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In Tortorich, 324 Ark. 128, 919 S.W.2d 213, this court pointed out that where two different chancery courts render two different judgments pertaining to alimony, child support, and marital property, calamitous results will occur.
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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.
GLAZE, Justice, would grant rehearing.
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 new and correct opinion.