Summary
In Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954, the Court said: "Our decisions have recognized two different types of agreement for the payment of alimony.
Summary of this case from Wilson v. WilsonOpinion
McFADDIN, Justice (dissenting).
My dissent goes to the question of the legality and sufficiency of service on Mrs. Seaton. The majority opinion says, inter alia :
'Notice of the proposed hearing upon this motion was served on Coffelt, but he did not attend the hearing and is not shown to have notified Mrs. Seaton that it was to take place. Mrs. Seaton now says that service of notice upon her attorney was insufficient to make the order of April 13 binding upon her.
'Inasmuch as the statute does not specify the notice to be given upon an application of this kind the rule is that the procedure chosen must be 'reasonably calculated' to afford the opposite party an opportunity to be heard. Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851. In the circumstances of this case we think the method selected was sufficient. It is common practice to notify opposing counsel alone when an interlocutory matter is to be heard in a pending case. Even though Mrs. Seaton had left the State she had good reason to anticipate further proceedings in the case.'
In the case cited in the above quotation--Schley v. Dodge, 206 Ark. 1151, 178 S.W.2d 851--we specifically pointed out that the petitioner did receive actual notice of the hearing. But in the case at bar, the petitioner did not have actual notice. Therefore, I think the statutory method of publication of warning order and appointment of an attorney ad litem, or the statutory method of non-resident service, should have been followed in the case at bar as a jurisdictional prerequisite to the rendering of a decision in a matter as serious as depriving a mother of her children and the money for their support. I submit that some statutory method of obtaining service--rather than mere 'common practice'--should have been pursued before such an order could have been legally made.
Section 27-354 Ark.Stats. concerns constructive service; and section 27-339 Ark.Stats. concerns non-resident service. Neither statute was followed in this case.
The majority opinion says--in the last paragraph--that Mrs. Seaton may still petition the Pulaski Chancery Court for a change of the challenged order. I think it would be far more just and proper to hold that the questioned order was void because of insufficient notice on Mrs. Seaton; and then Mr. Seaton would be required to be the moving party in any further proceedings. Why cast the burden on Mrs. Seaton, when she received no notice of a hearing on the order here involved?