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Potts v. Potts

Court of Appeals of Arkansas, Divisions I, II

February 24, 2016

ERIN LANE POTTS, APPELLANT
v.
TIMOTHY D. POTTS, JR., APPELLEE

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. DR-13-858] HONORABLE JIM D. SPEARS, JUDGE

KENNETH S. HIXSON, JUDGE.

The appellate court is the guardian of fair play. We are somewhat insulated, and sometimes isolated, from the discord and cacophony of the trial court. We do not have the luxury of an NFL replay official where he simply sticks his head under a black hood and reviews a video replay of the actual play under review. Ours is generally a world of black and white emanating solely from the printed page. Sometimes that insulation is a detriment such as where we attempt to interpret the demeanor or credibility of a witness or the behavior or intent of parties or attorneys. But, sometimes that insulation is beneficial in that we can take a fresh, unadulterated look at the proceedings below without bias, prejudice, or emotion. We don't make the rules; we simply review what happened below to ensure the rules were followed. When rules are not followed and the notions of fair play are offended, the appellate court should be compelled to act. Such is the case in this matter. I would grant Erin Potts's petition for rehearing because the trial court erroneously denied her a hearing prior to dividing the parties' property. Therefore, I dissent.

To put this matter in context, it appears from the record that this divorce was the type of divorce that gives divorces a bad name. The parties could not, or at least did not, agree on virtually anything. The trial court was repeatedly dragged into the fray to referee the participants. Shortly after the complaint was filed in October 2013 the disagreements began:

• Husband wrote to the judge and complained to the court that wife would not cooperate in visitation because the baby was breastfeeding and could not be away from wife for over three hours at a time.
• Husband wrote to the judge and complained that wife would not cooperate in making up missed visitation.
• Husband wrote to the judge and complained that wife would only allow visitation in a rented hotel room so she could breast feed the minor child during visitation.
• Wife wrote to the judge to complain that it was all the husband's fault.
• Judge, wife, and husband had a conference call to resolve the visitation issues.
• Judge entered a Temporary Order for joint custody and child support.
• Wife and/or husband wrote the judge a letter complaining summer visitation schedule was not working.
• Wife wrote the judge complaining that husband and his witnesses would not cooperate in discovery and depositions.
• Judge wrote a letter addressing the discovery issues.
• Wife filed motion for continuance from July ...

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