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Montez v. Montez

Court of Appeals of Arkansas, Division I

January 31, 2018

DANIEL MONTEZ APPELLANT
v.
CONSUELA MONTEZ (NOW TRUJILLO) APPELLEE

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-2014-1919] HONORABLE JOANNA TAYLOR, JUDGE

          Reece Moore Pendergraft LLC, by: Timothy C. Hutchinson, for appellant.

          Elizabeth Finocchi, for appellee.

          RAYMOND R. ABRAMSON, Judge

         This case is before us for a second time following remand. In Montez v. Montez, 2017 Ark.App. 220, 518 S.W.3d 751 (Montez I), our court reversed the Washington County Circuit Court's denial of Daniel Montez's motion to modify the joint-custody arrangement of his children with his former wife Consuela Montez, and we remanded the case for an award of custody consistent with our opinion. Daniel now appeals the circuit court's order following remand, which again awarded the parties joint custody. On appeal, Daniel argues that the circuit court erred by failing to render a judgment consistent with our opinion in Montez I. In the alternative, Daniel argues that the circuit court erred by (1) failing to obtain the recommendation of the attorney ad litem; (2) not granting custody to him; (3) modifying his child-support obligation without finding a material change in circumstances had occurred; (4) imputing his income to be $398, 690; and (5) not applying the factors from Administrative Order No. 10 that require a downward departure from the guidelines. We reverse and remand.

         Because a full recitation of the facts is included in Montez I, we only briefly discuss the background of the proceedings. On January 9, 2015, the Washington County Circuit Court entered an agreed divorce decree for Daniel and Consuela. The decree incorporated the parties' child-custody agreement in which they agreed to joint custody of their children, M.M. and J.M., and due to the joint-custody arrangement, neither party was ordered to pay child support. Thereafter, on October 29, 2015, Consuela filed a motion to modify the child-support agreement, and on February 11, 2016, both Daniel and Consuela filed motions for modification of custody.

         The court held a hearing on June 6, 2016, wherein the testimony showed that communication between Daniel and Consuela had significantly deteriorated. Specifically, Consuela testified that Daniel would not communicate with her and that they had not had a conversation in almost a year. She stated that when they had communicated in the past, Daniel frequently yelled at her, and she admitted that she had engaged in name-calling. Daniel testified that he cannot have a civil conservation with Consuela and that he could not coparent with her. There was further testimony that J.M.'s demeanor had changed and that M.M. had significant disciplinary issues since the parties' divorce. The evidence also showed that Consuela had married Richard Trujillo, who was incarcerated at that time for his fourth driving-while-intoxicated offense, and that the couple had a volatile relationship.

         Following the hearing, the court entered an order finding that the parties had failed to establish a material change in circumstances warranting modification of custody and that it was in the best interest of the children for the joint-custody arrangement to continue. Daniel appealed the decision to this court and argued that the circuit court erred in finding that he had failed to establish a material change in circumstances warranting modification of custody.

         This court agreed. We cited our caselaw holding that when the parties have fallen into such discord that they are unable to cooperate in sharing physical care of their children, this constitutes a material change in circumstances affecting the children's best interest. See Montez I (citing Word v. Remick, 75 Ark.App. 390, 58 S.W.3d 422 (2001)). We further cited caselaw in which we had reversed the continuation of a joint-custody arrangement on a motion to modify custody when "there was a mountain of evidence . . . demonstrating that the parties could no longer cooperate in reaching shared decisions in matters affecting their children." Id. at 9, 518 S.W.3d 757 (quoting Doss v. Miller, 2010 Ark.App. 95, at 8, 377 S.W.3d 348, 354). We reversed the circuit court's award of joint custody and remanded the case to the circuit court for an award of custody consistent with the opinion. Id.

         On remand, the circuit court held a hearing on May 12, 2017. The court did not consider any new evidence or testimony, and the parties did not make arguments. On June 6, 2017, the court entered a written order finding that a material change in circumstances had occurred following the entry of the divorce decree[1] but nonetheless found it was not in the best interest of the children to change custody. The court found that the children benefited from extended time with both parents and ordered the joint-custody arrangement to continue. The court ordered the parties to communicate by telephone daily.

         Following the entry of the order on remand, Daniel timely filed his notice of appeal in the instant case. On appeal, Daniel argues that the circuit court failed to render a judgment consistent with our opinion in Montez I. We agree.

         Our supreme court has long held that the circuit court, upon remand, must execute the mandate. Wal-Mart Stores, Inc. v. Regions Bank Tr. Dep't., 356 Ark. 494, 156 S.W.3d 249 (2004). In Fortenberry v. Frazier, our supreme court held:

The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is error apparent; or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated, by the Supreme Court.

5 Ark. 200, 202 (1843). In Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998), our supreme court adopted the Third Circuit Court of Appeals' rules regarding a trial court's ...


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