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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

          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.

          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.

         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 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 joint-custody arrangement to continue. The circuit court ordered the parties to communicate by telephone daily.

         Daniel 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.

         On 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.[3] This appeal followed.

         On 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.

         We 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. ...


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