author: John A. Fogleman, Justice.

text:
    Loyd DAVIS et ux v. Ivan H. SMITH, Attorney for ARKANSAS DEPARTMENT OF SOCIAL SERVICES
    78-237
    583 S.W. 2d 37
    Opinion delivered June 25, 1979
    (In Banc)

      Kenneth L. Schorr; Youngdahl, Larrison & Agee; Ancil M. Reed, of Reed & Reed; and Rna K. Uviller, Martin Guggenheim and Lydia Tugendrajch, of New York, N.Y., for appellants.

      Breck G. Hopkins, for appellee.
   John A. Fogleman, Justice.

This appeal arises from an order of the Probate Court of Cleburne County appointing Ivan H. Smith, attorney for Arkansas Social Services, as guardian of the persons and estates of Sharon Renea Davis, Donna Arlene Davis and Brian Junior Davis, minor children of appellants Loyd Davis and Ñola Mae Beeney Davis. The order gave the guardian full right and authority to consent to adoption, without notice to, or consent of, the natural parents. The order was entered on June 1, 1978, upon petition of this attorney for Arkansas Social Services. He alleged that: the children were under the care and custody of Arkansas Social Services pursuant to an order of the Juvenile Court of Cleburne County made on December 14, 1977; they were dependent children within the meaning of Ark. Stat. Ann. §§ 45-401, 45-449, and Act 195 of the General Assembly of 1977; they had been deserted and abandoned by their parents; the parents were unfit to properly care for the children; the grounds of unfitness of the parents were desertion, abandonment and depravity; appointment of a guardian was sought because the parents were unfit to properly care for the children and would not be able to do so; and it was for the best interest of the children that all bonds be severed with the parents and the children placed for adoption in a suitable home.

One of the grounds for reversal urged by the parents is that the involuntary termination of their parental rights was in violation of the due process clauses of the Arkansas and United States Constitutions. One facet of their argument on this ground is based upon their assertion that Ark. Stat. Ann. § 56-128 (2) (h) (Supp. 1977) is unconstitutionally vague. Since we agree, the order of the probate court is reversed and the petition dismissed.

Before discussing the reasons for our disposition of this case, there are matters pertaining to the record and the proceedings that should be stated to avoid misunderstandings as to the effect of our holding. There was no appeal from the juvenile court order by which Arkansas Social Services was given custody of these children and that order is not under review here. The allegations of the petition for guardianship charging appellants with unfitness because of abandonment, depravity and desertion were abandoned by the petitioner just at the outset of the hearing and the petitioner elected to rely upon his allegation that appointment of a guardian with authority to consent to adoption was sought because the parents are unfit to properly care for the children and will not be able to care for them. When this election was made, petitioner’s attorney stated that reliance was placed upon Ark. Stat. Ann. § 56-128 (2) (h). The probate court’s order was based upon its finding that “the parents are not fit and competent to have custody and control of said children and are unable to provide a proper home for the children as set out in Ark. Stat. Ann. § 56-128 (2) (h).” In orally stating his findings, the probate judge concluded that, based upon the evidence, the parents have failed to provide a proper home for the children.

We forego any discussion of the evidence pertaining to the physical, mental and economic limitations of these parents, because we find the section on which the court’s order is based to be unconstitutionally vague in that the term, “a proper home,” does not provide sufficient guidelines to meet the due process requirements of the Fourteenth Amendment to the United States Constitution and Art. 2, § 8 of the Arkansas Constitution, where the termination of parental rights is involved. The probate judge clearly recognized that there was a problem connected with the statutory language of the subsection involved. He remarked that the statute was not well drafted and that it would be unconstitutionally vague, if judged by the standards applicable to a criminal statute. In examining the statute, it is important that we have in mind the nature of the proceedings. Its ultimate effect from the perspective of appellants is the complete termination of their parental rights.

The concern of this court for the preservation of these rights has been expressed over a long period of time. In 1881, in Verser v. Ford, 37 Ark. 27, even though a father was denied custody of his infant daughter, we recognized the rights of parents, of good moral character, however poor and humble they might be, if able to support their child in their own style of life, not, as a cardinal principle of law and nature, to be deprived of parental privileges, except when urgently necessary to afford the child reasonable protection. Cf. Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944); Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). Parental rights and the integrity of the family unit have always been a concern of this state and their protection regarded as a proper function of the courts. They have been classified as essential rights, basic civil rights, and personal rights more precious than property rights. May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953). See Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), and other cases cited therein. They have been said to be fundamental rights. Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972).

Not very long ago we recognized that parental rights are protected by the due process clauses of the Fourteenth Amendment to the United States Constitution and Art. 2, § 8 of the Constitution of Arkansas. See Carroll v. Johnson, 263 Ark. 280, 565 S.W. 2d 10. Even more recently we empasized the importance of parental rights in a case in which they might have been terminated. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979). Certainly there remains no lingering doubt about the facts that the rights of parents to the care, custody and upbringing of their children are the subject of constitutional protection on both due process and equal protection standards. See also, Stanley v. Illinois, supra; Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 66 L.Ed. 1070 (1925). Parental rights are not. however, beyond limitation in the public interest. Prince v. Massachusetts, supra; Cude v. State, 237 Ark. 927, 377 S.W. 2d 816. The state’s constitutional interest extends to the welfare of the child. In re William L., 477 Pa. 322, 383 A. 2d 1228 (1978). Parental rights are not immune from interference by the state in its role of parens patriae. Minor Children of F. B. v. Caruthers, 323 S.W. 2d 397 (Mo.App., 1959).

From this background, we have concluded that any statute which affords a vehicle for the termination of parental rights must meet basic constitutional due process requirements. A statute cast in vague and conclusory terms will not meet those requirements. When a statute is too vague to be effective, it is void. Snow v. Riggs, 172 Ark. 835, 290 S.W. 591; State v. Bryant, 219 Ark. 313, 241 S.W. 2d 473.

The probate judge was certainly correct in his analysis of due process requirements in the criminal law field. A statute defining an offense for which one may be punished is void for vagueness under due process standards, unless it gives one of ordinary intelligence fair notice that his contemplated conduct is forbidden, so he may act accordingly. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). A criminal statute which does not furnish a sufficiently ascertainable standard of guilt does not meet constitutional due process requirements. Herndon v. Lowry, 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066 (1937).

In criminal cases, placing discretion in the hands of the police without prescribing any standards governing its exercise is another instance which renders a statute void for vagueness. Papachristou v. City of Jacksonville, supra. A statute permitting a court to put one it thinks is living subhumanly in prison for failure to raise his sights would be impermissible. Papachristou v. City of Jacksonville, supra. A law which, due to vagueness, leaves basic policy matters in the criminal law field to either policemen or judges on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application, is also impermissible. Grayned v. City of Rockford, supra. A law that is so vague and standardless that it leaves judges or jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case fails to meet due process requirements. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). See also, Andrew Jackson, ex parte, 45 Ark. 158.

In statutes regulating business, the leeway is greater. Papachristou v. City of Jacksonville, supra.

There was an appropriate contrast drawn between statutory language that is vague and indefinite under due process standards and that which is not in A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 45 S. Ct. 295, 69 L. Ed. 589 (1925). There the pertinent language provided that it should be “ ‘unlawful for any person wilfully ... to make any unjust or unreasonable charge in . . . dealing in or with any necessaries’ ” or to agree with another “ ‘to exact excessive prices for any necessaries.’ ” That language was held unconstitutionally vague and indefinite because the terms unjust, unreasonable and excessive, as applied to prices in the provision in question, had no commonly recognized or accepted meaning and the statute contained no provision pointing to what should be deemed a just, reasonable and not excessive price, and there was no accepted and fairly stable commercial standard which could be regarded as impliedly taken up and adopted by the statute. On the other hand, the court pointed out that a statute directed against the exaction of unjust, unreasonable and oppressive rents was not vague and indefinite because it was not silent on the standards. It recognized and named elements which would require consideration and had been construed to prescribe a standard which permitted the landlord to receive a reasonable income on his investment, valued as of the time the rent was reserved. It was pointed out that the United States Supreme Court had upheld the rent statute because real property, especially in a city, comes to have a recognized value which is relatively stable and easily ascertained and a recognized rental valud, in terms of compensation commonly asked and paid for its occupancy and use. A standard which had come to be fairly well settled and understood in actual practice in the course of business had been held sufficient to meet due process requirements that a statute be sufficiently definite and intelligible. But, even in cases of statutes regulating business, the exaction of obedience or requiring conformity to a standard which is so vague and indefinite amounts to no rule or standard at all. A. B. Small Co. v. American Sugar Refining Co., supra.

After reviewing the authorities, we have come to the conclusion that where standards for termination of parental rights are the subject of the statute involved, the application of “vagueness” tests should lie somewhere between that given criminal law statutes and that given statutes regulating business, i.e., permitting greater flexibility than where criminal law statutes are involved and less flexibility than with business-regulatory statutes. See Minor Children of F.B. v. Caruthers, 323 S.W. 2d 397 (Mo. App., 1959). This is because any parent should have some basic understanding of his obligations to his children, but many cannot be as alert to, and aware of, prevailing practices basic to establishment of standards as those engaging in business would likely be to settled and well understood standards and practices. Mathematical certainty in language is not to be expected in any statute. Grayned v. City of Rockford, supra. See also, Robinson v. United States, 324 U.S. 282, 65 S. Ct. 666, 89 L. Ed. 944 (1945). Flexibility and reasonable breadth, rather than meticulous specificity or great exactitude, in a statute are permissible, so long as its reach is clearly delineated in words of common understanding. Grayned v. City of Rockford, supra; Minor Children of F. B. v. Caruthers, 323 S.W. 2d 397 (Mo. App. 1959). A statute which defines boundaries sufficiently distinct for citizens, policemen, juries and appellate judges is not im-permissibly vague. Grayned v. City of Rockford, supra. Impossible standards of specificity are not required by the constitution, even in criminal statutes, and a statute meets constitutional muster, if the language used conveys sufficient warning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951); United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947). It is not necessary that all kinds of conduct falling within the reach of the statute be particularized. City of Chicago v. Fort, 46 Ill. 2d 12, 262 N.E. 2d 473 (1970). A statute is not to be struck down as vague only because marginal cases could be put where doubts might arise. United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954). The futility of anticipating and enumerating every means or method a fertile mind might devise that would come within the purview of a statute is obvious. City of Chicago v. Fort, supra; Minor Children of F. B. v. Caruthers, supra.

Among other things, proper, as an adjective, may mean:
Belonging to the natural or essential constitution; belonging characteristically to a species or individual or arising from the nature of one; peculiar; distinctive; as every animal has his proper instincts and appetites.
Befitting one’s nature, qualities, etc; appropriate; suitable; right; fit; as, water is the proper element for fish; a proper dress; games proper to spring.
Fine; excellent; goodly; — often used ironically.
Belonging to itself; inherent. Cf. PROPER MOTION.
Strictly pertinent or applicable; exact; correct; as, proper words in proper places.
Conforming to the best usage ethically or socially; decorous, decent.

Webster’s New International Dictionary, 2d Ed. (omitting special, obsolete, archaic and slang definitions).

Thus, several of the usual definitions of the word might be used to describe a home. If we can choose one with any assurance that it expressed the legislative intent, we should. An act of the General Assembly should be given a construction that meets the test of constitutionality, if possible to do so. United States v. Harriss, supra. If the choice of one meaning would make a statute constitutional and choice of another would render it unconstitutional, the answer would be easy. But the problem here is not so simply solved. The choice is from multiple meanings.

Generally, a meaning may be assigned to a word that is fitting to the context in which it is used. It has been said that the word “proper” in one context means “appropriate,” “suitable,” “right,” “fit,” or “correct.” Brotherhood of Railway and Steamship Clerks v. Railway Express Agency, 238 F. 2d 181 (6 Cir., 1956). In another, it was said to mean “consistent with propriety” or, alternatively, “appropriate,” “suited to” and swallowed up by the word “necessary.” Phillips Sheet & Tin Plate Co. v. Amalgamated Ass'n. of Iron, Steel & Tin Workers, 208 F. 335 (S.D., Ohio, 1913). It has also been said to be synonymous with “correct. ” Cook v. Dunbar, 66 R.I. 266, 18 A. 2d 658 (1941); Industrial National Bank of Rhode Island v. Rhode Island Hospital, 99 R.I. 289, 207 A. 2d 286 (1965).

Using any of these meanings does little to make the words, “a proper home,” clearly understandable, so that it doesn’t mean one thing to one judge, something else to another, and something yet different to still another. What is a proper home? A correct home? A suitable home? A fit home? An appropriate home? A home consistent with propriety? Is propriety to be determined ethically, socially, or economically? Or on the basis of morality? Or prosperity? Is the standard a maximum, a minimum, a mean or an average? Clearly, mere economic conditions of a family, standing alone, should not be the criterion for termination of parental rights. In re Interest of Camm, 294 So. 2d 318 (Fla., 1974), cert. den. 419 U.S. 866, 95 S. Ct. 121, 42 L. Ed. 2d 103 (1974). The fact that a home is “submarginal” and likely to result in a “cultural deprivation” is not enough, but an irremedial failure to provide a stable family relationship or to meet the child’s essential and necessary physical and mental needs over an extended period of time, may be. In re William L., 477 Pa. 322, 383 A. 2d 1228 (1978). We have equated “proper” with “reasonable” in another context. Eudora Motor Co. v. Womack, 195 Ark. 74, 111 S.W. 2d 530. Doing so here would not relieve us from our quandary.

Our problem is not made easier by the realization that a statute cannot be more specific than reasonably possible under the circumstances and that practical considerations make mechanical applications of specifications impossible. But we do not consider this to be a case where more specific language would be difficult to conceive, or the multiplicity of potential parental shortcomings imposes an insurmountable obstacle. See In re William L., supra; Alsager v. District Court of Polk County, 406 F.S. 10 (S.D. Iowa, 1975), aff’d. on other grounds, 545 F. 2d 1137 (8 Cir., 1976).

Appellee suggests that the section of the statute in question is directed to parental inability to meet the essential needs of their children. But the statute does not say this and it is not for us to make it say something that it clearly does not. See Snow v. Riggs, 172 Ark. 835, 290 S.W. 591; Robinson v. United States, supra. After all, the conditions upon which parental rights are to be terminated are a question of policy, the resolution of which is addressed in a democracy to the policy making branch of government, the General Assembly. In re William L., supra. See also, Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977).

We have held that a statute exempting “small farm vehicles” from requirements of safety signals on vehicles without defining the term or providing how it can be determined whether a farm vehicle is small was too vague and uncertain to satisfy constitutional standards for criminal statutes. State v. Bryant, 219 Ark. 313, 241 S.W. 2d 473. We find the meaning of “a proper home” at least as elusive as “small farm vehicles.” Although the former term is used in a non-criminal statute and the latter in a criminal law, “proper home” still would permit such a wide latitude for interpretation that its meaning would vary widely among judges, who like other human beings, can only see things through their own eyes. Another court dealing with severance of parent-child relationships in Roe v. Conn, 417 F.S. 769 (M.D. Ala., 1976), asked the critical question facing us and answered it as we must, saying:

*** When is a home an “unfit” or “improper” place for a child? Obviously, this is a question about which men and women of ordinary intelligence would greatly disagree. Their answers would vary in large measure in relation to their differing social, ethical, and religious views. Because these terms are too subjective to denote a sufficient warning to those individuals who might be affected by their proscription, the statute is unconstitutionally vague. ***

We deem the statutory provision in question to leave the discretion vested in judges so broad that arbitrary and discriminatory parental terminations are inevitable. Cf. Alsager v. District Court of Polk County, supra. Since we find Ark. Stat. Ann. § 56-128 (2) (h) too vague to meet due process requirements of both the state and federal constitutions, and the petition and judgment totally dependent on that provision, appellees having elected to stand on that provision only, we must not only reverse the judgment but also dismiss the petition.


source: Caselaw Access Project

license: Public Domain

text:
    Jimmie Elwyn LYTLE v. Gula LYTLE
    78-289
    583 S.W. 2d 1
    Opinion delivered June 25, 1979
    (In Banc)

      Harkey, Walmsley & Belew and Spitzberg, Mitchell & Hays, for appellant.

      Pickens, Boyce, McLarty & Watson, by: Tim F. Watson and Fred M. Pickens, Jr., for appellee.
   John A. Fogleman, Justice.

The parties to this appeal were married in 1952. They separated February 13, 1977. Appellee Gula Lytle, the wife, filed a petition for separate maintenance against appellant, Dr. Jimmie Lytle, on March 1, 1977. Dr. Lytle filed a counterclaim for absolute divorce on the ground of indignities to the person. After several preliminary hearings and orders, the case was set for trial on February 28, 1978. On February 13, 1978, Mrs. Lytle filed an amendment to her petition, alleging that Dr. Lytle had deserted her without cause and remained away since their separation. She sought a divorce on the ground of desertion. The trial court held that Mrs. Lytle was entitled to a divorce on the ground of desertion, that Dr. Lytle did not have grounds for divorce and therefore had left Mrs. Lytle without reasonable cause. The chancery court awarded Mrs. Lytle possession of and title to certain real property, including the home in which the parties had resided in Batesville, along with certain personal property, cash and alimony of $1,500 per month. Appellant raises the following points for reversal:

THE TRIAL COURT ERRED IN FINDING THAT THE APPELLEE WAS ENTITLED TO A DIVORCE FROM THE APPELLANT ON THE GROUND OF DESERTION.

II

THE COURT ERRED IN DENYING THE APPELLANT A DIVORCE ON GROUNDS OF GENERAL INDIGNITIES.

III

THE CHANCELLOR ERRED IN GRANTING APPELLEE TITLE TO THE PARTIES’ RESIDENCE.

IV

THE COURT ERRED IN AWARDING APPELLEE’S SOLICITOR A FEE OF $7,500.00 AND CHARGED TO THE APPELLANT.

I

It is appellant’s contention that the statutory requirement of absence from his spouse for a period of one year was not satisfied. He contends that there was not wilful desertion in the sense of Ark. Stat. Ann. § 34-1202, Second (Supp. 1977) because he was absent with the consent (implied if not express) of Gula Lytle. He based his contention that appellee consented to his absence upon her petition for separate maintenance, coupled with the fact that on April 19, 1977, the chancery court entered an order restraining either party from going around the other.

Of course, the statute provides for divorce where one party wilfully deserts and absents himself from the other for a space of one year without reasonable cause. There is evidence that Mrs. Lytle begged Dr. Lytle not to leave on the day before he actually left but there is no evidence that he ever made any attempt to return or to offer to return. Appellant cites cases from other jurisdictions holding that the period during which a prior matrimonial action is pending may not be included in the period of desertion necessary to support a divorce on the ground of desertion and that a matrimonial action by a deserted party which precedes a suit for divorce manifests that party’s consent to the spouses’ living apart. Some of the cases cited are obviously inapplicable because they relate to situations quite different from this one. For instance, there may be a valid reason to hold that the pendency of a wife’s petition for separate maintenance would operate to toll the desertion statute so the husband could not base a ground of desertion on the wife’s absence during the period that action was pending. See 24 Am.Jur. 2d 272, Divorce & Separation, § 110. Separate maintenance to a wife is granted upon the premise that the wife is without adequate means of support and has been abandoned, without fault on her part. Rosenbaum v. Rosenbaum, 206 Ark; 865, 177 S.W. 2d 926; Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86. See also, Bonner v. Bonner, 204 Ark. 1006, 166 S.W. 2d 254.

Cases holding that a suit for limited divorce interrupts the continuity of the period of desertion are not persuasive. There is a significant difference between an action for separate maintenance and an action for a limited divorce or divorce from bed and board. See Womack v. Womack, 247 Ark. 1130, 449 S.W. 2d 399. A limited divorce is called divorce from bed and board in our statute. See Ark.Stat. Ann. § 34-1202. It is also known as divorce a mensa et thoro. See Rose v. Rose, 9 Ark. 507. In order to obtain such a divorce, it is necessary for the moving spouse to establish grounds. Ark.Stat. Ann. § 34-1202; Myers v. Williams, 225 Ark. 290, 281 S.W. 2d 944; Clyburn v. Clyburn, 175 Ark. 330, 299 S.W. 38; Gray v. Gray, 98 S.W. 975 (unreported in Arkansas Reports). The grounds on which such a divorce may be granted are the same as those specified for an absolute divorce, which is also called divorce from the bonds of matrimony or divorce a vinculo matrimonii. See Ark. Stat. Ann. § 34-1202. In a wife’s action for separate maintenance, it is unnecessary for her to establish any grounds except the separation and the absence of fault on her part. Hill v. Rowles, 223 Ark. 115, 264 S.W. 2d 638; Rosenbaum v. Rosenbaum, supra. So an action for separate maintenance may be based upon a husband’s wrongfully leaving his wife and is in nowise inconsistent with his continued absence being without reasonable cause. Nor does its pendency give him cause for continuing to absent himself. It is simply a means for a dependent wife to obtain support from her absent husband during his absence, when the absence is not her fault.

We do not agree with appellee, however, that the question is one which was settled in McKay v. McKay, 172 Ark. 918, 290 S.W. 951. In that case, the wife’s two suits for divorce on the ground of cruel and inhuman treatment by her husband had been dismissed. In her third suit, based on alleged desertion by the husband, the husband was granted a divorce on his counterclaim on the ground of desertion. The decree was reversed because the wife had offered to return to the husband within a year after she left him. We cannot say that we refused to hold that the prior divorce suit affected the running of the statutory period. We simply failed to so hold and it was unnecessary to do so, because the wife attempted, in good faith, to attempt a reconciliation. We did hold that a decree denying the wife a divorce for cruelty in her first suit, entered more than a year prior to the filing of her third suit, was not a bar to the suit on the ground of desertion.

We do not mean to say that there is no support for appellant’s view in cases from other jurisdictions. But it is pointed out by textwriters that it has even been held that a decree of separate maintenance establishes that the plaintiff is living apart without fault, and may, if the other spouse persists in staying away after the decree is entered, establish the commencement of a desertion by the losing spouse. 27A CJS 102, Divorce § 36 (1). It is also said that, even though a wife could have obtained an absolute divorce on the ground of desertion at the time she obtained a decree for separate, maintenance, she could later obtain an absolute divorce on the ground of desertion which began before the entry of the decree for separate maintenance and continued until she sued for an absolute divorce. 24 Am.Jur. 2d 271, Divorce & Separation, § 110.

Appellant may well be correct in his assertion that in a majority of the cases dealing with the question, it has been held that the period of pendency of a prior matrimonial action will be excluded in computing the period of desertion as a matter of law, and that some of them are fairly recent. We believe, however, that the rule followed in those jurisdictions is unsound, particularly where the prior action is simply one for separate maintenance, which may be necessary for the subsistence of the innocent spouse during the desertion by the absent one. We agree with the following statement found at 1 Nelson, Divorce & Annulment 142, § 4.40:

Although the general rule which requires exclusion of the period of pendency of another suit is an old one, and well established in at least several jurisdictions, we are frank to confess that we prefer the exceptions to the rule. The foundations of the rule are shallow and lacking in logic, except as one bringing a suit for divorce, separate maintenance or annulment may be presumed to acquiesce in non-cohabitation while the suit is pending. There is no reason to suppose that the opposite party, the defendant, is kept from offering or attempting to resume cohabitation because he stands sued. Penden-cy of such a suit may well keep the plaintiff therein from accepting an offer of reconciliation, if made, which fact should suffice to justify the refusal or ignoring of such an offer during that time and prevent becoming at fault for so refusing; but it should not, in effect, excuse the making of an offer by the defendant by suspending the desertion period while the action is pending.

It is also held in many jurisdictions that the rule that the time consumed by a divorce action between the parties cannot be counted as a part of a period of desertion upon which a subsequent suit for divorce is based will not aid the defendant in the later suit, where his absence began before the commencement of the former suit and was not referable to it, but was due to his own conduct, since the rule should not be construed to give an innocent character to the continuation of a wrongful desertion. See Annot. 80 ALR 2d 855, 870, 876.

We hold that the period of the pendency of an action for separate maintenance does not toll the running of the period required to constitute desertion by the husband ás a ground for divorce, where the husband’s absence began before the institution of the suit for separate maintenance, and the wife was not to blame for the separation.

We do not consider the restraining order to have any bearing in this case. It does not appear to have been entered on Mrs. Lytle’s motion. There was no prayer for such relief in her petition for separate maintenance. She asked for injunc-tive relief only to prevent Dr. Lytle from removing any property other than that he had already removed from the premises in which the parties had previously lived. The restraining order indicates that it may have been entered by agreement of the parties, although it may have been entered on the court’s own motion. We do not consider the order to have constituted a real barrier to Dr. Lytle’s return to the marital residence, if he had desired to do so. We consider that the real test is whether Dr. Lytle’s remaining away from his wife was attributable to the action taken or to an attitude that was so hostile and determined that he would have stayed away in any event.

It seems clear to us from the record in this case that Dr. Lytle left with the intention of absenting himself from his wife and that he has never wavered in that intention. He filed a counterclaim for divorce before the restraining order was entered. In his pleading, he alleged that his condition in life was intolerable, although he said that his wife’s conduct had rendered it so. He has forcefully, if not bitterly, contested this action at every step and prosecuted his own claim for divorce. He admitted that the subject of marriage counselling may have been brought up by Mrs. Lytle after he had decided to leave, but said that he had then made up his mind to leave. There simply is no indication whatever that Dr. Lytle had any inclination to return or that he would have entertained the idea of doing so, even if there had never been a separate maintenance action or a restraining order.

Appellant also argues that since his own counterclaim was brought in good faith, its pendency suspended the running of the desertion period. We do not agree, even though we do not question the fact that Dr. Lytle filed his pleading in good faith. His absence commenced before any suit was filed, and, as previously pointed out, the rule that the time consumed by a divorce action between the parties cannot be counted as a part of a period of desertion upon which a ground for divorce is based should not be used to give an innocent character to the continuation of a wrongful desertion. We agree with the chancellor that the real issue on the question of desertion was whether Dr. Lytle, to paraphrase the statute, deserted and absented himself from Mrs. Lytle “for a space of one (1) year without reasonable cause.” Ark. Stat. Ann. § 34-1202. As we shall presently point out, the chancery court resolved this question against Dr. Lytle, and we are unable to say that this fact-finding was against the preponderance of the evidence.

Furthermore, we are unable to see that the evidence shows that Mrs. Lytle was not willing during the entire statutory period to receive Dr. Lytle back to the matrimonial relationship. Mrs. Lytle testified that she amended her pleading after a year had passed, and that there was no hope for reconciliation. She testified that she was in love with her husband when he left and that she had always been in love with him. Although she testified that she did not think there was ever any real chance of reconciliation, she said that when he left, she was thinking in terms of reconciliation. She did not try to communicate with Dr. Lytle before she consulted a lawyer a week after the doctor left, because her husband had made no effort to contact her and she thought it best to consult a lawyer and have him communicate with Dr. Lytle to ascertain his intentions. When we recall her undisputed testimony that, on the day before the separation, she begged Dr. Lytle not to leave, but to go to a marriage counselor or a preacher, and after receiving the response that she was crazy, asked him to take her to a psychiatrist, we cannot read any consent to appellant’s remaining away into her testimony, as appellant would have us do.

II

Appellant contends that, in terms of destructive behavior, Gula Lytle was more to blame for the demise of the marrige than he. The “indignities” on which he relies were her concern for money, an indifference to his family, a clear pattern of repeated accusations of his infidelity, a consistent campaign to alienate the three sons of the parties from him and her insensitivity to his ideas and ideals. He specified none of these things in his counterclaim, where he merely stated the conclusion that Mrs. Lytle had “treated and accorded [him] such contempt, neglect and unmerited reproach, habitually and systematically pursued as to render the condition of [Dr. Lytle] in life intolerable.”

Although the scope of the “indignities” ground has undergone considerable expansion throughout the years, it is still necessary that the conduct relied upon manifest settled hate, alienation and estrangement and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155; Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598. In the cited cases, we pointed out that even this c nstruction of the statute is to be cautiously applied.

It is extremely difficult to fit appellant’s characterization of Mrs. Lytle’s faults into the required pattern. The chancellor found that, even though Mrs. Lytle’s conduct was shown to have been objectionable in a number of respects, the evidence fell short of establishing grounds for divorce when judged by established standards for the ground alleged by Dr. Lytle. We are certainly unable to say that the chancellor’s findings were clearly against the preponderance of the evidence.

Dr. Lytle’s own testimony did not make a strong case for his abrupt termination of a 25-year marriage. He said that the problem had started a year previously over a situation at the clinic where he and two other doctors conducted a medical practice, and where Mrs. Lytle had commenced working, at his request, in January, 1976. After a management consultant had conducted a study, Dr. Lytle told Mrs. Lytle she could no longer work at the clinic office. Prior to that time, according to him, they had a happy marriage with “ups and downs.” He said that it had been a mistake to let her work at the clinic in the first place. He was exasperated because she had called a patient about a bill, which she had considered “old,” although he did not. He said that during the year preceding the separation, Mrs. Lytle frequently accused him of going with other women, but never tried to catch him. He said that he was upset that, when Mrs. Lytle came home after an absence on account of her mother’s illness, she suspected that he was talking with a woman, when she found him talking on the telephone to a patient and followed him to the hospital the next day. Dr. Lytle said that on that occassion he was simply trying to get away from her. He was distressed when she offered to sell a quilt his mother had made to his mother’s sister, who had sent a check, but said that appellee tore up the check when he asked her not to sell it. He said that he was embarrassed when Mrs. Lytle remarked to friends that the church couldn’t run without the Ly-tle children. Her concern for money was evidenced, according to appellant, by her efforts to collect the bill from the patient and the fact that she did not particularly like his policy of treating poor people who could not pay him. He was displeased because of Mrs. Lytle’s failure to invite his parents to eat at the parties’ home in Batesville and the resentment she displayed when two of their boys were helping to paint his mother’s house without pay, when the other son was being paid $500 for the job. He also was displeased because Mrs. Lytle sent his mother a bill for work he was having done on his father’s grave. Another “indignity” was her failure to go to Ft.Smith to attend the funeral of his favorite nephew or to express sympathy to any member of appellant’s family.

On the other hand, Dr. Lytle admitted that he had known of only one incident when Mrs. Lytle was overzealous about her bill collecting, that his mother had wanted to pay the bill for the work done on his father’s grave, that his wife did go to Spring Hill to the graveside service for his nephew, and that he had probably done wrong by not going to a marriage counselor or a preacher. Not only did Gula Lytle contradict much of appellant’s testimony, but she related matters which would lead one to believe that Dr. Lytle was responsible for the deterioration of the marriage. Some of her testimony was corroborated by others, including the adult sons of the parties. No useful purpose would be served by pinpointing her version or her denials. The matter of credibiltiy is a field into which an appellate court cannot successfully penetrate upon a cold record. Weighing the evidence in this case depends upon the credibility factor to such an extent that it is impossible for us to say that the chancellor erred in that respect. As the chancellor observed, there was evidence by witnesses other than Dr. Lytle indicative of objectionable conduct on the part of Mrs. Lytle, but it would be difficult for us to say that it was habitually and systematically pursued or that it was indicative of settled hate, alienation and estrangement.

Ill

It is the contention of appellant that the chancery court was without power to divest him of title to the residence property which had been held as a tenancy by the entirety. Appellant relies upon Yancey v. Yancey, 234 Ark. 1046, 356 S.W. 2d 649. See also, Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d 28. The statute in effect when Yancey was decided authorized the court to dissolve an estate by the entirety. Act 340 of 1947. By Act 457 of 1975, the statute was amended so the dissolution by the court is unnecessary. The decree operates as an automatic dissolution of the estate by the entirety, unless the court specifically otherwise provides by order. Since the decree did not otherwise provide, a tenancy by the entirety was necessarily treated as a tenancy in common.

The title to this property, which Mrs. Lytle valued at $40,000, was not the only property in which the parties had been tenants by the entirety. There were 50 acres of land in Independence County she valued at $6,000 and 40 acres she valued at $1,000. There was also a lot in Horseshoe Bend Estates on which she put a value of $3,000. Mrs. Lytle also listed, in answer to interrogatories, her wife’s dower interest in lots held by him in the Medical Arts Building and grounds in Batesville, which she valued at $100,000. It later was shown that this property was owned by North Arkansas Clinic, Inc., in which Dr. Lytle owned 20% of the capital stock. The corporation had assets of more than $1,000,000. There was evidence indicating that Dr. Lytle’s stock had a value of $100,000 to $150,000. Another interest in real estate listed by her was a note secured by a deed of trust on lands in Cleburne County, upon which there was a balance due of $2,-241.05. The title to this property had been held by the parties as tenants by the entirety. Other jointly owned property listed by Mrs. Lytle included an Airstream trailer, a mobile home, and an indebtedness owed by Randy Johnson.

In making the property division awarding Mrs. Lytle the house in Batesville and the land on which it sits, the Horseshoe Bend lot, the 40-acre tract, the note, a municipal investment trust fund account with Merrill, Lynch, Pierce, Fenner & Smith, Inc., the Airstream trailer and an Oldsmobile, and awarding Dr. Lytle the 50-acre tract, the Randy Johnson note and his stock in the Medical Arts Building and lots, the chancellor made this explanation:

As to a division of property, I find that Mrs. Lytle is entitled to receive one-half of the property that she and Dr. Lytle owned jointly and one-third of the property that Dr. Lytle held in his own name. Because of the nature of the property involved it was necessary that I award Mrs. Lytle well in excess of one-half in value of the jointly owned property and to credit that amount over one-half in value of the joint property against her interest in one-third of the husband’s property (this was necessary because a large portion of the husband’s separate property was involved with his medical practice and would not be susceptible to a division in kind or a forced sale).
I find that by the award of property that is outlined below that Mrs. Lytle will receive property which has a value equivalent to one-half of the jointly owned property plus one-third of the property held by the husband in his name.

Appellant does not complain of the award of the other property which had been held by the entirety, either to Mrs. Lytle or to him. He does not propose an alternative distribution, but if Mrs. Lytle is given only a life estate, instead of outright title to the residence, it is obvious that an adjustment of the property distribution is in order. A part of the personalty owned by Dr. Lytle was 520 shares of stock in North Arkansas Clinic, Inc. which had an estimated value of $150,-000.

The chancellor was faced with a difficult problem relating to property division in that a substantial part of Dr. Lytle’s assets was his interest in the. North Arkansas Clinic, Inc., a corporation owned by Dr. Lytle, two other doctors, a pharmacist, the business manager of the Medical Arts Building and a man named Lloyd Leftwich. He also had an accounts receivable balance of $73, 272, of which about 90% was collectible.

The chancellor in Yancey v. Yancey, supra, had also undertaken to arrive at an equitable solution relative to property rights, and we found nothing erroneous purely from the standpoint of equity, but held that when a tenancy by the entirety was converted into a tenancy in common in a divorce proceeding, the chancery court could only do one of two things: it may put one of the parties in possession of the premises, or it may order the property sold and the proceeds divided. The language of that decision permits no exception. It is a rule of property. We have no choice in the matter and the cause must be reversed on this ground. In Yancey, we remanded the case to the chancery court to make new findings relative to property rights, because its findings as to other property might have been influenced by its disposition of that property. Here, as illustrated above, the disposition of the property held by the entirety is the keystone of the property distribution, so the case will have to be remanded for further proceedings in that respect.

IV

Appellant objects to the attorney’s fee allowed in this case on two bases. First, he says there is absolutely nothing in the record to afford an objective standard on which the trial court could assess and determine the amount of the fee, and urges that we treat fees arrived at in such a “haphazard” fashion from a subjective viewpoint by the chancellor as erroneous. We decline to accept this invitation. We have repeatedly held that the award of attorney’s fees in divorce cases is a matter lying within the sound judicial discretion of the chancellor, the exercise of which will not be disturbed on appeal in the absence of its abuse. McGuire v. McGuire, 231 Ark. 613, 331 S.W. 2d 257; Bowers v. Bowers, 257 Ark. 125, 514 S.W. 2d 387; Yohe v. Yohe, 238 Ark. 642, 383 S.W. 2d 665; Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224. Unless appellant has demonstrated that the amount of fees allowed was excessive, we will affirm. Equitable Life Assurance Society v. Rummell, supra. Unless appellant has demonstrated that the amount of fees allowed was excessive, we will affirm. Equitable Life Assurance Society v. Rummell, supra.

The real thrust of appellant’s first argument is that the basis for allowance of fees in cases such as this should be the amount of time devoted by the attorney to the case, with other factors to be considered only to enhance or decrease the amount determined, apparently by multiplying the hours spent by an hourly rate. We are not unaware of the reasons for, and importance of, the prevalent custom of keeping of accurate time records by lawyers. A slavish obsession with basing fees on this element alone can lead to results as inequitable as any other method of fee determination. In rejecting the hours spent on a case as the sole basis for fee determination, in Weeks v. Southern Bell Telephone & Telegraph Co., 467 F. 2d 95 (5 Cir., 1972), one court has appropriately said:

* * * In any event, the time factor, has a “dubious virtue .as a standard for legal services”; “when hours of time become a criterion, economy of time may cease to be a virtue.” See Hornstein, Legal Therapeutics: The “Salvage Factor in Counsel Fee Awards”, 69 Harv.L.Rev. 658 (1956).

Lawyers are not mechanics or craftsmen whose productivity can be approximated on the basis of time spent. Any lawyer can recall, without difficulty, instances in which, viewing the matter in retrospect, he has wasted as much time in a particular case as he actually utilized wisely in his client’s best interest. In such a case, the client (or whoever must pay the fee) should not be expected to pay for the full time devoted at some commercially established rate. Such a practice would bemean the legal profession. The time devoted is, of course, a significant factor. See Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677. But there are other factors just as important. See Old Republic Insurance Co. v. Alexander. 245 Ark. 1029, 436 S.W. 2d 829. We have had the occasion to mention them more than once. See Robinson v. Champion, supra; Old Republic Insurance Co. v. Alexander, supra; Equitable Life Assurance Society v. Rummell, supra.

The Code of Professional Responsibility, adopted by this court in the regulation of the practice of law, also treats the matter. See DR2-106(B); EC 2-18. To single out one of the many factors as predominant would be wrong. We think that the courts are still able to evaluate legal services equitably and to strike a balance between the interest of the lawyer and those of the client, or of one who is to bear the burden. It was not necessary that the trial judge conduct a hearing on the amount of attorney’s fees to be allowed, because he had presided over the proceeding, was familiar with the case and the services rendered by appellee’s attorneys. Pitcher v. Baltz, 242 Ark. 625, 414 S.W. 2d 859. On appellate review, we give considerable weight to the opinion of the trial judge before whom the case was tried. Robinson v. Champion, supra; Republic Insurance Co. v. Alexander, supra.

Appellee’s counsel has pointed out matters, most of which could not have escaped the attention of the chancellor, who had an intimate view of the entire proceeding. Among them are:

1. Six days of hearings before the chancery court.
2. Two days of depositions.
3. Extent and complexity of property holdings
4. Problems arising from disobedience of court orders by appellant.
5. 743 pages of trial court record.
6. Appellant’s brief of 210 pages.
7. Multiplicity of issues.
8. Disparity in incomes of the parties.

In attempting to establish a basis for distribution of property, it was necessary that interrogatories be propounded to appellant. Extensive and detailed answers to appellant’s interrogatories to appellee were also prepared and filed. On one occasion, appellant was cited and found guilty of contempt of court for violation of the court’s restraining order.

Appellant’s second argument is that Mrs. Lytle had ample resources to pay her own attorney’s fees. The record reveals that appellee’s work experience was limited to employment as a telephone operator and as a babysitter, after the marriage, while Dr. Lytle was in medical school. She worked in his office for three months immediately after they moved to Batesville in 1959. She also worked there occasionally when some regular employee was absent or unavailable. She also worked part time at a Montgomery Ward store for a time. The living expenses of the parties were paid from a monthly deposit of $2,500 in a joint checking account by the administrator of the clinic at which the doctor practiced. At the time of the separation, Mrs. Lytle had, in her own name, a savings account of approximately $6,000, from savings of her salary from Montgomery Ward. She had no income, to Dr. Lytle’s knowledge. Mrs. Lytle is physically handicapped by a back problem, has undergone four lamin-ectomies, and had seen a doctor on account of this problem as late as July or August, 1977.

During the year 1977, Dr. Lytle drew $111,831.20 from his drawing account at the clinic. In 1976, he paid income tax on an adjusted gross income of $82,263. His actual collections from his practice in January, 1977, were $9,959.50. His total income for 1977, after deductions, was $102,642. He has accumulated $15,642.50 in Medicaid Deferred Compensation. At the time of the trial, he had $6,000 or $7,000 at his home.

We have no hesitation in saying that Mrs. Lytle was properly considered as a dependent wife for the purpose of allowance of attorney’s fees. The $2,000 per month for maintenance during the pendency of the action was not substantially different from allowances given her during the marriage.

We find no abuse of discretion in the allowance of attorney’s fees in this case. We feel, however, that, in view of the alimony paid during the pendency of the action and the amount allowed in the trial court, additional allowances for attorney’s fees should not be made on this appeal.

The decree is affirmed except as to the distribution of the property and the cause is remanded for further proceedings in that respect.


text:
    Odell LUCAS v. Agnes HANDCOCK, Administratrix
    78-314
    583 S.W. 2d 491
    Opinion Delivered June 25, 1979
    (In Banc)

      Sharpe & Morledge, P.A., for appellant.

      Kinney & Easley, by; Knox Kinney, for appellee.
   John A. Fogleman, Justice.

This appeal comes to us in the wake of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L. Ed. 2d 31 (1977). Odell Lucas, appellant herein, claims to be an heir of Luther Lucas, who died intestate at the age of 86 in St. Francis County on November 11, 1976. Appellant asserts that he was the illegitimate son of Herman Lucas, who predeceased his father Luther. Therefore, appellant contends that he is entitled to inherit from Luther in spite of Ark. Stat. Ann. § 61-141 (Repl. 1971), which he asserts is unconstitutional under Trimble v. Gordon, supra. Because we agree with appellant, we reverse that part of the judgment of the probate court denying him the right to share in the estate of Luther Lucas.

In Trimble, the United States Suprejne Court struck down an Illinois statute denying the right of an illegitimate child to inherit from its father. The Illinois statute was held to violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. The statutes are so nearly identical in effect that it cannot be seriously urged that one can meet equal protection standards and the other not. Ark. Stat. Ann. § 61-141 (d) provides:

An illegitimate child or his descendants may inherit real or personal property in the same manner as a legitimate child from such child’s mother or her blood kindred; but such child may not inherit real or personal property from his father or from his father’s blood kindred.

The Illinois statute involved in Trimble read:

“An illegitimate child is heir of his mother and of any maternal ancestor, and of any person from whom his mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person and take, by descent, any estate which the parent would have taken, if living. A child [who was illegitimate] whose parents inter-marry and who is acknowledged by the father as the father’s child [is] legitimate.”

The basic similarity of the statutes is further illustrated by another subsection of the Arkansas act. Ark. Stat. Ann. § 61-141 (b), provides:

If a man have a child or children by a woman, and afterward shall intermarry with her, and shall recognize such child or children to be his, such child or children shall be deemed and considered as legitimate.

As in Illinois, legitimate children inherit from both father and mother in Arkansas. Ark. Stat. Ann. § 61-131 (Supp. 1977), 61-132, -133, -134, -136 (Repl. 1971).

The United States Supreme Court held that the Illinois statutory classification limiting the right of an illegitimate child to inherit from its father bore no rational relationship to any legitimate state purpose. There is no way by which our statute can be distinguished from the statute involved in Trimble, so as to meet the equal protection requirements applied in Trimble.

The learned probate judge felt that this case should be distinguished from Trimble because of differences in factual backgrounds. The distinction made by him can best be understood by quoting his findings made at the conclusion of the hearing in the probate court, viz:

Well, the court is fixing to decide the fact. The court finds that Herman Lucas was the natural father of Odell Lucas. But the court is not going to invalidate the inheritance statute of the state of Arkansas. This court has read the Trimble case, and the Trimble case involved a substantial relationship between the mother and father which they had lived together for some time and held themselves out as husband and wife, and it was on that factual basis that it was handed down. Unless there is something more, this court will have to declare this man is not entitled to inherit, and that is the Arkansas Law. If you folks would do the right thing, you ought to let him in and give him, his share. That would be the fair thing for you to do.

In the order entered after the hearing, the court had this to say:

The Court finds as a matter of fact that Odell Lucas is the natural child of Herman Lucas.
The Court further finds that the rule in Trimble, supra, is not applicable to the facts in the case at bar. In Trimble, the relationship between the father and mother of the illegitimate child was an established one, as opposed to being a casual relationship. In Trimble, the father and mother lived together for an extended period of time. In addition, they held themselves out to the community as husband and wife. On the contrary, in the case at bar, the relationship between Herman Lucas and Lou Willie Garrett was a casual one. They never lived together at all. They never held themselves out to the community as husband and wife. There is no substantial evidence that they had more than what could be termed a very casual relationship. On the basis of these facts, this Court holds that the provisions of the Ark. Dig. Stats. 61-141, as applied to the facts in the case at bar, are constitutional. It may be pointed out here that our present inheritance code was re-enacted in 1969, and therefore represents a fairly recent clear expression of legislative intent.

We cannot agree that a distinction in the application of Trimble can be made on the basis of factual background. The Illinois act was not held to be unconstitutional as applied to Deta Mona Trimble, the illegitimate child who was denied the right of inheritance from her father by the Illinois courts in Trimble. The United States Supreme Court held that act unconstitutional on its face. The Trimble majority referred to the factual background only to “graphically illustrate the constitutional defects” of the section of the Illinois statute in question. The majority in Trimble remarked that “Hard questions cannot be avoided by a hypothetical reshuffling of the facts.” Although the facts here are not hypothetical, they cannot be considered as governing on the basic question of constitutionality of the statute.

The most that could be made of the factual background in this case is to bring into question the standing of Odell Lucas to raise the question of constitutionality of the statute. In a long line of cases, we have held that one as to whom a statute does not have any adverse application cannot question its constitutionality. Even though this is a sound rule to which we should continue to adhere, we do not see how we could apply it in cases in which an attack is based upon the equal protection clause of the Fourteenth Amendment to the United States Constitution on the ground that a statute is un-derinclusive, or for that matter, to the facts of this case. In Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), the United States Supreme Court considered a similar question as going to the jurisdiction of that court, in spite of the fact that the parties had not raised the question and the state courts from which the appeal had been taken had not considered the matter. The court found that William Orr had standing to make an equal protection attack upon the statute as underinclusive, even though he might not benefit from a favorable ruling, since his constitutional attack afforded his only promise of relief otherwise totally barred. The court relied considerably upon statements in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L. Ed. 2d 536 (1973), where there was a want of standing to obtain an injunction to require prosecution of the father of an illegitimate child for nonsupport, because payment of support as a result of a prosecution causing the father to be jailed was only speculative, at best. But in On, the court pointed out that in Linda R.S., it had posed the threshold question to be answered as whether the appellant had “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which [the] court so largely depends for illumination of difficult constitutional questions.” quoting from Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Although there are compelling reasons for adherence to our existing rule on standing to raise constitutional questions, it would be unthinkable for this court not to make an exception in a case such as this and to deny standing, when, on appellate rev

Agnes Handcock filed a petition for her appointment as administratrix of the estate of Luther Lucas on January 7, 1977. In her verified petition, Odell Lucas was listed as an heir at law of Luther Lucas and his relationship to the decedent was stated to be “grandson.” Upon this petition, she was appointed and letters of administration were issued to her. It was not until she filed her first and final account as ad-ministratrix that she questioned the right of appellant to inherit from Luther Lucas. In that account she stated that he was not a lawful heir of Luther Lucas. Appellant filed a response, praying that he be adjudicated an heir at law of Luther Lucas and that appellee be ordered to distribute to him 1/12 of the estate, the share to which he would have been entitled if he had been the legitimate son of Herman Lucas. The chancellor’s findings were made at the conclusion of a hearing on appellee’s account and appellant’s response. Appellee does not question the court’s finding as to the paternity of Odell Lucas, and we find no basis upon which she might successfully do so. The evidence in support of that finding is overwhelming.

Appellant’s mother, Lou Willie Garrett, was never married to Herman Lucas and never lived with him. As a matter of fact, it appears from the evidence that Herman never lived with any woman. On appellant’s birth certificate, Herman Lucas was shown as appellant’s father. Appellant, who was 37 years old at the time of the hearing, has used the surname Lucas all of his life. Appellant testified that, when he was six years old, Herman Lucas told him that appellant’s name was Odell Lucas, that he always called Herman “daddy” and that Herman called him “son.” He said that, when he. was young, he had, for the most part, lived with his maternal grandmother or with Herman and that when he lived with Herman, Herman provided him with food and clothing, took him places and always introduced him as Odell Lucas. He said he lived with Herman during summer months and on weekends. Appellant stated that no one had ever questioned his relationship to Herman until this proceeding. According to appellant, when he was 18 years of age, he discussed with Herman the relationship shown on appellant’s birth certificate and Herman had no objection. Appellant testified that Herman made appellant “administrator over his insurance” and it is undisputed that appellant made the funeral arrangements when Herman died in 1971 or 1972 and paid the expenses from the proceeds of insurance on Herman’s life, of which appellant was the beneficiary.

The siblings of Herman who testified gave conflicting testimony as to whether Herman Lucas had denied that he was the father of Odell and as to whether Odell had lived with Herman. A sister testified that Odell did “stay” with Herman “when his mama gave him away to my mother.” She also said that her mother treated Odell “nice.” Another sister said that Odell had lived with Luther only two days when Odell’s mother “gave him to my mother.”

Appellant’s former wife testified in rebuttal. She said that Herman called her “daughter-in-law” and called her children by Odell his “grandkids” and said that Odell was his only child. She also said that Odell called Herman “dad” and that the children called Herman “granddad.” According to her, during the nine years she was married to Odell, they visited Herman in East St. Louis frequently, sometimes for as long as a week, and that Odell was the favorite nephew of Herman’s siblings.

On this overwhelming evidence, the Baker test as to standing was clearly met. Furthermore, under the trial court’s finding and the evidence on which it was based, denial of inheritance to appellant would transgress the holding in Trim-ble which rejected the premise that the Illinois statute’s classification could be justified in the interest of promoting legitimate family relationships by penalizing the child of an illegitimate relationship, in spite of the fact that a child cannot be responsible for his birth. Appellant had no more control over the casual illegitimate relationship of his parents than he would have had had they lived together over an extended period of time.

We fail to find any significance in the fact that § 61-141 was a recent expression of legislative intent. Trimble renders it insignificant. § 61-141 was adopted in 1969. The Illinois act involved in Trimble had been reenacted on January 1, 1976.

We also are unable to justify the subsection of our act in question on the basis of the compelling state interest in establishing certainty in disposition of a decedent’s property at death and in stability in property titles. Trimble dealt with these questions and recognized their importance and validity, but nonetheless found statutory disinheritance of illegitimate children whose fathers die intestate to be unjustified.

It is interesting to note that the Court of Appeals of Kentucky, in an opinion written, but not handed down, before Trimble was decided, invalidated a statute having the same effect as our own, as violative of the Kentucky Constitution, even though that court, upon the authority of Pendleton v. Pendleton, 531 S.W. 2d 507 (Ky., 1976), mistakenly felt that Labine v. Vincent, 401 U.S. 532, 91 S. Ct. 1017, 28 L. Ed. 2d 288 (1971), mandated a rejection of the equal protection arguments advanced here and in Trimble. See Rudolph v. Rudolph, 556 S.W. 2d 152 (Ky. App., 1977). The Supreme Court of Kentucky, however, upon remand of Pendleton, beat a forced retreat from its original position by accepting the holding of Trimble with extreme reluctance and applying it to declare its statute invalid as a denial of equal protection under the Fourteenth Amendment. 560 S.W. 2d 538 (Ky., 1978).

Appellee also finds comfort in Labine, pointing out that the United States Supreme Court did not overrule Labine. This is true, but the decision of the Illinois Supreme Court rejecting the equal protection argument had rested upon Labine. See In re Estate of Karas, 61 Ill. 2d 40, 329 N.E. 2d 234 (1975); Trimble v. Gordon, supra. The four dissenters in Trim-ble also resorted to Labine. The majority, however, found Labine difficult to place in the pattern of that court’s equal protection decisions and its precedential force limited by subsequent decisions. The majority distinguished Labine by the difference in the statutes involved, but our statute cannot be distinguished from the Illinois statute.

In the very recent case of Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518, 58 L. Ed. 2d 503 (1978), only two of the four dissenters in Trimble seem to rigidly maintain the positions they took in Trimble.Two of the dissenters in Trimble joined in a plurality opinion in Lalli, upholding a New York statute quite different from the Arkansas, Illinois and Kentucky statutes in that it did not result in total disinheritance of all illegitimate children, insofar as an intestate father’s estate was concerned. One of the two Trimble dissenters who had joined in the plurality opinion took pains, in a separate opinion, to reject the view expressed by another Trimble dissenter, who stated, in an opinion concurring in the judgment in Lalli, that Trim-ble was now a derelict, explainable only because of the overtones of its appealing facts. The result in Lalli was affirmance of a judgment holding the New York statute valid, upon the authority of Labine. The plurality pointed out that the disqualification in the statute involved in Trimble was too broad to be constitutionally acceptable for a justifiable state purpose and pointed out many distinctions between the New York statute and the Illinois act.

An analysis of the positions taken in Lalli by the prevailing plurality and by the four dissenters, who would have held even the New York statute invalid, clearly indicates to us that Trimble remains healthy and vigorous and that Labine cannot be applied in this case, as appellee would have us do, however great our desire to do so might be. Trimble is clearly a case in which the final arbiter on the question of application of the Constitution of the United States has spoken, and it must be accepted as stating the law of the land, as our General Assembly found in the emergency clause of Act 1015 of 1979, by which Ark. Stat. Ann. § 61-141 (d) was amended, in an effort to meet the constitutional requirements mandated by Trimble and expounded upon in the Lalli plurality opinion.

We cannot give the amendatory statute retroactive effect. It is a matter of substantive, rather than procedural, law, so it has no application to pending cases, at least when there is no express declaration, or necessary implication from the language used, of legislative intent that it shall so apply. Arkansas State Highway Com’n v. Hightower, 238 Ark. 569, 383 S.W. 2d 279. Cf. Harrison v. Matthews, 235 Ark. 915, 362 S.W. 2d 704. See also, Chism v. Phelps, 228 Ark. 936, 311 S.W. 2d 297, 77 ALR 2d 329. There is, of course, a presumption against the retroactive application of a legislative act. Snuggs v. Board of Trustees of Arkansas State Employees Retirement System. 241 Ark. 402, 407 S.W. 2d 933; Chism v. Phelps, supra. Legislation will not be construed as retroactive when it may reasonably be construed otherwise. Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961.

These rules apply especially with reference to amend-atory acts. The general treatment is stated by an outstanding authority. In Sutherland Statutory Construction, Vol. 1A, 200, § 22.36, the author states:

In determining the effect of an amendatory act on transactions and events completed prior to its enactment, it is necessary to distinguish between provisions added to the original act by the amendment, provisions of the original act repealed by the amendment, and provisions of the original act reenacted thereby. In accordance with the rule applicable to original acts, it is presumed that provisions added by the amendment affecting substantive rights are intended to operate prospectively. Provisions added by th£ amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the legislature has expressed its intent to that effect or such intent is clearly implied by the language of the amendment or by the circumstances surrounding its enactment.

See also, Koster v. Warren, 297 F. 2d 418 (9 Cir., 1961); In re Child's Estate, 18 Cal. 2d 237, 115 P. 2d 432, 136 ALR 333 (1941).

There is no language from which a legislative intention that Act 1015 should have retroactive effect can be implied. By express declaration, the act is effective “from and after its passage and approval.” The right of Odell Lucas to inherit was a right which accrued when Luther Lucas died. On a person’s death, the rights of his heirs become vested and may not be impaired by subsequent legislation. 16 CJS 1198, Constitutional Law § 228a; Arciero v. Hager, 397 S.W. 2d 50 (Ky. 1965). Cf. Gregley v. Jackson, 38 Ark. 487; Adamson v. Wolfe, 200 Ark. 360, 139 S.W. 2d 674; Purinton v. Purinton, 190 Ark. 523, 80 S.W. 2d 651.

The General Assembly has recognized its responsibility to act in connection with recognized state interests involved in inheritance by illegitimates. It has been suggested by the dissenters in Lalli that a state might properly act by requiring that, in a case such as this, paternity must be proved by clear and convincing evidence. We deem the elevated standard of proof to be appropriate in a case such as this. That standard of proof was met.

Since § 61-141 (d) is unconstitutional insofar as it prevents an illegitimate child, from inheriting from its father or its father’s blood kindred, we must consider the law in force at the time of the passage. State v. Williams-Echols Dry Goods Co., 176 Ark.324, 3 S.W. 2d 340. There was an earlier statute to the same effect as those involved here. Ark. Stat. Ann. §61-103 (1947). But that statute could not meet the test of Trimble. Since no statute in Arkansas has ever permitted inheritance by an illegitimate child from its father, we must then turn to the common law, which has been the basic law of Arkansas, at least since statehood. Ark. Stat. Ann. § 1-101 (Repl. 1976); Cordon v. Gregg, 164 Or. 306, 97 P. 2d 732, 101 P. 2d 414 (1940);Reese v. Stires, 87 N.J. Eq. 32, 103 A. 679 (1917); 10 CJS 109, Bastards, § 24a; 10 Am. Jur. 2d 948, Bastards, § 146. The right of an illegitimate child to inherit from his father has always depended upon statute. Gregley v. Jackson, 38 Ark. 487; 10 CJS 109, Bastards, § 24a; 10 Am. Jur. 2d 948, Bastards, § 145. See also, Wilson v. Storthz, 117 Ark. 418, 175 S.W. 45.

The common law rule prohibiting the illegitimate child from inheriting from the father would itself deny equal protection to the illegitimate child under the Trimble test. For this reason, we cannot deny the right of inheritance to one in whom the right has vested, i.e., by the death of the ancestor. Assuming, however, that the common law has been the governing law on the right of a bastard to inherit since Arkansas became a state, we must determine the effect of a change in the common law. If not a rule of property, it is of that nature. It certainly has a bearing on devolution of titles. We must give appropriate attention to the effect of overturning a rule of law that even predates our statehood. This case presents no difficulty. Appellant was recognized as an heir at the time of the decision in Trimble. His right to inherit was not questioned until nearly a year after Trimble was decided. The evidence in this case that he was the son of Herman Lucas and the grandson of Luther Lucas is certainly clear, cogent and convincing. Certainly, he and all others in a like position should be permitted to inherit. The history of the common law is that it is developed on a case by case basis. Generally speaking we will take this approach. Of course Trimble does not apply if the child born out of wedlock has been legitimatized in any manner, or has been designated as an heir pursuant to Ark. Stat. Ann. § 61-301 (Repl. 1971).

In many cases, the illegitimate who seeks to use Trimble and this decision as a springboard to establish his right to inherit will be barred by the statutes of limitations, laches, or estoppel. The present statute also establishes appropriate safeguards on the legitimate state interest recognized in both Trimble and Lalli. But it was not in effect when the case was tried and the state’s interest in the stability of titles and the orderly disposition of decedent’s estates is no less important now than it will be on the effective date of the act. Still, since we cannot begin to anticipate the myriad factual situations and legal issues that may arise, we can only take the traditional common law approach and deal with them as they arise.

The judgment of the probate court is reversed to allow appellant to inherit as an illegitimate child, but otherwise is affirmed and the cause remanded for the entry of an appropriate judgment and for further proceedings consistent with this opinion.


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    RENAULT CENTRAL, INC. v. INTERNATIONAL IMPORTS OF FAYETTEVILLE, INC.
    79-31
    583 S.W. 2d 10
    Opinion delivered June 25, 1979
    (Division I)

      Jones & Segers, for appellant.

      Festus H. Martin, by: F. H. Martin, for appellee.
   John A. Fogleman, Justice.

Appellee, an Arkansas corporation, filed suit against appellant, an Illinois corporation, on April 20, 1978, alleging that appellant had breached a contract under which appellant was to provide new cars which appellee was to sell at a retail outlet. A summons was issued and it and a copy of the complaint were sent by registered mail to the appellant’s designated agent for service in Illinois, CT Corporation. The return receipt indicated that the complaint, summons and a letter from the appellee’s attorney had been received by CT Corporation on April 24, 1978. No answer was filed by the appellant and on June 8, 1978, the appellee moved for a default judgment. The trial judge granted the motion and held a hearing on the amount of damages, resulting in a judgment in favor of the appellee for $58,533.03 plus costs and interest, entered on June 8, 1978.

The appellant filed a “Motion to Set Aside and Vacate the Judgment” on July 6, 1978. The appellant later filed a first and second amendment to this motion. A hearing was held on the motion on August 29, 1978. The trial judge found that the term of court in which the judgment was rendered had expired prior to the filing of the motion, that appellant had more than 30 days’ notice prior to the entry of judgment and that appellant had failed to make a prima facie case of any meritorious defense and denied the motion. This appeal followed.

The appellant has raised three points for reversal, but only two will be discussed. The other point relates to appellee’s first attempt to obtain service of process on the appellant through the Pulaski County Sheriff’s Office and the Secretary of State. Appellee concedes in its brief that this attempted service was not perfected, and therefore it will not be discussed.

The first point to be considered is the appellant’s contention that the service of process on the appellant, pursuant to Ark. Stat. Ann. § 27-2503 (Supp. 1977), was improper because the summons and complaint were mailed to the appellant’s agent for service in Illinois, rather than to the appellant itself.

We find it unnecessary to rule on the validity of the service in our disposition of this appeal, because appellant failed to show that it had no knowledge of the proceeding and had a meritorious defense.

Ark. Stat. Ann. § 29-509 (Repl. 1962) provides in part: “A judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action in which the judgment is rendered . ... ” The word “valid”, as used in the statute, has been judicially determined to be synonymous with, or equivalent to, “meritorious.” Berringer v. Stevens, 145 Ark. 293, 225 S.W. 14. Therefore, before the appellant in this action would be entitled to have the default judgment of June 8, 1978, set aside or vacated, it must meet the burden of a prima facie showing of the existence of a meritorious defense against the action of the appellee. Burnett v. Burnett, 254 Ark. 507, 494 S.W. 2d 482; Agee v. Wildman, 240 Ark. 111, 398 S.W. 2d 542. In a frequently quoted portion of Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S.W. 2d 857, we said:

In a long line of cases beginning with State v. Hill, 50 Ark. 458, 8 S.W. 401, and extending to O'Neal v. Goodrich Rubber Co., 204 Ark. 371, 162 S.W. 2d 52, and David v. Bank of Atkins, 205 Ark. 144, 167 S.W. 2d 876, this statute [§29-509] has been construed as imposing the requirement that a prima facie showing of a valid defense be made before the judgment will be vacated, although it is shown that it was rendered without notice. The practice under this statute is defined in the case of Jerome Hardwood Lumber Co. v. Jackson-Vreeland Land Corp. 160 Ark. 303, 254 S.W. 660.

It is also well established that, on a motion to vacate a default judgment, the movant must first demonstrate that he did not know of the proceedings in which the judgment was rendered. Employers Mutual Casualty Co. v. Buckner, 233 Ark. 564, 345 S.W. 2d 924. From the opinion:

* * * After the entry of a default judgment the defendant’s attack should be directed against the judgment rather than against the service of process. Files v. Robinson & Co., 30 Ark. 487, 495. Although a judgment may be set aside for unavoidable casualty upon a showing that the defendant was not served with process, the defendant must also show that he did not know of the proceeding against him and that he has a meritorious defense. Hunton v. Euper, 63 Ark. 323, 38 S.W. 517; Blanton Co. v. First Nat. Bank, 175 Ark. 1107, 1 S.W. 2d 558; O’Neal v. B. F. Goodrich Rubber Co., [supra] In the case at bar the appellant has not alleged and has not proved either that it did not know of this proceeding or that it has a defense. An order merely setting aside the service of process would accomplish nothing, for the appellant would still be subject to liability upon the judgment.

Although Renault Central, Inc. did allege, in its motion to vacate the default judgment and the two amendments thereto, the existence of a meritorious defense to the action and that the summons and complaint were not received by Renault USA, the parent company of Renault Central, until July 6, 1978, there was no proof presented at the hearing on August 29 to substantiate either of these allegations. As a matter of fact appellant presented no evidence at all.

A trial judge has wide discretion in determining whether a default judgment should be vacated and this court will not reverse the decision of the trial judge unless he has abused that discretion. Jetton v. Fawcett, 264 Ark. 69, 568 S.W. 2d 42 (1978); and Davis v. McBride, 247 Ark. 895, 448 S.W. 2d 37. In a case such as this, where no attempt was made to show either the existence of a meritorious defense or a lack of knowledge of the pendency of the proceeding, we cannot say that refusal to grant a motion to vacate was an abuse of discretion.

The appellant’s final point for reversal, a contention that the damages awarded to the appellee were arbitrary, excessive and improper, has merit and requires that this case be remanded for a hearing on the amount of damages. The complaint alleged that the appellee had hired new employees, made alterations to its sales outlet premises and incurred substantial advertising expenses, all in preparation for the retail sale of automobiles supplied by the appellant. It was further alleged that the appellant had assured the appellee that it would compensate the appellee for any expense or loss occasioned by the appellee putting the automobiles in a merchantable condition and that the appellee had suffered damages to its business reputation due to the unmerchantable condition of the automobiles delivered by the appellant. The only specific amounts pleaded by the appellee were $4,-010.20 loss in the resale of the vehicles which were delivered in an unmerchantable condition and $6,676.83 for parts, tools and other items which were returned to the appellant by the appellee. The prayer was for total relief of $79,500.00.

The hearing on the amount of damages was held on the same day that the default judgment against the appellant was entered. The only witness at this hearing was Frederick Martin Gray, an employee of the appellee. As a result of this hearing, the trial judge awarded the appellee damages in the amount of $58,533.03, itemized as follows: $4,010.20 for loss due to unmerchantable condition of cars; $7,022.83 for returned parts and tools and unreimbursed warranty repairs made by the appellee; $8,000.00 for expense of putting the cars in a saleable condition; $10,000.00 as one-third of the cost of an addition to the showroom, originally built to show cars supplied by the appellant, but used to house other cars at the time of the hearing; $4,000.00 for expense of hiring additional employees; $9,500.00 for projected profits lost on resale of vehicles due to unmerchantable condition; $7,000.00 for interest expense on financing of cars supplied by appellant and $8,000.00 for advertising expense. (The total of these amounts is actually $57,533.03, not $58,533.03.)

Kohlenberger, Inc. v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555, is the most recent pronouncement of this court concerning the award of damages following the entry of a default judgment. There we reversed an award for the appellee and remanded the cause for a determination of damages because there were elements of recovery in the award of damages which were not contained in the allegations of the complaint. For example, we found no basis for the award of damages for sums expended by the plaintiff for labor to grind and auger ice, because there was no allegation in the complaint pertaining to this item of damage. The appellee’s complaint in this case suffers from the same inadequacies. Two elements of the appellee’s recovery, interest expense and lost profits, were not even alleged in the complaint, more was awarded for the return of parts and tools than was pleaded and no specific amounts were claimed for the other elements of damages alleged in the complaint. As pointed out in Kohlenberger, a default judgment must strictly conform to, and be supported by, the allegations of the complaint, and a closer correspondence between the pleading and the judgment is required than would be after a contested trial on the merits. The following language from Kohlenberger is especially appropriate in this action:

The judgment was based on evidence heard by the court as well as the allegations of the complaint. Even if the evidence supplied the deficiencies, it would not support the judgment. The allegations of a complaint cannot be enlarged by evidence introduced to support a judgment by default. Kerr v. Kerr, 234 Ark. 607, 353 S.W. 2d 350. Although there was no evidence offered to show the true measure of damages in this respect, we find no reason to say that it could not be produced on a retrial, so the case will be remanded.

This case is remanded to the trial court for a hearing on the amount of damages to be awarded upon the default judgment entered in favor of the appellee, International Imports of Fayetteville, Inc.

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