APPEAL
FROM THE RANDOLPH COUNTY CIRCUIT COURT [NO. 61DR-18-11]
HONORABLE TIMOTHY F. WATSON, JUDGE
Owens,
Mixon & Heller, P.A., by: Haley Smith and W. Lance Owens,
for appellant.
Murphy, Thompson, Arnold, Skinner & Castleberry, by:
Kenneth P. "Casey" Castleberry; and Grider Law
Firm, PLC, by: M. Joseph Grider, for appellee.
PHILLIP T. WHITEAKER, JUDGE.
Appellant
Joshua Mayland appeals a divorce decree entered by the
Randolph County Circuit Court granting an absolute divorce to
appellee Kayla Mayland on the ground of general indignities.
Joshua argues that the circuit court erred in three respects:
(1) granting Kayla's counterclaim for divorce because the
grounds for divorce were not corroborated; (2) refusing to
allow Joshua to call witnesses as a discovery sanction; and
(3) placing primary custody of the couple's child, M.M.,
with Kayla. We find merit in Joshua's first argument on
appeal.
We
conduct a de novo review in appeals from decrees of divorce.
Rocconi v. Rocconi, 88 Ark.App. 175, 196 S.W.3d 499
(2004). Under our standard of review, this court will not
reverse the circuit court's findings unless they are
clearly erroneous. Id. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with a
definite and firm conviction that a mistake has been made.
Id.
Joshua
and Kayla married in November 2015. They are the parents of
one child, M.M., born in April 2017. Joshua was the first to
seek marital dissolution, filing a complaint for divorce that
alleged general indignities as grounds and sought custody of
M.M. Kayla answered Joshua's complaint and also
counterclaimed for divorce on the ground of general
indignities; she urged that custody of M.M. be placed with
her. The circuit court held a hearing on the complaint and
the counterclaim and subsequently entered an order finding
that Kayla was entitled to an absolute divorce from Joshua on
the ground of general indignities. The court awarded Kayla
custody of M.M. and granted Joshua visitation.[1]
In his
first point on appeal, Joshua argues that the circuit court
erred in granting Kayla's counterclaim for divorce
because she failed to corroborate her statutory grounds.
Given the facts before the circuit court and the law of our
state, we agree.
Kayla
sought a divorce on the ground of general
indignities.[2] To prevail on this ground, Kayla had to
prove that Joshua offered such indignities to her as to
render her condition in life intolerable. Ark. Code Ann.
§ 9-12-301(b)(3)(C) (Repl. 2015). We have held that mere
uncongeniality and quarrelsomeness, without more, are not
sufficient to sustain a charge of indignities. Lundy v.
Lundy, 2014 Ark.App. 573, 445 S.W.3d 518. On the other
hand, we have recognized that personal indignities may
consist of "rudeness, unmerited reproach, contempt,
studied neglect, open insult and other plain manifestations
of settled hate, alienation or estrangement so habitually,
continuously and permanently pursued as to create that
intolerable condition contemplated by the statute."
Pomraning v. Pomraning, 13 Ark.App. 258, 260, 682
S.W.2d 775, 776 (1985) (citing Copeland v. Copeland,
2 Ark.App. 55, 616 S.W.2d 773 (1981)).
Under
Arkansas law, not only did Kayla have to prove entitlement to
dissolution on the ground of general indignities, but she
also had to corroborate her grounds. Our supreme court has
spoken on this subject. In Olson v. Olson, 2014 Ark.
537, 453 S.W.3d 128, the supreme court held that divorce is a
creature of statute and can be granted only when statutory
grounds have been proved and corroborated. In Coker v.
Coker, 2012 Ark. 383, 423 S.W.3d 599, the supreme court
held that evidence of the grounds for divorce must be
corroborated but that the evidence of corroboration need only
be slight when a divorce case is sharply contested, and it is
not necessary that the testimony of the complaining spouse be
corroborated on every element or essential fact. We have
held, however, that testimony by the plaintiff and
corroborating witnesses that is merely general or conclusory
in nature is not sufficient. Lundy, supra.
In addition, both our supreme court's opinions and our
statutory law recognize only one exception to corroboration
in contested matters: a waiver of corroboration.
Id.; Ark. Code Ann. § 9-12-306 (Repl. 2015).
In the
instant case, Kayla failed to offer a waiver of corroboration
from Joshua; therefore, she was required to present
corroborating evidence of her grounds for the circuit court
to grant her counterclaim for divorce. Apart from her own
testimony concerning the personal indignities perpetrated by
Joshua, however, Kayla did not present any other witnesses or
evidence.
Joshua
contends that Kayla's failure to call a corroborating
witness is fatal to her cause of action and that her evidence
of corroboration was entirely lacking. Kayla takes two
positions in response to Joshua's argument: first, it is
not preserved for appeal because he failed to raise it before
the circuit court; second, she did not have to call an
independent witness to corroborate her grounds.
As to
Kayla's preservation position, the appellate courts have
repeatedly considered the sufficiency of a party's
evidence of corroboration even when the issue was not raised
below. In Oates v. Oates, 340 Ark. 431, 10 S.W.3d
861 (2000), the supreme court wrote as follows:
[Wife's] arguments suggest that [husband] had some
obligation to object to her having failed to prove
corroboration at trial, and that, if he had done so, [wife]
would have offered additional testimony. Our law is long
settled that in a non-jury trial, a party who does not
challenge the sufficiency of evidence does not waive the
right to do so on appeal. Harpole v. Harpole, 10
Ark.App. 298, 664 S.W.2d 480 (1984); see also Strickland
v. State, 322 Ark. 312, 909 S.W.2d 318 (1995); Bass
v. Koller, 276 Ark. 93, 632 ...