# Bryant v. Bryant

> Court of Appeals of Arkansas · April 1, 2009 · 2009 Ark. App. 231

URL: https://www.frixlaw.com/law-library/cases/9659877

## Case

- **Full name:** James BRYANT, Jr., Appellant, v. Sherrie BRYANT, Appellee
- **Court:** Court of Appeals of Arkansas
- **Decided:** April 1, 2009
- **Citations:** 2009 Ark. App. 231; 303 S.W.3d 91; 2009 Ark. App. LEXIS 290
- **Precedential status:** Published
- **Opinion:** Dissent by Hart
- **Judges:** David M. Glover
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9659877

## Opinion text

JOSEPHINE LINKER HART, Judge, dissenting.
|7I dissent for two reasons. First, I cannot subscribe to the majority’s new “for the most part” mootness doctrine. It is rather like allowing a person to be buried when he is “for the most part” dead. The majority tacitly acknowledges that it is on shaky ground by attempting to make findings of fact, notwithstanding that these facts are not supported by the evidence. Let me say simply that it is bad practice for this court to look outside the record to resolve an issue and never permissible for this court to engage in rank speculation. I simply will not be a part of it.
Second, and much more importantly, it is a clear abuse of discretion for the trial judge to refuse to give Lieutenant Colonel Bryant a fixed visitation schedule. “Reasonable visitation” in this instance, and indeed any instance where there is acrimony between the parties, means that visitation will likely only take place at the whim of the custodial parent and could very well mean no visitation. I believe that the majority is being incredibly obtuse when it rejects Lt. Col. Bryant’s contention that there was hostility between the parties because “he did not describe a history of hostility with the appellee.” How can they be blind to the fact that the act of filing the appeal that we now consider is evidence of acrimony between the parties? Just the assertion by one party of a problem with such an arrangement should compel the trial court — and this court on appeal — to set out a specific visitation schedule and not blithely state that the parties need to learn to get along. See Bailey v. Bailey, 97 Ark.App. 96 , 244 S.W.3d 712 (2006). I would hold that in only ordering “reasonable visitation” the trial judge in essence failed to exercise discretion. It is settled law that when a trial judge fails to exercise discretion, a case must be remanded for her to do so. Gullahorn v. Gullahorn, 99 Ark.App. 397 , 260 S.W.3d 744 (2007).
|SI find little solace, and even less sound legal reasoning, in the majority excusing itself from making a decision by stating that Lt. Col. Bryant “will always have legal recourse to pursue his visitation rights.” Is that not what he has already attempted? How is it appropriate to tell a litigant that his recourse is to go back to the trial court and ask for the relief that it did not grant him in the first place? The majority has obviously ignored the significant time and expense involved for the litigants, the waste of judicial resources, and the fact that our case law requires that Lt. Col. Bryant would have to prove that there is a material change of circumstances before it would even be permissible for it to entertain a motion to change visitation. See Sharp v. Keeler, 99 Ark.App. 42 , 256 S.W.3d 528 (2007).
There is no small amount of irony in the fact that the rank of Lieutenant Colonel in the United States Army qualifies an individual to be a battalion commander, which means that the leaders of this country could entrust him with lives of more than a thousand of other people’s sons and daughters in the most harrowing situations imaginable. Yet, where it comes to Lt. Col. Bryant’s own child, the trial judge in this case afforded him less trust than it affords the day care center where Ms. Bryant deposits the child during working hours. In almost every court in almost every county of this state, almost every non-custodial parent gets the “standard visitation schedule.” Given the record before us, I cannot imagine why the trial court — and the majority — has chosen to treat this obviously honorable and accomplished man the same way we treat wife beaters and child molesters. Perhaps we need to be reminded that child custody and “visitation” is for the benefit of the child. In my view, neither the trial court nor the majority has established how this order is in the minor child’s best interest.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9659877. Public record. Not legal advice.