¶1dissenting. I cannot agree with the majority opinion. It concedes the proof offered by Mrs. Posey is not sufficient to establish that Mr. Posey was guilty of adultery.
¶2There is absolutely nothing in the record proving “the neglect of his wife by Mr. Posey has been habitual while he has devoted his time and attention to another woman.” There is not testimony Mr. Posey neglected nor subjected Mrs. Posey to indignities prior to the time he initiated the separation by leaving home. I am aware of Milne v. Milne, 266 Ark. 900, 587 S.W. 2d 229 (Ark. App. 1979), though in disagreement with the law as stated by the majority opinion. My colleagues will state that I simply cannot accept the fact that Arkansas is not a no-fault state. This however, is not the basis for this dissent. Even if Milne, which holds that conduct up until time of divorce can serve as grounds for divorce, is applied, Mr. Posey has done nothing which constitutes conduct which should deny him a divorce.
¶3Our divorce statute requires no cohabitation after grounds for divorce are established. Had Mr. Posey remained at home the law would have presumed sexual intercourse and therefore condonation of his wife’s indignities which would have precluded a divorce. This separation, which is essential to obtaining a divorce, is now the evidence the majority points to to show studied neglect.
¶4The majority makes it impossible for a party seeking a divorce to enjoy the company of fellow human beings. They concede there is no proof of adultery, yet reward Mrs. Posey for her falsei accusation. The majority would demand the behavior of a cloistered monk who must not communicate with, nor be seen in the presence of, members of the opposite sex. Furthermore they assume the conduct is immoral and an affront to the estranged wife. Our Court does not sit in moral judgment.
¶5In reality the majority just cannot support a husband of 40 years leaving his wife. They do not wish to appear to approve of a divorce in this situation. This is not our function! The legislature has set out the guidelines by which a divorce may be granted. Neither the length of the marriage, nor sympathy for the wife, are factors for determining grounds.
¶6While I would affirm Mr. Posey’s divorce I would increase Mrs. Posey’s alimony and award her the house. This is allowed by Act 705.
¶7I respectfully dissent.