": [ "/ark/152/0129-01" ] }, { "cite": "220 S. W. 459", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "143 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1589379 ], "opinion_index": 1, "case_paths": [ "/ark/143/0388-01" ] }, { "cite": "149 S. W. 86", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "104 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350623 ], "opinion_index": 1, "case_paths": [ "/ark/104/0381-01" ] }, { "cite": "98 S. W. 731", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "81 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530607 ], "opinion_index": 1, "case_paths": [ "/ark/81/0137-01" ] }, { "cite": "15 S. W. 459", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "54 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1320339 ], "opinion_index": 1, "case_paths": [ "/ark/54/0172-01" ] }, { "cite": "213 Ark. 755", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1466995 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/213/0755-01" ] } ], "analysis": { "cardinality": 829, "char_count": 16504, "ocr_confidence": 0.505, "pagerank": { "raw": 2.0691483273140855e-07, "percentile": 0.7575246664960004 }, "sha256": "bed1a8310516178d5f15ce2387b472d3ce6d62c2db64a422cf1390cd7d02098b", "simhash": "1:93e15e8f38a7f042", "word_count": 2872 }, "last_updated": "2023-07-14T18:48:42.003901+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McClain v. McClain." ], "opinions": [ { "text": "J. Seaborn Holt, J.\nThe parties here were married in November, 1941. November 14, 1952, appellee, Trndie McClain, sued appellant for divorce on the grounds of drunkenness for more than a year, cruelty, and indignities, and asked that all property rights between them be adjudicated, that he be restrained temporarily from occupancy with her and enjoyment of the two acre tract upon which they lived and operated a beer and sandwich shop.\nAppellant answered with a general denial, asserting that separation of the parties was the fault of appellee, and not his fault, \u2014 in effect, a plea of recrimination. He pleaded no affirmative defense, but prayed that the relief for which appellee prayed be denied and that she be required to account for all property which they jointly owned and that he \u201cbe awarded possession of all real and personal property\u201d located on the two acre tract, including the beer and sandwich shop, known as \u201cRed Gates Inn.\u201d\nPrior to trial on the merits, the court, on sufficient showing by appellee, and execution of proper bond, granted to her the temporary injunctive relief prayed.\nMarch 4, 1953, trial was had on the merits. The court denied appellant\u2019s prayer that the prior injunctive relief granted appellee be set aside, denied any damages to appellant resulting therefrom and granted appellee an absolute divorce.\nThe court found \u201cthat the business being conducted upon the premises hereinafter described, known as \u2018Red Gates Inn,\u2019 was a joint venture and that said business shall be and is hereby terminated as of the date of this decree; and the Court further finds that the fixtures now located.in said building and used in connection with the operation of said business are jointly and equally owned by plaintiff and defendant.\n\u201cIt is the further order and judgment of this Court that the fixtures and furnishings located upon the premises hereinafter described shall be left in the possession of the plaintiff, and she is hereby granted the right to use all of the same in connection with her use and occupancy of the premises hereinafter described. \u2019 \u2019\nThe court. further found that the two acre tract in question was owned by the parties as an estate by the entirety and granted to appellee, Trudie McClain, \u201cthe sole and exclusive possession of the same, together with the buildings located thereon, together with all fixtures and furnishings located thereon; and the defendant, Edley McClain, is hereby permanently enjoined and restrained from molesting the plaintiff in her use and occupancy in any manner of said premises above described.\u201d\nThere was a further finding that the rental value of this real estate and premises was $50.00 per month and appellee was ordered to pay appellant, Edley McClain, $25.00 per month as his half of the rental value of the real estate and premises and to pay $25.00 per month on the unpaid balance due and becoming due on the purchase price of said property. The court further directed that two automobiles and certain livestock be sold and the proceeds equally divided between the parties, that appellee \u201cimmediately make an inventory of all of the salable merchandise found to remain as of March 6, 1953,\u201d and that a one-half interest in said merchandise is granted to each of the parties and that appellee \u201cis hereby granted the right to continue the operation of a business upon said property but same shall not become a joint venture for the reason that the joint venture between plaintiff and defendant known as \u2018Red Gates Inn\u2019 ceased to exist as of the date of the entry of this decree, to-wit: March 6, 1953.\u201d\nFrom the decree is this appeal.\nIt appears from the testimony that these parties by their joint efforts acquired an estate by the entirety in two acres of land which they occupied as a homestead and upon which they operated a beer and sandwich shop known as \u201cRed Gates Inn.\u201d Trudie McClain, appellee, obtained a beer license and operated the business with the help of her husband for several years. She was in active charge of the business. Each of the parties became addicted to excessive drinking of intoxicating liquor. Bickerings, quarrels and violent abuse were frequent between them. On one occasion, appellant became violent, threatened the life of appellee, fired a pistol at her, and threatened to burn the premises. 'An intolerable situation was presented. Appellant had been treated by a number of doctors for excessive alcoholism and had been committed to the State Hospital for treatment for its excessive use.\nFrom the testimony of a number of witnesses, it appears that neither of these parties is without blame. We have concluded, however, without detailing the testimony, that appellee was the lesser offender. Where, as here, the evidence appears almost equally divided, the findings of the Chancellor, after a patient and painstaking hearing, who saw and observed all of the many witnesses presented, is persuasive on us and sufficient to tilt the scales in appellee\u2019s favor.\nOn trial de novo here, we cannot say that such findings were against the preponderance of the testimony. Mewbern v. Mewbern, 201 Ark. 741, 146 S. W. 2d 708; Hensley v. Hensley, 213 Ark. 755, 212 S. W. 2d 551; and James v. James, 215 Ark. 509, 221 S. W. 2d 766.\nAppellant argues that the trial court erred in directing appellee to pay him only $25.00 per month as his half of the rental value of the real estate (2 acres) which they own as tenants by the entirety and was occupied as their homestead, and says that there is no evidence as to rental value of this property and that the court\u2019s action was arbitrary. We do not agree.\nOn the facts presented, it was within the discretion of the trial court to award this entire homestead tract, its use, benefits and occupancy to appellee for her life, without allowing appellant any rental, and subject only to the right of survivorship of appellant. Appellant, therefore, is in no position to complain. We said in Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21, where a similar question of the possession of a homestead held by entirety was involved:\n\u201cAppellant contends, under the rules announced in the two cases cited, that the power and authority of the trial court was limited to making a division of the rents thereafter accruing from the property in question between appellant and appellee. This would be true with reference to any lands not embraced in the homestead, but not as to homestead land. There is nothing on the face of the record to show that the five-acre tract in question was not a homestead, so we must indulge the presumption that the testimony reflected that fact. This presumption brings the case clearly within the rule announced in Woodall v. Woodall, 144 Ark. 163, 221 S. W. 463, to the effect that courts may award to the innocent party in divorce suits the possession, for a limited time, or absolutely (meaning for life) of a homestead held by entirety.\u201d\nWe find no error in the action of the trial court in awarding appellee the injunctive relief against appellant which she prayed. Such action was within the court\u2019s power and the procedure followed appears to be in accordance with the provisions of \u00a7\u00a7 22-404, 32-102 and 32-103, Ark. Stats. 1947.\nFinding no error, the decree is affirmed.", "type": "majority", "author": "J. Seaborn Holt, J." }, { "text": "Ed. F. McFaddin, Justice\n(concurring and dissenting). I concur in so much of the opinion of this court as fixes the property rights; but I dissent from so much of the opinion of this Court as awards Mrs. McClain an absolute divorce. I am of the opinion that Mrs. McClain should have only a limited divorce, rather than an absolute divorce.\nBecause limited divorces have almost \u201cpassed out of style\u201d in our reported cases in the last thirty years, I think it well that Judges and others interested in marital relations should again give serious consideration to the granting of limited divorces: certainly such limited di vorces would prevent remarriage of either spouse and might bring about a reconciliation. Therefore, at the risk of being academic, I desire to briefly review this matter of limited divorces in order to show why chancery courts in Arkansas should resume the custom of granting only a limited divorce in a case in which the complaining party has been guilty of any wrong.\nOur Statutes and cases envision three kinds of proceedings in cases of marital difficulties:\n(1) A separate action for maintenance, which is a transitory action that may be prosecuted in chancery. Section 34-1201, Ark. Stats.; Wood v. Wood, 54 Ark. 172, 15 S. W. 459; Shirey v. Hill, 81 Ark. 137, 98 S. W. 731; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Savage v. Savage, 143 Ark. 388, 220 S. W. 459; and Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096.\n(2) A limited divorce \u2014 that is, from bed and board but not from the bonds of matrimony. In the old cases this is called by its Latin name, \u201cdivorce a mensa et thoro.\u201d Section 34-1202, Ark. Stats., says that the Chancery Court \u201c. . . shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony. . . .\u201d This \u201cbed and board\u201d divorce is the limited divorce. See Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171; Crews v. Crews, 68 Ark. 158, 56 S. W. 778; Gray v. Gray, 98 S. W. 975; Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804, 24 A. L. R. 912; and Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38.\n(3) An absolute divorce. This is called a divorce from the bonds of matrimony, and the old cases refer to it by its Latin terminology, i.e., \u201cdivorce a vinculo matrimonii.\u201d See \u00a7 34-1202 as above quoted, and nearly every divorce case in our Reports, save only the few cited in Sec. (2) above.\nFor convenience in terminology, I will hereafter use the words \u201climited divorce\u201d in referring to divorces from bed and board (i.e., divorce a mensa et thoro); and I will use the words \u201cabsolute divorce\u201d in referring to the divorces from the bonds of matrimony (i.e., divorce a vinculo matrimonii). When the court grants a limited divorce, neither spouse can remarry, whereas when an absolute divorce is granted, either spouse is privileged to remarry at any time. The distinction between the two types of divorces is stated in 17 Am. Jur. 147, as follows :\n\u201cAt common law and under the statutes in many states there are two distinct kinds of divorces \u2014 namely, the divorce a vinculo matrimonii or absolute divorce, and the divorce a mensa et thoro. The divorce a vinculo matrimonii or absolute divorce dissolves the marriage bond changing the status of the parties, while the divorce a mensa et thoro, sometimes called a decree of separation from bed and board, does not affect the status or dissolve the marriage, but merely relieves the parties from their obligations and rights as to cohabitation, support, and property interests.\u201d\nLikewise, the distinction is stated in 27 C. J. S. 522, as follows:\n\u201cDivorces are of two distinct types, absolute or a vinculo matrimonii, and limited or a mensa et thoro. An absolute divorce or divorce a vinculo matrimonii, sometimes termed simply a divorce, terminates the marriage relation. A limited divorce or divorce a mensa et thoro, sometimes called a legal or judicial separation, suspends the marriage relation and modifies its duties and obligations, leaving the bond in full force.\u201d\nWhen we read some of our cases in which the same person has been married four or five times, it seems that the courts ought to do something to prevent such a matrimonially-inclined person from being able to roam at large, and certainly a limited divorce would prevent a subsequent marriage. Back in 1857 when this Court decided tbe case of Bauman v. Bauman, 18 Ark. 320, divorces were rare; and there was no necessity to put a restriction on re-marriage. But now the number of divorce cases reaching this Court is alarming; and some check should be put on the remarriage of parties, both of whom have been at fault. Furthermore, limited divorces have a tendency to encourage reconciliation.\nSection 34-1209, Ark. Stats., says that if both parties have been guilty of any offense complained of in the divorce action \u201c. . . then no divorce shall be granted or decreed.\u201d This is called the \u201crecrimination section\u201d; and originally our cases strictly and literally followed that law, so that a person seeking a divorce must show himself or herself to have been entirely guiltless before a divorce would be granted. See Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Healey v. Healey, 77 Ark. 94, 90 S. W. 845; and Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013. Those cases should still be the rule today in all instances, in which the Court grants an absolute divorce; and the doctrine of \u201ccomparative guilt\u201d should be the rule to be applied in cases of limited divorce.\nGradually we have developed the doctrine of \u201ccomparative guilt,\u201d and have awarded a divorce to the least guilty of the two parties. Thus in LeMaster v. LeMaster, 158 Ark. 206, 249 S. W. 589, we held that where a preponderance of the evidence showed that the husband was chiefly responsible, the wife was granted a divorce. In Hensley v. Hensley, 213 Ark. 755, 212 S. W. 2d 551, we followed this doctrine of \u201ccomparative guilt,\u201d and said:\n\u201c. . . and while we find that she was not without fault, we also find that appellee was the chief offender, and we think a divorce should be granted appellant. LeMaster v. LeMaster, 158 Ark. 206, 249 S. W. 589.\u201d\nAnd in tlie case at bar, there is this language in the majority opinion:\n\u201cFrom the testimony of a number of witnesses, it appears that neither of these parties is without blame. \"We have concluded, however, without detailing the testimony, that appellee was the lesser offender.\u201d\nNow I maintain that this doctrine of granting an absolute divorce on the basis of \u201ccomparative guilt\u201d is in direct opposition to our Statute, \u00a7 34-1209, as above quoted. I further insist that under the case of Crews v. Crews, 68 Ark. 158, 56 S. W. 778, we should grant only a limited divorce where both parties are at fault; we can decide which is the least guilty of the parties and grant that one a limited divorce. In Crews v. Crews, Chief Justice Bunn quoted the findings of the Chancellor:\n\u201c. . . upon consideration the court finds that both parties are to a degree in fault and that neither is entitled to an absolute divorce, but finds that a decree of divorce from bed and board should be rendered. a\nThus in Crews v. Crews, the Court allowed a limited divorce on the basis of \u201ccomparative guilt\u201d; and I insist that when both parties have been guilty even to different degrees, then the only kind of divorce that should be granted is a limited divorce. I think the case of Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804, does not in any way modify or overrule Crews v. Crews; and I think that chancellors should be encouraged to grant only a limited divorce to the lesser guilty of the two parties, and that an absolute divorce should be reserved to be granted only to a person who is entirely without guilt or fault. This would be a return to our old holdings; and sometimes a return to the old moorings is a very fine thing. In the hope that such may occur in divorce cases, I am writing this dissent.\nIt is interesting to note a fact that seems to have been overlooked by the Digesters of Arkansas Statutes: all of what is now \u00a7 34-1202, Ark. Stats., from the beginning down through the sixth section, is the same law that has existed verbatim (with the exception of circuit court and chancery court terminology) since Statehood. See Chap. 51, \u00a7 1 of the Revised Statutes of 1837; Chap. 58, \u00a7 1 of English\u2019s Digest of 1848; Chap. 59, \u00a7 1 of Gould\u2019s Digest of 1858; \u00a7 2195, Gantt\u2019s Digest of 1874; \u00a7 2556 of Mansfield\u2019s Digest of 1884; \u00a7 2505 of Sandel & Hill\u2019s Digest of 1894; and \u00a7 2672 of Kirby\u2019s Digest of 1904. In other words, ever since Statehood, the courts have had authority to grant both limited and absolute divorces.\nFor Annotations dealing with this doctrine of \u201ccomparative guilt\u201d or \u201ccomparative rectitude,\u201d see 63 A. L. R. 1132, 159 A. L. R. 734, and 21 A. L. R. 2d 1267.\nWe have some cases which in effect disavow the doctrine of \u201ccomparative guilt.\u201d See Evans v. Evans, 219 Ark. 325, 241 S. W. 2d 713.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Ed. F. McFaddin, Justice" } ], "attorneys": [ "Carl Langston, for appellant.", "George W. Shepherd, for appellee." ], "corrections": "", "head_matter": "McClain v. McClain.\n5-195\n263 S. W. 2d 911\nOpinion delivered November 30, 1953.\nRehearing denied January 11, 1954.\nCarl Langston, for appellant.\nGeorge W. Shepherd, for appellee." }, "file_name": "0729-01", "first_page_order": 753, "last_page_order": 761 }