Tortorich v. Tortorich

Annotate this Case

Pam TORTORICH v. Tony
TORTORICH

95-332 ___ S.W.2d ___

Supreme Court of Arkansas
Opinion delivered April 15,
1996

1. Civil procedure --
dismissal of cause --
pendency of another
action between same
parties arising out of
same transaction or
occurrence. -- Rule
12(b)(8) of the Arkansas
Rules of Civil Procedure
provides that a cause may
be dismissed because of
the "pendency of another
action between the same
parties arising out of
the same transaction or
occurrence"; here, when
appellee filed his
complaint for absolute
divorce in one county,
there was pending in the
court of appeals an
appeal from another
county, initiated by him,
concerning not only the
"same transaction or
occurrence" but also
three issues that were
identical.

2. Courts -- concurrent
jurisdiction -- priority
of jurisdiction. -- In
the case of concurrent
jurisdiction in different
tribunals, the first to
exercise jurisdiction
rightfully acquires
control to the exclusion
of, and without the
interference of, the
other.

3. Courts -- jurisdiction --
authority of court of
competent jurisdiction. -
- Where a case is brought
in a court of competent
jurisdiction, the
authority and control of
that court over the case
continues until the
matter is disposed of in
the appellate court.

4. Courts -- jurisdiction --
county where initial
action was filed was
proper venue. -- Where
the initial action filed
in one county was still
pending on appeal when
the second suit was filed
in another county, the
first county was the
proper venue, and the
chancery court in the
second county erred in
refusing to dismiss the
action filed in that
court.

Appeal from Saline
Chancery Court, Third Division;
Gary M. Arnold, Chancellor;
reversed and dismissed.
Dodds, Kidd, Ryan & Moore,
by: Greg Alagood, for
appellant.
Hilburn, Calhoon, Harper,
Pruniski & Calhoun, Ltd., by:
Sam Hilburn and Dorcy Kyle
Corbin, for appellee.

Robert H. Dudley, Justice.April 15, 1996 *ADVREP2*

PAM TORTORICH,
APPELLANT,

TONY TORTORICH,
APPELLEE.

95-332

APPEAL FROM THE SALINE COUNTY
CHANCERY COURT, THIRD DIVISION,
NO. E-94-290-3,
HON. GARY M. ARNOLD,
CHANCELLOR,

REVERSED AND DISMISSED.

Robert H. Dudley, Justice.

The question in this case is whether two counties can
concurrently have venue of a divorce action. The parties, Pam and
Tony Tortorich, were married in 1979 and have three children. They
separated on September 17, 1992, and, at that time, both were
residents of Pulaski County. Pam Tortorich filed an action for a
divorce from bed and board, or a limited divorce, in the Chancery
Court of Pulaski County. Pulaski County was the county of proper
venue. See Ark. Code Ann. 9-12-303 (Repl. 1993). Tony Tortorich
filed a counterclaim for an absolute divorce. On December 15,
1993, the Pulaski County Chancery Court awarded Pam a divorce from
bed and board, divided the marital property, and awarded alimony,
child support, witness fees, and attorney's fees. The chancery
court denied and dismissed Tony's counterclaim for absolute
divorce. The chancery court retained jurisdiction for further
orders. Tony appealed and argued that the chancellor erred in
dividing the marital property and setting alimony, child support,
and fees. He did not appeal from the dismissal of his counterclaim
for absolute divorce. On June 28, 1995, the court of appeals
affirmed in part and reversed and remanded in part. It reversed a
major part of the valuation of marital property which, in turn,
substantially reduced the amount Pam would receive, and, as a
consequence, it remanded for the Pulaski County Chancery Court to
reconsider the amount of alimony Pam should receive. Tortorich v.
Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995). The court of
appeals also held that the award of the marital home to appellant
was not ripe for review. Id. at 123, 902 S.W.2d at 252. The
mandate from the court of appeals was issued on July 18, 1995.
Meanwhile, on March 19, 1994, Tony moved to Saline County.
Two days later, on March 21, 1994, which was a year and four months
before the court of appeals mandate was issued, Tony filed a
complaint for absolute divorce in the Chancery Court of Saline
County. The grounds, eighteen months separation, had not been
available to him in the earlier action. A week later, on March 28,
Pam filed a complaint for absolute divorce in Pulaski County
Chancery Court.
On April 8, 1994, Pam filed a motion to dismiss the Saline
County action because of pendency of the Pulaski County action
between the same parties arising out of the same occurrence, and
want of proper venue, pursuant to Ark. Code Ann. 9-12-330(c). The
Saline County Chancery Court denied Pam's motion to dismiss, heard
the case on August 19, 1994, granted Tony an absolute divorce,
ordered Tony to pay child support in an amount different from the
support set by the Pulaski County court, ordered the marital home
sold and the proceeds divided, and denied appellant alimony. The
Saline County court based its decision to deny alimony, in part,
upon the assets awarded to appellant under the limited divorce
decree, and these assets were subsequently reduced by the court of
appeals.
As a result of the Saline County Chancery Court's rulings,
there are now two conflicting judgments. On the one hand, the
court of appeals has remanded the case between these parties to the
Pulaski County Chancery Court and ordered the Pulaski County
chancellor to consider increasing the amount of alimony because the
value of the marital property has been reduced, affirmed the amount
of child support, and held that the award of the marital home is
not yet ripe for review. On the other hand, the Saline County
Chancery Court has ruled that Tony does not have to pay alimony and
has ordered the marital home sold and the proceeds divided.
Pam appeals and argues that the Saline County chancellor erred
in denying her motion to dismiss. The assignment of error is well
taken for two reasons.
Rule 12(b)(8) of the Arkansas Rules of Civil Procedure
provides that a cause may be dismissed because of "pendency of
another action between the same parties arising out of the same
transaction or occurrence." Id. When Tony filed his complaint in
Saline County, there was pending in the court of appeals an appeal
from Pulaski County, initiated by Tony, concerning not only the
"same transaction or occurrence" but three issues that were
identical. These issues involved alimony, child support, and
disposition of the marital home.
We have held "[i]n case of concurrent jurisdiction in
different tribunals, the first exercising jurisdiction rightfully
acquires control to the exclusion of, and without the interference
of, the other." Doss v. Taylor, 244 Ark. 252, 257, 424 S.W.2d 541,
544-45 (1968). When a case is brought in a court of competent
jurisdiction, the authority and control of that court over the case
continues until the matter is disposed of in the appellate court.
Vaughan v. Hill, 154 Ark. 528, 532, 242 S.W. 826 (1922); McCarther
v. Green, 49 Ark. App. 42, 895 S.W.2d 562 (1995); Cotton v. Cotton,
3 Ark. App. 158, 623 S.W.2d 540 (1981); see also Jones v. Garratt,
199 Ark. 737, 135 S.W.2d 859 (1940).
In Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934), the
appellant brought a suit to foreclose on property in chancery
court, while at the same time bringing an action in replevin in
circuit court; two separate "causes of action" on the same subject
matter. Id. at 119, 70 S.W.2d at 564. We held that the chancery
court, being the first to acquire jurisdiction, had jurisdiction to
bring adequate and complete relief, and the appellant could not
bring an action for replevin in circuit court. Our reasoning was
as follows:
["]This rule rests upon comity and the necessity of
avoiding conflict in the execution of judgments by
independent courts, and is a necessary one because any
other rule would unavoidably lead to perpetual collision
and be productive of most calamitous results." 15 C.J.
1134.
Bailey on Jurisdiction, page 61, states: "In the
distribution of powers among courts it frequently happens
that jurisdiction of the same subject-matter is given to
different courts. Conflict and confusion would
inevitably result unless some rule was adopted to prevent
or avoid it. Therefore it has been wisely and uniformly
determined that whichever court, of those having such
jurisdiction, first obtains jurisdiction, or, as is
sometimes said, possession of the cause, will retain it
throughout to the exclusion of another." The same rule
is announced in "Courts and Their Jurisdiction" by Works,
pages 68 and 69.
Id. at 121-22, 70 S.W.2d at 565.
This case illustrates "confusion, conflict, and collision."
It is an example of the "calamitous" result envisioned in Moore v.
Price. Here, the two rulings by the two different chancellors have
resulted in one order allowing alimony and one denying it, child
support has been set in two different amounts, and one order gives
the marital home to Pam until the youngest child reaches eighteen
while the other orders the home sold and the proceeds divided.
In addition, Ark. Code Ann. 9-12-303(c) (Repl. 1993)
provides:
(c) When a spouse initiates an action against the
other spouse for an absolute divorce, divorce from bed
and board, or separate maintenance, then the venue for
the initial action shall also be the venue for any of the
three (3) named actions filed by the other spouse,
regardless of the residency of the other spouse.
This statute could be interpreted in either of two ways: It
could be interpreted to mean that any claim available to the other
spouse must be filed in the same venue as long as the initial
action is still pending, or it might mean that any claim available
to the other spouse must be filed in the same venue, without regard
to whether the initial action is still pending. We need not decide
which interpretation we will ultimately apply because, under either
interpretation, the initial action filed in Pulaski County was
still pending on appeal when the second suit was filed in Saline
County. Thus Pulaski County was the county of proper venue, and
the Saline County court erred in refusing to dismiss the action
filed in that court.
Reversed and dismissed.
Glaze, J., concurs.
Corbin and Brown, JJ., not participating.
*ADVREP2-A*

PAM TORTORICH,
APPELLANT,

TONY TORTORICH,
APPELLEE.

95-332

Opinion Delivered: 4-15-96

CONCURRING OPINION

TOM GLAZE, Associate Justice

The majority court misses the opportunity to interpret Ark.
Code Ann. 9-12-303(a) and (c) (Repl. 1993), which directly
answers the issue before us and rectifies a venue problem that
commonly arises in the filing of family law cases. Prior to the
enactment of 9-12-303(c), if a spouse filed an action for
separate maintenance in the county in which he or she resided, the
defendant spouse could later file for an absolute or limited
divorce action in a different court and county so long as he had
established residence in that other county. See Hill v. Rowles,
223 Ark. 115, 264 S.W.2d 638 (1954). In fact, this court has held
the defendant spouse could even file such later action in a
different division of the same county chancery court in which the
plaintiff spouse had already filed suit. Myers v. Williams, 225
Ark. 290, 281 S.W.2d 944 (1955). In the Hill and Myers cases, this
court reasoned that the defendant was not barred from seeking
relief in a different court, since his or her cause of action is a
new or separate action from the one initially filed. For example,
in Hill, the wife filed for separate maintenance in Pulaski County
and the husband subsequently brought a divorce action in Saline
County. The Hill court denied the wife's request for a writ of
prohibition against the Saline County court, stating, "[A]
determination, in a wife's action for separate maintenance is not
a determination that her husband has no grounds for divorce . . .."
The problems resulting from such decisions place spouses in
different courts that hear and decide the same marital custody,
child support, alimony and property issues. Unfortunately, the
different courts generally always render conflicting orders and
decrees that leave all parties in a quandary. That, of course, is
the very situation here.
In 1987, the General Assembly enacted 9-12-303(c) to avoid
problems that inherently arise when separate but related family law
actions are filed by spouses in different chancery courts or
divisions. That provision provides as follows:
When a spouse initiates an action against the other
spouse for an absolute divorce, divorce from bed and
board, or separate maintenance, then the venue for the
initial action shall also be the venue for any of the
three (3) named actions filed by the other spouse,
regardless of the residency of the other spouse.
Under the plain language of 9-12-303(c), once a plaintiff spouse
has filed for (1) absolute divorce, (2) limited divorce or (3)
separate maintenance, the defendant spouse can no longer go to a
different court (division or county) to file any one of the three
named marital-related actions. Instead, the defendant spouse,
regardless of his or her own county residence, must file any new
marital cause of action in the same action the plaintiff spouse
already initiated.
In the present case, Pam Tortorich filed her limited divorce
action against Tony in the Pulaski County Chancery Court. The
Pulaski County Chancery Court granted a limited divorce, and while
that part of the chancellor's decision was affirmed on appeal, the
court of appeals reversed the Tortorich's case to reconsider the
amount of alimony to be awarded Pam. Tony moved to Saline County
and filed for absolute divorce which the Saline County Chancery
Court eventually granted. Again, this case is the type situation
contemplated by 9-12-303, which requires Tony to seek his relief
in the initial action filed in the Pulaski County Chancery Court,
so all marital-related issues can be decided by one chancery judge.
Consequently, the Saline County Chancery Court here should have
transferred Tony's action to the Pulaski County Chancery Court or,
alternatively, dismissed his action.
Although I agree with the majority court that the Saline
County Chancery Court has no venue over Tony's absolute divorce
action, I do so because 9-12-303(c) clearly places his action in
the Pulaski County Chancery Court. I would remand this case with
directions to transfer this case to the Pulaski County Chancery
Court which has jurisdiction and venue of Pam's limited divorce
action.
CORBIN and BROWN, JJ., not participating.

June 3, 1996
*ADVREP*SUPPLEMENTAL OPINION ON
DENIAL OF REHEARING TO BE
PLACED AT 324 ARK. 134-A*

95-322

PAM TORTORICH

Appellant

TONY TORTORICH

Appellee
Rehearing Denied

Per Curiam.

In a petition for
rehearing, Tony Tortorich
contends our decision should
not have been based on Ark. R.
Civ. P. 12(b)(8) because that
implies we do not recognize the
distinctions among the actions
for separate maintenance,
divorce from bed and board, and
absolute divorce. A further
suggestion of the petition is
that we have held the Saline
County Chancery Court lacked
jurisdiction to entertain Mr.
Tortorich's claim for absolute
divorce. Neither is so.
Rule 12(b)(8) provides a
defense based on "pendency of
another action between the same
parties arising out of the same
transaction or occurrence."
Our holding was that, due to
the fact that the appeal was
pending in the Pulaski County
action which involved the same
transaction or occurrence, Rule
12(b)(8) applied. We did not
suggest that the Saline County
Chancery Court lacked
jurisdiction of Mr. Tortorich's
claim.
As Ms. Tortorich points
out in response to the petition
for rehearing, our decision
concerned only proper venue.
We based the result not only on
Rule 12(b)(8) but on Ark. Code
Ann. 9-12-303(c) (Supp.
1995), which provides:

When a spouse
initiates an action
against the other spouse
for absolute divorce,
divorce from bed and
board, or separate
maintenance, then the
venue for the initial
action shall also be the
venue for any of the
three (3) named actions
filed by the other
spouse, regardless of the
residence of the other
spouse.

We pointed out that the statute
could be interpreted

to mean that any claim
available to the other
spouse must be filed in
the same venue as long as
the initial action is
still pending, or it
might mean that any claim
available to the other
spouse must be filed in
the same venue, without
regard to whether the
initial action is still
pending.

We declined to choose between
those two possible meanings
because the statute would make
Pulaski County the proper venue
in this case, no matter which
interpretation prevailed.
While we do not concede
Mr. Tortorich's point that we
were in error in basing our
decision, in part, on Rule
12(b)(8), we conclude it was
unnecessary to do so as the
statute provided ample basis
for holding Saline County was
not the proper venue for Mr.
Tortorich's absolute divorce
suit. To prevent any sort of
confusion, such as that
evidenced in the petition for
rehearing, we alter our
decision to remove the reliance
on Rule 12(b)(8).
We continue to decline to
interpret 9-12-303(c) to say
whether it applies to any
pursuit of a marital action
subsequent to one of the three
types having been filed by the
other spouse or only to the
pursuit of a separate marital
action if some aspect of the
previous suit remains pending.
In our opinion we concluded,
upon authorities cited, that a
suit is pending when an appeal
has been filed. The wisdom of
that conclusion is demonstrated
by the fact that, in this case
the alimony order in Ms.
Tortorich's Pulaski County
divorce from bed and board suit
was remanded to the Pulaski
County Chancery Court, and the
Court of Appeals held that the
property division order was not
yet ripe for decision. As the
concurring opinion said, Mr.
Tortorich's complaint should
have been filed in the "same
action."
We say again that for us
to have sanctioned both trial
court proceedings could have,
and in this case obviously
would have, resulted in
conflicting decisions about the
ancillary aspects of the two
types of marital claims, i.e.,
alimony, child support, and
division of property. Such a
result would have been
intolerable.
Rehearing denied.
Corbin and Brown, JJ., not
participating.
Glaze, J., would grant
rehearing.

*ADVREP*Dissent to Supplemental
Opinion on Denial of Rehearing
to be placed following opinion
at 324 Ark. 134-A*

PAM TORTORICH,
APPELLANT,

TONY TORTORICH,
APPELLEE.

95-332

Opinion Delivered: 6-3-96

WOULD GRANT REHEARING

TOM GLAZE, Associate Justice

In response to the rehearing petition of Tony Tortorich, this
court modifies its earlier majority opinion for no other apparent
purpose than for clarification. Obviously, the majority court's
original opinion is incorrect, but the court declines to say so.
At least I understood the first opinion. Now, with the issuance of
the supplemental opinion, I challenge any reader to tell me how an
attorney or judge can know how to proceed in divorce or marital
actions that are commonly filed like the ones in this case.
In his petition for rehearing, Tony Tortorich correctly points
out that ARCP Rule 12(b)(8) is inapplicable, and in applying that
rule, the majority court's opinion failed to recognize that
absolute divorce, divorce from bed and board and separate
maintenance are separate causes of action. See Spencer v. Spencer,
275 Ark. 112, 627 S.W.2d 550 (1982) (Dudley, J., concurring
opinion).
As Tony points out, when our court held that, under Rule
12(b)(8), Pam's Pulaski County divorce from bed and board action
precluded Tony's filing a new absolute divorce action (based on new
grounds of eighteen-months separation) in Saline County, he was
then unable to return to the Pulaski County action to assert his
new cause. As this court held in Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949), a plaintiff may file an amendment alleging a
cause of action which matured after the filing of the original
complaint, but no such amendment or new cause can be filed after
the trial has commenced. Here, the Pulaski County limited divorce
action not only had commenced, it had been decided and appealed.
See also Dorris v. Dorris, 249 Ark. 580, 460 S.W.2d 98 (1970).
Thus, even though Tony had a new and separate cause of action for
an absolute divorce to file against Pam, he had nowhere to file it.
The majority court obviously now sees its error without mentioning
it and tries to correct the mistake by deleting Rule 12(b)(8) from
its earlier opinion. However, the error still remains and
confusion prevails now more than ever.
In sum, I still adhere to the interpretation of Ark. Code Ann.
9-12-303(c) that I set out in my concurring opinion. If read
properly, 9-12-303(c) would permit these parties to resolve all
their differences in one court -- under the facts here, the Pulaski
County Chancery Court. The majority court's supplemental opinion
leaves the bar wondering not only what its two opinions now say,
but also offers no clue as to how to interpret 9-12-303(c) or how
to proceed in these matters in the future. I would grant Tony's
petition for rehearing and issue a knew and correct opinion.

June 3, 1996 *ADVREP*SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
TO BE PLACED AT 324 ARK. 134-A*

95-322

PAM TORTORICH

Appellant

TONY TORTORICH

Appellee Rehearing Denied

Per Curiam.

In a petition for rehearing, Tony Tortorich contends our
decision should not have been based on Ark. R. Civ. P. 12(b)(8)
because that implies we do not recognize the distinctions among the
actions for separate maintenance, divorce from bed and board, and
absolute divorce. A further suggestion of the petition is that we
have held the Saline County Chancery Court lacked jurisdiction to
entertain Mr. Tortorich's claim for absolute divorce. Neither is
so.
Rule 12(b)(8) provides a defense based on "pendency of another
action between the same parties arising out of the same transaction
or occurrence." Our holding was that, due to the fact that the
appeal was pending in the Pulaski County action which involved the
same transaction or occurrence, Rule 12(b)(8) applied. We did not
suggest that the Saline County Chancery Court lacked jurisdiction
of Mr. Tortorich's claim.
As Ms. Tortorich points out in response to the petition for
rehearing, our decision concerned only proper venue. We based the
result not only on Rule 12(b)(8) but on Ark. Code Ann. 9-12-
303(c) (Supp. 1995), which provides:

When a spouse initiates an action against the other
spouse for absolute divorce, divorce from bed and board, or
separate maintenance, then the venue for the initial action
shall also be the venue for any of the three (3) named actions
filed by the other spouse, regardless of the residence of the
other spouse.

We pointed out that the statute could be interpreted

to mean that any claim available to the other spouse must be
filed in the same venue as long as the initial action is still
pending, or it might mean that any claim available to the
other spouse must be filed in the same venue, without regard
to whether the initial action is still pending.

We declined to choose between those two possible meanings because
the statute would make Pulaski County the proper venue in this
case, no matter which interpretation prevailed.
While we do not concede Mr. Tortorich's point that we were in
error in basing our decision, in part, on Rule 12(b)(8), we
conclude it was unnecessary to do so as the statute provided ample
basis for holding Saline County was not the proper venue for Mr.
Tortorich's absolute divorce suit. To prevent any sort of
confusion, such as that evidenced in the petition for rehearing, we
alter our decision to remove the reliance on Rule 12(b)(8).
We continue to decline to interpret 9-12-303(c) to say
whether it applies to any pursuit of a marital action subsequent to
one of the three types having been filed by the other spouse or
only to the pursuit of a separate marital action if some aspect of
the previous suit remains pending. In our opinion we concluded,
upon authorities cited, that a suit is pending when an appeal has
been filed. The wisdom of that conclusion is demonstrated by the
fact that, in this case the alimony order in Ms. Tortorich's
Pulaski County divorce from bed and board suit was remanded to the
Pulaski County Chancery Court, and the Court of Appeals held that
the property division order was not yet ripe for decision. As the
concurring opinion said, Mr. Tortorich's complaint should have been
filed in the "same action."
We say again that for us to have sanctioned both trial court
proceedings could have, and in this case obviously would have,
resulted in conflicting decisions about the ancillary aspects of
the two types of marital claims, i.e., alimony, child support, and
division of property. Such a result would have been intolerable.
Rehearing denied.
Corbin and Brown, JJ., not participating.
Glaze, J., would grant rehearing.

*ADVREP*Dissent to Supplemental Opinion on Denial of Rehearing to
be placed following opinion at 324 Ark. 134-A*

PAM TORTORICH,
APPELLANT,

TONY TORTORICH,
APPELLEE.

95-332

Opinion Delivered: 6-3-96

WOULD GRANT REHEARING

TOM GLAZE, Associate Justice

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