ARk.] SMITH V. SMITH. 353 SMITH V. SMITH. 4-2992 Opinion -delivered May 1, 1933.- 1. DIVORCE—SUFFICIENCY dRoss-co • mPt . 4pii • .—Where a wife sued for 'divorce on the ground Of desertion, and the husband filed a cross-conaplaint on the saMe ground; failure' bf the crossconf-Plaint to allege the place of marfiage arid of separation was supplied by allegations of the wife's complaint where the cross-com-,plaint admitted all of the , allegations of the wife's complaint except that he desertea her. ; 2. DWORCID—FINMNG 'OF DESERTION. A. finling th a . t a husband.was entitled to a divorce on the , ground of desertion held not against" the prepOnderaiieé-oi th'e eVidence. . DIVORCFEVIDENCE.—A husband, testifying on the issue of hi's ,wife's desertion, under no :obligation to answer the question
_ . :w,hether he Would take his wif .e back, where she had made no , offer to return. • A:Ppeal froni. Hot Spring Chancery COurt ; Sam,- W: Garratt, Chancellor ; 'affirmed. , Osear Barnett, for apPeltant. 11...13. Means, for appellee.' J:"' The 'ApPellant, Stella Sthith, and ap-Pellee, Filng Sniith,' were husband and wite, and - in the latter Part of 1931 aPPell . a nt fil , ed in :the Hot Spring Chancery Court a 'snit fOr' divorce, alleging that appellee. had offered tO"lier t , . sUch indignitieS,' 'consisting Of rude-nes . s; tirimerited reprOAch,' 'contempt; stildied"fiegreet, and Open insult, rdndeting" her cOndition intolerable. She also , alleged that APPelle*e desetted' het" on June 28, 1930; 'and that' he 'COritintles 'tO desert het-and: abandOn her: ' ; •' • In the s'aMe' COraplaint -appellant alleged that Fihis Smith wrongfully And Wickedly cOn g pired with J. Millard SMith to depriVe 'her: 'of' -her . rights to' enjOy herself ;Us the' 'wife' of Filtt glSniith. that Appellant and "apPellee, 'Fans Smith had acquired certain real estate', and 'that Filus Smith , 'and his father .malicionsly, ,wrongfully -and ',wickedly conspired to . defraud' her of said-lands by llowing sani6 to-go' on delinquent land list for taxes, and permitting .. Said. J. 'Millard. Sinith to buy same in at tax sale; that he procured tax deeds for said lands and lad
354 them recorded with the malicious and Wicked intent to defraud her and deprive her of its use; that said tax deeds were procured by fraud to prevent her from collecting alimony due from Filus Smith: She also alleged that they had conspired to teach her children to hate her, and that J. Millard Smith wickedly• influenced her husband to leave, desert, and abandon her. She prays judgment against J. Millard Smith in the sum of $25,000, and also prays judgment against Filus Smith in the sum of $25,000 and asked judgthent against both of them in the sum of $25,000, and asked that the tax deeds be 'set aside. - Answer was filed by both Filus Smith and his father denying the material allegations of the complaint as to causes for divorce and conspiracy. Filus Smith filed a cross-complaint alleging that appellant wilfully degerted him without reasonable cause for more than the space of one year, , and, still continues to desert , and abandon him, and prays that he be . granted a divoree. The evidence is in conflict, and it would serve no useful purpose to set it out here: , The court , entered a decree holdiiig that the, allegatiOns of the cross-complaint are fully 'sustained bY ,the evidence, and granted Filus Smith a divorce, , and , dismissed the complaint Of the ,apPellpnt. The court further found that the lands described in the complaint were acquired by Stella Smith and Filus Smith, and that during the litigation,,between them J. Millard Smith, the 'father. of Filus 8mitfi, through fraud and connivance with Filus ,Smith, procured .tax deeds and placed them on record; that said deeds were: procured by fraud with the intent to defeat , . the title and interest of Stella Smith. , The decree set , the tax deeds aside and field, them for naught, and revested the property in Stella Smith and Filus Smith, clear of any claim Of J. Millard Smith, The court also gave judgment for $163.35 alimony, and $25 attorney's_ fee, and decreed a lien On the land to pay the same. The custody of the children, Filus and Stella Smith, was awarded to :the .appellee, Filus Smith. •
SMITH V: SMITH. 355 : ThiS appeal is prosecuted,to reYers'e the decree grant ing divorce and awarding the custody of the children to the father. There is no- appeal from the decree setting aside the tax deeds; and revesting title in Stella and Fihis Smith. - • '1 The aPpellant firSt contendS that the appellee does not allege the place of marriage, the date Of marriage, or the place of separation:• The appellant, however, in her &finplaint alleged the date and place of' marriage, and the appellee, Fihis Sniith, in his ; ansWer stated 'that he admitted all the allegations of the complaint for di-veree,"except that'he deserted appellant on June 20;1930. • It is next contended by the appellant that there is no Proof in the recerd anYwhere' that . appellant deserted or abandoned appellee, excePt the . statement of appellee hiraself. It is trfie that nobody elSe testifies that She left him: on March 2, 1929. It appears that this is the third time appellant has brought suit for divorce. Anna Forelines testified that she was 58 years of age, knew Filus Smith and his wife when they lived •together. She did not know the date when they sepa-, rated.. She heard appellant say :while they were living together that he was good to her, and that they got along but for her, terrible temper ; that the statements made by appellant in the presence of witness were prior to the last separation. AManda Burl§ stayed . with Filus i S t p h and his wife aboui,two.weelis some years ago, and testified that Smith was kind to ,her, but appellant told her that she did not intend to live ,with appellee.. . Regine Smith-testified that they were , liying at- their home, and that appellee ' came, to the home of:witnesses and brought his two children. Witness also testified that, as long as they lived together, they lived at the home appellee provided for her. • 1. • •A :number :of ' witnesses testified as to , a'ppellee'S ki • nd a ne ss- to appellant:. , : •• - M. : Buck, father . of the appellant, testified that he was present in June, 1930, and heard Filus 8mith tesj
-- tify,-,and.,-that 'his_ daughter -and.Filus .Smith had , not Jived together since then.. - •. There were, in-addition to testimonyPf the:witnesses; circumstances tending to corroborate the appellee. .ks already stated, there seems to have been two or three suits for •divorce, .of: -them evidently in.Hot :Spring County, and. the chancellor ,had had. the parties , before him in these other suits, and,. probably for that, reason, the attorneys on .. .eaCh side were not..as careful .in the, presentation of •testimony As they otherwise might have been, , . •. •. .• • The -manner of , separation ,was purely .question of fact.-• .Appellant.calls attention to the ,case of Reed v.. Reed, 62- Ark 611 . : 37 S: W. 230. • .It was • there • held - that a ,hus- , band .was not . ..entitled fo ,a, divorce ori the - grounds,pf desertion by the wife where she;:separatedifromlaim.by his , consent, and :such consent may be: t expressly given oi iMplied from the words Or aetS. , There is no evidence in the reCord tending to •shoW that appellee consented' to the g eparation. He testified: "-I did nstit , haVe'anY:strings Oir my Wife ;. after I' Seen .she. was going, of CoUr ge I asked hereto g; ■to fiftyLfifty , in taking Care of 'the children:: 'I do nt s knoli- that it Was -inapoS sible' for thy wife tO live 'there in -the . hOuse' with -My people:" . ' .He* Was then aAed• :''' .`Will YoU take your . Wife back'?" He deelined to anSwer this qtestiOn. '• •".' We do not think he ,was . u . n • der any obligation to an- .sWer this . 'qUei Stion for the reasen that theie',i' no evidenCe that she' had offered' . to ''go back to hiM.: wanted' to go back to hith, 'and had Made-this. kfielYvit'to him, it would then have been tithe for l hiin to .deterinine whether he Would :take her . baCk,‘but; ia'S 'She . had ! nOt ex-présSed 'AO WillingneSS tsaretUrt, there WAS if() 'reA8'61i for him to say whether he would or woutd-liot take her baCk. •:' '• ; • • . The court made an order vesting thelitle to the land described, in appellan•'s complaint:in 'Filus .Smith and Stella Smith, and there is no appeal-from this -part of the decree. .The chancellor also gave •4 thelands for - the -alimony; Cost,', and -attornev ?s :fee.
This court also , made an order requiring the appelr lee to pay $25 Attorney's *fee and . Costs, and . this, :together with the alimony and costs in the lower court, is adjudged ,against . the appellee, and a lien given on his- interest in the lands . to secure the payment of these amounts. . • . - The findings of the chancellor are not . against the preponderance, of, the evidence, , and , the decree is affirmed. • • :
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.