Tony Tortorich v. Pam Tortorich

Tony TORTORICH v. Pam TORTORICH

97-884                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 30, 1998


1.   Divorce -- chancellor's order of alimony arrearages proper --
     letter opinions part of court's findings. -- The chancellor
     did not err when holding appellant owed alimony arrearages
     between the months of August 1, 1994, and August 1, 1996,
     where the chancellor's remand order specifically incorporated
     her earlier opinion letters as a part of the court's findings
     and designated them as "further orders of the court"; one of
     the chancellor's letter opinions dated October 23, 1995,
     stated that the appellee was entitled to alimony based upon
     the appellant's continued practice of oral surgery until her
     death or remarriage, or until she established an earning
     capacity; clearly, the chancellor's order directed appellant
     to pay monthly alimony payments of $2,000 that were to
     continue past July 31, 1994, and until appellee's death or
     remarriage or until appellee established an earning capacity;
     thus, the arrears in alimony, insurance premiums, and child
     support found by the chancellor for the months commencing on
     August 1, 1994, were in accordance with her orders. 

2.   Divorce -- cases cited by appellant inapplicable -- appellee
     never accepted other county's venue. -- While the two cases
     cited by appellant, like the case here, involved parties who
     had filed different but related marital actions in separate
     chancery courts, the marital couples in those two earlier
     cases entered their appearances in the respective actions and
     venue was not an issue; here, appellee unwaveringly adhered to
     her objection questioning the second county chancery court's
     venue; venue is a procedural matter, not a matter of subject-
     matter jurisdiction; only absent any objection does a trial
     court have the power to render a binding judgment even though
     venue was not proper.

3.   Venue -- issue of jurisdiction of person -- when writ of
     prohibition will issue. -- The venue issue is characterized as
     one of jurisdiction of the person, the improper assertion of
     which, in that instance, justifies issuance of a writ of
     prohibition; the supreme court commonly issues writs of
     prohibition when venue is improperly laid, and has said that
     the situation is the equivalent of a lack of jurisdiction of
     the person; in these circumstances when venue or jurisdiction
     of the person is not waived by the defending party, the trial
     court, which erroneously assumes venue or jurisdiction of a
     person, has no power or authority to act.

4.   Venue -- second chancery court had no power to issue order --
     original county's orders remained effectual. -- The second
     county's chancery court had no authority to act or proceed
     with appellant's divorce action against appellee, accordingly
     the orders issued by the chancellor from the county where the
     action was originally filed, that were entered on December 15,
     1993, February 2, 1996, and February 28, 1997, remained
     effectual and controlling throughout all the parties'
     proceedings and appeals.

5.   Divorce -- Ark. Code Ann.  9-12-303(a) and (c) (Repl. 1993) -
     - had statute been followed action could have been avoided. --
     The supreme court emphasized the General Assembly's enactment
     of Ark. Code Ann.  9-12-303(a) and (c) (Repl. 1993), and
     pointed out that if this statute had been followed, the two
     chancery courts' conflicting orders could have been avoided;
     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 own county of
     residence, must file any new marital cause of action in the
     same action the plaintiff spouse already initiated.  


     Appeal from Pulaski Chancery Court; Robin L. Mays, Chancellor;
affirmed.
     Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by:  Phil
Campbell and Dorcy Kyle Corbin, for appellant.
     Linda D. Shepherd, P.A., by:  Linda D. Shepherd and Allison R.
Wooten, for appellee.

     Tom Glaze, Justice.
     This case is the third appeal involving Tony and Pam
Tortorich.  Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213
(1996) (Tortorich II); Tortorich v. Tortorich, 50 Ark. App. 114,
902 S.W.2d 247 (1995) (Tortorich I).  In Tortorich I, the Pulaski
County Chancery Court, on December 15, 1993, denied Tony's
counterclaim for absolute divorce, granted Pam a divorce from bed
and board, and, among other things, ordered Tony to pay $6,000.00
per month child support, $1,000.00 per month alimony, and to
maintain Pam on his health and hospitalization insurance.  Pam was
also awarded a marital interest in Tony's professional association. 
Tony appealed the chancellor's decree.
     While Tony's appeal was pending in the court of appeals, he
moved to Saline County, and, in March of 1994, filed suit against
Pam, requesting an absolute divorce based on eighteen-months
separation.  Pam retaliated a few days later by suing Tony for an
absolute divorce in Pulaski County.  Both parties moved to dismiss
each other's divorce suit, but the Pulaski and Saline County
chancellors denied the motions.  The Pulaski County chancellor,
however, held Pam's case in abeyance, while the Saline County
chancellor permitted Tony to proceed with his case; Pam continued
her objection to the Saline County court's venue.  On November 17,
1994, the Saline County chancellor entered his decree, which
conflicted with the Pulaski County chancellor's earlier order of
December 15, 1993.  The Saline County chancellor granted Tony a
divorce, denied Pam any alimony and health insurance, and awarded
Pam child support in the monthly sum of $5,663.00.  At this stage
of litigation, Tony chose to follow the Saline County chancellor's
decree, instead of the Pulaski County chancellor's order.  In doing
so, he terminated his alimony and health insurance premium
payments, and reduced his child support to the $5,663.00 monthly
amount.  Pam appealed the Saline County chancellor's November 17,
1994 decision to this court, and continued her objection and
argument that the chancellor was acting outside his venue.
     Next, Tony's appeal from the Pulaski County chancellor's 
December 15, 1993 order was decided by the court of appeals on
June 28, 1995.  In that decision, Tortorich I, the court of appeals
affirmed the Pulaski County chancellor's award of child support,
but found the chancellor had erred in evaluating Tony's business. 
The court decided that, because the Pulaski County chancellor had
made an error in giving Pam a substantial award in Tony's business,
the chancellor should, on remand, reconsider an appropriate amount
of alimony to be awarded to Pam.  On remand, the Pulaski County
chancellor held a hearing on October 10, 1995, and later entered an
order on February 2, 1996, finding Pam was entitled to increased
monthly alimony payments of $2,000, commencing from December 15,
1993, through July 31, 1994.  The chancellor's decree adopted as
further orders, other findings included in two earlier letter
opinions.
     After the Tortorich I decision and the Pulaski County
chancellor's remand order increasing Tony's alimony, our court
decided Pam's appeal which challenged the Saline County
chancellor's venue.  In our opinion issued June 3, 1996, we held
that Pulaski County was the parties' proper venue, and that the
Saline County chancellor had erred in refusing to dismiss Tony's
divorce action.  Accordingly, we reversed and dismissed the Saline
County case.
     Finally, because Tony had stopped his monthly alimony and
health insurance premium payments and had failed to pay in full his
monthly $6,000.00 child support payments in accordance with the
Pulaski County chancellor's December 15, 1993 order, Pam filed a
motion for Tony to show cause why he should not be held in
contempt.  After a hearing on Pam's motion, the Pulaski County
chancellor entered an order on February 28, 1997, in which she
declined to find Tony in willful contempt, but did find he was
subject to the chancellor's judgment, and found Tony owed the
following arrears:
     (1)  Alimony in the amount of $2,000.00 for twenty-five
months, beginning August 1, 1994, and ending August 1, 1996;
     (2)  Health insurance premium payments in the total amount of
$1,884.44 for the periods between May 1, 1994, through April 1,
1995, and May 1, 1995, through August 1996; and
     (3)  Child support in the amount of $7,181.97, plus interest,
for the period between August 1, 1994, and May 1, 1996.
     Tony now appeals the Pulaski County chancellor's February 28,
1997 order, and first contends that, because the chancellor's
February 7, 1996 remand order only awarded increased monthly
alimony payments for the months between December 15, 1993, and
July 31, 1994, without specifying that Tony was to continue paying
alimony at the increased amount, the chancellor erred when holding
he owed alimony arrearages between the months of August 1, 1994,
and August 1, 1996.  Tony had made his increased alimony payments
through July 31, 1994, which, he says, brought him into compliance
with the Pulaski County chancellor's orders.  We disagree. 
     Tony bases his argument on language in the Pulaski County
chancellor's remand order that provides Pam is entitled to total
monthly alimony payments of $2,000.00 from December 15, 1993,
through July 31, 1994; but he wholly ignores that order's directive
whereby the chancellor incorporated her earlier opinion letters as
a part of the court's findings and designated them as "further
orders of the court."  One of the chancellor's letter opinions
dated October 23, 1995, related evidence justifying why alimony
should be awarded to Pam and stated that Pam "is entitled to
alimony based upon [Tony's] continued practice of oral surgery
until her death or remarriage, or until she has established an
earning capacity."  Quite clearly, the Pulaski County chancellor
ordered Tony to pay monthly alimony payments of $2,000.00 that
continued past July 31, 1994, and until Pam's death or remarriage
or until she established an earning capacity.  Thus, the arrears in
alimony, insurance premiums, and child support found by the
chancellor for the months commencing on August 1, 1994, were in
accordance with her orders.   
     In his second point for reversal, Tony contends that, even if
the Pulaski County chancellor's order directed him to pay alimony,
insurance premium payments, and $6,000.00 monthly child support
after July 31, 1994, he claims that the order was ineffectual from
the time the Saline County chancellor's absolute divorce decree was
entered on November 17, 1994, until the Saline County order was
reversed by our court on June 3, 1996.  Tony cites the cases of
Smith v. Smith, 236 Ark. 141, 365 S.W.2d 247 (1963), and Myers v.
Myers, 226 Ark. 632, 294 S.W.2d 67 (1956), for the proposition that
a decree of absolute divorce supersedes a limited decree, and
argues that, because Pam never obtained a stay of the Saline County
chancellor's absolute divorce decree during her appeal of it, the
Saline County decree governed the parties' conduct and obligations
until the decree was reversed.  Again, we disagree. 
     While the Smith and Myers cases, like the case here, involved
parties who had filed different but related marital actions in
separate chancery courts, the marital couples in those two earlier
cases entered their appearances in the respective actions and venue
was not an issue.  In short, Smith and Myers simply are not helpful
to the instant case, where Pam unwaveringly adhered to her
objection questioning the Saline County Chancery Court's venue. 
This court understands that venue is a procedural matter, not a
subject-matter jurisdiction one, and this distinction is made clear
in our holdings that, absent an objection, a trial court has the
power to render a binding judgment even though venue was not
proper.  Prairie Implement Co. v. Circuit Court of Prairie County,
311 Ark. 200, 844 S.W.2d 299 (1992) (Emphasis added.); Mark Twain
Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984); see
also Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987)
(improper venue, unlike the objection to lack of subject matter
jurisdiction, can be waived by appearance).
     We emphasize the fact that Pam steadfastly objected to the
Saline County Chancery Court's venue and ultimately prevailed on
that issue in Tortorich I.  Accordingly, we reversed and dismissed
Tony's absolute divorce action.  As this court has said so many
times, the venue issue is characterized as one of jurisdiction of
the person, the improper assertion of which, in that instance,
justifies issuance of a writ of prohibition.  Steve Standridge
Insurance, Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995). 
Stated another way, we have recognized that we commonly issue writs
of prohibition when venue is improperly laid, and we have said that
the situation is the equivalent of a lack of jurisdiction of the
person.  Fausett v. Host, 315 Ark. 527, 868 S.W.2d 472 (1994). 
Thus, in these circumstances when venue or jurisdiction of the
person is not waived by the defending party, the trial court, which
erroneously assumes venue or jurisdiction of a person, has no power
or authority to act.  See West Memphis Sch. Dist. No. 4 v. Circuit
Court, 316 Ark. 290, 871 S.W.2d 368 (1994).  Here, the Saline
County Chancery Court had no authority to act or proceed with
Tony's divorce action against Pam, and accordingly the Pulaski
County chancellor's orders entered on December 15, 1993, February
2, 1996, and February 28, 1997, remained effectual and controlling
throughout all the parties' proceedings and appeals.
     In conclusion, we wish to emphasize the General Assembly's
enactment of Ark. Code Ann.  9-12-303(a) and (c) (Repl. 1993), and
point out that if this statute had been followed, the two chancery
courts' conflicting orders could have been avoided.  In particular,
 9-12-303(c) 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 own county of residence, must file any new
marital cause of action in the same action the plaintiff spouse
already initiated.  
     In the present case, because Pam had filed suit against Tony
first in Pulaski County Chancery Court, venue was clearly
established in Pulaski County for any divorce action later brought
by Tony.  Thus, the Pulaski County chancellor properly concluded
that Tony is in arrears in his payments for alimony, child support,
and health insurance.
     For the reasons above, we affirm.
     Corbin and Brown, JJ., not participating.