Brown v. Brown

2012 Ark. 89, 387 S.W.3d 159, 2012 WL 663161, 2012 Ark. LEXIS 112
CourtSupreme Court of Arkansas
DecidedMarch 1, 2012
DocketNo. 11-1129
StatusPublished
Cited by25 cases

This text of 2012 Ark. 89 (Brown v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159, 2012 WL 663161, 2012 Ark. LEXIS 112 (Ark. 2012).

Opinion

ROBERT L. BROWN, Justice.

The issue in this case is whether the circuit court erred in denying appellant Michelle Brown’s motion to modify the visitation of appellee Vernon Brown based on her desire to continue nursing her child, which she contends is in the child’s best interest. Specifically, she asserts that the circuit court erred in dismissing her motion because a material change in circumstances has occurred, in that the parties’ now twenty-six-month-old daughter wants to continue to breast-feed past the original eighteen-month period contemplated in the divorce decree. We affirm the circuit court’s denial of the motion.

On December 25, 2008, Michelle Brown and Vernon Brown were married. They separated on or about October 22, 2009, while Michelle was pregnant. On December 26, 2009, she gave birth to a daughter. On August 10, 2010, Vernon filed a first amended complaint for absolute divorce. On October 21, 2010, the circuit court held a hearing on the matter, at which time the parties stated that they had reached an agreement on visitation. The | ^agreement was that Michelle would be granted custody of their daughter and that until their daughter reached eighteen months, Vernon would have visitation privileges from 4:00 p.m. until 8:00 p.m. every Tuesday and Thursday, as well as on every other Friday, Saturday, and Sunday for the same time period.

This limited visitation schedule was agreed upon by the parties in order to accommodate Michelle’s nursing of the child.1 The parties also agreed that once their daughter reached eighteen months of age, they would adhere to the standard visitation schedule of five weeks in the summer, alternating weekends, and alternating holidays. At the hearing, the circuit court questioned Michelle and Vernon about whether they understood and agreed to the terms of the visitation agreement. Both parties stated that they understood the terms of the agreement and that they knew they would be bound by it. The circuit court accepted the agreement and included the visitation terms in the subsequent divorce decree filed on November 8, 2010.

At the time of the child’s eighteen-month check-up, around June 26, 2011, she was still aggressively nursing six times a day. At some point in mid-July, which was well into Vernon’s scheduled summer visitation with the child, Michelle contacted Pamela McArthur Elliot, a lactation consultant who had visited with her once immediately after the child was born, about a weaning schedule. During the time that Michelle was waiting to hear back from Elliot, Michelle and Vernon attempted to work out a weaning schedule themselves. The parties first agreed that they would cut back on the number of times the child nursed |seach day to once every twenty-four hours. This schedule continued for about a week, and then the parties agreed to reduce the nursing schedule to once every forty-eight hours. After the parties had begun the once-every-forty-eight-hours nursing schedule, Michelle spoke with Elliot, who recommended that she continue to nurse the child at least once nightly for up to two years and beyond, or as long as the child and Michelle desired to nurse. After receiving Elliot’s recommendation, Michelle informed Vernon that she had spoken with Elliot and that they must return to the schedule of breast-feeding at least once every twenty-four hours.

Michelle and Vernon failed to work out a visitation schedule amicably, and on July 28, 2011, Michelle moved to modify visitation for the following reasons: (1) that she was still breast-feeding the minor child and should continue to do so through two years old as suggested by the World Health Organization and American Academy of Pediatricians; (2) that the parties had first agreed that the minor child would be allowed to breast-feed nightly during Vernon’s visitation and orally agreed to comply with the recommendations of Elliot; and (3) that Vernon had then refused to comply with Elliot’s recommendations. Michelle asserted that it was in the child’s best interest for the court to order that breast-feeding continue in accordance with Elliot’s recommendations. She requested that the court modify visitation and “order breast feeding for the minor child up to two years.”

On August 4, 2011, the circuit court held a hearing on Michelle’s motion to modify visitation. Michelle, Elliot, and Vernon all testified at the hearing. At the close of Michelle’s testimony, counsel for Vernon orally moved to dismiss Michelle’s motion for failure to prove a material change in circumstances. Counsel for Michelle retorted that the change in circumstances was that both parties had anticipated that the child would be weaned at eighteen months, but that did not occur. The circuit court, however, found that no material change in circumstances had occurred and ruled that the visitation would go forward in accordance with the standard visitation schedule set forth in the divorce decree. The court then entered a written order dismissing Michelle’s motion to modify visitation on August 15, 2011. Michelle appealed the order and filed a motion for emergency temporary relief pending the outcome of the appeal, which this court denied on November 17, 2011. Michelle next filed a motion to expedite this appeal, which this court granted on December 1, 2011.

We first address the claim of mootness raised by Vernon in his brief on appeal. He raises the argument that Michelle’s appeal is moot because she only asked the circuit court to modify Vernon’s visitation until their child reached the age of two, and their daughter turned two on December 26, 2011. In response, Michelle claims that her appeal is not moot because (1) in addition to requesting that the court modify the visitation to accommodate breastfeeding for up to two years, she also asked the court to modify the visitation schedule in accordance with the lactation consultant’s recommendation that the child breast feed on a nightly basis for two years and beyond; and (2) that even if this court were to decide that the issue presented in the instant appeal was moot, there is the possibility that she could go back to the circuit court and file another motion requesting modification with a broader request for relief. Thus, she maintains, the issue is capable of repetition and would evade review.

As a general rule, the court will not review an issue that is moot. Mountain Pure, LLC v. Little Rock Wastewater Utility, 2011 Ark. 258, 383 S.W.3d 347. To do so would be |fito render an advisory opinion, which this court will not do. Id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. In other words, a moot case presents no justi-ciable issue for determination by the court. Id. This court has recognized two exceptions to the mootness doctrine, one of which involves issues which are capable of repetition, yet because of their circumstances evade review. Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ashlynn Peters (Now Stevens) v. Dylan Peters
2026 Ark. App. 97 (Court of Appeals of Arkansas, 2026)
Christina Morris v. Chad Morris
2026 Ark. App. 52 (Court of Appeals of Arkansas, 2026)
Andrea Sellew v. Jacob Davis
2024 Ark. App. 390 (Court of Appeals of Arkansas, 2024)
J. Kirk Grynwald v. Ana Grynwald
2022 Ark. App. 310 (Court of Appeals of Arkansas, 2022)
Jerry Jeffers v. Monica Wibbing
2021 Ark. App. 239 (Court of Appeals of Arkansas, 2021)
Margaret E. Nalley v. Michael Adams
2021 Ark. App. 167 (Court of Appeals of Arkansas, 2021)
Leah Higdon v. Lynn Roberts
2020 Ark. App. 59 (Court of Appeals of Arkansas, 2020)
Dare v. Frost
540 S.W.3d 281 (Supreme Court of Arkansas, 2018)
Wills v. Wills
2016 Ark. App. 174 (Court of Appeals of Arkansas, 2016)
Eversole v. Eversole
2015 Ark. App. 645 (Court of Appeals of Arkansas, 2015)
Newby v. Newby
2015 Ark. App. 540 (Court of Appeals of Arkansas, 2015)
Foust v. Montez-Torres
2015 Ark. 66 (Supreme Court of Arkansas, 2015)
Hackney v. Hackney
2015 Ark. App. 114 (Court of Appeals of Arkansas, 2015)
Smith v. Lovelace
2014 Ark. App. 345 (Court of Appeals of Arkansas, 2014)
Wyatt v. Dent
2014 Ark. App. 343 (Court of Appeals of Arkansas, 2014)
Board of Trustees v. Crawford County Circuit Court
2014 Ark. 60 (Supreme Court of Arkansas, 2014)
Adams v. Adams
2014 Ark. App. 67 (Court of Appeals of Arkansas, 2014)
Moix v. Moix
2013 Ark. 478 (Supreme Court of Arkansas, 2013)
McNutt v. Yates
2013 Ark. 427 (Supreme Court of Arkansas, 2013)
Chester v. Pilcher
2013 Ark. App. 571 (Court of Appeals of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2012 Ark. 89, 387 S.W.3d 159, 2012 WL 663161, 2012 Ark. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-ark-2012.