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Potts v. Potts

Supreme Court of Arkansas

February 16, 2017



          Brent D. Watson, Attorney at Law, PLLC, by: Brent D. Watson, for appellant.

          Medlock, Gramlich & Sexton, LLP, by: Sam Sexton III, for appellee.


         Appellant Erin Potts appeals the decree entered by the Sebastian County Circuit Court divorcing her from appellee Timothy D. Potts. She also contests the denial of her motion for reconsideration. For reversal, Erin contends that the circuit court erred by deciding the parties' property issues and modifying their agreement regarding custody and visitation without a hearing. Further, she asserts that the court erred by omitting from the decree their agreement for Tim to move to Northwest Arkansas. We agree that the circuit court erred in depriving the parties of a hearing on the issues in dispute, and we reverse and remand.

         The record reflects that Erin and Tim married in January 2010 and separated in September 2013. The union produced one child, a daughter, J.P. Tim filed a complaint for divorce in October 2013 seeking joint custody of J.P. and an equitable distribution of the parties' assets and liabilities. Erin answered the complaint and also filed a counterclaim for divorce. She sought sole custody of their daughter and that Tim be required to pay child support. Erin also asked for the circuit court to determine their property rights and the allocation of their debts, unless otherwise agreed upon by the parties. Tim subsequently filed an amended complaint alleging that he should be awarded custody of the child. He also claimed that he had acquired a home before the marriage and that it should be awarded as his separate, nonmarital property. In December 2013, the circuit court entered an order granting Erin temporary custody of J.P., setting Tim's visitation, and requiring him to pay child support.

         The circuit court scheduled a two-day, final hearing to begin on July 29, 2014. Prior to that date, Erin filed a motion for continuance, citing discovery problems. The circuit court heard this motion and denied it. In its ruling, the court assured the parties that the case did not have to be concluded at that time and that it would "continue on" until they rested their cases.

         At the hearing on July 29, the parties announced that they had settled the custody issue, and they stated their agreement on the record as follows. They agreed to share joint custody of J.P. by alternating custody of her on a weekly basis. Their settlement included the right of first refusal to care for the child when the parent exercising custody could not keep her. The parent who surrendered his or her time with the child would have the right to make up that lost time. Because Tim is a school teacher, they agreed that he would be allowed to make up his unspent time during school breaks, holidays, and summer vacations. Overnight visitation on Friday evenings during Erin's week was also stated as an option. Exercising the right to make up lost time was conditioned upon it not interfering with previously established plans. The parties were to mutually agree on a daycare facility at the midpoint between their residences that would serve as the location for exchanging the child. The parties were also to make an effort to live in the same school district. In this regard, Tim was to make a good-faith effort to move to Fayetteville, but if he could not do so or if it was not affordable, then Erin was to make a good-faith effort to relocate to Rogers. Further, the parties agreed "that if at any time the Court finds by a preponderance of the evidence that one parent demonstrates a pattern of willfully creating conflict in an attempt to disrupt the current pending joint custody arrangement, then the Court may deem such behavior as a material change of circumstances and may change joint custody to an order of primary custody to the non-disruptive parent."

         With the permission of the circuit court, the parties reserved the property issues, and they agreed to work on a settlement. Tim offered testimony to establish residency and his grounds for divorce. The circuit court stated that it would sign a decree approved by the parties.

         A decree had not been entered by November 4, 2014. On that date, Tim filed a motion to modify the joint-custody arrangement. He alleged that Erin had been uncooperative and had repeatedly shown bad faith by ignoring, denying, or delaying nearly all of his requests to make up lost time. Tim also asserted that Erin had required him to pick up J.P. at her home as opposed to the daycare center, which reduced his time with J.P. He claimed that he was entitled to sole custody of J.P. pursuant to their agreement, and he submitted his affidavit in support of his accusations. In her response to the motion, Erin denied Tim's allegations and asserted that it was Tim who had consistently attempted to create conflict and disagreement. She maintained that Tim was dissatisfied with the terms of the agreement because she had been keeping J.P. while Tim was at work.

         In conjunction with her response, Erin, through her counsel, wrote a letter to the circuit court dated November 13, 2014. She stated that the problems the parties were encountering concerned her tardiness in dropping off J.P. at daycare and their inability to agree upon Tim's additional time with the child. A proposed decree to address those difficulties was attached to the letter. Erin indicated that she objected to the settlement of the property issues as contained in a proposed decree drafted by Tim and noted that her proposal included an order for them to enter into settlement negotiations for ninety days, and if that failed, for them to enter mediation.

         Tim's counsel responded with a letter to the circuit court, stating that the parties had agreed for Tim to draft a decree setting out the custody agreement and containing an offer for the division of property and debts. Tim complained that Erin had not indicated why the proposed property settlement was not satisfactory and that he had not received a counteroffer from her. He indicated that the decree proposed by Erin did not accurately reflect the custody agreement. In addition, he objected to mediation and advised that if they could not reach a settlement of the property issues, the court could hold a brief hearing. Tim also requested a hearing on his motion to modify the custody agreement.

         On November 21, 2014, the circuit court wrote a letter advising the parties that it was setting aside the parties' agreement regarding the right of first refusal because it had "become too cumbersome." The court also stated that if the parties did not settle the property dispute within ten days, the marital home and its contents would be sold and the proceeds divided equally. Also, by an order entered on November 24, 2014, the circuit court granted Tim sole custody of J.P. Although no hearing had been held, the court found that Erin had "repeatedly ignored, denied, or delayed the Plaintiff's request to make up time with the parties' minor child as was required by the parties' agreement."

         In response to the circuit court's letter ruling regarding the sale of the home, Tim's counsel wrote another letter to the court stating that the home had been owned by Tim before the marriage. Tim indicated that he had purchased the property for $129, 000 and that he had applied a $10, 000 gift from his grandfather toward the purchase price. Tim also informed the court that the balance of the mortgage was $108, 000. He attached an appraisal of the property and claimed that the home had decreased in value, and he noted that it was ...

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