Wesley Akee v. Donna Akee

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 00-343

October 11, 2000

WESLEY AKEE

APPELLANT APPEAL FROM PULASKI COUNTY

CHANCERY COURT, FOURTH DIVISION

VS.

HONORABLE ROBIN L. MAYS,

CHANCELLOR

DONNA AKEE

APPELLEE AFFIRMED

This is an appeal from a decree of divorce. For reversal, appellant contends that the chancellor erred in denying his motion for a continuance and in granting the divorce because appellee failed to prove and corroborate her grounds for divorce. We find no error and affirm.

The parties in this case were married in February 1995, and they separated in June 1999. On August 26, 1999, appellee filed a complaint for divorce on grounds of general indignities. She asked for custody of their four children and requested that appellant be required to pay child support. The record contains a letter to thecourt written by appellant and file-marked on October 18, 1999. In this letter, appellant stated that he was "not guilty" of the charges levied in the complaint, and he asked that any future correspondence be sent to the address of a towing company in Memphis, Tennessee. On November 1, 1999, a notice of hearing was sent to appellant at the towing company address informing him that the final divorce hearing was scheduled on December 1.

Appellant appeared at the hearing with an attorney, who requested a continuance in order to have more time to prepare for trial. Appellant's counsel explained that he had met with appellant the week before but that he had only been retained two days ago. Counsel stated that he did not learn of the hearing until the day before when he checked the file. It was said that appellant had not received notice of the hearing because he had changed employers. The chancellor denied the motion for a continuance, and the hearing went forward. Appellee was granted a divorce and given custody of the children. Appellant was ordered to pay $144.00 a week in support.

Appellant first argues that the chancellor erred in denying his motion for a continuance. We disagree. Rule 40(b) of the Arkansas Rules of Civil Procedure provides that a court may, upon motion and for good cause shown, continue any case previously set for trial. The decision to grant or deny a continuance is entrusted to the sound discretion of the trial court, and we do notoverturn that decision on appeal unless the trial court has manifestly abused that discretion. See Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987). Here, the notice of the hearing was sent to the address that appellant had given the court just two weeks before the notice was delivered. Although he claimed not to have received the notice, appellant did consult with an attorney just prior to the scheduled hearing date. Under the circumstances, the chancellor need not have been persuaded by appellant's claim that he was unaware of the hearing, and she could conclude that appellant was less than diligent in his preparation for trial. A trial court has an obligation to manage and control its docket in an efficient manner. Odaware v. Robertson Aerial-AG, Inc., 13 Ark. App. 285, 683 S.W.2d 624 (1985). We find no abuse of discretion in the chancellor's denial of a continuance.

Appellant next argues that the chancellor erred in granting the divorce. He contends that appellee failed to prove and corroborate her grounds for a divorce.

Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985). In order to grant a divorce on grounds of general indignities, the court must find that the offending spouse is guilty of conduct amounting to rudeness, contempt, studied neglect, or open insult, and that the conduct has been pursued so habitually and to such an extent as torender the conditions of the complaining party so intolerable as to justify an annulment of the marriage bonds. Price v. Price, 29 Ark. App. 212, 780 S.W.2d 342 (1989). In Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986), we said this of corrobora tion:

This court has defined corroboration as testi mony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that the material testimony of that witness is true. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential in a divorce suit. Corroboration is required in order to prevent the parties from obtaining a divorce by collusion, and where there is no evidence of collusion, the corroboration may be comparatively slight.

Id. at 121 (citations omitted). Although we try chancery cases de novo on the record, we do not reverse unless we determine that the chancery court's findings were clearly erroneous. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999).

At the hearing appellee testified that appellant cussed at her and called her names such as "whore" and "slut" in front of the children and that he accused her of sleeping with other men. Her witness, Linda Gough, testified that she had witnessed three such verbal exchanges, during which appellant used the word "bitch" and accused appellee of being a "loose person."

It has been said that the charge of sexual promiscuity or infidelity is probably the most offensive charge one spouse canmake against the other, and it has been held that to make such a charge without basis is an indignity entitling the spouse charged to a divorce. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). Appellee testified that appellant accused her of being unfaithful, and the corroborating witness testified that appellant also made that charge in her presence. We cannot say that the chancellor's findings are clearly erroneous.

Affirmed.

Crabtree and Roaf, JJ., agree.