[Copyrighted Material Omitted]
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.
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 Daniels obligation with Consuelas
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
childrens 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 courts 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 ...