The opinion
James H. Pilkinton, Judge, dissenting in part, concurring in part. As pointed out in the majority opinion, the real problem that confronts the court in this appeal concerns the authority of the trial court, under the facts of the case, to set aside the property settlement and cancel the quitclaim deed executed by the appellees. The trial court found that while the property settlement agreement was valid at the time it was made, the subsequent conduct of the parties — engaging in acts of sexual intercouse — was sufficient to abrogate the agreement; and justified the court in restoring the parties to their original positions. I consider this finding of the trial judge to be clearly against the preponderance of the evidence.
I do not believe that this case is controlled by the ruling in O’Quin v. O’Quin, 217 Ark. 321 , 230 S.W. 2d 16 (1950), as the facts are entirely different. In O’Quin the court determined that there had never been a bona fide separation, and the parties were not actually separated within the meaning of the law when the settlement of their property rights was made. That is not the case here. In the litigation before us there was a real separation which occurred before the parties divided their property, and before the husband deeded his interest in the home to the wife. The conduct of the parties toward each other here was compatible with the separation agreement. They had agreed to separate, but to remain under the same roof and not seek a divorce until the youngest daughter graduated from high school. That is exactly what happened. Mrs. Hair did not file this suit until after the daughter had graduated. If O’Quin v. O’Quin does control, how can it be said on this record (as required by the ruling in O’Quin) that “no other reasonable conclusion can be indulged than they had set aside or abrogated their agreement of separation . . .”?
I can find no evidence in this record to show that the parties intended by their subsequent conduct to annul the property settlement, and I do not believe that the husband, under the facts of this case, was entitled to have the deed cancelled. While I agree that the court was correct in denying the divorce to either party for want of sufficient corroboration, I would reverse that part of the decree which set aside the property settlement and voided the deed. Even though the parties are not divorced, they are separated, and it is my view that the husband, under the circumstances shown by this record, is bound by the property settlement agreement and deed. In my opinion, the trial court’s finding with reference to the property settlement and deed is clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure.
I am authorized to say that Wright, C.J., and Hays, J., join in this dissent.