Mona C. Erickson v. Robert D. Erickson

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CA00-421

February 7, 2001

MONA C. ERICKSON AN APPEAL FROM WASHINGTON

APPELLANT COUNTY CHANCERY COURT

V. NO. E99-1272

ROBERT D. ERICKSON HONORABLE JOHN R. LINEBERGER,

APPELLEE CHANCELLOR

AFFIRMED AS MODIFIED

Mona Erickson appeals from a divorce granted to appellee Robert Erickson by the Washington County Chancery Court. The parties were married in 1971 and reared four children. Appellee is a regional vice president with Wal-Mart Stores, Inc., where he worked for the entire duration of the parties' marriage. Appellant has been a housewife for many years. In March 1998, appellee accepted a promotion that required him to move to Wyoming. Appellant remained in Springdale, where their daughter, Wynne, was in high school. Once or twice a month, appellee returned to Springdale for work-related duties. According to appellant, the parties intended that she would move to Wyoming after Wynne's graduation in 1999. However, on July 26, 1999, appellee filed for divorce on the grounds of general indignities, stating that he had been temporarily assigned to the Cheyenne, Wyoming, area, and that the parties had separated on March 15, 1998. On September 20,1999, appellee amended his complaint to state that he was a resident of Wyoming. Appellant denied that the parties had separated on March 15, 1998, and alleged

that their actual date of separation was July 25, 1999. Although appellant filed a counterclaim for divorce, she had it dismissed on December 9, 1999.

At trial, appellee moved to amend his pleadings to conform to the proof of the parties' eighteen months' separation at the conclusion of his case-in-chief. Over appellant's objection, the chancellor granted the motion. Finding that appellee was a resident of Wyoming and that the parties had lived separate and apart without cohabitation for eighteen months, the chancellor granted a divorce to appellee on the grounds of general indignities and eighteen months' separation. He awarded each party fifty percent of their marital assets, which had a value over $4 million. The chancellor found that appellee's interest in Wal-Mart stock options that could not yet be exercised were not marital property but compensated appellant with an award of alimony, stating:

This alimony award [$50,000 per year for three years] shall be considered "alimony in gross" and shall not be modifiable by the Court nor shall said "alimony in gross" terminate upon the death or remarriage of the [appellant]. The Court specifically finds that the [appellee] has received various stock options through his employer, Wal-Mart Stores, Inc. Those stock options which are not vested at this time are specifically found by the Court to be not property and thus not divisible. The Court has, however, taken into consideration the potential for said stock options in determining the alimony award to the [appellant].

The chancellor also found that 1,890 shares of Wal-Mart stock were not marital property and that appellee held them in a constructive trust for his brother.

Appellant asserts that the chancellor erred in finding that appellee established grounds for divorce, either general indignities or eighteen months' separation. Our courts have held that divorce is a creature of statute and can be granted only when statutory grounds havebeen proven and corroborated. Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000). In order to grant a divorce on the 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 to render 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). This finding must be based on facts testified to by the witness, and not upon beliefs or conclusions, in order that the court may be able to determine whether those acts and conduct are of such a nature to justify the conclusions reached by the witness. Id.

In his findings from the bench, the chancellor addressed these issues:

Both Mr. Erickson and Mrs. Erickson have said that they haven't slept together, they haven't had sex in five to eight years; that during the time [they've] been around each other which has been minimal, particularly in recent years, if Mr. Erickson has been in the same household, one of them slept one place and one slept another. There has been nothing, none of the tenderness that exists between husband and wife, for at least five to eight years. Mr. Erickson moved to Wyoming; he's been out there about 18 months now; he was not out there 18 months prior to filing this lawsuit, but, nevertheless, during the time he was out there Mrs. Erickson went out one time. That's not the way husbands and wives ordinarily do things. That's not a family relationship when that happens. She didn't bother to call him on the telephone one single time, not once, during the time he was out there. Now husbands and wives do different than that. When a fellow is working long hours and working as hard as he was doing out there supporting the family like he was, a wife will at least call and say, "Honey, how are you doing? Honey is there something I can do for you? Honey, what's going on?" That didn't happen. Mr. Erickson called on occasions, but he called to check on the kids. He didn't call his wife to see how she was doing in my judgment, he was looking at the kids. Mrs. Erickson said she likes to go out to eat at restaurants and they haven't been to eat in years together as man and wife although he's been here at least once a month during that time. I cannotvisualize the parties considering themselves to be husband and wife with that kind of arrangement. When a fellow comes in off the road after he's been gone for a long period of time and not have some sort of relationship, it doesn't necessarily have to be a sexual relationship, at least a loving relationship as husband and wife would do. That just hasn't taken place at all. They've had no vacations together and they're just - the proof, I think, is evident that they have in fact, not cohabitated as husband and wife and have satisfied that statute for a period of 18 months. In addition, I think these same things that go on, constitutes general indignities. There's no doubt in my mind about that.

We hear chancery cases de novo on the record but will not reverse a finding of fact by the chancellor unless it is clearly erroneous. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. Id. We will defer to the superior position of the chancellor to judge the credibility of the witnesses. Id.

Appellant asserts that she has never been rude or unkind to appellee. At trial, it was undisputed that the parties had not slept together or had sexual relations for several years. According to appellant, this sexual estrangement had begun with appellee's request that she sleep elsewhere because of her snoring; she also said that appellee had told her that she was fat and disgusting. Appellee denied telling appellant that she was fat and disgusting but admitted that her snoring had been a problem. Appellee stated that, when they went to a marriage counselor in 1999, he was embarrassed by appellant's indignation at being there. Appellee also testified that appellant had caused him to believe that he was nothing but a "paycheck" to her and that appellant had never called him in Wyoming. Although appellantcountered that she had called appellee but had been unable to contact him, the chancellor obviously did not believe her; he expressly found that she had not called appellee. This was a factual determination for the chancellor to make. Although human beings are capable of worse behavior than this, we cannot say that the chancellor erred in finding that appellee established general indignities sufficient to award a divorce to appellee.

Appellant also argues that the parties' separation had occurred because of appellee's acceptance of his position in Wyoming while their daughter was finishing high school in Springdale. She asserts that they had intended that she would join appellee in Wyoming after Wynne's graduation. Appellant points out that appellee admitted that he returned to Arkansas once or twice a month for business and that, on those occasions, he saw his family and sometimes stayed with them. Appellee, however, testified that the parties had separated on March 15, 1998, when he moved to Wyoming. Again, this was a factual determination for the chancellor to make, and we cannot say that his finding is clearly erroneous. Accordingly, we affirm the chancellor's finding that appellee established grounds for divorce on the basis of eighteen months' separation.

Corroboration of Grounds

Appellant also argues that appellee failed to corroborate his grounds for divorce. In a contested divorce case, the required corroboration of grounds may be slight. Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986). Corroboration is testimony of some substantial fact or circumstance independent of the statement of a witness that leads an impartial and reasonable mind to believe that the material testimony of that witness is true. Id. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential in a divorce suit. Id. 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.

The chancellor found that appellee's grounds were corroborated by Pat Zimmerman and Wynne Erickson. Wynne testified that her parents had not slept together for years and that she was unaware of any efforts that her mother may have made to contact appellee in Wyoming. The parties' neighbor, Pat Zimmerman, testified that, as far as he could tell, the parties had not lived together as husband and wife. This was sufficient corroboration of appellee's grounds for divorce on the bases of general indignities and eighteen months' separation.

Amendment of the Complaint

Appellant also contends that the chancellor committed error in permitting appellee to amend his pleadings to include grounds of eighteen months' separation at the conclusion of his case-in-chief. Arkansas Rule of Civil Procedure 15 provides for liberal amendments to and supplementation of pleadings. A counterclaim or a complaint can be amended to allege a ground for divorce that has arisen since the action was commenced. See Milne v. Milne, 266 Ark. 900, 904, 587 S.W.2d 229, 232 (Ark. App. 1979), where we stated: "Regardless of the nature of the action, a party should be allowed to amend a pleading at any time as long as it does not prejudice his adversary." See McKay v. McKay, supra; Price v. Price, supra; Ark. R. Civ. P. 15(a). Additionally, Rule 15(b) does not require that the claimbe pled in writing at the time the parties actually try the issues. It states: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 15(b) further provides that if evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the trial court may nonetheless permit amendment of the pleadings in its discretion and may grant a continuance to enable the objecting party to meet such evidence.

Here, appellee alleged in his complaint that the parties had separated on March 15, 1998. Although he did not specifically plead eighteen months' separation, appellant was fully aware that the date of their separation was in issue -- in fact, she answered that they had not separated until July 25, 1998. In his amended complaint filed September 20, 1999, appellee repled his allegation that the parties had separated on March 15, 1998. Certainly, appellant was not surprised by appellee's motion to amend his pleadings to include this ground. Additionally, appellant raised no objection to appellee's testimony about the date of their separation and did not request a continuance when the chancellor granted appellee's motion to amend his pleadings. Because appellant has demonstrated no prejudice by this amendment, we cannot say that the chancellor abused his discretion in permitting appellee to amend his pleadings.

Constructive Trust

We agree with appellant that the trial court had no authority to award the 1,890 shares of Wal-Mart stock to appellee's brother. Although third parties may be brought into, orintervene in, divorce actions for the purpose of clearing or determining the rights of the spouses in specific property, a trial court has no authority to award such property to a stranger to the action. Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). See also Grace v. Grace, 326 Ark. 312, 930 S.W.2d 362 (1996). Here, in finding that this property belongs to appellee's brother, the chancellor specifically found that it was not marital property. We will not reverse a chancellor's findings regarding the ownership of property in a divorce unless they are clearly erroneous. Jablonski v. Jablonski, 71 Ark. App. 33, 25 S.W.3d 433 (2000). Therefore, on our de novo review, we affirm the chancellor's finding that this stock was not marital property and modify his decision by deleting the finding of a constructive trust. See Copeland v. Copeland, supra.

Stock Options

Appellee further argues that the chancellor erred in failing to divide all of appellant's stock options as marital property. There is a presumption that all property acquired during a marriage is marital property. McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999). Generally, stock options constitute marital property if they are acquired during the marriage. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983); Dunavant v. Dunavant, 66 Ark. App. 1, 986 S.W.2d 880 (1999). In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), the supreme court held that pension plan benefits were marital property to the extent that a spouse had a vested interest in them. The court reasoned that benefits should be considered vested, or more than a mere expectancy, once they cannot be unilaterally terminated by the employer without also terminating the employmentrelationship. In McDermott v. McDermott, supra, the supreme court held that, to the extent a spouse acquired an enforceable right during the marriage to recover fees under a contingency-fee contract, the spouse acquired marital property. The pivotal question is not when the property is collected or received but rather when an enforceable right to the property is acquired. Id. The court stated: "[A]ny enforceable right to future benefits, whether subject to a contingency or not, is not a mere expectancy, but a form of property that is subject to division if acquired subsequent to marriage." 336 Ark. at 566, 986 S.W.2d at 847.

We held in Guinn v. Guinn, 35 Ark. App. 199, 816 S.W.2d 629 (1991), that a husband's interest in a "major needs fund account" through his employment was vested for purposes of property division and should have been treated as marital property, because his right to the account could not be unilaterally terminated by the employer without also terminating the employment relationship. There, the non-contributory fund was payable in cash upon the employee's retirement, layoff, disability, or death; the husband would become ineligible to withdraw the money in the fund only if he voluntarily quit or was discharged for cause.

Here, the stock options are not payable if appellee is fired or demoted, dies, quits his job, or steps down from his position as an officer and takes a lesser job with Wal-Mart. Hence, appellee's right to the stock options could be unilaterally terminated by Wal-Mart without also terminating the employment relationship. Following the foregoing authorities,we cannot say that the chancellor erred in finding that these stock options are not property subject to division.

The Parties' Son's Debt

Further, appellant argues that the chancellor erred in failing to award her a one-half interest in the parties' $20,000 loan to their son, about which she testified at trial. Neither party, however, included this debt in their list of marital assets. The chancellor stated from the bench that there had been "no evidence on that" debt, and we cannot say that this finding is clearly erroneous.

Appellee has filed a motion to dismiss this appeal because appellant has accepted alimony payments as provided by the divorce decree. According to appellee, appellant is estopped from arguing on appeal that the award of divorce to appellee should be reversed because she has accepted the benefits of that decree.

We disagree. It has long been the law that a spouse may challenge on appeal an award of divorce while accepting support, if the amount of alimony is not contested. See McIlroy v. McIlroy, 191 Ark. 45, 83 S.W.2d 550 (1935). Here, neither party has challenged the alimony award, and we cannot say that appellant's receipt of such payments is inconsistent with her prosecution of this appeal.

Appellee has filed an additional motion to supplement the record to include copies of alimony checks accepted by appellant after entry of the divorce decree. We deny his motion because our appellate review is limited to the record of the trial court proceedings. Jacobs v. State, 316 Ark. 96, 870 S.W.2d 740 (1994).

Affirmed as modified.

Robbins and Griffen, JJ., agree.