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SUPREME COURT OF ARKANSAS

No. CV-16-10

ERIN POTTS

APPELLANT

V.

TIMOTHY D. POTTS

APPELLEE

Opinion Delivered: February 16, 2017

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

[NO. DR-2013-858]

HONORABLE JIM SPEARS, JUDGE

REVERSED AND REMANDED; 

COURT OF APPEALS’ OPINION 

VACATED.

COURTNEY HUDSON GOODSON, Associate Justice

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 
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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 
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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 
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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 
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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 

Erin’s burden to prove that the home had increased in value. Based on this information, 

Tim asked the circuit court to reconsider its letter ruling.

Erin’s attorney responded with a letter dated November 26, 2014:

Please consider this letter a request that you allow the parties an additional ten 

(10) days to try and resolve any outstanding property issues. The Defendant would 

further request that the court not piecemeal the property issues as requested by the 

Plaintiff. With regard to the change in visitation referenced in the Court’s letter, the 

Defendant would request that the Court refrain from making any modifications to 

prior rulings until evidence has been presented. At this point, there has been much 

hearsay in the lengthy letters and pleadings filed by the Plaintiff. There has been no 

actual proof presented to the Court that the parties have not been getting along or 

that it is the fault of the Defendant. It is clear that the Plaintiff is dissatisfied with the 

fact the Defendant has been able to watch the minor child during the day. Essentially, 

Plaintiff is telling the Court that the parties cannot get along so he should get exactly 

what he wanted in the first place. Keep in mind that the Plaintiff is not losing any 

time with the parties’ child while the Defendant is keeping her during the day. 

Again, the Defendant is requesting that the Court only consider evidence properly 

before the Court and is objecting to the introduction or consideration of any of the 

items the Plaintiff has attempted to introduce through letters to the Court or 

attachments to pleadings.
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The Defendant respectfully requests that the Court set this matter for a hearing 

so that any decision to modify this Order be based upon actual facts and evidence 

rather than hearsay propounded by the Plaintiff. Thank you for your time and 

consideration regarding this matter, and I hope we are able to have a hearing in the 

near future so that these misunderstandings might be resolved.

The circuit court authored another letter on December 10, 2014, which set a date 

of no later than December 19, 2014, for the parties to reach an agreement. The court 

observed that Tim had purchased the home prior to the marriage but ruled that Erin would 

be entitled to equity resulting from the reduction of principal by the expenditure of marital 

funds. The circuit court also found that Erin was not entitled to any increased value given 

the current market value, unless marital funds had been used for improvements made to the 

property.

On January 27, 2015, Tim’s counsel wrote a letter to the court and attached two 

proposed decrees. One version ordered the sale of all personal property. Counsel indicated

that the other, preferred, version contained what Tim had agreed upon, and he represented 

that it was “very close” to the only proposal received from Erin. In the letter, Tim identified 

four disputed items of personal property that he was claiming and submitted a thank-you 

note from his parents to support his contention that he should be awarded one of the items, 

noting that Erin would receive a dresser that had been a gift from Erin’s aunt. Tim also 

stated that his parents had contributed $6,000 toward the vehicle Erin was driving and that 

despite this substantial gift to him, Erin would be awarded the vehicle in the proposed 

decree. Although Tim said that this particular award would result in Erin’s receiving far 

more in value than he would, he stated that he would agree to this disposition if the decree 

were accepted by the court. He explained that the preferred version of the decree also 
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divided the parties’ debts, representing that to his knowledge, Erin did not dispute the 

amount of the debt or that he had been servicing their debt. Tim also attached an 

amortization schedule to support his calculation of Erin’s share of the reduction in principal 

on the home. 

On February 4, 2015, the circuit court entered the decree preferred by Tim. Erin 

filed a timely motion for reconsideration and to modify the decree. She argued that the 

decree contained multiple provisions that had not been agreed upon by the parties and for 

which no testimony had been taken. She asked the circuit court to set aside the custody 

provisions and to enter a decree to reflect the parties’ custody agreement. Erin also asserted 

that the court should set aside the provisions relating to the division of marital property and 

set a hearing. Finally, Erin argued that the court should modify the decree to allow her to 

exercise visitation during spring break in 2015 because the decree allowed Tim a continuous 

period of custody for twenty-two days. In response, Tim argued that the decree did not 

designate spring break as a visitation period for either party because their agreement 

contained specific arrangements for the holidays of Easter and Pascha, which were likely to

interfere with spring break. Further, Tim asserted that Erin had ample opportunity to 

present countervailing proof but that she had failed to do so. Tim also filed a motion to 

modify the decree to include a provision for visitation on Halloween.

By order dated February 23, 2015, the circuit court denied Erin’s motion for 

reconsideration. The court found that “based upon the testimony of the parties and the 

statements of counsel at the July 24, 2014 hearing and based upon the Court’s review of 

letters from counsel and the pleadings in this case, there is sufficient evidence to support the 
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Court’s entry of the Decree of Divorce as entered on February 4, 2015.” The court 

modified the decree to include Halloween visitation. The circuit court also found that “the 

parties did not intend that either party be awarded Spring Break visitation.” 

Thereafter, Erin filed a timely notice of appeal from the decree and the order denying 

reconsideration. On March 2, 2015, the circuit court entered an order denying 

reconsideration and modifying the decree identical to the one filed on February 23, 2015. 

The only difference between the two orders is that the March order included the attorneys’ 

signatures under the statement “Agreed as to Form and Content.” Erin filed an amended 

notice of appeal to include a review of this order.

The appeal was first heard by the court of appeals, which affirmed that portion of the 

decree dividing the parties’ property and their debts, but reversed and remanded on the issue 

of custody. We accepted Erin’s petition for review. When this court grants a petition for 

review, we treat the appeal as if it had been originally filed in this court. Brave v. Brave, 

2014 Ark. 175, 433 S.W.3d 227.

Division of Property and Debts

Erin argues that the circuit court’s findings on the division of property and debts are 

clearly erroneous because the circuit court did not conduct a hearing and thus had no 

evidence upon which it could have properly made those decisions. She contends that the 

circuit court’s findings are based solely on statements of Tim’s counsel found in letters 

written to the court. Erin points out that she objected to the court’s consideration of the 

letters as evidence and that she made requests for the circuit court to hold a hearing to 

resolve these issues.
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With respect to the division of property in a divorce case, we review the circuit 

court’s findings of fact and affirm them unless they are clearly erroneous or against the 

preponderance of the evidence. Jones v. Jones, 2014 Ark. 96, 432 S.W.3d 36. A finding is 

clearly erroneous when the reviewing court, on the entire evidence, is left with a definite 

and firm conviction that a mistake has been committed. Conlee v. Conlee, 370 Ark. 89, 257 

S.W.3d 543 (2007).

We agree with Erin that the circuit court erred in accepting Tim’s version of facts 

and events in dividing the parties’ property and debts. Just as statements made by attorneys 

during a trial are not evidence, Union Pac. R.R. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 

(1997), counsel’s statements of the kind here cannot be regarded as evidence upon which 

to make findings of fact and conclusions of law. This was not a case where the parties agreed 

to submit disputed issues to a court for resolution based on stipulations, briefing, or letters. 

For instance, in Metz v. Langston, the parties agreed to present a contested issue to the circuit 

court for decision based on letters, briefs, proposed orders, and supporting documentation 

offered by their counsel. Metz, 2015 Ark. App. 319, 463 S.W.3d 305. When the court 

accepted the husband’s proposed order, the wife filed a motion for reconsideration and asked 

for a hearing. The wife appealed the denial of her motion, asserting that she had been 

denied due process. The court of appeals found no merit in the argument, holding that the 

wife had waived any right to a hearing by agreeing to submit proposed orders for the judge 

to sign accompanied by supporting documentation and by failing to request a hearing until 

after the issues had been decided. By contrast, here, the parties did not agree for the circuit 

court to decide the case in this fashion. On the contrary, Erin objected to proceeding in 
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this manner and requested a hearing prior to the circuit court’s decision. We hold that a 

circuit court may not resolve contested factual issues by dispensing with a hearing and 

accepting the position offered by one party over the other party’s objection.

We are cognizant of Tim’s argument that Erin has failed to demonstrate prejudice 

resulting from the circuit court’s rulings because she has not shown that its findings are 

erroneous. However, the circuit court’s decision is clearly erroneous because it is not based 

on evidence properly introduced at a hearing. In this situation, a party in Erin’s position is 

hard-pressed to make such a showing without having been afforded a hearing to present 

evidence. To hold otherwise would excuse the circuit court’s having decided contested 

issues without a hearing. This we will not do.

Tim further contends that Erin acquiesced in the action taken by the circuit court 

because her attorney approved the “form and content” of the March order denying her 

motion for reconsideration. Again, we disagree. In our view, the signature under that 

designation represents a statement that the order accurately reflects a circuit court’s ruling. 

It cannot be construed as the equivalent of an agreed order.

Custody

Along the same lines, Erin contends that the circuit court erred by modifying custody 

and visitation without a hearing. For the reasons discussed above, we also hold that the 

circuit court clearly erred by rendering decisions regarding custody and visitation without a 

hearing. It is particularly troublesome that the circuit court would deny the parties an 

opportunity to present evidence regarding custody, which is an issue that requires the court 
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to determine what is in the best interest of the child. We therefore reverse on this point as 

well.

Reversed and remanded; court of appeals’ opinion vacated.

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

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