Veronica Witt v. David Witt

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

VERONICA WITT,

APPELLANT

V.

DAVID WITT,

APPELLEE

CA00-928

APRIL 4, 2001

APPEAL FROM THE WASHINGTON COUNTY CHANCERY COURT,

NO. E99-1599-4,

HON. MARY ANN GUNN,

CHANCELLOR

AFFIRMED

Appellant Veronica Witt brings this appeal from a divorce decree granting appellee David Witt a divorce on the grounds of general indignities pursuant to Ark. Code Ann. § 9-12-301(4) (Repl. 1998). For her sole point on appeal, she contends that the court erred in granting David a divorce because he failed to provide any corroboration for his grounds for divorce. Therefore, she asks this court to reverse and dismiss the case.

The parties were married on December 12, 1992, and two children were born to the marriage. Veronica filed for divorce on September 22, 1999, alleging general indignities as her grounds. David answered her complaint and filed a counterclaim, also alleging general indignities. At the hearing on the matter, Veronica testified that she had filed for divorce previously and the action had been dismissed on September 15, 1995, because she could not prove general indignities, the grounds alleged in her complaint. She stated that after the

hearing on September 15, she was driving to her daughter's school and passed David in his car. David had checked their daughter out of school early. Veronica and her brother followed David to the babysitter's house where their youngest child was. Veronica then tried to get their oldest daughter out of David's car, at which time David hit her and tried to choke her. David was arrested for assault.

Veronica also testified that she knew a man named Mike Smith and that she had had a sexual relationship with him. She admitted that Smith drives a 1998 Jeep Wrangler, assessed in her name, with a license plate on the front that reads "Veronica and Mike." A picture of the license plate was admitted as Exhibit Number 1.

Diana Scott, Veronica's mother, testified that David was very controlling during the marriage. She also stated that she knew Mike Smith because she owns a convenience store in Nob Hill and that "everybody goes there."

David Witt testified that he picked up his oldest daughter from school on September 15, and that as he was driving away from her school he passed Veronica and her brother in her brother's car and that they turned around and began honking at him. At a stop light, Veronica got out of her brother's car and began beating on David's window, yelling, "Give me my daughter." At the babysitter's house, the two engaged in a physical alteration. He admitted to pleading guilty to second-degree assault.

Betty Witt, David's mother, testified that she babysits the couple's children and that David did all of the housework during the marriage because Veronica worked long hours.

Neither party waived corroboration of grounds for divorce. The chancery courtgranted David a divorce on his counterclaim. The chancellor stated, "I find from the evidence that Mrs. Witt does have a male friend, and she does have a male friend that has spent the night.... [A]nd that she has engaged in sexual intercourse with this gentleman, and that the corroborating testimony is Exhibit Number 1, and that she's been candid, she's not lied about it."

Veronica filed a motion for a new trial, contending that the appellee's grounds for divorce were not corroborated. The motion was deemed denied. She brings this appeal, contending that the court erred in granting David a divorce on the grounds of general indignities because David failed to corroborate the grounds. She argues that the only witnesses to testify, other than the parties in the action, were her mother and his mother and that neither witness stated that she had offered such indignities to David that rendered his condition intolerable. She maintains that the court erred in stating that Exhibit 1, which was the photograph of the "Veronica and Mike" license plate, served as corroboration. Instead, Veronica asserts that actual testimony from a witness, other than a party to the action, is required to support David's claim for divorce on the grounds of general indignities and that her testimony, alone, is not enough to meet the strict statutory requirements.

We review chancery cases de novo on appeal, and the findings of the chancellor will not be reversed unless they are clearly erroneous or clearly against the preponderance of the evidence. Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000). Divorce is a creature of statute and can only be granted when statutory grounds have been proven and corroborated, unless there has been an effective waiver of corroboration. Oates v. Oates,340 Ark. 431, 10 S.W.3d 861 (2000). Corroboration requires 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. Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986).

Our court has stated:

The rule of this state, long established and uniformly adhered to in our decisions is that while both parties are competent to testify in a divorce action, in order to justify the granting of a divorce the testimony of the complaining spouse must be corroborated by some witness other than the parties to the action. That corroboration may not be supplied by the defending spouse as divorces are not granted upon the uncorroborated testimony of the parties or their admissions of the truth of the matters alleged.

Calhoun v. Calhoun, 3 Ark. App. 270, 272, 625 S.W.2d 545, 546 (1981). In contested cases where corroboration has not been waived but there is no intimation of collusion, the corroborating evidence may be relatively slight. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989); Bell v. Bell, 15 Ark. App. 196, 691 S.W.2d 184 (1985).

Arkansas Code Annotated section 9-12-301(4) states that a chancery court may dissolve a marriage when either party shall offer such indignities to the person of the other as shall render his or her condition intolerable. Arkansas Code Annotated section 9-12-301 (5) allows a court to grant a divorce when one of the parties to the marriage has committed adultery.

In the case at bar, we cannot say that the chancellor's finding that corroborating evidence exists to support David's grounds for divorce was clearly erroneous, and we affirm. Veronica testified to having an extramarital affair with Smith. Veronica is correct inmaintaining that this court has defined corroboration as testimony of some substantial fact or circumstances 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. See Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986). However, we do not agree with Veronica that actual testimony from a witness was needed in order for the grounds for divorce to be corroborated. Instead, we find that Exhibit 1, which was a photograph of a license plate that read "Veronica and Mike" serves as corroborating evidence of an extramarital affair. This holding is supported by our long-standing rule that where there is no evidence of collusion, corroborating evidence in an uncontested action may be slight. Id.

We are cognizant that a chancellor may consider an admission of adultery as a cause for divorce on the grounds of general indignities or adultery. See Dunn v. Dunn, 219 Ark. 724, 244 S.W.2d 133 (1951). In the case at bar, there was an admission by Veronica of an extramarital affair and corroborating evidence to support the testimony. Therefore, we cannot say that the chancellor's finding of fact that corroborating evidence exists to support David's grounds for divorce was clearly erroneous, and we affirm.

Affirmed.

Robbins and Roaf, JJ., agree.