Edmundo Rogers v. Cynthia Rogers

ca01-790

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

CA01-790

June 19, 2002

EDMUNDO ROGERS AN APPEAL FROM BENTON COUNTY

APPELLANT CHANCERY COURT

[NO. E2001-1602-1]

V.

HONORABLE XOLLIE DUNCAN

CYNTHIA ROGERS CHANCERY JUDGE

APPELLEE

REVERSED AND REMANDED; APPELLEE'S

MOTION TO AFFIRM IS DENIED

Judge Karen R. Baker

Arkansas Court of Appeals

(Non-published)

In this divorce case from Benton County, appellant Edmundo Rogers challenges the divorce decree on several bases, including lack of corroboration of residency, insufficient proof of grounds, the defense of condonation, failure to enforce a premarital agreement, and the award of child custody to appellee Cynthia Rogers. We agree with Mr. Rogers that there was insufficient corroboration of residency, and we reverse and remand on that basis. In doing so, we also hold that the trial court committed error in failing to enforce the parties' premarital agreement.

Appellant and appellee were married on March 5, 1993, and they have three minor children. On September 6, 2000, the couple had an altercation in the parking lot of a gym. According to Mrs. Rogers, she became concerned and went looking for Mr. Rogers on thatdate when he had not come home by 11:15 p.m. She located him in the gym parking lot, where he was talking with a woman. She confronted him about not being home, and he shoved his duffle bag in her face. He told her to go home, but she continued to argue with him. He then lunged at her through the window of her car, grabbed her neck, and pushed her against her seat. According to her, she could not breathe and felt she was choking. When he let go, she went to the police department nearby.

Officer Charles Hines was called to investigate the matter upon Mrs. Rogers's arrival at the police station. According to Hines, Mrs. Rogers was crying and extremely upset, and she had noticeable injuries on her neck, which he said indicated strangulation, and bruises on her arms. Within minutes, Mr. Rogers entered the lobby in an aggressive manner. The officer stated that he felt threatened by Mr. Rogers 1 and instructed him to sit down, but he did not until he was asked a second time. In the officer's opinion, Mr. Rogers was attempting to continue the battery of his wife. He was subsequently arrested.

Two days later, on September 8, 2000, Mrs. Rogers filed for divorce on the grounds of general indignities. The case went to trial on January 25, 2001.

Corroboration of Residency

At trial, Mrs. Rogers testified that she had been a resident of Bentonville (Benton County) since 1991. Her adult daughter by another marriage, Amber Thorpe, testified that, at the time of trial, her mother had lived in Benton County for more than ninety days. No other testimony was adduced regarding Mrs. Rogers's residency. Mr. Rogers contends thatthe evidence presented at trial does not meet the residency requirements of Arkansas law. We agree. To obtain a divorce, a plaintiff must prove residency in the state by either herself or the defendant for sixty days before the commencement of the action and residency in the state for three full months before the final judgment granting the decree of divorce. Ark. Code Ann. § 9-12-307(a)(1)(A) (Repl. 2002). Residency must be proven and corroborated in every instance. Ark. Code Ann. § 9-12-306(c)(1) (Repl. 2002); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989). If a trial court renders a divorce decree without obtaining sufficient proof and corroboration of residency, the decree has been entered without jurisdiction. Araneda v. Araneda, 48 Ark. App. 236, 894 S.W.2d 146 (1995).2

In this case, Mrs. Rogers, by testifying that she had lived in Bentonville since 1991, proved her residency in the state for both of the required periods. Her daughter's testimony corroborated the statute's three-month residency requirement. However, there is no corroboration of Mrs. Rogers's residence in the state for the sixty-day period prior to filing the complaint. Although we have carefully reviewed the testimonial and documentary evidence contained in the record in hopes of remedying this defect, we find nothing that passes beyond the realm of speculation and conjecture to corroborate Mrs. Rogers's residency in the state for this particular period.3

We recognize that, where it is plain that there is no collusion, corroboration of residency need only be slight. Hodges v. Hodges, supra. But, by the same token, residency for the required period is jurisdictional and, dealing as it does with the power and right of the trial court to act, corroborating evidence of residency should not be speculative and vague in scope. Araneda v. Araneda, supra. In light of this, we must reverse the trial court's entry of the divorce decree. As was done in Araneda v. Araneda, supra, and Hingle v. Hingle, 264 Ark. 442, 572 S.W.2d 395 (1978), we do not reverse and dismiss, but rather reverse and remand for further proceedings.

Proof of Grounds

Mrs. Rogers sought a divorce on the grounds of general indignities, but the trial judge granted the divorce on the ground of "spousal abuse." Mr. Rogers correctly points out that the term "spousal abuse" is not listed as a ground for divorce under Arkansas Code Annotated § 9-12-301 (Repl. 2002). However, we believe that the trial judge's use of that term is, under the facts of this case, equivalent to "cruel and barbarous treatment as to endanger the life of another," which is listed as a ground under subsection (3) of section 9-12-301. The choking incident provides sufficient proof of cruel and barbarous treatment that endangered Mrs. Rogers's life, and Mr. Rogers was well aware that she was relying on that incident as the basis of her grounds for divorce. Therefore, we find no reversible error on this point. However, we reiterate that divorce is a creature of statute and can only be granted when statutory groundshave been proven and corroborated. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984).4

Condonation

Mr. Rogers asserted the defense of condonation, claiming that he and Mrs. Rogers had engaged in sexual relations several times since the filing of the divorce complaint. Mrs. Rogers denied that such relations had taken place. The trial judge ruled in Mrs. Rogers's favor, stating that, "[t]he defendant's claim of sexual relations between the parties in my estimation is insufficient to establish reconciliation. I was more convinced it was trickery on the defendant's part to defeat the divorce and possibly maneuver into a better position." On appeal, Mr. Rogers contends that the evidence clearly showed a renewal of intimacy between the parties after they had separated.

Because we do not know the current status of the parties' relationship or what additional evidence may be presented on this point upon remand, we decline to address it in this opinion. However, we note for general purposes that due regard is given to the superior opportunity of the trial judge to assess the credibility of the witnesses before her. See Elerson v. Elerson, 6 Ark. App. 255, 640 S.W.2d 460 (1982).

Premarital Agreement

On March 5, 1993, (the date of their marriage) Mr. and Mrs. Rogers executed a Premarital Agreement.5 The Agreement provided that, in the event of a divorce, each party would retain control and ownership of all property brought into the marriage or titled in his or her name. Jointly held property would be divided evenly. The Agreement also provided that, before one spouse could request a divorce, the parties must seek marriage counseling. If the requesting spouse refused to comply with that provision, he or she would be required to accept the lesser part of any property where a fifty-fifty split was not reasonable, and would suffer a ten percent penalty against his or her half of the divided assets.

The Agreement further noted that each party had consulted his or her attorney concerning the Agreement, that the Agreement was explained to them, and that it was freely entered into. A disclosure of each party's assets was also attached to the Agreement.

At trial, Mr. Rogers asked that the Agreement be enforced. The trial judge refused to do so on the grounds that the Agreement was unconscionable and that it had been discarded by the parties as evidenced by the fact that they (1) did not adhere to the Agreement's marriage counseling provision, and (2) entered into two other contradictory agreements. The two other agreements referred to were stipulated property agreements entered into after the divorce complaint was filed, but prior to the entry of the decree. The agreements contained stipulations for the division of some, but far from all, of the parties' property, both jointly owned and individually held, and addressed other matters such as insurance, alimony, and child support. Each agreement contained the following preamble:

The parties have entered into the following agreement and stipulation regarding division of property notwithstanding any other or subsequent agreement between the parties. This agreement is independent of any other agreement or stipulation between the parties. The parties agree and stipulate that the following property shall not be in dispute and that [the] designated party shall have full ownership of the listed [property].

The Arkansas Premarital Agreement Act provides that a premarital agreement is an agreement between prospective spouses made in contemplation of marriage, to be effective upon marriage. Ark. Code Ann. § 9-11-401(1) (Repl. 2002). It must be in writing and signed and acknowledged by both parties. Ark. Code Ann. § 9-11-402 (Repl. 2002). The parties may contract regarding, among other things, their property rights and the disposition of property upon marital dissolution. Ark. Code Ann. § 9-11-403 (Repl. 2002). After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. Ark. Code Ann. § 9-11-405 (Repl. 2002). According to the commentary to that statute, revocation of a premarital agreement requires the same formalities as the original execution.

A premarital agreement is not enforceable if the party against whom enforcement is sought proves that she did not execute the agreement voluntarily or that the agreement was unconscionable when it was executed, and before execution of the agreement she was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; did not voluntarily or expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and did not have, or reasonably could not have had, an adequateknowledge of the property or financial obligations of the other party. Banks v. Banks, 347 Ark. 383, 64 S.W.3d 746 (2002); Ark. Code Ann. § 9-11-406(a) (Repl. 2002).

We agree with Mr. Rogers that the Agreement was not unconscionable, nor was it revoked by the parties. The trial judge's ruling that the Agreement was unconscionable appears to be based upon the idea that it is not equitable for a spouse to amass assets in his own name and thereby prevent them from being divided. However, the parties freely agreed to that practice by the terms of the Agreement. Further, there is no evidence of unconscionability as defined by section 9-11-406, i.e., no evidence that Mrs. Rogers executed the agreement involuntarily or that she was not afforded disclosure of Mr. Rogers's assets and obligations.

Secondly, we disagree with the chancellor's finding that the parties' disregard of the Agreement is evidenced by their failure to attend marriage counseling. It was Mrs. Rogers who chose to file for divorce without following that provision. The Agreement itself provides that such action will result in a penalty to Mrs. Rogers, not that it will negate the Agreement.

Finally, we disagree with the chancellor that the parties' execution of the partial stipulated property agreements revoked the Premarital Agreement. The fact that parties, during the divorce process, stipulate as to the division of a portion of their property, does not, in and of itself, revoke a premarital agreement; a formal revocation is required. The commentary to section 9-11-405 provides that, "[t]his section requires the same formalities of execution for an amendment or revocation of a premarital agreement as are required for the original execution." The stipulated property agreements in this case were not acknowledged, a formality that would be required for the original execution of a premarital agreement. Ark.Code Ann. § 9-11-402 (Repl. 2002). Further, the stipulated agreements' division of a small portion of the parties' property, much of which was individually possessed or owned to begin with, is not so inconsistent as to revoke the Premarital Agreement in its entirety.

Because we reverse the trial judge's determination that the Premarital Agreement was unenforceable, we anticipate that all matters regarding division of the parties' property will be affected. Therefore, we do not address the individual errors assigned by Mr. Rogers pertaining to the division of certain items of property and marital debt because the allocation of those items may change upon remand.

Child Custody

The trial judge awarded custody of the couple's children to Mrs. Rogers. Because well over a year has passed since the entry of the judge's order, we do not review the custody award at this time. Circumstances may have changed, and we fully expect that the issue may be revisited upon remand. We do point out, however, that the primary consideration in awarding custody of children is the welfare and best interests of the children involved; all other considerations are secondary. Fitzgerald v. Fitzgerald, 63 Ark. App. 254, 976 S.W.2d 956 (1998). There was very little evidence at trial concerning the best interests of the children, and that consideration is notably absent from the trial judge's order. Should this issue arise upon remand, we trust that any order awarding custody will reflect that the best interests of the children were considered.

Judicial Bias

Mr. Rogers contends that the trial judge exhibited bias against him. We note that he did not ask the judge to recuse, nor raise the specter of bias until after the trial. We decline to address this issue at this time because it is unlikely to arise upon remand or, if it does, it will arise in a different manner.

Appellee's Motion to Affirm

Pending before us is Mrs. Rogers's motion to affirm on the basis that Mr. Rogers has prosecuted this appeal for purposes of delay. Given our reversal, we must deny her motion.

Reversed and remanded; appellee's motion to affirm is denied.

Griffen and Vaught, JJ., agree.

1 Mr. Rogers is a large, muscular man.

2 Although Mr. Rogers did not object below to the lack of corroborative evidence, such a defect, being jurisdictional, may be raised at any time during the proceedings. Araneda v. Araneda, supra; Hingle v. Hingle, 264 Ark. 442, 572 S.W.2d 395 (1978).

3 We have also explored the possibility that our residency requirements might be met with regard to Mr. Rogers. However, proof and corroboration as to his residency for the statutory periods is likewise deficient.

4 Our holding obviates the necessity of our addressing Mr. Rogers's argument that a single incident cannot form the basis of general indignities as a ground for divorce.

5 Mrs. Rogers indicates in her testimony that the agreement may have been signed after the marriage, but there is no clear evidence of that.