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Montez v. Montez

Court of Appeals of Arkansas, Division III

February 6, 2019

Daniel MONTEZ, Appellant
v.
Consuela MONTEZ (Now Trujillo), Appellee

Page 402

[Copyrighted Material Omitted]

Page 403

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-14-1919], HONORABLE JOANNA TAYLOR, JUDGE

         RMP, LLP, by: Timothy C. Hutchinson, for appellant.

          Consuela Montez (now Trujillo), pro se appellee.

         OPINION

         RAYMOND R. ABRAMSON, Judge

          This 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.

          We 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.,[1] 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.

Page 404

          The 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 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. The court ordered both Daniel and Consuela to pay child support, but the court offset Daniel’s obligation with Consuela’s obligation.[2] 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, 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 at 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.

          Following 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 ...


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