APPEAL FROM THE POPE COUNTY CIRCUIT COURT. NO. DR-12-380. HONORABLE GORDON W. " MACK" MCCAIN, JUDGE.
REVERSED AND REMANDED.
Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.
Dunham & Faught, P.A., by: James Dunham, for appellee.
COURTNEY HUDSON GOODSON, Associate Justice.
Appellant Tina Olson appeals a decree entered by the Pope County Circuit Court granting her amended complaint for divorce on the ground of adultery against appellee Don Olson. For reversal, Tina contends that the circuit court erred (1) by granting the divorce on her amended complaint based on the testimony of Don and his witnesses when she was not present at trial; (2) by dividing the parties' debts and assets pursuant to the divorce or by making an unequal division of marital property; and (3) by dismissing her claim for alimony or by failing to award alimony. We accepted certification of the appeal from the Arkansas Court of Appeals as raising an issue of first impression; therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1). We reverse and remand on the first point raised on appeal.
Tina initiated this action by filing a complaint for divorce on grounds of general indignities in the Pope County Circuit Court on July 11, 2012. In the complaint, Tina alleged that the parties had married in February 1987, that they had an adult child but no minor children, and that they had separated on the date that she filed the complaint. She also stated that the parties owned both real and personal property that would be subject to division by the court, and she requested alimony. Tina filed an amended complaint on August 21, 2012, in which she asserted that the parties had entered into a covenant of marriage following the passage of the Covenant of Marriage Act of 2001. In this complaint, she alleged that she was entitled to a divorce on the ground of adultery.
After a hearing, the circuit court entered a temporary order on August 30, 2012, granting Tina temporary possession of the marital home, which the parties had listed for sale, and ordering Don to pay all of the parties' bills, in addition to spousal support of $250 per month. On December 11, 2012, the circuit court amended the temporary order by placing Don in possession of the marital home, as Tina had left the state, and by increasing Tina's spousal support to $400 per month. This order also incorporated a three-page list of personal property that the parties had divided by agreement. On January 14, 2013, Tina filed a motion for contempt alleging that Don was delinquent in his payment of spousal support. On February 5, 2013, Don filed a counterclaim for divorce based on the ground of general indignities. The counterclaim did not mention that the parties had entered into a covenant of marriage.
On July 15, 2013, the circuit court notified the parties by letter that the final divorce hearing would be held on October 2, 2013. On that date, Tina failed to appear for trial. At the outset of the hearing, the circuit court inquired as to whether Don wished to proceed on his counterclaim for divorce. Don's counsel replied that it would be necessary to amend the counterclaim to allege that the parties had entered into a covenant of marriage and to allege " specific grounds."
In his testimony, Don introduced into evidence an exhibit listing the parties' debts, and he asked that any funds Tina received as a result of a medical-device lawsuit be applied toward the payment of their debts. He also stated that the parties' home had sold at a profit of $57,180 and that he had given Tina $30,000 of the proceeds from the sale. Don also testified that the list of property incorporated into the amended temporary order was intended to settle the division of their personal property. He said that, when Tina moved from the marital home, she had left some of her personal property contained on the
list. Don stated that he had placed Tina's property in a storage unit, along with his items of property that did not fit in his new residence, at a cost of $45 per month. He further testified that Tina had taken four clocks and a pocket watch that he had inherited and that was designated as his property in their agreement. He testified as to other items of property that Tina had retained contrary to the parties' settlement ...