Montez v. Montez
2017 Ark. App. 220
| Ark. Ct. App. | 2017Background
- Parties divorced January 9, 2015; divorce decree incorporated a custody agreement providing for joint custody with alternating-week physical custody and no child support because time was equal.
- Divorce decree also required Daniel to make weekly business payments to Consuela for three years.
- Consuela remarried; her new husband Richard pled guilty to a fourth DWI and was incarcerated; Consuela alleged Daniel stopped providing money for the children after her remarriage and moved to modify support.
- Daniel moved to modify custody, alleging inability to co-parent with Consuela, concerns about Richard’s violence and substance use, and children's behavioral problems (M.M.’s drug/alcohol incidents and truancy; J.M.’s emotional decline).
- At hearing, both parents testified they could not communicate or cooperate; ad litem recommended continuing joint custody but limited Consuela’s time while Richard was incarcerated; trial court kept joint custody but found the no-support provision against public policy and imputed incomes to set support; court imputed Daniel’s annual net income at $398,690 and ordered Daniel to pay Consuela $6,279/month after offset.
- Court entered order June 2016; Daniel appealed arguing the trial court erred in refusing to find a material change in circumstances for custody modification and erred in imputing income and calculating support. The Court of Appeals reversed custody ruling and remanded support.
Issues
| Issue | Plaintiff's Argument (Daniel) | Defendant's Argument (Consuela) | Held |
|---|---|---|---|
| Whether Daniel proved a material change in circumstances warranting modification of custody | Joint custody is failing because parents cannot cooperate; children are harmed (behavioral/emotional issues); exposure to Consuela’s husband’s violence/substance issues | Joint custody remains appropriate; both parents have flaws; disruption not sufficient to change custody | Reversed trial court: Daniel proved material change; joint custody continuation was clearly erroneous; remanded for new custody determination |
| Whether the trial court properly modified child-support provisions of the divorce decree | Trial court erred in imputing Daniel’s income at $398,690 and failed to apply Administrative Order No. 10 deviation factors | Agreement for no support is against public policy; court properly imputed incomes and calculated support under Administrative Order No. 10 | Not decided — remanded to trial court because custody reversal affects support and appellant’s alternative arguments not reached |
Key Cases Cited
- Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (recognizes de novo review with deference to trial court findings in custody cases)
- Smith v. Parker, 67 Ark. App. 221, 998 S.W.2d 1 (defines clearly erroneous standard)
- Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (gives deference to trial court’s superior position evaluating witness credibility in custody cases)
- Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (custody modification requires changed conditions affecting child’s best interest)
- Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (burden on movant to show material change in circumstances)
- Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (inability to cooperate can be material change warranting modification)
- Doss v. Miller, 2010 Ark. App. 95, 377 S.W.3d 348 (reversed continuation of joint custody where parties could not cooperate)
- Gray v. Gray, 96 Ark. App. 155, 239 S.W.3d 26 (mutual ability to cooperate is crucial to propriety of joint custody)