Bryant v. Bryant

303 S.W.3d 91, 2009 Ark. App. 231, 2009 Ark. App. LEXIS 290
CourtCourt of Appeals of Arkansas
DecidedApril 1, 2009
DocketCA 08-188
StatusPublished
Cited by3 cases

This text of 303 S.W.3d 91 (Bryant v. Bryant) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryant v. Bryant, 303 S.W.3d 91, 2009 Ark. App. 231, 2009 Ark. App. LEXIS 290 (Ark. Ct. App. 2009).

Opinions

DAVID M. GLOVER, Judge.

|, This is a one-brief case. Appellant, Lieutenant Colonel James Bryant, and ap-pellee, Captain Sherrie Bryant, were divorced by decree entered on October 17, 2007. They have a son, Donovan, who was born on June 7, 2007. Appellant appeals from the decree, contending that the trial court committed reversible error when it 1) conditioned his visitation with Donovan upon his being supervised by appellee for the first three visits, 2) refused to make or enforce a visitation schedule for the first five years of Donovan’s life, and 3) denied his request to be the alternative physical custodian for Donovan in the event appel-lee was deployed or incapacitated. We affirm.

Standard of Review

When the setting of visitation is at issue, we will not reverse the trial court absent an | ?abuse of discretion. Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008). Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Id.

Supervised Visitation

For his first point of appeal, appellant contends that the trial court committed reversible error when it conditioned his visitation with Donovan upon his being “supervised” by appellee for the first three visits and going to appellee’s home for visitation for a period of one year. This issue has been rendered moot by the passage of time between the entry of the decree and our consideration of this appeal. Moreover, the decree did not contemplate visitation at appellee’s house for a period of one year as appellant contends.

The pertinent portion of the parties’ divorce decree provides:

4. That Plaintiff shall have reasonable visitation rights with the parties’ minor child until he reaches the age of 5. Plaintiff shall exercise his first three visits with the parties’ minor child in the presence of the Defendant at a location agreed to by the parties. After the first three visits, the Plaintiff shall have reasonable visitation with the parties’ minor child without the Defendant’s presence. The Plaintiff may visit the parties’ minor child at his daycare center. The visitation shall be arranged between the parties until the child reaches the age of 5. Plaintiff shall pick up the parties’ minor child at the beginning of visitation and mother shall pick up the parties’ minor child at the conclusion of the visitation. The exchange for visitation shall occur at the Defendant’s residence until the child reaches the age of 1; thereafter, the parties shall exchange the child at a neutral location agreed upon between the parties.

(Emphasis added.) According to the decree, the first three visits were to be in appellee’s presence at an agreed upon location, but after that time, the visits themselves were to take place out of her presence — only the exchange of the child for visitation was to take place |sat appellee’s house. Further, after the child reached the age of one year, even the exchange was to take place at a neutral location agreed upon by the parties.

Donovan’s first birthday was on June 7, 2008. It is now early 2009, and he is approximately twenty months old. The provisions in the decree that appellant challenges in this first point of appeal are likely no longer effective. The first three visits should be completed and the subsequent one-year period in which the trial court ordered the exchange for visitation to take place at appellee’s house has long since passed. The issue is therefore moot.

As our supreme court explained in Terry v. White, 374 Ark. 387, 391-93, 288 S.W.3d 199, 202-03 (2008):

As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See 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. See id. In other words, a moot case presents no justicia-ble issue for determination by the court. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).
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That being said, we have recognized two exceptions to the mootness doctrine, one of which involves issues that are capable of repetition, yet evade review. See Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007). The other mootness exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. See id. This exception arose early in our case law and continues today. See Cotten, supra. We, therefore, must examine the instant appeal and determine whether it falls within either exception. It does not.

14Here, any resolution of this first issue by our court would have no practical legal effect because the provisions complained of are no longer pertinent due to the passage of time. Neither do the above two exceptions to the mootness doctrine apply under the circumstances of this case. We take this opportunity to observe, however, that even a child of twenty months, who is experiencing his first visits with a noncustodial parent, needs the security of the custodial parent’s, or another familiar adult’s, temporary presence in order to adjust.

Visitation Schedule

For his second point of appeal, appellant contends that the trial court committed reversible error when it refused to make or enforce a visitation schedule for the first five years of the minor child’s life. We find no abuse of the trial court’s discretion.

Appellant’s basic contention under this point is that the trial court erred in refusing to set a definitive written visitation schedule. The divorce decree provides that appellant “shall have reasonable visitation rights with the parties’ minor child until he reaches the age of 5.... The visitation shall be arranged between the parties until the child reaches the age of 5.” Appellant argues that the parties are demonstrably acrimonious and that, without a definitive written visitation schedule, he will be left to appellee’s whims regarding visitation, “with no recourse to enforce his rights.” We do not find his argument convincing.

The setting of visitation is within the sound discretion of the trial judge. Delacey v. Delacey, 85 Ark.App. 419, 155 S.W.3d 701 (2004). The reasons for placing visitation matters within the trial court’s discretion are clear. No two situations are ever exactly the same, and a trial court must be afforded the flexibility to deal with the myriad of circumstances confronting families in determining appropriate visitation. Unless an appellant demonstrates an abuse of the trial court’s discretion in this regard, we will not reverse.

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Related

Nash v. Nash
2019 Ark. App. 173 (Court of Appeals of Arkansas, 2019)
Eversole v. Eversole
2015 Ark. App. 645 (Court of Appeals of Arkansas, 2015)
Bryant v. Bryant
303 S.W.3d 91 (Court of Appeals of Arkansas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
303 S.W.3d 91, 2009 Ark. App. 231, 2009 Ark. App. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryant-v-bryant-arkctapp-2009.