Warren v. Warren

¶1dissenting. Perhaps the least guarded secret in the review of chancery court cases is that appellate courts say the review is “de novo” when they plan to reverse, modify, or affirm the decree on grounds other than those stated by the chancellor.1 If the case is to be affirmed, then the emphasis is upon the language which has been codified by the parenthetical addition in Ark. R. Civ. P. 52 which says “[findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . .” In the law review article cited by the majority opinion, Mr. Cox and I suggested the addition of the parenthetical expression could have been intended to preserve the court’s power to engage in “de novo” review of chancery cases.

¶2Our supreme court has combined the “de novo” standard with the “clearly against” the preponderance of the evidence” standard in many cases.2 The important distinction in the treatment of factual determinations upon review is, of course, with respect to chancery cases and others in which there is no jury and those in which a jury has made the initial factual determinations. I have no difficulty following either our supreme court’s cases, or Rule 52, and applying them to cases coming before this court where there is a request that some factual determination be reviewed. However, I question whether we should have the kind of latitude permitted by the “combined” standard used before the adoption of Rule 52.

¶3Rule 52 may or may not have caused a change in the review standard with respect to factual determinations in chancery proceedings. Either this court or the supreme court will probably have an opportunity to discuss that problem, however, I do not believe the opportunity is presented by this case. Though the parties bickered in their briefs and upon oral argument with respect to minor differences in asserted value of items of property, there was and is no disagreement as to the fundamental facts the majority uses in support of the proposed modification of the decree. The parties do not dispute the ages of their children, the employment record of the appellant, the earning capacity of the appellee, or general financial circumstances of each of them. The dispute is about whether the chancellor erred in denying certain items of support for the appellant, i.e., alimony and retention by her of the house in which the parties had dwelled.

¶4In my opinion, the standard by which we review these matters is neither “de novo review” ñor “preponderance of the evidence.” Rather, in determining whether the basically undisputed facts should have given rise to relief requested by the appellant, we must determine whether the chancellor erred by the use of yet another review standard. The chancellor’s decision should be reversed only if we find he abused his discretion.3 Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Neal v. Neal, 258 Ark. 338, 524 S.W. 2d 460 (1975).

¶5This review standard may be just as fuzzy as the combined “de novo” and preponderance of the evidence standards, but my opinion is that we must have a very strong sense that the chancellor erred before we can say he abused his discretion by failing to award a discretionary remedy. In this case I do not find any evidence or reason which compels me to say the chancellor abused his discretion. Therefore, I respectfully dissent.