Montez v. Montez
Montez v. Montez
Opinion of the Court
This case is before us a third time following remand. See Montez v. Montez ,
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.,
*404The 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.
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 ,
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 ,
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 *405ordered 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.
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. Thus, Consuela is charged with the decision-making responsibilities, and she and Daniel are no longer required to communicate and cooperate on those decisions. Accordingly, we find no error on this point.
Daniel next argues that the circuit court erred by failing to obtain a second recommendation of the attorney ad litem on remand. This court has recommended the appointment of guardians ad litem in custody cases, but ad litems are not required by statutory law in custody actions. See Malone v. Malone ,
Daniel next argues that the circuit court erred by not granting sole custody to him. He asserts that the court disregarded the facts that Consuela married a felon and that they have a volatile relationship. He cites Arkansas Code Annotated section 9-13-101(c) (Repl. 2013) and asserts that the court failed to recognize the rebuttable presumption that the children be placed with him.
*406In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the circuit court unless they are clearly erroneous. Sharp v. Keeler ,
We hold that the circuit court did not err by granting sole custody to Consuela. In making its decision, the court relied on the facts that Consuela had been the primary caregiver during the parties' marriage and that since the divorce, she had continued to be the primary decision-maker regarding the children's educational and medical matters. Further, as to the domestic abuse, many of the contentions concerning the abuse were credibility determinations to be decided by the circuit court. See Wise v. Wise ,
Daniel finally argues that the circuit court abused its discretion by not deviating from the family-support chart. He contends that the circuit court failed to consider factors supporting a deviation, i.e., that he created a trust for the benefit of the children, that he had equal physical custody of the children, and that he paid the full cost of their health insurance.
The courts begin with a presumption that the chart amount is reasonable. Ceola v. Burnham ,
In this case, Daniel did not ask the court to deviate from the family-support chart after the court awarded Consuela sole custody of the children. Thus, there are no findings addressing a request for deviation or an explanation why the court did not deviate from the chart based on the sole-custody arrangement. See Riddick v. Harris ,
Affirmed.
Harrison and Murphy, JJ., agree.
M.M. turned eighteen on April 14, 2018.
Specifically, the court found Consuela's monthly child-support obligation to be $ 631 and Daniel's obligation to be $ 6,910. Accordingly, it ordered Daniel to pay Consuela $ 6,279 a month.
In calculating Daniel's child support, the court relied on its February 15, 2018 order on Daniel's motion to modify his child support. In that order, the court found Daniel's monthly net income to be $ 17,775 and accordingly modified his child support to $ 3,666 a month. The court determined Consuela's child support to be $ 530 a month. Because the joint-custody arrangement was in place at that time, the court offset Daniel's obligation by Consuela's obligation and ordered Daniel to pay Consuela $ 3,136 a month in child support.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.