FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-14-1919]
HONORABLE JOANNA TAYLOR, JUDGE
LLP, by: Timothy C. Hutchinson, for appellant.
Consuela Montez (now Trujillo), pro se appellee.
RAYMOND R. ABRAMSON, JUDGE
case is before us a third time following remand. See
Montez v. Montez, 2018 Ark.App. 55, 539 S.W.3d 630
(Montez II); Montez v. Montez, 2017
Ark.App. 220, 518 S.W.3d 751 (Montez I). On appeal,
Daniel Montez argues that the circuit court rendered a
judgment inconsistent with our holdings in Montez I
and Montez II by awarding sole custody of his
children to his former wife, Consuela Montez. Daniel
alternatively argues that the circuit court erred by (1)
failing to obtain the recommendation of the attorney ad
litem, (2) not granting custody to him, and (3) failing to
apply the factors that warrant a downward deviation for child
support. We affirm.
first briefly discuss the background of the proceedings as
outlined in Montez I and Montez II. On
January 9, 2015, the Washington County Circuit Court entered
a 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
court held a hearing on June 6, 2016, wherein the testimony
showed that communication between Daniel and Consuela had
significantly deteriorated. 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
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. The court ordered both
Daniel and Consuela to pay child support, but the court
offset Daniel's obligation with Consuela's
obligation. 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.
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, 2017
Ark.App. 220, 518 S.W.3d 751 (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.
remand, on June 6, 2017, the circuit court entered a written
order finding that a material change in circumstances had
occurred following the entry of the divorce decree but
nonetheless found it was not in the best interest of the
children to change the custody arrangement. The circuit court
concluded that the children benefited from extended time with
both parents and ordered the joint-custody arrangement to
continue. The circuit court ordered the parties to
communicate by telephone daily.
appealed the June 6, 2017 order to this court. On appeal,
Daniel argued that the circuit court failed to render a
judgment consistent with our opinion in Montez I.
See Montez II, 2018 Ark.App. 55, 539 S.W.3d 630. We
agreed with Daniel and held that the circuit court failed to
execute our mandate. Id. We again reversed and
remanded to the circuit court for termination of the
joint-custody arrangement, and we directed the circuit court
to make a sole-custody determination with a corresponding
child-support determination. Id.
remand, the circuit court held a hearing on March 8, 2018. On
April 2, the court entered a written order awarding Consuela
sole custody of the children but ordering her and Daniel
"to share parenting time with the children equally using
a 50/50 schedule in the manner previously ordered which the
parties/parents have followed since the divorce." As to
child support, the court ordered that Daniel's
child-support obligation shall no longer be offset against
Consuela's obligation due to the termination of the
joint-custody arrangement. Specifically, the court ordered
Daniel to pay Consuela $3, 666 a month in child
support. This appeal followed.
appeal, Daniel first argues that the circuit court erred by
failing to render a judgment consistent with our holdings in
Montez I and Montez II. He concedes that
the circuit court technically followed the mandates when the
court awarded sole custody to Consuela; however, he argues
that the order violates the spirit of the mandates because
the court maintained the previous visitation schedule, and in
Montez I, we found that arrangement to be against
the best interest of the children.
disagree with Daniel and hold that the circuit court did not
render a judgment inconsistent with Montez I and
Montez II. In Montez I, we held that given
the evidence that Consuela and Daniel could not communicate,
the circuit court erred in finding that Daniel had failed to
establish a material change in circumstances warranting
modification of the joint-custody arrangement. Thereafter, in
Montez II, we held that the circuit court failed to
execute our mandate in Montez I because the court
maintained the same custody arrangement following our remand.
We directed the circuit court to make a sole-custody
determination. In the instant case, it did not maintain the
previous arrangement. The court awarded Consuela sole custody
of the children. ...