author: Darrell Hickman, Justice. John A. Fogleman, Justice,

text:
    James B. HATCHER v. Sue Guyant HATCHER
    78-295
    580 S.W. 2d 475
    Opinion delivered May 7, 1979
    (In Banc)

      Coleman, Gantt, Ramsay & Cox, for appellant.

      Bairn, Bairn, Gunti, Mouser & Bryant, for appellee.
   Darrell Hickman, Justice.

The Jefferson County Chancery Court granted the appellee, Sue Guyant Hatcher, temporary maintenance and attorney fees in a divorce action. The appellant, James B. Hatcher, objected to the court’s order, arguing that Ark. Stat. Ann. § 34-1210 (Repl. 1962) which authorizes such an award violates the equal protection clauses of the United States and Arkansas Constitutions in that it granted rights to temporary alimony, maintenance and attorney fees only to women and not to men. See U.S. Const. Amend. XIV, and Ark. Const. Art. 2, § 3.

The appellant raises on appeal from the temporary order the constitutional issue as well as whether the court’s award was excessive.

Mrs. Hatcher was awarded $3,200.00 per month as “temporary support and maintenance,” and a $1,500.00 temporary attorney’s fee. There was no breakdown of how much was allotted as temporary alimony, and how much as support, if any, for the minor child. The order also provided that the appellant was to pay all medical, dental and drug bills incurred by the appellee and her son, Lynn Brady Guyant. (The minor son is by a prior marriage of Mrs. Hatcher. However, she alleged that the appellant was responsible for his support.) The appellee was given temporary possession of a Mark V automobile and their home. It was not disputed that the appellant’s adjusted gross income for 1977 was $274,000.00.

Since the trial court entered its order, the United States Supreme Court has issued a decision which we consider controlling and which requires us to declare that the law in question is unconstitutional. In Orr v. Orr, 47 U.S.L.W. 4224 (March 5, 1979), the United States Supreme Court declared a similar Alabama statute unconstitutional.

The court applied the following test in determining the constitutionality of the Alabama statute:

“To withstand scrutiny” under the equal protection clause, “ ‘classifications by gender must serve important governmental objective and must be substantially related to achievement of those objectives.’ ”

Several possible governmental objectives that could justify the existence of such a statute were examined by the court. First, allocation of family responsibilities in which the wife plays a dominant role. The court found that this purpose could not now sustain such laws, commenting:

No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and world of ideas.

Next, the court considered two other possible purposes: (1) “to provide help for needy spouses, using sex as a proxy for need”; and, (2) to compensate “women for past discrimination during marriage” which arguably has left them unprepared to fend for themselves in the working world after a divorce. These two objectives were recognized as legitimate and important governmental objectives. However, the court held that since “individualized hearings at which the parties’ relative financial circumstances are considered already occur,” the gender-based classification was unnecessary and the state’s purposes could be effectuated without it. (Emphasis in original.)

More importantly, the court noted that the use of such a gender classification gives “an advantage only to the financially secure wife whose husband is in need.”

Where, as here, the States’ compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender-classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound — if only indirectly — to the benefit of those without need for special solicitude.

Orr v. Orr, supra, at 4228.

The Arkansas law in question, Ark. Stat. Ann. § 34-1210 (Repl. 1962), is very much like the Alabama law. It reads:

Maintenance and Attorney’s Fees Pending Action — Attorney’s Fees for Enforcement of Decree. — During the pendency of an action for divorce or alimony, the Court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the Court may allow additional attorney’s fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.

The Arkansas law permits, but does not require, alimony and attorney fees; the Alabama law is identical in that regard. We have held that the allowance of temporary alimony and attorney’s fees is within the sound discretion of the court. So long as they are within reasonable limits they will not be disturbed. Livingston v. Livingston, 247 Ark. 1137, 449 S.W. 2d 386 (1970); Brabham v. Brabham, 240 Ark. 172, 398 S.W. 2d 514 (1966). In Alabama such an award is based upon all the circumstances of the case. Alabama Code, Title 30 § 30-2-52. The Arkansas law only provides for such relief to the wife with no reference to a reciprocal right for a husband. So does the Alabama law. The fact that the Arkansas law in question only relates to temporary, as opposed to permanent, alimony is not significant. We have even held that a wife is entitled to temporary alimony based upon the sole fact that the husband sued her for divorce. Kearney v. Kearney, 224 Ark. 585, 274 S.W. 2d 779 (1955). It is not a question of temporary or permanent alimony. It is a question of a gender-based classification of the statute. The same arguments made to justify the Alabama law can be made regarding the Arkansas statute in question.

There is no doubt that the Arkansas law cannot survive application of the principles of the On case. “A gender-based classification which, as compared to gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny, ” Orr v. Orr, supra, at 4228. Therefore, we declare Ark. Stat. Ann. § 34-1210 (Repl. 1962) unconstitutional in violation of the equal protection provisions of the United States and the Arkansas constitutions.

The appellee has argued that we should simply hold that the law applies to both wives and husbands. We have never applied this statute in favor of husbands. When the will of the General Assembly is clearly expressed, we are required to adhere to it without regard to consequences. Walker v. Allred, 179 Ark. 1104, 20 S.W. 2d 116 (1929). It is not the function of this court to legislate; to do so would be a clear violation of this court’s authority. Divorce and the incidental rights, responsibilities and liabilities of a divorce, are purely statutory. Ex parte Helmert, 103 Ark. 571, 147 S.W. 1143 (1912); Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d 28 (1975); Wheat v. Wheal, 229 Ark. 842, 318 S.W. 2d 793 (1958). We held in Young v. Young, 207 Ark. 36, 178 S.W. 2d 994 (1944):

The Legislature — not the courts — determined the grounds for, the defenses against, divorce: Because divorce is always regulated by statute.

Since the On decision, the Arkansas General Assembly passed, and the Governor of Arkansas signed into law, Act 705 of 1979. It amends Ark. Stat. Ann. § 34-1210 to read:

During the pendency of an action for divorce or alimony, the court may allow to the wife or to the husband maintenance and a reasonable fee for her or his attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow either party additional attorney’s fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.

It seems that the General Assembly has addressed, by Act 705, the problems created by On and although we take judicial knowledge of the Act, we do not rule on its legality nor application since it is not before us. However, as far as these parties are concerned, it is relevant to their pending divorce case. This matter is remanded for the chancery court to reconsider its order in view of the On decision, our decision and Act 705.

The United States Supreme Court, in On, cautioned litigants as to the effect of the On decision. It may not result in much change. It was pointed out that in Alabama, alimony is sometimes a matter of contract and, therefore, enforceable as a contract between the parties. Arkansas also has recognized this distinction. Armstrong v. Armstrong, 248 Ark. 835, 454 S.W. 2d 660 (1970). Furthermore, parties who have not raised the constitutional issue in prior proceedings may be precluded from raising it at a later date. On v. On, supra.

We do not reach the second argument of the appellant, that the award was excessive, because this matter may be rendered moot at a rehearing. It may be that the order of the trial court, based on the statute declared unconstitutional, can be remedied on a rehearing. Also, this was a temporary and not final adjudication of the rights of the parties.

The appellee also argues that the appellant did not properly appeal from the temporary award of attorney’s fees. The record reflects that the appellant appealed from the order entered by the court and that order included attorney fees.

It may be that the On decision and our decision will at least for a period of time cause some problems to litigants. However, we resist the temptation to rule beyond the issues before us. It is best that any legal problem resulting from On be addressed by the General Assembly or through our judicial system. We cannot cure all the ills created by such cases, nor should we presume to anticipate them.

Reversed and remanded.

Harris, C.J., not participating.

George Rose Smith and Fogleman, JJ., concur in part and dissent in part.

John A. Fogleman, Justice,

concurring in part and dissenting in part. I concur only in those parts of the majority opinion in which the majority declines to legislate and in which it holds that the case should be remanded to the Chancery Court of Jefferson County for consideration in the light of Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979) and Act 705 of 1979.

I do not think that it is appropriate for this court to render a decision invalidating an act of the General Assembly in an abstract consideration of that statute in relation to a decision of the United States Supreme Court invalidating a statute, which could not have had any application to this case at this stage, without a more comprehensive treatment of both our statute [Ark. Stat. Ann. § 34-1210 (Repl. 1962)], which was pertinent to this case, and the background peculiar to this case. The majority properly declines to express itself as to the effect of Act 705 of 1979, leaving this matter to the trial court. We should also let the trial court determine the effect of On on its decree in the background of the concrete facts. I also suggest that the majority has disregarded the presumption of constitutionality that attends every act of the General Assembly. See Collins v. State, 261 Ark. 195, 548 S.W. 2d 106, cert. den. 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158 (1977); Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719; Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534; Neal v. Still, 248 Ark. 1132, 455 S.W. 2d 921; Hickenbottom v. McCain, 207 Ark. 485, 181 S.W. 2d 226, cert. den. 323 U.S. 777, 65 S. Ct. 189, 89 L. Ed. 621 (1944); Hardin v. Fort Smith Couch & Bedding Co., 202 Ark. 814, 152 S.W. 2d 1015; Miller Levee District No. 2 v. Evers, 200 Ark. 53, 137 S.W. 2d 915; Ward v. Bailey, 198 Ark. 27, 127 S.W. 2d 272; Phillips v. Rothrock, 194 Ark. 945, 110 S.W. 2d 26; Easley v. Patterson, 142 Ark. 52, 218 S.W. 381; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275.

In order to put the matter in proper perspective, I will first outline the factual background. This is the second marriage for both parties. Appellant pays alimony of $10,200 per year to his former wife. He had “adjusted gross income” of $274,587 in 1977. He admits monthly take-home pay of $2,000 and monthly income of $2,596 from other sources. He has $13,552 in savings accounts and stocks and bonds worth $51,278. He claims living expenses of $2,000 per month and indebtedness of $133,474. Just a month prior to the hearing, he had represented to appellee that he was the sole stockholder of Acme Construction Company, but appellee was told after appellant filed this divorce suit that he was a minority stockholder and that the majority stockholders were his daughter and son-in-law. Two years previously, when she had contemplated divorce and appellant desired a reconciliation, appellant had told her he was worth a million dollars and had $750,000 in certificates of deposit earning interest at the rate of $200 per day and that they could take trips, do anything they wanted to, and build a fine new home.

At the time of the marriage, appellee had been employed by John Tucker Furniture Company as a salesman, performing duties as an interior decorator. In January, before the hearing in the trial court, she had talked with one Larry Pegrim about employment as an interior decorator, but appellant had objected to her going into business with him. She felt that the opportunity might be again available to her. She had obtained psychiatric help because of extreme nervousness, which she attributed to her husband’s conduct. She owned a dwelling house in North Little Rock from which she received $300 per month rent, but made a monthly mortgage payment of $165 on this residence. She also paid the cost of upkeep and had replaced an air-conditioner and a dishwasher in it.

The testimony of appellee on the critical points is undisputed. Appellant had been giving her $2,000 per month for household and personal expenses for two or three years, after he had increased the allowance from $1,500. She had numerous credit cards. For five years, appellant also had paid all medical and dental expenses of appellee and of her two children by a previous marriage. In addition, appellant furnished appellee with an automobile and the gasoline she used. He also had paid for the entertaining done by the couple. He told her to spend whatever she wanted to.

Obviously, these parties contracted the traditional, conventional marriage and this case should be treated in that light and not in the light of some other marriage or some set of statistics that may or may not be indicative of a breakdown of either the family as an institution or even of our previous concepts of marriage, and the duties and obligations attendant thereon.

Whether I agree with the majority in Orr v. Orr, supra, is of no consequence, because it is the law of the land today. I do not agree that On has the effect the majority of this court has given it, because On dealt only with a statute governing the award of alimony upon the dissolution of a marriage by divorce. In Arkansas, the award of alimony upon divorce has always been governed by statute. We are not dealing here with a statute having to do with such an award. We are dealing with a statute that governs while the marriage continues in existence, and is in recognition of its continued existence. We are also dealing with a case in which the husband, a wealthy man, brought a suit for divorce against his wife, whose means are rather limited to say the least.

Appellee sought the allowance of temporary alimony and reasonable attorney’s fees. We have used the term “temporary alimony” but our statute does not speak in terms of alimony. It relates to maintenance of the wife during the pendency of the action and attorney’s fees incurred in the litigation. The court awarded “temporary support and maintenance” and “temporary attorney’s fees.” We are not considering permanent alimony or property awards, or the condition of the wife after the marriage contract is terminated by divorce, if that time is ever reached. We are considering what happens to this needy wife during the course of the litigation brought by the husband. It is not a question of how she can fend for herself following the divorce. It is, how can she fend for herself in the divorce action and while the marriage contract is still in effect? The disparity between her economic situation and that of her marriage partner is at once apparent. It results from the mutual designs of the parties and the long-standing, well recognized common law concepts of marriage, which may today be said to be, and to have been, the result of a long history of economic discrimination against women, which was only slightly diminished by the married women’s acts. Even after those acts, the trend toward making the sexes similarly situated with respect to economic opportunity has been slow and no one can say, with any confidence, that such a point has been reached. Certainly it has not been attained to that degree that sex is not a valid basis for classification in considering the wife’s survival during the divorce action and assuring her the means for defending it. Eliminating the statutory provision for maintenance, costs of suit and attorney’s fees to the needy wife would discriminate in favor of the non-dependent wives who find themselves defending a divorce suit, along with any husband who wants to rid himself of any obligation to a marriage partner, whom he has made dependent on him. But we all know far more women than men will be “disadvantaged” by elimination of “temporary alimony,” suit money and attorney’s fees, which I submit can be allowed in a case such as this, with or without the statute.

Divorce is statutory and the chancery courts exercise only the powers conferred by statute, not inherent chancery powers, in granting divorces and dividing property and awarding alimony when the marriage is dissolved. Young v. Young, 207 Ark. 36, 178 S.W. 2d 994, 152 ALR 327, in which Bowman v. Worthington, 24 Ark. 522, and Ex parte Helmert, 103 Ark. 571, 147 S.W. 1143, were cited. Still it was pointed out in Young that our statutes provide that the action for alimony or divorce shall be by equitable proceedings. See Ark. Stat. Ann. § 34-1201 (Repl. 1962). Our statement in Young may well be accurate insofar as the power of the court to act is concerned. But it concerns the matter of divorce only. It should be noted that the quotation from Helmert in Young, recognizes that matters relating to divorce and alimony were originally of ecclesiastical origin and that the courts generally look to the statutes as the source of their power. Furthermore, Helmert was directed only to the question of power of the chancellor to make an order granting alimony in vacation. It should be noted that in Young, the court was concerned only with grounds for, and defenses against, divorce. Nothing said in Young related to allowance of support and maintenance or attorney’s fees to the wife, pending divorce.

In any event, this court has said that the chancery courts and this court have the power to award support and maintenance or “alimony” and attorney’s fees to a wife in cases where a divorce was not granted to either party, without placing reliance upon any statute. See McDougal v. McDougal, 205 Ark. 945, 171 S.W. 2d 942; Gabler v. Gabler, 209 Ark. 459, 190 S.W. 2d 975; This is done on the basis that, even though a decree for divorce is denied, “alimony”may be awarded for the support and maintenance of the wife ks in an independent action for alimony. Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369; Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700.

It has long been recognized in this state that an independent action for alimony may be maintained, without the necessity for alleging any grounds for divorce. Wood v. Wood, 54 Ark. 172, 15 S.W. 459; Shirey v. Shirey, supra; Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86. Alimony is defined, at least for the purpose of such cases, as an allowance which a husband, by order of the court, pays to his wife, being separate from him, for her maintenance. Wood v. Wood, supra; Shirey v. Hill, 81 Ark. 137, 98 S.W. 731; Bowman v. Worthington, supra. Alimony (as thus defined before its extension by statute) applied only to divorce a mensa et thoro, presently referred to as divorce from bed and board or limited divorce, because that type of divorce presumes the relation of husband and wife still to exist, although the parties are separated. Hill v. Rowles, 223 Ark. 115, 264 S.W. 2d 638; Bowman v. Worthington, supra. See also Rose v. Rose, 9 Ark. 507.

Only by statute was the meaning of the word alimony extended to include an allowance by the court on dissolving the bonds of matrimony. Bauman v. Bauman, 18 Ark. 320; Wood v. Wood, supra. The holding in Bowman v. Worthington, supra, was based upon a statute that preceded Ark. Stat. Ann. § 34-1201. That statute was construed to bar the allowance of either alimony or maintenance, except as an incident to divorce. It was pointed out in Wood that the ruling was in line with many English and American cases but antagonistic to many others in which there was a broader jurisdiction of suits in equity for alimony alone, where a husband separated himself from his wife, without cause, and without furnishing her reasonable support. This court then concluded that § 34-1201 was in conformity with those authorities recognizing the jurisdiction of courts of equity in actions for support and maintenance or “alimony” and that it was the legislative intent that an action for alimony be the action which had been utilized in those chancery courts that had held that such an action was maintainable in equity. The action was said to be by bill in equity. Rosenbaum v. Rosenbaum, 206 Ark. 865, 177 S.W. 2d 926. And, in such a case, the wife must establish her grounds for relief by a preponderance of the evidence. Rosenbaum v. Rosenbaum, supra. Her ability to earn any amount necessary for her support is properly taken into consideration. Rosenbaum v. Rosenbaum, supra.

It was on the basis of the holding in Wood that this court recognized the power of the chancery court to award “alimony” in a divorce proceeding, even though a divorce be denied. Horton v. Horton, 75 Ark. 22, 86 S.W. 824. It was but a short step to the holding that an equity court not only could, but in a case where the separation was not the fault of the wife, should, make some provision for the maintenance of the wife. Kientz v. Kientz, supra. Whenever there is cause for separate maintenance, an award for personal support of the wife is proper. Walls v. Walls, 227 Ark. 191, 297 S.W. 2d 648. And we have said that the suit for separate maintenance may be maintained “under the broad powers of equity.” Womack v. Womack, 247 Ark. 1130, 449 S.W. 2d 399.

It seems clear to me that, even in a proceeding for divorce, the chancery court may, and should, exercise its equitable powers in matters pertaining to separate maintenance of the wife during its pendency. It must be remembered that a decree for judicial separation is not a divorce at all. It has no effect upon the marital status, which continues existent just as before the decree, which merely regulates the personal rights of the spouses in relation to the still continuing marital status. Myers v. Myers, 226 Ark. 632, 294 S.W. 2d 67; Hill v. Rowles, supra.

Alimony pendente lite is nothing more than separate maintenance during the pendency of a divorce action. See Slocum v. Slocum, 86 Ark. 469, 111 S.W. 806; Glenn v. Glenn, 44 Ark. 46.

In this state, temporary alimony during the pendency of the action is allowed only on the basis of need. Tracy v. Tracy, 184 Ark. 832, 43 S.W. 2d 539. We have repeatedly held that the allowance of alimony pendente lite is within the sound discretion of the chancellor. Lewis v. Lewis, 222 Ark. 743, 262 S.W. 2d 456; Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246; Casteel v. Casteel, 38 Ark. 477; Hecht v. Hecht, 28 Ark. 92.

The exercise of jurisdiction in divorce matters is based to a great extent upon the law of marriage and divorce as administered in the ecclesiastical courts, except as it may have been affected by statute. The basis for this approach was stated in State ex rel Fowler v. Moore, 46 Nev. 65, 207 Pac. 75, 22 ALR 1101 (1922), viz:

Prior to 1858, and from a very remote period in England, the ecclesiastical tribunals had exclusive jurisdiction over divorce, except that divorces a vinculo matrimonii were occasionally granted by special acts of Parliament during that time.
The common law which we received in this country from England was the common law as it existed when this jurisdiction still belonged to the ecclesiastical courts, and it has been held by this court that the law of marriage and divorce, as administered by the ecclesiastical courts, is a part of the common law of this country, except as it has been altered by statute. Wuest v. Wuest, 17 Nev. 217, 30 Pac. 886.

However, as indicated above, those courts could not grant an absolute divorce, and they could, at the most, grant a divorce from bed and board. Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654 (1888). Of course, we adopted the common law of England. Ark. Stat. Ann. § 1-101 (Repl. 1976).

At a very early date, this court recognized the fact that our chancery courts exercise the jurisdiction once vested in the English ecclesiastical courts. In Rose v. Rose, 9 Ark. 507, we said:

*** But beyond this the jurisdiction over divorces and alimony (which is not necessarily an integral part of a decree for a divorce even when granted a mensa et thoro, and had no place in the English divorce a vinculo matrimonii) belonged exclusively to the ecclesiastical courts, and was never exercised in England by any other courts except only during the usurpation of Cromwell while the spiritual courts were closed, *** which jurisdiction the chancery courts renounced upon the restoration and resumption of authority by the ecclesiastical courts. *** So, in our body politic, if by any means the ordinary tribunals for affording relief be destroyed, some other tribunal must be found to supply its place, which is generally the courts of equity, it being the boast of those tribunals to give relief where others are incompetent. Upon this general foundation, then, in reference to which our constitutional and statutory provisions as these subjects are to be interpreted, it is altogether safe to assume that the chancery courts of this State have rightfully, as to divorce and alimony, all the powers of the English ecclesiastical courts as well as additional powers conferred by our statutes.

In Bauman v. Bauman, 18 Ark. 320, this court said that the chancery courts ought to employ the same rules of law which the ecclesiastical courts do, except insofar as they be found unsuited to our courts, or in conflict with specific constitutional or statutory provisions. It was the universal and unquestioned practice of the ecclesiastical courts to award alimony to the wife, whether as plaintiff or defendant, out of the husband’s property, upon what was called, in ecclesiastical parlance, an allegation of faculties made in her behalf and some showing of the husband’s ability. Glenn v. Glenn, 44 Ark. 46. The cited case involved alimony pendente lite.

It has been said that, in enacting the statute permitting alterations in alimony and maintenance, our legislature acted “in analogy to the alimony of the spiritual courts.” Bauman v. Bauman, supra. Thus, the chancery courts today should not hesitate to exercise the powers of the ecclesiastical courts in matters pertaining to alimony and maintenance, unless prohibited from doing so by statute.

Marriage itself is “gender-based” and requires “gender-based” classifications. Only a male can be a husband and only a female can be a wife. Singer v. Hara, 11 Wash. App. 247, 522 P. 2d 1187 (1974); Baker v. Nelson, 291 Minn. 310, 191 N.W. 2d 185 (1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810, 93 S.Ct. 37, 34 L. Ed. 2d 65; Anonymous v. Anonymous, 67 Misc. 2d 982, 325 N.Y.S. 2d 499 (1971); Jones v. Hallahan, 501 S.W. 2d 588, 63 ALR 3d 1195 (Ky. App., 1973); M.T. v. J.T., 140 N.J. Super. 77, 355 A. 2d 204 (1976). There are no “equal protection” barriers to a state’s requiring that husbands be males and wives be females. Baker v. Nelson, supra; Singer v. Hara, supra; Jones v. Hallahan, supra. In disposing of the equal protection argument, the Minnesota Supreme Court, in Baker (in which the U.S. Supreme Court found no substantial federal question), said:

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that “abstract symmetry” is not demanded by the Fourteenth Amendment.

Marriage is, and always has been, a contract between a man (husband) and a woman (wife). B. v. B., 78 Misc. 2d 112, 355 N.Y.S. 2d 712 (1974). Anonymous v. Anonymous, supra. Marriage has been defined as “the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. Black’s Law Dictionary, 4th Ed., p. 1123; B. v. B., supra; 55 C.J.S. 806, Marriage, § 1. Marriage is an important institution that is fundamental to our very existence and survival. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); Gress v. Gress, 209 S.W. 2d 1003, 15 ALR 2d 700 (Tex. Civ. App., 1948). As put in Maynard v. Hill, supra:

*** Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. ***

It has been said that the home and family are the foundation of society. In re McLaughlin’s Estate, 4 Wash. 570, 30 P. 651 (1892). Just two years ago, the United States Supreme Court classified the family unit as “perhaps the most fundamental social institution of our society.” See Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). A doctrine of general acceptance is that, in divorce suits, the court represents the interest of the state throughout the proceedings. State ex rel Fowler v. Moore, supra. See also, Pickston v. Dougherty, 109 So. 2d 577, 71 ALR 2d 618 (Fla. App., 1959). The reason the state is an interested party is because it is important to society, as represented by the state, that the marital status and the home be preserved wherever possible. Cahaley v. Cahaley, 216 Minn. 175, 12 N.W. 2d 182, 157 ALR 1 (1943); Gress v. Gress, supra.

We have treated marriage in the same light as that in which it is viewed in other jurisdictions. In Marshak v. Marshak, 115 Ark. 51, 170 S.W. 567, LRA 1915E 161, Ann. Cas. 1916E 206, we said:

*** Marriage was instituted for the good of society, and the marital relation is the foundation of all forms of government. For that reason the state has an interest in every divorce suit, and the marital relation, once established, continues until the marriage contract is dissolved upon some ground prescribed by statute. ***

See also, Phillips v. Phillips, 182 Ark. 206, 31 S.W. 2d 134.

It is the public policy of this state to surround the marriage relation with every safeguard and to support and maintain the marriage status wherever it is reasonable to do so. Phillips v. Phillips, supra; Hill v. Rowles, supra.

Marriage has been regarded as a civil contract everywhere in this country. Meister v. Moore, 96 U.S. 76, 24 L. Ed. 826 (1878); Ark. Stat. Ann. § 55-101 (Repl. 1971); Reaves v. Reaves, 15 Okla. 240, 82 P. 490 (1905); Dodson v. State, 61 Ark. 57, 31 S.W. 977. See also, Smiley v. Smiley, 247 Ark. 933, 448 S.W. 2d 642; Bickford v. Carden, 215 Ark. 560, 221 S.W. 2d 421. We have called it a solemn contract. Worden v. Worden, 231 Ark. 858, 333 S.W. 2d 494; Shatford v. Shatford, 214 Ark. 612, 217 S.W. 2d 917. It is a contract to which society is a party and in which it has a deep interest. State ex rel Fowler v. Moore, supra; Pickston v. Dougherty, supra; State v. Bittick, 103 Mo. 183, 11 LRA 587 (1891). See also, Smiley v. Smiley, supra. It is subject to regulation under the state’s police power. Dodson v. State, supra. Even so, the right to enter into the marriage contract is not conferred by statute. Meister v. Moore, supra. But because of the state’s interest in its preservation, the parties themselves cannot terminate it. Smiley v. Smiley, supra. The common understanding of marriage in this country is that the two parties have undertaken to establish a life together and assume certain duties and obligations. Lutwak v. U.S., 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed. 593 (1953). The contract is to be husband and wife and to assume all rights and duties of the marital relationship. Jambrone v. David, 16 Ill. 2d 32, 156 N.E. 2d 569 (1959). Among these obligations are those stated in Safranski v. Safranski, 222 Minn. 358, 24 N.W. 2d 834 (1946), as follows:

*** Marriage is a civil contract which differs from other contracts in that it cannot be dissolved by the parties themselves but only by the judgment of a competent court. The marriage contract creates a status or relationship which carries responsibilities and duties which the parties may not by mutual agreement terminate or otherwise avoid. Amongst the obligations imposed thereby is the obligation of the husband to care for and support his wife, to provide a home for her, and to maintain, support, educate, and provide a home for any children born of such marriage. ***

Long ago, we said that by the contract of marriage, the husband assumes the obligation to support his wife and the law will enforce the duty. Bowman v. Worthington, 24 Ark. 522, 538.

It has always been one of the duties and obligations of a husband to support and maintain his wife, in the manner suitable to his station and condition in life (or according to the station in which they live as long as they are married), even though they live separately, if the separation is not through her fault. McConnell v. McConnell, 98 Ark. 193, 136 S.W. 931, 33 LRA (n.s.) 1074; Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86; Welch v. Welch, 225 Ark. 372, 282 S.W. 2d 600; Pledger v. Pledger, 199 Ark. 604, 135 S.W. 2d 851; Bonner v. Bonner, 204 Ark. 1006, 166 S.W. 2d 254; Stearns v. Stearns, 211 Ark. 568, 201 S.W. 2d 753. It has been recognized in at least one jurisdiction that the duty of support under the marriage is not necessarily totally gender-based. In Williams v. Williams, 34 Ill. App. 2d 210, 181 N.E. 2d 182 (1962), the court said:

The marital obligation is the obligation to live, conjugally, with the other, to love and support, protect and defend the other. It is a composite of many responsibilities and duties; ***

In this state, recognition has been given to changing social conditions and the fact that the marriage contract is not necessarily static and is subject to change by the state, but not the parties. In our recently adopted Arkansas Criminal Code, recognition has been given to modern realities of the situation regarding the obligation of one spouse to the other with reference to support and also regarding the likelihood that a marriage partner of one sex is more likely to be dependent than the other, in connection with Ark. Stat. Ann. § 41-2405 (Repl. 1977), the section on nonsupport. Under that section, a person commits the offense of non-support if, without just cause, he fails to provide support to his spouse who is physically or mentally infirm or financially dependent. Under this code, “he” or “him” includes any natural person, so either a husband or a wife could be guilty of non-support. The following portion of the commentary to this section clearly recognizes conditions in Arkansas:

It should also be observed that the section is facially neutral with respect to the sex of the offender; wives and mothers as well as husbands and fathers are subject to prosecution. This effects a minor change in the law. Under old § 41-2405 (Répl. 1964), a woman could be prosecuted for abandoning or deserting an infirm or financially dependent husband but not for failure to support him. Parity of treatment was dictated by equal protection considerations as well as the general Code policy against defining an offense that, by its terms, can only be committed by a person of a particular sex. The practical effect of treating husband and wife the same with respect to support of each other is slight since the “victim” spouse must be either “physically or mentally infirm, or financially dependent.” Given present employment opportunities for the respective sexes, a wife is far more likely to be financially dependent.

I have devoted most of my extended discussion to the matter of temporary alimony. But, for the most part, it is equally applicable to the allowance of suit money, including attorney’s fees. In this state, there has always been a concern about the ability of the dependent marriage partner to adequately defend a divorce suit. In Glenn v. Glenn, 44 Ark. 46, we said:

In the absence of any proof of separate property in a wife, it is just and reasonable to compel the husband to furnish the wife with means to defend a suit by him for a divorce. Otherwise she would be at his mercy. And for the same reason he would be secure against the best founded suit for a divorce on her part, if she were bound helpless to prosecute. He is compelled to furnish her with necessaries suitable to her station in society, and to his means. Alimony, pendente lite, may be a greater necessity than anything else. ***

In Bauman v. Bauman, 18 Ark. 320, it was held that attorney’s fees and money to defray the expenses of the suit are to be considered in fixing the amount of alimony pendente lite, either as a part thereof, or in addition thereto. There has been no change in our position throughout the years. The purpose of awarding suit money is to insure an efficient preparation of the case and a fair and impartial trial, and where the suit is brought by the husband, to enable the wife to defend the action or prosecute a cross-complaint. 1 Nelson, Divorce and Annulment 404, § 12.04.

We have never considered the allowance of suit money and attorney’s fees to be a matter of right. Ryan v. Baxter, 253 Ark. 821, 489 S.W. 2d 241; Tilley v. Tilley, 210 Ark. 850, 198 S.W. 2d 168; Warren v. Warren, 215 Ark. 567, 221 S.W. 2d 407; Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S.W. 2d 246; McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257. Attorney’s fees may be denied a wife on equitable grounds, even where the husdand is unsuccessful in a suit against the wife. Reibstein v. Reibstein, 220 Ark. 783, 249 S.W. 2d 847.

In a highly regarded text on divorce, the author points out that in some jurisdictions it has been held that the power to award temporary alimony or suit money must be derived from statute. Arkansas is not one of those states. The writer continues, saying that the decided weight of authority holds that jurisdiction of the matrimonial action includes, as an incident, power to award both temporary alimony and suit money, pending the action. 1 Nelson, Divorce & Annulment, 408, § 12.09. That authority considers “temporary alimony,” “alimony ad interim” and “alimony pendente lite” as synonymous terms. 1 Nelson, Divorce & Annulment, 403, § 12.02. According to him, “suit money” ordinarily means money necessary to enable a spouse, generally the wife, to carry on and defend the matrimonial action. 1 Nelson, Divorce & Annulment, 404, § 12.04.

This court has always recognized that in matters pertaining to allowance of support and maintenance or alimony pendente lite, and attorney’s fees as well, the relative financial abilities of the parties are an important consideration. See, e.g., Rosenbaum v. Rosenbaum, 206 Ark. 865, 177 S.W. 2d 926; Tilley v. Tilley, supra; Warren v. Warren, supra; McGuire v. McGuire, supra. This court has not hesitated to treat the matter of support and maintenance on the basis of equity, as previously pointed out. Furthermore, we have recognized in Orr v. Orr, 206 Ark. 844, 177 S.W. 2d 915, that a wife was entitled to have the equitable remedy of specific performance of a written contract which was a property settlement, dividing personal property in a divorce action, in affirming a chancery court’s denial of a motion to transfer the case to law.

Since an action for separate maintenance is a suit in equity which is not governed by any statute, and the allowance of alimony is within the power of the courts of equity, independent of statute, I think that a court of equity can, by exercise of equitable powers, award the wife in this case separate maintenance (or alimony in the classic, rather than the statutory, sense) during the pendency of the action and attorney’s fees for her defense in this case, regardless of the constitutionality of § 34-1210, just as this court did in approving the allowance of alimony to a wife against whom a divorce was granted. By the same token, I think that a court of equity could avoid the equal protection impact of Orr by using the powers of equity to award separate maintenance and attorney’s fees to a husband who is dependent upon his wife, without any statutory authorization. The powers of the court of equity in dealing with change are extensive and, were it not so, they probably would never have come into being. In support of my position, I take the liberty of quoting extensively from two sections of American Jurisprudence, Vol. 27, Equity, §§ 12 and 103, pp. 529 and 624:

§ 12. New and novel cases.
Ordinarily, the fact that an action in equity is an unusual one because the facts upon which it is based are unusual is not sufficient to condemn the petition or complaint, since it is a distinguishing feature of equity jurisdiction that it will apply settled rules to unusual conditions, and mold its decrees so as to do equity between the parties. Peculiar and extraordinary cases will arise in the complex and diversified affairs of men, which, perhaps, cannot be classed under any of the distinct heads of equity jurisdiction, but which must be acknowledged, nevertheless, to come within the legitimate powers of a court of equity, because complete justice cannot otherwise be done between the parties. Therefore, when no remedy exists at law, courts of equity, to prevent injustice and in many cases on principles of general policy, will go far in granting relief. Indeed, it is the duty of a court of equity to adapt its practice and course of proceeding to the existing state of society, and not, by too strict an adherence to forms and rules established under different circumstances, to decline to administer justice and enforce rights for which there is no other remedy. While the court, in the exercise of its power to accord extraordinary relief, is restrained by fixed rules and established principles, a want of jurisdiction is not inferred from the novelty of the disputed question. By the adaptation of old rules to new cases, the jurisdiction of equity may be said to be constantly growing and expanding. The fact that there is no precedent for the precise relief sought is not fatal to equity jurisdiction, since precedent is only a guide and not a bar. So, where grounds calling for the exercise of equitable power exist, the court will not hesitate to act; otherwise, gross injustice might be perpetrated under the guise of forms of law. *** [Emphasis mine.]
§ 103. Relief available, generally; adaptation to facts and circumstances.
The power of equity is said to be coextensive with the right to relief; it is as broad as equity and justice require. In the administration of remedies, an equity court is not bound by the strict or rigid rules of the common law; on the contrary, the court adapts its relief and molds its decrees to satisfy the requirements of the case and to protect and conserve the equities of the parties litigant. The court has such plenary power, since its purpose is the accomplishment of justice amid all of the vicissitudes and intricacies of life. It is said that equity has always preserved the elements of flexibility and expansiveness so that new remedies may be invented or old ones modified in order to meet the requirements of every case and to satisfy the needs of a progressive social condition. In other words, the plastic remedies of equity are molded to the needs of justice and are employed to protect the equities of all parties, and the flexibility of equitable jurisdiction permits innovation in remedies to meet all varieties of circumstances which may arise in any case. Moreover, the fact that there is no precedent for the precise relief sought is of no consequence. Where grounds calling for the exercise of equitable power to furnish a remedy exist, the court will not hesitate to act, even though the question presented is a novel one. But while it is generally the province of equity to administer a remedy where none exists at law, a court of equity may not, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law or without authority of law. *** [Emphasis mine.]
While a court of equity may not be able to give the plaintiff all he asks, there is no doctrine which prevents the court from giving him as much as it can. Thus, it has been held that in an action to establish a fee interest in land, the fact that the court might not be able to decree a title in fee would not render it powerless to decree a life estate or a tenancy for years.

This is not a novel approach in Arkansas. In Whitaker & Co. v. Sewer Improvement Dist. No. 1 of Dardanelle, Ark., 229 Ark. 697, 318 S.W. 2d 831, this court capsuled the matter just quoted from the text, thus:

A court of equity is a court of conscience: a forum wherein justice is done, sometimes stripped of technicalities and red tape. A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress. ***

I do not agree that On has so altered the marriage contract that Ark. Stat. Ann. § 34-1210, with its stated limitations and those put upon it by the court, is unconstitutional. Not only is there flexibility in equity, but the Fourteenth Amendment allows considerable flexibility. In Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), wherein the U.S. Supreme Court had discussed marriage, the court, speaking through Mr. Justice Douglas, said:

It was stated in Buck v. Bell, supra, that the claim that state legislation violates the equal protection clause of the Fourteenth Amendment is “the usual last resort of constitutional arguments.” 274 US p. 208, 71 Led 1002, 47 S Ct 584. Under our constitutional system the States in determining the reach and scope of particular legislation need not provide “abstract symmetry.” Patsone v. Pennsylvania, 232 US 138, 144, 58 L ed 539, 34 S Ct 281. They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience. See New York ex rel. Bryant v. Zimmerman, 278 US 63, 73 L ed 184, 49 S Ct 61, 62 ALR 785, and cases cited. It was in that connection that Mr. Justice Holmes, speaking for the Court in Bain Peanut Co. v. Pinson, 282 US 499, 501, 75 L ed 482, 489, 51 S Ct 228, stated, “We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Only recently we reaffirmed the view that the equal protection clause does not prevent the legislature from recognizing “degrees of evil” (Truax v. Raich, 239 US 33, 43, 60 L ed 131, 136, 36 S Ct 7, LRA 1916D 545, Ann Cas 1917B 283) by our ruling in Tigner v. Texas, 310 US 141, 147, 84 L ed 1124, 1128, 60 S Ct 879, 130 ALR 1321, that “the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”

I believe that, even if § 34-1210 is unconstitutional, the chancery court, in the exercise of its powers, both as the successor of the ecclesiastical courts and as a court of equity, could have made the awards made in this case, in spite of On.

I am authorized to state that Mr. Justice George Rose Smith joins in this opinion.

      The Alabama statutes in question provided:
      Ala. Code, Title 30.
      § 30-2-51. If the wife has no separate estate or if it be insufficient for her maintenance, the judge, upon granting a divorce, at his discretion, may order to the wife an allowance out of the estate of the husband, taking into consideration the value thereof and the conditions of his family.
      § 30-2-52. If the divorce is in favor of the wife for the misconduct of the husband, the judge trying the case shall have the right to make an allowance to the wife out of the husband’s estate, or not make her an allowance as the circumstances of the case may justify, and if an allowance is made, it must be as liberal as the estate of the husband will permit, regard being had to the condition of his family and to all the circumstances of the case.
      § 30-2-53. If the divorce is in favor of the husband for the misconduct of the wife, and if the judge in his discretion deems the wife entitled to an allowance, the allowance must be regulated by the ability of the husband and the nature of the misconduct of the wife.

      To say the least, procedures in divorce cases are according to rules in equity cases. See Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809. And relief may be denied on equitable grounds. Krohn v. Krohn, 221 Ark. 564, 254 S.W. 2d 453.

      I am not unaware of Walker v. Walker, 148 Ark. 170, 229 S.W. 11 and Kincheloe v. Merriman, 54 Ark. 557, 16 S.W. 578, 26 Am. St. Rep. 60. I do consider that what is said in those cases is dictum, insofar as defending a suit for divorce is concerned. Kincheloe involved an action at law by an attorney against a husband to recover fees for services rendered the wife in connection with a contemplated suit for divorce against the husband, which was never instituted. Statements that services of an attorney in a suit for divorce have no relation to protection of a wife are inconsistent with our other decisions on the question, at least where a defense by the wife is concerned. In Walker, the court permitted a husband to exempt his wages in a garnishment proceeding by which the wife sought to recover a judgment for attorney’s fees in a decree awarding her a divorce. Perhaps the right to fees in such a case is only statutory, as stated in Walker. I do not believe that the same can be said when the husband brings the suit. Neither temporary alimony (separate maintenance) nor attorney’s fees have ever been allowable to a wife who brings a suit against a husband, without a showing of merit in her cause of action. Countz v. Countz, 30 Ark. 73.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Jerry BOYETTE v. STATE of Arkansas
    CR 79-24
    580 S.W. 2d 473
    Opinion delivered May 7, 1979
    (Division I)

      Greene & Cottrell, by: J. H. Cottrell, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., for appellee.
   Darrell Hickman, Justice.

Jerry Boyette was found guilty as charged of theft by receiving by the trial court sitting without a jury. He raises one point for reversal: The court should have granted appellant’s motion for a directed verdict because the information alleged that the stolen property belonged to Hawaiian Tropic while the proof at trial was that Roy Huddle owned the property. We agree.

The information alleged that on September 15, 1976, Boyette “. . . did unlawfully, feloniously, receive and retain certain stolen property having a value in excess of $100.00, such being the property of Hawaiian Tropic, P. O. Box 511, Daytona Beach, Florida, knowing that said property was stolen, . ...” A subsequent amended information changed the date from September 15 to September 9.

Several witnesses for the State testified that the property in question, suntan lotion, belonged to Roy Huddle, a distributor for Hawaiian Tropic. No one stated that the property belonged to Hawaiian Tropic.

Steven Hickey, a vice president of Hawaiian Tropic, testified that the property had been sold to Roy Huddle before it was stolen. Huddle and one of his employees stated that it belonged to Huddle. Huddle said he found his warehouse broken into on the 15th of September. He found several pallets of suntan lotion missing. He had checked his warehouse two weeks before. An employee of Petty’s Drugs, to whom Boyette had sold the merchandise, stated that the property was returned to Huddle when it was discovered that the property was stolen and Huddle could identify it.

At the close of all the evidence, Boyette’s attorney moved for a directed verdict on the ground raised here on appeal.

There is no question that the allegation of ownership in the information contradicts the proof of ownership at trial.

This court recognizes that an erroneous allegation of ownership of property does not affect any substantial right of the defendant charged, if the offense is described with such certainty as to identify the act so there can be no doubt about the particular offense charged. Ark. Stat. Ann. §§ 43-1012 and 1014 (Repl. 1977); Von Tonglin v. State, 200 Ark. 1142, 143 S.W. 2d 185 (1940); and, Tucker and Peacock v. State, 194 Ark. 528, 108 S.W. 2d 890 (1937). The issue here, then, is whether the crime is “so identified and described in the indictment or information as to make definite and certain the offense charged,” so that Boyette could prepare for trial and would be able to plead former jeopardy, if he were ever charged with the same offense again. Von Tonglin v. State, supra.

Here, the only description in the information which identifies the alleged crime is the date and ownership of the property. When we disregard the erroneous allegation of ownership, all that is left is an allegation that Boyette possessed undescribed stolen property on September 9, 1976. That is not enough.

Since the crime is not described with the certainty required, the variance between the allegation in the information and proof at trial as to ownership is a fatal defect which requires reversal. Von Tonglin v. State, supra.

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Byrd, JJ.


author: John I. Purtle, Justice.

text:
    Lee WILLIAMS v. STATE of Arkansas
    CR 78-219
    580 S.W. 2d 488
    Opinion delivered May 7, 1979
    (In Banc)

      William M. Cromwell, of Rose, Kinsey & Cromwell, for appellant.

      Sieve Clark, by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John I. Purtle, Justice.

On September 22, 1978, appellant was convicted in the Sebastian County Circuit Court for the offense of Public Servant Bribery, the same being Ark. Stat. Ann. § 41-2703. He was fined the sum of $5,000 and appeals from said judgment.

The appeal is based upon an alleged grant of immunity to appellant by Charles Karr, Prosecuting Attorney. There was never any court order or other written agreement granting immunity to the appellant. This is then a fact question upon which the trial court has ruled.

Before we review the facts we will state that the burden was upon the appellant to prove the grant of immunity.

The charge in this case arose from the transactions between appellant, who was in the bail bond business in the Fort Smith area, and a former assistant city attorney, who was charged with Forgery in the Second Degree but convicted of the lesser included offense of Soliciting Unlawful Compensation. During the course of the investigation of the charges against the assistant city attorney some of appellant’s records were subpoenaed by the prosecuting attorney. The wrong records were seized and the appellant made this known and then voluntarily surrendered the correct records to assist in the prosecution of the assistant city attorney.

The evidence shows appellant and his attorney were the source of the original information concerning the assistant city attorney and that they cooperated fully throughout the case. Also, appellant and his attorney continued to show they expected immunity to be granted in return for their cooperation. However, there is nothing in the record to show the prosecuting attorney ever committed himself fully to the proposition that immunity would be granted to appellant.

Both appellant and his attorney testified that they understood all along that immunity would be or had been granted. It is evident the case against the assistant city attorney could not have been made without the testimony of appellant. Charles Karr stated he never promised immunity and one of his deputies stated he had no knowledge of such a promise ever having been made by Karr.

Appellant relies heavily upon our decision in Hammers v. State, 263 Ark. 378, 565 S.W. 2d 406 (1978). There we found, and it was undisputed, that the state had an agreement with the witness to grant immunity conditioned upon her agreement to testify against another party. Before the trial the accused entered a plea and it was not necessary for the witness, who had been granted immunity, to testify. She was ready, willing and able to testify but the plea negated the need for her testimony. When the witness Hammers was subsequently charged, she pleaded the grant of immunity. There we held the grantee of the promise of immunity was entitled to rely upon the undisputed promise of immunity and the state was bound to live up to its bargain.

We do not have the same facts before us as we had in Hammers, supra. We recognize the fact that appellant and his attorney expected and hoped for immunity but they have failed to meet the burden of showing there was ever an actual grant of immunity. Therefore, the trial court did not err in failing to grant appellant’s motion to dismiss because he had been granted immunity.

Affirmed.

Harris, C.J., and Fogleman, J., concur in the results.


author: John A. Fogleman, Justice.

text:
    James PACE v. STATE of Arkansas
    CR 78-182
    580 S.W. 2d 689
    Opinion delivered May 14, 1979
    (Division II)

      Tom J. Keith, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant James Pace was sentenced to consecutive terms of ten years for aggravated robbery and five years for theft of property, after a jury trial on a charge of robbing the Pizza Hut in Bentonville and taking $375 on February 17, 1978. He asserts the following points for reversal:

I.
THE COURT ERRED IN REFUSING TO SUPPRESS ORAL STATEMENTS MADE BY THE APPELLANT AT HIS APARTMENT WHERE HE WAS NOT ADVISED OF HIS CONSTITUTIONAL RIGHTS AND THE ORAL STATEMENTS MADE AT THE SHERIFF’S OFFICE AFTER BEING ADVISED OF HIS CONSTITUTIONAL RIGHTS.
II.
IT WAS ERROR FOR THE TRIAL COURT TO DENY THE APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED BY A WARRANTLESS SEARCH.
III.
IT WAS ERROR FOR THE TRIAL COURT TO ADMIT INTO EVIDENCE A RED KNIT CAP (STATE’S EXHIBIT NO. 2).
IV.
IT WAS ERROR FOR THE TRIAL COURT TO DENY THE APPELLANT’S MOTION TO STRIKE STATE’S EXHIBITS NOS. 6, 7 AND 8.

We find no merit in them and affirm.

I.

Appellant actually objects to, and sought to suppress, four separate statements. The first of these was made to police officers in the apartment where they found appellant. We need not give extensive consideration to his arguments that, because he was in custody and had not been given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1966), his first statement was involuntary. Pace was asked by one of the officers if anyone else had been at the apartment that night. His response that Scott Rhodes had been there ten or fifteen minutes earlier, changed his shoes and left through the back door, was exculpatory, not incriminating. It was not productive of any “poisonous tree” fruit. Instead, it caused the officers to be uncertain whether Pace was a suspect or a witness. In spite of the fact that, before Pace made this statement, one of three officers in Pace’s apartment had drawn a weapon as Pace emerged from his bathroom at the request of these officers, the trial judge found that the circumstances indicated that having a weapon “at the ready,” until it was discovered that Pace was not armed, was reasonable and that the officer “re-holstered” his weapon when it became apparent that Pace was unarmed, and we cannot say that this holding was erroneous. There is a proper basis for the trial judge’s finding that the inquiries made by the officers at this stage were investigatory, not accusatory.

After a thorough suppression hearing, at which appellant neither testified nor offered any evidence, the trial judge made extensive findings of fact, and concluded with a holding that he saw no evidence in the record that the statements of appellant were anything other than voluntary. We cannot say that the court erred under the Degler standard, because we cannot say that these findings are clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. Neither can we say that an independent view of the totality of the circumstances dictates a result different from that reached by the trial judge.

Gary McVay, a Bentonville police officer, was told, at approximately 9:40 p.m. on February 17, 1978, that there had been a robbery at the Pizza Hut on Highway 71. He was the first police officer to arrive at the scene, but he was soon joined by Officer Holloway, another Bentonville policeman. After the manager of the Pizza Hut pointed out to McVay the direction taken by the robber when he left, McVay went to the back door and saw two sets of human tracks in the three to four inches of fresh snow on the ground. One of them led to the Pizza Hut and the other away. McVay, with the aid of his flashlight, followed the tracks that led away from the Pizza Hut for a distance of approximately five blocks, or 500 to 600 yards, to Apartment 7 of apartments in the 1300 block of South Main Street. He found only one set of footprints on the streets along the way. McVay said the tracks were so obvious, anyone could have followed them.

At 12th Street, along the route of the tracks, McVay was joined by Deputy Sheriff Tom Hutcheson and by Deputy Sheriff John Green, each of whom was driving his police vehicle. Officer Holloway joined them when they reached the apartment. McVay knocked on the door and Kathy Workman answered. When McVay asked whether anyone else was there, she said that James Pace was in the apartment. She told McVay that she had been there all evening, but that Pace had taken Demarious (DiDi) Haney to work at about 5:00 p.m., and, after an absence of about two hours, returned and remained at the apartment. She told McVay that Pace was then in the bathtub, and, when McVay said he needed to talk to him, stepped aside from the door and started for the bathroom. McVay and Holloway then entered the apartment and McVay stepped halfway through the middle room and asked Pace to come out. Hutcheson then entered the apartment and also asked Pace to come out of the bathroom. Pace came out, holding a towel in front of him. Hutcheson had drawn his pistol and pointed it at the bathroom door. When Pace came out, Hutcheson told him to put the towel down. Pace did so and proved to be nude and unarmed. Hutcheson then put his weapon away. McVay said that he could tell by observing Pace’s stomach muscles that Pace was breathing heavily, as if he had been running. When asked, Pace said that he had been at the apartment since approximately 8:30. It was then he made the statement about Scott Rhodes. McVay then went out the back door of the apartment and followed the tracks he found there to the Pizza Hut.

When the officers arrived at the apartment, Green, who went to cover the back door, noticed a set of tracks at the back entrance. McVay had looked at them before entering the apartment. McVay said that the tracks at the front door and those at the back seemed similar. It was then snowing lightly, and it appeared that the tracks at the back of the apartment were almost as fresh as those at the front, and McVay said that the two sets of tracks seemed to have been made at approximately the same time, but that those entering the apartment were fresher. When McVay followed the tracks leading away from the back door, they turned out to be the second set of tracks McVay had seen when he first went to the Pizza Hut.

When McVay left, Green, Hutcheson and Holloway were still at the apartment. While talking to Pace, McVay had seen Green pick up a pair of wet boots with some snow on them. Green had come into the apartment when he heard the voices of the other officers inside the apartment. At that time Pace was standing in the kitchen with McVay and Hutcheson. Green asked, no questions, and apparently said nothing. Shortly after McVay left, the other officers left Pace and Workman in the apartment, after Green had told Pace not to leave because the officers would probably want to talk to him again. When Pace stated that he was to pick up his girl friend DiDi Haney at her place of employment at about 11 :Q0 p.m., Green told him that would be all right, but that Pace should return to the apartment. Pace was not told that he was under arrest or in custody. According to Green, he thought that Pace might be a witness instead of a suspect, because of the statement about Rhodes, even though he knew at the time that Pace had said that Rhodes had changed into tennis shoes and that the tracks leading from the back door had not been made by tennis shoes. Hutcheson and Green searched the area for other footprints that might support Pace’s story, but found none. Hutcheson said that the officers were then still in the investigatory stage. Green went back to the Pizza Hut and searched for other tracks there, but found no evidence.that lent support to Pace’s story.

McVay, Green, Hutcheson and Holloway met Don Harrelson, a criminal investigator for the Benton County sheriff’s office, and reported their findings to him. Harrelson and Green then went to Pace’s apartment and requested that he accompany them to the sheriff’s office for questioning and Pace agreed to go. When asked what he would have done if Pace had not agreed, Green said that he probably would have taken Pace into custody. Pace was taken to the criminal investigation office, where he was given the “Miranda warnings” as to his constitutional rights, and signed a waiver of them on a form on which they were expressly stated. Harrelson testified that he read each item separately to Pace, and asked if he understood that right. Pace replied affirmatively each time, and Harrelson wrote “yes” after each item as the answer was given. It was after the completion of this process that Pace was asked to sign the waiver. This took place at. 11:00 p.m.

Pace was interviewed by Harrelson for about 40 minutes. He made a statement in which he substantially repeated the statement he had previously made about Scott Rhodes. He said that Kathy Workman had been present in the apartment when Scott Rhodes was there. Harrelson then went to talk with Miss Workman, who had come to the sheriff’s office along with DiDi Haney. Harrelson gave her the “Miranda warnings,” after which Miss Workman told him that she had not seen Scott Rhodes and that she had prepared Pace’s bath.

Harrelson again talked with Pace, after asking Pace if he wanted his rights read to him again and receiving a negative reply accompanied by a statement by Pace that he understood his rights. Pace then elaborated upon the story about Scott Rhodes. He said that Rhodes had come to Pace’s house, had said that he was going to rob the Pizza Hut, and that Rhodes then had a four inch .30 caliber pistol. Pace said Rhodes was gone about 30 minutes, returned and gave Pace the money in a white pillow case and the pistol. Pace said that he had put the pistol, which Rhodes said he had stolen from John Martinez, in his attic. Pace also said that he had put the money in his own shoes and had intended to stash it when he went out to get DiDi, but had not done so.

Pace had been turned over to the jailers for booking. The jailers, Bob Ridout and Cecil Weatherford, conducted a strip search of Pace. They found a quantity of money in both his shoes. Ridout advised the investigating officers of this. After Pace’s second statement, the investigating officers attempted to question Workman further, but she asked for an attorney. They also talked to Demarious Haney and then talked to Pace again. After the money was found, Pace decided that he wanted to tell the whole story. Harrelson said that he asked Pace if he knew his rights and if he wanted them read again. Pace said he knew his rights. He never asked for an attorney and did not ask the officers to stop the questioning. Harrelson said that Pace said:

I went to rob the Pizza Hut and I got back to the apartment and told Kathy when I got to the Pizza Hut some girl was talking on the telephone. I knocked her on her ass and then I ran home and got in the bathtub — I got home, I dumped the money on the bed. Kathy said, “Where did you get this?” and I said, “I robbed something.”

Harrelson also stated that Pace was asked, after making this statement, if he had a gun and told the officers where they could find it in the attic at his apartment under some “rags and papers and stuff” and gave explicit instructions as to how it could be found. Harrelson said that thereafter the pistol, a blue sweat jacket and a pillow case were recovered from the apartment and that Police Chief Dan Moody took charge of them. He said that this search was conducted on the basis of a written consent signed by Pace at 11:15 p.m.

Harrelson talked to Pace again on February 23, 1978, after Pace had said that he would give a full confession which could be recorded on tape. Harrelson said that Pace again signed a waiver of rights which had been read to him by Chief Moody. It was witnessed by Harrelson. Harrelson said that he had thought that the statement had been taped, but later found that the recording machine had not worked. He said that Pace had stated that he got the gun from John Martinez at Bella Vista, two days prior to the robbery, that the money found in his shoe was the money taken from the Pizza Hut, and that he had run back to the apartment on foot, describing the route he had taken. Harrelson said that he could not remember the route Pace described. Harrelson said that Pace had repeatedly said that he didn’t want to tell some facts because he might get Kathy Workman in trouble.

The time that the officers actually placed Pace under arrest is unclear from the record. It may be that he was not actually arrested and “booked” until after his second statement at the sheriff’s office, but there is also testimony from which it might be inferred that this took place after the first statement, made just after his arrival there. In our view, the officers’ interpretation of the time of arrest is of little consequence. If the investigation had focused on Pace and his freedom of action was restricted when he was interrogated, he may have been considered as having been in custody, so far as interrogation is concerned. For the purposes of this opinion, we consider that Pace was in custody when he accompanied the officers to the sheriff’s office, even though we do not agree with appellant that the focusing of the investigation on Pace was equivalent to his being in custody. See Reeves v. State, 258 Ark. 788, 528 S.W. 2d 924. See also, Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977).

The exclusionary rule does not apply to voluntary statements and statements made without coercion, following proper advice as to constitutional rights, even though the accused was in custody at the time. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1966); U.S. v. Joslyn, 371 F.S. 423 (Ariz., 1974); Hale v. State, 252 Ark. 1040, 483 S.W. 2d 228; O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618; Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373, cert. den. 401 U.S. 1003, 91 S. Ct. 1240 (1971). It appears to us that the state met its burden of proving that the statements of Pace were voluntary. We do not find any basis for holding that the interrogation was rendered coercive by reason of the fact that the officers took no steps to make it clear to appellant that he had no legal obligation to accompany them to the sheriff’s office, as required by Rule 2.3, Arkansas Rules of Criminal Procedure, or by reason of the presence of his parole officer, Steve Bertschy, who had, on a previous occasion, caused appellant’s apartment to be searched under a “white warrant.” These facts were known to the trial judge. On the undisputed facts, we cannot say that the totality of the circumstances is such that the incriminating statements given by Pace were involuntary.

II.

Appellant argues that evidence seized pursuant to a consent to search executed by him should have been suppressed because the officers violated Rule 11.5, Arkansas Rules of Criminal Procedure (Repl. 1977), by failing to advise Pace that he could withdraw or revoke this consent. When Harrelson was asked whether he had advised Pace, after he had been placed under arrest, that he could revoke the consent, Harrelson answered in the negative. According to Harrelson’s version, however, Pace was not arrested until after the consent was signed and after the money was found in his shoes. Harrelson testified that the written consent to search was signed by Pace at about 11:15 p.m., during the interview at which he made his first statement at the sheriff’s office. He said that he advised Pace that he did not have to sign it, that he could require Harrelson to attempt to get a search warrant and that he could revoke it. When cross-examined on his recollection about advising Pace that he had a right to revoke the consent, Harrelson said that he was sure that “we did because we always do. I don’t just say that I vividly remember it, I can’t say that.” This statement falls short of establishing the lack of any basis for this officer’s statement that he did advise Pace that he had a right to revoke the consent. Evidence of the habit of this officer or routine practice of the sheriff’s officers in this regard was relevant on the question. Ark. Stat. Ann. § 28-1001, Rule 406 (Supp. 1977).

Furthermore, Rule 11.5, Rules of Criminal Procedure, does give one the right to withdraw or limit a consent previously given, but there is nothing in the rule requiring that the person giving the consent be advised of a right to revoke it. Appellant’s reliance upon a commentary relating to a proposed section of the rules that was never adopted is misplaced. There is nothing to indicate that Pace ever desired to revoke the consent to search. His explaining in detail how the officers would find the pistol is certainly inconsistent with a desire to revoke a consent otherwise voluntarily given.

Appellant contends, however, that the consent could not have been voluntary because of coercive conditions existing at the time. These alleged conditions were the presence of his parole officer, Steve Bertschy, and illegal arrest or detention of appellant. There was evidence that Pace’s apartment had been searched on a previous occasion under the authority of a “white warrant” issued by Bertschy, and that some of the officers conducting the investigation participated in that search. Although Bertschy was present during a substantial part of the interrogation, there is no evidence that he actually participated in it, or in Pace’s arrest, or in the investigation of the crime. His presence, without taking steps to negate its effect, as appellant now contends he should have done, certainly did not render the consent involuntary, either when considered separately or in conjunction with all other factors. We find nothing to suggest that Pace’s arrest was illegal.

III.

At about 11:00 p.m. William Hall, another Bentonville police officer, went with Holloway to search for physical evidence. He backtracked the tracks leading from the front door of the Pace apartment. He described the tracks as distinctive. He picked up a red cap he described as a “ski mask type of cap,” beside the tracks, about 200 or 300 feet, or “four houses,” north of Pace’s apartment. The cap was turned inside out and had two eye holes cut in it. The word “Arkansas” was printed on the side. Hall said that it matched the description of a cap worn by the robber.

Appellant objected to the introduction of this cap because McVay did not find it when he followed the tracks from the Pizza Hut to the apartment. He now argues that none of the three witnesses who were present at the time of the robbery testified that the cap was similar or identical to the “red ski mask” worn by the person who committed the robbery. It is easy to understand how McVay could have failed to see the cap. Hall testified that he almost “missed the cap” and Hall was looking for physical evidence, while McVay was concentrating on following the tracks. Appellant made no objection in the trial court on the ground that the witnesses who saw the robber did not identify the cap, or because of the alleged dissimilarity of the cap, on the bases that it was not designed and constructed as a ski mask and none of the witnesses mentioned the word “Arkansas” in describing the cap. We do not consider such matters when they are raised for the first time on appeal. Furthermore, error cannot be predicated upon a ruling admitting evixdence unless a timely objection is made stating the specific ground of objection if the ground is not apparent from the context. Ark. Stat. Ann. § 28-1001, Rule 103(a)(1) (Supp. 1977). At any rate, we find no error. Appellant’s objections argued here really go to the weight to be given this piece of evidence, but not to its admissibility. The objection made in the trial court really goes to the question of relevance, and we find no error on that ground.

IV.

While Bentonville Police Chief Moody was testifying during the trial, he identified certain objects found in a search of Pace’s apartment. He testified that two searches were made. Green and Hutcheson participated in the first one. They did not find the jeans, jacket or pillowcase at that time. Moody thought that this search was made at about 11:00 p.m. and that a second search was conducted at about 1:00 a.m. The later successful search, according to him, was after Pace had told them where to find the weapon. Moody then observed that the jacket was marked “10:31 p.m.” Moody thereafter testified that the jacket was found on the first search and that the officers were then admitted by an occupant of the apartment. He said that Demarious Haney, who lived at the apartment, had given consent to this search, and that Harrelson had possession of that written consent. Moody said that the other items were found on the occasion of the second search.

Each of the exhibits had been admitted into evidence after the trial judge had asked if appellant had any objection and appellant answered “no” or appellant’s attorney had volunteered that he had no objection. Thereafter, the marking on the jacket was discovered. At the conclusion of the testimony of this witness, appellant’s attorney said, “Your Honor, I move to strike” and the judge remarked, “I have already ruled on that.” Doubtless, the judge referred to the hearing on the motion to suppress, at which he had upheld the search, saying that he found no wilful invasion of appellant’s rights.

Appellant’s attorney did not specify which of the exhibits should be stricken. In view of the testimony of Moody and testimony given by Harrelson, we find no error, at least as to those items found on the second search. Harrelson had said that he did not participate in a search until after the last statement was made by Pace. This commenced at 1:35 a.m. At the trial, Harrelson, who testified before Moody did, reiterated the statement that he participated in a search of the apartment at this time and that he was accompanied by Moody, Green and Hutcheson. Harrelson also testified that the apartment had been searched earlier without the gun having been found, but that he was not present. It was his recollection that the “coat” had been found on the first search. It was also Harrelson’s recollection that Moody had told Pace that the officers had been to his apartment and had not found the gun.

Green had testified at the suppression hearing that there had only been one search of the apartment and that it took place before the money was found in Pace’s shoes. He stated, however, that the gun was found on that occasion and that Harrelson and Moody were present. All other evidence indicates that Harrelson never left the sheriff’s office until after Pace had confessed and given directions for finding the gun. There was certainly a preponderance of the evidence to show that the successful search was conducted after Pace executed his written consent.

There was no basis for striking any of these exhibits. Even if the jacket was recovered on the first search, and even if that search preceded Pace’s written consent, there is undisputed evidence that a proper consent had been given by an occupant of the premises. And even if the jacket should have been stricken, the evidence without the jacket is so overwhelming that the error, even if it is of constitutional proportions, is harmless, beyond a reasonable doubt. See Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909; Sims v. State, 258 Ark. 940, 530 S.W. 2d 182; McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409; Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. Calif., 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, 24 ALR 3d 1065 (1967), reh. den. 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967).

The judgment is affirmed.

We agree. Harris, C.J., Holt and Purtle, JJ.