ARK.] COLE, V.,COLE. 381 • J„:.1 : QOLE.V. • . . 'OPIril0E. delivered March 30 '1925. . . DIVORCECON CLDSIVE NESS OF WIFE'S . STATEMENT. IR: 1in action .;; .hy xi wife; for : divorce on the :grounds of cruel treatment and , iñ4 igpi . ties, her , written statement 4 . -: 1 yen :to him: at the time she feft 'Min, in whiCh` She absolved' him from nni' ehaige of infs-' .4; 'conduCt, held nt 'c6nehisive, bUt merely tO be 'ethiSidered"WIth
othe testinionyi ; . , ! • ; DIVORa' dANCELLATION OF DEED--PARTIES.—ID an action - ; diNforee, cancellation ,of the husband's deed to Ilis,mother as •in :fraud r of , the .wife's . rights was not justified where: his mother -cias na a party. 3. PIVORCE—ALLOWANCE OF ATTORNEY'S FEEL—Where, On the Pend-'eneNi'tifban 'appeal by the husband, : tfie' trial; court directied the • 7 'husband: to , pay $50: :to . the wife's attorney, and , tihe decree !is • affirmed in. so far, as Wallows a divorce to. the wife,.the amount of such fee will not be deducted from the property allowance xnade by • the irial Court. • • . 41: ' DIvoii6E-EFFEc1 OF REVERSAL IN- PAur .=:Where a decree ' in' a divorce case was: reversed in so far as it' Canceled a deed' frorn the appellant bner 'not .a. party to, the suit, and, .remanded. for !‘.:. further ' proceedings on that issue alpe, this does not call for, a revers a' 'l a the 'whole cause nor' reOpen the issues as te the l 'ilk rorce; cT listiihntion oflirePerty; and 'illoWitnee of' CoUnser fees. 5. APPEAL' Az■ni' toiscO•Viitib EirinErx&E. -An tion On :rehearing :tor ; a new trial in a , divorce case on, account : of, newly discovered , evidence will,pot i?e considered . 6 s : . INYORCE,--PR . O , CEEWNG T . O, . MODIFY ,DECREE , AS , TO : CUSTODY , , OF , s C)IILDREN.-7 -A proceeding to modify-a decree in a divorce , suit as ,to the ciistody . of the children, based: upon neMY :diseoVered ' evidenee not 'Iithé in the trial . 'coini, • arid can * be . reviewed; only on: :appeal: 'from . its decrees. ; 7 . from G •1 r • e !! en " e ,Chan I, cery s. C ' oU . r t; 'Sa • n ), „ .41:1641. Cost 'en, SpeCial 'Chancellor; reversed in part 1 i Jel; Briatoz,.fOr appellant..: . M. P. kluddlesto , vb for appellee. , ,.■ MCCULLOCH, C. J. Appellant and appellee are hus-bapd and.wife; and this action was instituted by ; appellee ,(the wife)„to .obtain a divorc , e. and , to o,btain her distributive share , of appellant's :property, The action originated. , merely as one for. , division of: property, but
382 • ' COLE V. COLE. [168 0 i , subsequently appellee filed an amended complaint pray-, ing for a divorce on the ground of cruel treatment and indignities. • Appellee seeured, at the commencement of si the action, a temporary-order from the chancery court re-s Straining appellant from disposing of his property. It is also alleged in the 'complaint that appellant had fraudulently induced her :to join in a conveyance of a tract of land to appellant's mother, Mrs. Angie Cole, and that: this was done for the sole purpose of placing the title beyond appellee 's reach in securing her , rights in apriellant'S estate. There iS a prayer for a cancellation of that deed. , , Appellant filed his answer denying all the allegations I) of the complaint with reSpect to misconduct on his part, and the canse Was hdard 'by the' coUrt on oral testimony. The parties intermarried on August 24, 1919, and lived together:until the month of July, 1923, when appel- lee left-appellant's home and went to the home of her 'parents, - and abOut a month later instituted this- action. They have three children—two -girls and a boy—their ages running 'from three year's ddwn to about two months at the time of the commencement of the action. Appellee alleged ih . hor 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 inio society. All of these charges were denied by appellant, and he introduced testimony tending to show that the charges were unfounded. • . , . The record 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
ARK.] COLE V. , COLE. 383 to see. that the finding of the trial .court is against the preponderance of the evidence. , The contention of appellant is that appellee left of her own accord and without any cause heing given,. and that her sole purpose was to enter upon some career of her own, and that, when she left him, she gave him a written statement absolving him from any charge .of rais-, conduct. 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. . Appellant is shown to be a man conducting a suer, cessful 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's fee of $150 and also to pay to appellee the smn of thirty-five dollars per month for the support of the children. The court. also canceled the deed to appellant's mother, Mrs. Angie Cole, and appointed commissioners to set apart appell lee's portion of one-third. , We _find that the testimony justified the . award of personal property to appellee, as well as the other allow7 aloes, but it was improper to cancel the deed to Mrs: Cole, for the reason that she Was not a party to the action. During the pendency of .the appeal, this court made an order directing appellant to pay appellee the sum of $50, to be used in payment of . attorney's 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. The decree is therefore affirmed in all things except as to the cancellation of the de.ed to Mrs. Cole, and. that
384 CotE V. •COLE. •[168 part 'of the decree is reversek and the .01.iSe. : rernanded with directions that, unless • aPPellee is .adVised.to-niake Mrs. Cole a party' tO the actiOns and does so; the complaint be..dismissed. as' to the cancellation 'of the ConVeyance It is so ordered... ! - • '• • '''•" • McariloCii;9C. .rehearingy. 'ApPellant 'hag filed here h Certified •:cOpY : Of 'an' eider Of :the."ChancePor, rendered : .SUbseqUent to the 'rendition óf' the 'decree 'appealed froand . in' this order the custedy . of th'e children iS 'changed' from appellee tb' appellant; without 'changing, hOweVer,. the • order- previonSly Made by • AO -Court with reSPect to • the payment of 'thirty-five . ddllar g " pet Menth to appellee for the support of the . .children. It doe' s nbt appear . froin this' Opplemental reCord, hoWeVeiT that the ceurt was 'asked te Modify' . the • original 'decree in this respect, 'nor' has' there been any appeal . 'prosecated' from the . Order. We are . asked I to. Modify ihe decree'so aS' to eliminate the requirement for the payment Of the mOnthly allOwance to' . a.ppellee, or to remand the! whole'canSe 'fOr trial de' 'itovO' SO that' the lower. Court can Make . SuCh-order and 'can hear new evidence' . 0A' ali the the case: • -'• . • •,, It is alleged in . the petition Thr rehearing that aPP6I-lant 'ha g ' di scOVer n ew eVidenee, and hi el 'insist that . , -inasimich as-the . 'eauSe`haS been ; reinanded 'for further proceedings . With 'respeet te 'the ' caneellatibii of the deed to 'Mrs. Anigie 'Cole; 'vit e 'should -tertian& the' whOle cause for further . proceedings so as to afford appellant opPortnnit to present this • ' The factthat we . reversed thedanseori One iSstie'does net'call for . a reVerSal- Of the eanSe . on The main.isstie,:the evidence . being . sufficient tO . 'Support the decree diVoree-. and Tor' distribution Of property, allthvance of fees, ete.' ' 'Neither does; the . fact that 'appellant has 'disi Covered-new evidence call 'fel- : a reversal:- . .We try chant-eery basea here de'"noto, but upoU the .recerd , tiade On the trial below, and we . have neauthOrity to , ..consider here an applioation for . ia, trial de' novO on account . of llew dis- covered • evidence, that being an Original Proceeding:.The
ARK. 385 same may be said with reference to appellant's application to modify the decree making a monthly allowance. That 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. Rehearing denied.
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.