Opinion
CA06-1163
Opinion Delivered October 24, 2007
PETITION FOR REHEARING
WENDELL GRIFFEN, Judge.
CONCURRING OPINION
I am constrained in the instant case to concur in the denial of the wife's petition for rehearing due to the governing law requiring corroboration of grounds by a party other than the complainant or the defendant in a divorce case. However, I write separately to express my disagreement with current law governing the corroboration requirement.
In this case, the wife sued for divorce based on general indignities. The husband admitted that, during the parties' marriage, he placed several Internet ads seeking sexual partners in which he mentioned the parties' minor daughter. In one ad, he purported to be divorced. Further, he admitted that the ads were still running on the day of the hearing. The husband also admitted that, over his wife's objection, he allowed a woman whom he met on the Internet to babysit the parties' daughter.
A petition for divorce will not be granted on the testimony of the complainant alone, even if the defendant admits the allegations. See Moore v. Davidson, 85 Ark. App. 104, 145 S.W.3d 833 (2004). While I understand that corroboration is required to prevent collusion, I believe the law needs to be changed because the corroboration requirement seems to operate as an irrebuttable presumption of collusion. Courts should not presume collusion. Moreover, the corroborative testimony of a third party does not guarantee there will be no collusion. After all, the third party could be involved in the collusion.
Where there is no evidence of collusion (as in the instant case), I do not understand the purpose of requiring yet another witness to reiterate conduct to which a defendant has admitted. It is well-settled that where there is no evidence of collusion, the evidence of corroboration need only be slight. Id. "Corroboration" of a complainant's testimony in a divorce action is testimony of some substantial fact or circumstance independent of the complainant's statement that leads an impartial and reasonable mind to believe that material testimony of the complainant is true. Id. Where no collusion is alleged, the defendant's statement, like the statement of any other witness, is independent of the complainant's statement and should constitute sufficient, impartial evidence of the conduct alleged.
Thus, where the defendant in a divorce case has admitted to certain conduct, what more would another witness need to say to prove the complainant has grounds for a divorce? The only question that needs to be answered after a defendant has admitted to certain conduct is whether that conduct constitutes grounds for a divorce. Proof of general indignities requires proof of a habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of a spouse that is sufficient to render the condition of the other spouse intolerable; it may include rudeness, unmerited reproach, contempt, studied neglect, open insult and other plain manifestations of settled hate, alienation and estrangement, so habitually, continuously and permanently pursued as to create an intolerable condition. See Rocconi v. Rocconi, 88 Ark. App. 175, 196 S.W.3d 499 (2004) (granting a divorce to the husband on the basis of wife's gambling problem, which made his life intolerable).
Here, the husband's admitted, repeated solicitation of sexual partners outside of the marriage directly subverted the marital relationship and demonstrated, at least, open insult and a plain manifestation of alienation and estrangement from his wife. The use of his minor daughter in soliciting sexual partners, his use of pornography over his wife's objection, and his use of a woman he met over the Internet to babysit the parties' daughter, which was also over his wife's objection, compounded that insult. If a gambling addiction constitutes a sufficient ground for a divorce pursuant to personal indignities, see id., the husband's conduct in the instant case certainly does so. But for the governing law concerning corroboration of grounds in divorce proceedings, I would grant the wife's petition for rehearing.