Cite as 2012 Ark. App. 403
ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CA11-868
Opinion Delivered
NICHOLAS BOWEN
APPELLANT
June 27, 2012
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[No. DR2003-374-2]
V.
LETIZIA and DAVID BOWEN
APPELLEES
HONORABLE PHILLIP SHIRRON,
JUDGE
REVERSED
LARRY D. VAUGHT, Chief Judge
Appellant Nicholas Bowen (Nick) argues on appeal that the circuit court erred in
granting his parents, appellees Letizia and David Bowen, visitation with their grandchildren
(Alex, age twelve and Kate, age ten) under Arkansasâs grandparent-visitation statute.
Specifically, he claims that there was insufficient evidence to support the trial courtâs
conclusion that the court-ordered grandparent visitation was in his childrenâs best interest. We
agree and reverse.
Nick Bowen and Helene Wade divorced in 2005, and they were awarded joint
custody of their two minor childrenâwith Nick having custody in the summer and Helene
having custody during the school year. The following year, the parties entered into an
agreement in which they alternated care of the children on a weekly basis. In 2010, Nick and
Helene agreed to homeschool their children in Nickâs home. Nickâs current wife, Amy
Cite as 2012 Ark. App. 403
Bowen, homeschooled the kids with the assistance of their mother, Helene.
In September 2010, Nick petitioned for ex parte drug testing and immediate custody
of the children based on Heleneâs drug use. After Helene tested positive for illegal substances,
the court awarded Nick sole custody of the minor children and visitation to Helene. The trial
court also allowed Nickâs parents, Letizia and David, to intervene and seek grandparent
visitation in the underlying domestic-relations case between Nick and Helene.
The trial court set the hearing on grandparent visitation for April 2011 and ultimately
ordered that Letizia and David receive visitation with their grandchildren, one weekend per
month with extended time during the summer and holidays. The court further ordered that
this time be taken from Nickâs time with his children. It is from this order that Nick appeals.
We review domestic-relations proceedings, such as visitation requests, de novo on the
record. Pippinger v. Benson, 2011 Ark. App. 442, at 9â13, ___ S.W.3d ___. In reviewing the
circuit courtâs order, we give deference to the circuit courtâs findings and review those
findings under the clearly erroneous standard, and we will not reverse unless we are left with
a definite and firm conviction that a mistake has been made. Id. This deference is even greater
in cases involving children, as a heavier burden is placed on the judge to utilize to the fullest
extent his or her powers of perception in evaluating the witnesses, their testimony, and the
best interest of the children. Id. at 12. Further, when visitation is at issue, we will not reverse
the circuit courtâs decision absent an abuse of discretion. Oldham v. Morgan, 372 Ark. 159, 271
S.W.3d 507 (2008).
Grandparent visitation is governed by Arkansas Code Annotated section 9-13-103
2
Cite as 2012 Ark. App. 403
(Repl. 2009). Grandparent visitation is a statutorily created right and in derogation of
common law; therefore, we must strictly construe the statute. Ark. Code Ann. § 9-13-103.
Specifically, our statute states, in pertinent part:
(b) A grandparent or great-grandparent may petition a circuit court of this state for
reasonable visitation rights with respect to his or her grandchild or grandchildren or
great-grandchild or great-grandchildren under this section if:
(1) The marital relationship between the parents of the child has been severed by
death, divorce, or legal separation;
...
(c)(1) There is a rebuttable presumption that a custodianâs decision denying or limiting
visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the
evidence the following:
(A) The petitioner has established a significant and viable relationship with the child
for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must
prove by a preponderance of the evidence the following:
(1)(A) The child resided with the petitioner for at least six (6) consecutive months with
or without the current custodian present;
(B) The petitioner was the caregiver to the child on a regular basis for at least six (6)
consecutive months; or
(C) The petitioner had frequent or regular contact with the child for at least twelve
(12) consecutive months; or
(2) Any other facts that establish that the loss of the relationship between the petitioner
and the child is likely to harm the child.
3
Cite as 2012 Ark. App. 403
(e) To establish that visitation with the petitioner is in the best interest of the child, the
petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm
the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child
is allowed.
Ark. Code Ann. § 9-13-103(b)â(e).
Here, Letizia and David have standing to petition for visitation because the marriage
of the grandchildrenâs parents ended by divorce in 2005.1 We note that the rationale behind
Arkansasâs requirement that the marriage be severed before giving grandparents standing to
seek visitation must (at least in great part) be in response to a concern that the custodial
parentâs judgment may contain animosity toward the noncustodial parent and/or the
grandparents as a result of the divorce. And, with an intact marriage, the grandparents have
a greater âvoiceâ in this situation because their own child is a player in the parenting
paradigm. Uniquely, we note that in this case the increased amount of visitation that Letizia
and David sought (and were denied) was exclusively at their own sonâs discretion.
Under the statute, there is a rebuttable presumption that Nickâs decision to limit the
time his children spent with his parents was in his childrenâs best interest. Ark. Code Ann. §
9-13-103(c)(1). To rebut this presumption, Letizia and David were first required to prove by
a preponderance of the evidence that they had established a significant and viable relationship
1
At the time of the divorce, Alex was six years old, and Kate was four years old.
4
Cite as 2012 Ark. App. 403
with the children. Ark. Code Ann. § 9-13-103(c)(2)(A). The parties agreed that, prior to the
divorce, in the early years of the childrenâs lives, they were with Nickâs parents a great deal.
Letizia and David took the children on trips, babysat them, and assisted in transporting them
to various activities and events. And, as the trial court found, after the partiesâ relationship
became strained, the grandparents went âbeyond the call of dutyâ to see the children at
school. In fact, there is no question that the evidence supports a conclusion that Letizia and
David had a significant and viable relationship with the children. Therefore, the primary issue
we are concerned with on appeal is whether visitation with Letizia and David was in the
childrenâs best interest.
To prove that visitation with Letizia and David was in Alexâs and Kateâs best interests,
the grandparents had to show (1) that they have the capacity to give the children love,
affection, and guidance, (2) that the loss of the relationship between them and their
grandchildren would likely cause harm to the grandchildren, and (3) that they are willing to
cooperate with their son if visitation is allowed. In re Adoption of J.P., 2011 Ark. 535, ___
S.W.3d. ___. Two of these elements are beyond question. There is no dispute that Letizia and
David are capable of providing love, affection, and guidance toward Alex and Kate. There is
clearly animosity between the grandparents and their son, but there is nothing in the record
to show that this took away from their ability to provide love, affection, and guidance to the
grandchildren. The record also unquestionably supports the finding that Letizia and David are
willing to cooperate with Nick if visitation is allowed. Throughout their testimony, the
grandparents stated that they would comply with any instruction given to them by the circuit
5
Cite as 2012 Ark. App. 403
court. Therefore, the question before us now is very narrowly set out. We must consider
whether Letizia and David adequately carried their burden of showing that the relationship
between them and their grandchildren had been lost and that the loss of the relationship
would likely cause harm to Alex and Kate. Ark. Code Ann. § 9-13-103(e)(1â3).
On appeal, Nick first contests the trial courtâs finding that Letizia and David had âbeen
effectively denied reasonable visitation with the minor children.â Nick relies on the supreme
courtâs decision in Oldham, 372 Ark. at 159, 271 S.W.3d at 507. In Oldham, our supreme
court reversed an order granting grandparent visitation. There, the grandparents were allowed
to see the grandchild as much as they wanted. The impetus for the grandparentsâ filing the
petition was to ensure that said access would continue in the future. The supreme court held
that the filing of the petition was premature and that the grandparents had failed to show that
the loss of the grandparent-grandchild relationship would harm the grandchild. Id., 372 Ark.
at 165, 271 S.W.3d at 510â12.
Here, the evidence showed that, after the divorce, Nickâs relationship with his father
deteriorated. The record establishes that Nick was fired by his fatherâs plumbing company;
Nick later married Amy; he distanced himself from his parents; and he and his parents only
had contact while attending family events or the childrenâs activities. However, the evidence
also shows that at no time during the strained relationship were Nickâs parents completely
denied contact with the children. According to the evidence introduced at trial, the
grandparents eventually settled into a weekly visit with the children during the childrenâs
school lunch hour. This continued for a five-year period, with the grandparents neither asking
6
Cite as 2012 Ark. App. 403
for nor receiving additional visitation. However, in 2010, when the decision was made to
begin homeschooling the children, the grandparents were no longer able to see the children
at school during lunch. In response, Letizia and David petitioned the court for grandparent
visitation.
According to the record, although the grandparents were receiving visitation at the
time they filed their petition (and more so after the filing), it was extremely limited.2 There
was also testimony that Nick intended to phase his parents out of the childrenâs lives. Nick
testified that he limited his parentsâ relationship with his children because he had a strained
relationship with his parents; he felt that his parents often interfered with his parenting
decisions; and his mother was in the habit of planning and programming the childrenâs time
every weekend that his children were in his care.
As Letizia and David note in their brief, Nick said that he wants his children to have
a relationship with their grandparents, âbut will only do so under his terms.â Based on the
record before us, we are satisfied that there is sufficient evidence to support the trial courtâs
conclusion that Nick âeffectivelyâ denied his parents visitation, whichâabsent a showing that
the denial would harm the childrenâhe was well within his rights as the childrenâs sole
custodial parent to do.
The trial court found that âby virtue of denying the children contact with their
paternal grandparents, terrible harm is occurring to these children.â In support of this
2
In 2011, the grandparents received a single visit in February for a Christmas-gift
exchange; two visits in March, one for a McDonaldâs lunch and another for an overnight
event; and a single visit in April at their home.
7
Cite as 2012 Ark. App. 403
conclusion, the trial court noted that the children benefited from visits with their grandparents
and that they were provided âan opportunity to travelâ and âgain advice from respected
family members.â The trial court also found that the children will be smarter and enriched
if they engaged in travel during their lives. However, there was no evidence showing that the
inverse will occur if the children did not frequently visit their grandparents. The record is
completely void of any proof showing the children had been, or likely would be, harmed
without court-mandated visitation with their grandparents.
Our statute not only has a presumption in the favor of the custodial parentâgiving the
parentâs decision presumptive or special weight in deciding whether grandparent visitation is
in the best interest of the childâthe statute also requires the existence of a substantial
relationship between grandchild and grandparent before the grandparent has standing to
petition the court for visitation. Requiring a âsubstantial relationshipâ implies that
grandparent visitation is not accepted as being beneficial, per se. And, more important, a
substantial relationship does not necessarily mean the child is harmed if visitation is denied.
In fact, in order to overcome the presumption that a fit parent is necessarily acting in his
childrenâs best interest, our statute requires both a showing of a substantial grandparentgrandchild relationship, and a showing that a denial of that relationship âis likely to harm the
child.â
In this case, the reality remains that for the five years immediately preceding Letizia and
Davidâs filing of their grandparent-visitation petition the children had only seen their
grandparents on a limited basisâonce a week, at lunch, during the school year. While there
8
Cite as 2012 Ark. App. 403
is no doubt that these short visits were enjoyable and perhaps even beneficial to the children,
there is a substantial difference between the existence of a relationship benefiting a child and
the denial of that relationship harming a child.
In formulating the threshold of proof required to show harm under Arkansasâs
grandparent-visitation statute, we look to other jurisdictions with similar statutory
requirements. In Moriarty v. Bradt, the Supreme Court of New Jersey examined a visitation
dispute under the harm standard. 827 A.2d 203, 205â29 (N.J. 2003) (requiring a showing of
harm to the child before the court will consider awarding visitation rights). In Moriarty, the
parents divorced and remarried other people, but the children continued to spend a lot of
time with the maternal grandparents. Id. The childrenâs mother later died of a drug overdose,
and the father greatly limited visitation with the maternal grandparents because he blamed
them for his ex-wifeâs drug addiction. Id. The court explained that the grandparents must
demonstrate harm to the children absent visitation with them, at which point the court would
then consider what was in the childrenâs best interests. Id. at 205â29.
The New Jersey court found that denying the grandparents visitation rights would
harm the children because the children previously had a very close relationship with the
grandparents, and they had no other way to stay connected to the memory of their mother.
Id. at 223â27. The grandparents presented expert testimony that the children were devastated
by the death of their mother and that abruptly ending visitation with the grandparents would
cause severe psychological damage to the children. Id. at 227. The grandparents further
argued that, in their absence, the father might disparage the mother to the children, and
9
Cite as 2012 Ark. App. 403
therefore the childrenâs only source of information about their mother would portray her as
âevil.â Id. at 227. The court upheld the visitation order, but in doing so, set a very high bar
of what constitutes âharmâ to the childâthe lack of connection with a deceased parent and
the consequent risk that the children will suffer psychologically. Id. at 205â29.
Likewise, in Luke v. Luke, 634 S.E.2d 439, 440â42 (Ga. Ct. App. 2006), the court
considered what showing of harm is required to support an award of grandparent visitation.
In Luke, the childrenâs mother and father divorced, but continued to allow visitation with all
grandparents. Luke, 634 S.E.2d at 440â42. The children spent every other weekend with their
paternal grandparents, developing a very close bond. Id. at 440â42. When the childrenâs father
went overseas on military duty, the mother sought to limit the paternal grandparentsâ
visitation. Id. at 440â42. The mother believed that the grandparents âshuffledâ the children
around too much, that the children returned from visits emotionally distressed, and that the
grandmother may have slapped one of the children. Id. at 442.
The Georgia court found that the denial of visitation would cause harm to the children
and awarded visitation rights to the paternal grandparents. Id. at 442. The grandparents
explained that âwith the childrenâs father now serving with the U.S. Army, the childrenâs ties
with their paternal family would be virtually destroyed without such visitation.â Id. at 442.
Further, the grandparents had developed such an intense bond with the grandchildren that
cutting off visitation with the grandparents would cause the children âactual emotional harm.â
Id. at 441â42. The harm in this case was the sudden termination of a strong, personal
relationship and the threat of the children losing their memory of a parent.
10
Cite as 2012 Ark. App. 403
Like New Jersey and Georgiaâby requiring a grandparent to show that the child is
likely to suffer actual harm if the requested visitation is deniedâArkansas recognizes in its
grandparent-visitation statute recognizes that the right to care for and raise oneâs own child
is a fundamental liberty interest that is protected by the Due Process Clause of the Fourteenth
Amendment. Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion) (finding statute that
allowed visitation by third parties based solely on a best-interest standard unconstitutional);
Linder v. Linder, 348 Ark. 322, 342, 72 S.W.3d 841, 851 (2002). And, as recently as last
month, our supreme court has reaffirmed the manifest primacy of the parent-child relationship
first set out by the Supreme Court in Troxel and later adopted by Arkansas in the Linder
opinion:
[T]he interest of parents in the care, custody, and control of their children . . . is
perhaps the oldest of the fundamental liberty interests recognized by this Court. More
than 75 years ago, . . . we held that the âlibertyâ protected by the Due Process Clause
includes the right of parents to âestablish a home and bring up childrenâ and âto
control the education of their own.â Two years later, . . . we again held that the
âliberty of parents and guardiansâ includes the right âto direct the upbringing and
education of children under their control.â We explained . . . that â[t]he child is not
the mere creature of the State; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare him for additional
obligations.â We returned to the subject . . . , and again confirmed that there is a
constitutional dimension to the right of parents to direct the upbringing of their
children. âIt is cardinal with us that the custody, care and nurture of the child reside
first in the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.â
In re Guardianship of S.H., 2012 Ark. 245, 9â10, ___ S.W.3d ___ (quoting Troxel, 530 U.S.
at 65â66) (internal citations omitted)). In recognition of this well-established fundamental
right to parent, our grandparent-visitation statute was designed to limit a trial courtâs
11
Cite as 2012 Ark. App. 403
discretion under the best-interest standard in order to prevent unconstitutional governmental
intrusion in the parent-child relationship. Ark. Code Ann. §9-13-103.
In order to comply with the strictures of the statute, the burden is firmly placed on the
grandparents to prove visitation is in the grandchildâs best interest. This best interest of the
child cannot be proved simply by showing that a meaningful or substantial relationship existed
and the grandparents desired to further that relationship. Furthermore, a trial court cannot
override a fit parentâs wishes based solely on its personal view of the childrenâs best interests.
In re Guardianship of S.H., 2012 Ark. at 9â15, ___ S.W.3d at ___.
In this case, the trial court substituted a benefit analysis for our required statutory
presumption in favor of the parentâs decision. In so doing, the trial court basically required
Nick to prove that visitation would be harmful, losing sight of the fact that it is the parent who
has a right to uninterrupted custody. Instead, the court should have required that Letizia and
David show (1) that Nickâs requiring the visitation to be âon his termsâ or be effectively
denied would likely harm the grandchildren and (2) that granting visitation was necessary to
remedy this harm. Because these burdens were neither required by the trial court nor met by
the petitioners in this case, we reverse the decision of the trial court.
Reversed.
PITTMAN, MARTIN, and HOOFMAN, JJ., agree.
ABRAMSON and BROWN, JJ., dissent.
Brown, J., dissenting. I must respectfully dissent from the majority holding in this case.
12
Cite as 2012 Ark. App. 403
The majority notes that grandparents only have standing under the statute to seek
visitation if the marriage of the parents has been severed. The majority then speculates that
this requirement âmust (at least in great part) be in responseâ to a concern that the custodial
parent might bear animosity toward the noncustodial parent and/or grandparents, whereas
when the marriage is intact, âthe grandparents have a greater âvoiceâ in the situation because
their own child is a player in the parenting paradigm.â The majority then observes that âin
this case the increased amount of visitation that Letizia and David sought (and were denied)
was exclusively at their own sonâs discretion.â (Emphasis in original.) This would seem to
suggest that because the appellees were being denied access to the grandchildren by their own
son, the statute does not apply to them, or that their standing is somehow diminished. There
is no basis for that in the text of the statute, nor has the majority cited any other authority to
support such a conclusion or suggestion. In fact, a strict construction of the text of the statute
indicates the opposite, as it specifically provides that when visitation is granted by a court, âthe
visits may occur without regard to which parent has physical custody of the child.â1
Additionally, the statute specifically gives standing to both maternal and paternal grandparents
of illegitimate children, without reference to whether the grandparent is related to the
custodial parent.2 Grandparent visitation is a statutorily created right and in derogation of
1
Ark. Code Ann. § 9-13-103(f)(2)(A) (Repl. 2009).
2
Ark. Code Ann. § 9-13-103(b)(2), (3).
13
Cite as 2012 Ark. App. 403
common law; therefore, we must strictly construe the statute.3 The statute is neutral with
regard to the relationship of the grandparents to the parent restricting visitation, and should
be applied in a neutral fashion.
As the majority acknowledges, there is no dispute that the only issue before us is
whether appellees met the statutory requirement to show that the loss of the relationship
between them and their grandchildren was likely to harm the children; the statute does not
require a showing of actual harm. It is undisputed, either in the record below or by this court
on appeal, that appellees had a significant and viable relationship with their grandchildren, that
the relationship was beneficial to the children and in their best interest,4 and that the
relationship had been effectively denied by appellant. However, the majority asserts, âThere
is a substantial difference between a relationship benefiting a child and the denial of [that]
relationship harming a child.â
The reasoning behind identifying such a âsubstantial differenceâ is anything but clear.
How can one rationally say that the loss of a beneficial, loving, and significant relationship
with a grandparent is not harmful, or at least evidence of likely harm? To say otherwise is
contrary to all logic and reason, not to mention human experience and common sense. The
harm is that the Bowen children have been denied a benefit they once enjoyed. At the very
3
Pippinger v. Benson, 2011 Ark. App. 442, ___ S.W.3d ___ (citing Recinos v. Zelk, 369
Ark. 7, 250 S.W.3d 221 (2007)), vacated on other grounds by In re Adoption of J.P., 2011 Ark.
535, ___ S.W.3d ___.
4
Appellant even testified that, in his opinion, it was in his childrenâs best interest to
have a relationship with his parents.
14
Cite as 2012 Ark. App. 403
least, the denial of such a benefit constitutes evidence of likely harmâwhich is all the statute
expressly requiresâand provides a basis for the circuit courtâs ruling. If, as the majority
contends, the legislature intended to set a higher burden of proof on the element of likely
harm, that intent was expressed nowhere in the statute. It is the function of the General
Assembly, not this court, to impose more strenuous requirements or provide any missing
clarity.5
The circuit court in this case, after evaluating the witnesses and their testimony, found
that it was in the best interest of the Bowen children to order visitation with their
grandparents, so that the children could once again enjoy the benefits of that relationship.
Based on the evidence presented and the deference with which we are required to treat the
circuit courtâs findings of fact and credibility, I cannot see how the courtâs grant of visitation
can be deemed an abuse of discretion.
In fact, the majority opinion is ambiguous as to which standard of review was applied
to the ruling and findings of the circuit court. The opinion states first that the clearly
erroneous standard applies in visitation cases, then says that when visitation is at issue, the
circuit courtâs decision will not be reversed absent an abuse of discretion. The remainder of
the opinion does not clarify whether the circuit court is being reversed because the majority
5
McMillan v. Live Nation Entmât, Inc., 2012 Ark. 166, ___ S.W.3d ___ (citing Oldham
v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008) (acknowledging that the General Assembly,
not the court, has the function of offering task of rewriting statutes to the General Assembly)).
In McMillan, our supreme court stated that it âwill not by judicial fiat amend the statute to
address concerns that are properly the province of the General Assembly. It is the function
of the General Assembly to offer remedial legislation to address perceived statutory
inadequacies.â 2012 Ark. 166, at 6.
15
Cite as 2012 Ark. App. 403
was âleft with a definite and firm conviction that a mistake has been madeâ6 or because the
circuit court applied its discretion âthoughtlessly, without due consideration, or
improvidently.â7 It is of paramount importance that this court not only keep a standard of
review firmly in mind when addressing the merits of a case, but that future litigants, their
attorneys, and circuit courts are given clear notice as to what standard of review will govern
their cases on appeal.
Further regarding the proper scope of this courtâs review, I note that the majorityâs
opinion focuses on parental rights, when the polestar for making judicial determinations
concerning visitation is supposed to be the best interest of the child.8 In cases involving child
visitation or custody, this court is required to show an exceptionally high degree of deference
to the circuit courtâs superior position to evaluate witnesses, their testimony, and the best
interest of the child.9 I do not believe that the majority has given the proper deference to the
circuit courtâs broad discretion to weigh conflicting testimony and determine the best interest
of the children, which the record in this case makes clear was the basis of the circuit courtâs
ruling.
6
See, e.g., Reed v. Ark. Depât of Human Servs., 2012 Ark. App. 369, ___ S.W.3d ___
(stating the âclearly erroneousâ standard of review).
7
Oldham v. Morgan, supra (stating the âabuse of discretionâ standard of review).
8
Morris v. Dickerson, 2012 Ark. App. 129, ___ S.W.3d ___ (citing Hudson v. Kyle, 365
Ark. 341, 229 S.W.3d 890 (2006)).
9
Id.
16
Cite as 2012 Ark. App. 403
The majority opinion cites the recent case of In re Guardianship of S.H.10 in support of
the proposition that âa trial court cannot override a fit parentâs wishes based solely on its
personal view of the childrenâs best interests.â To the extent this insinuates that the circuit
court exercised personal rather than professional judgment, there is no evidence of that in the
record. Moreover, S.H. is so different from this case as to be inapposite. S.H. involved a
motherâs effort to terminate the grandparentsâ permanent guardianship of her daughterâthat
is, the question of whether she would have any parenting role at all. Furthermore, S.H. was
taken up by our supreme court specifically to address the constitutionality of a guardianshiptermination statute. No such question is before this court. Contrary to what the majority
opinion suggests, S.H. does not operate to limit the discretion of the circuit court to
determine the best interest of the child in visitation cases. Instead of adhering to the
applicable standard of review, the majority has chosen to focus on a discussion of parentsâ
constitutional rights, which is improper since no constitutional question was raised for this
court to consider.
Regrettably, the best interest of the children in this caseâwhich the
statute clearly prioritizes and which the circuit court was in a far better position to
determineâseems to have been lost in the shuffle.
ABRAMSON, J., joins in this dissent.
10
2012 Ark. 245, ___ S.W.3d ___.
17
