539 S.W.3d 630
Ark. Ct. App.2018Background
- Daniel and Consuela Montez divorced in 2015; their divorce decree incorporated an agreed joint-custody arrangement and no child-support order.
- Post-divorce, communication between the parents deteriorated significantly; testimony described inability to communicate or coparent and evidence of negative effects on the children.
- Trial court denied Daniel’s 2016 motion to modify custody, finding no material change in circumstances; Daniel appealed.
- This court in Montez I (2017) held the trial court erred: parental inability to cooperate is a material change and reversed the continuation of joint custody, remanding for an award of custody consistent with the opinion.
- On remand the trial court acknowledged a material change but again retained joint custody and ordered daily telephone communication; Daniel appealed the remand order.
- The appellate court reversed again, holding the trial court failed to execute the prior mandate and directing termination of joint custody and remand for a sole-custody and child-support determination.
Issues
| Issue | Plaintiff's Argument (Montez) | Defendant's Argument (Consuela / Trial Court) | Held |
|---|---|---|---|
| Whether the trial court failed to follow this court's mandate on remand | Trial court did not award custody consistent with Montez I and thus failed to execute the mandate | Trial court re-evaluated best interests and maintained joint custody despite finding material change | Reversed: remand-mandate required termination of joint custody and directive to award sole custody and determine support |
| Whether a material change in circumstances existed to permit modification of custody | Lack of cooperation and severe communication breakdown between parents is a material change affecting children's best interests | Trial court initially held no material change; on remand the court found a material change but still kept joint custody | Appellate court previously held (Montez I) and reaffirmed that the parties’ inability to cooperate constituted a material change; remand must reflect that ruling |
| Whether appellate court could itself award custody instead of remanding | Daniel asked the court to award him sole custody on appeal | Trial court argued findings needed; remand required factual/credibility determinations | Appellate court declined to award custody itself, remanded for the trial court to make custody and support findings (trial court must implement mandate) |
| Whether other trial-court rulings (attorney ad litem, support/imputed income, AO No.10 downward departure) were properly decided on remand | Daniel argued trial court erred on these additional matters (failure to obtain ad litem recommendation, improper income imputation, modifying support without finding material change, not applying AO No.10) | Trial court acted on remand without new evidence or arguments and altered support-related findings | Court reversed and remanded on mandate ground and expressly did not reach or decide the other issues |
Key Cases Cited
- Montez v. Montez, 518 S.W.3d 751 (Ark. Ct. App. 2017) (appellate decision finding parental inability to cooperate is a material change and reversing continuation of joint custody)
- Word v. Remick, 58 S.W.3d 422 (Ark. Ct. App. 2001) (holding that inability of parents to cooperate supports modification from joint custody)
- Doss v. Miller, 377 S.W.3d 348 (Ark. Ct. App. 2010) (reversing continuation of joint custody where evidence showed parents could no longer cooperate)