572 S.W.3d 401
Ark. Ct. App.2019Background
- Daniel and Consuela Montez divorced in January 2015; the decree incorporated a joint-custody agreement for their two children and no child-support obligation because of equal custody.
- After deteriorating parental communication and behavioral issues with the children, both parties filed motions to modify custody in February 2016; an initial hearing in June 2016 resulted in continuation of joint custody and offset child-support obligations.
- This court reversed in Montez I, finding a material change in circumstances (parents unable to cooperate) and remanded for a sole-custody determination; the circuit court again maintained joint custody, prompting another reversal in Montez II and a directive to award sole custody with corresponding child support.
- On remand, the circuit court (March–April 2018) awarded Consuela sole legal custody but maintained the prior 50/50 parenting-time schedule and recalculated child support, ordering Daniel to pay Consuela monthly support.
- Daniel appealed, arguing (1) inconsistency with this court’s mandates, (2) failure to obtain a new attorney-ad-litem recommendation, (3) that custody should have been awarded to him (citing domestic-abuse presumption), and (4) that the court should have downwardly deviated from the child-support chart.
Issues
| Issue | Plaintiff's Argument (Montez) | Defendant's Argument (Consuela) | Held |
|---|---|---|---|
| Whether the circuit court’s order complied with prior mandates to end joint custody | Circuit court complied in form but retained the prior visitation schedule, which Montez I found harmful | Court argued it awarded sole custody so mandate satisfied | Court: No inconsistency; sole custody was awarded so mandate followed |
| Whether a new attorney ad litem recommendation was required on remand | Needed fresh ad litem evaluation | Trial court relied on prior ad litem report; no new evidence was presented | Court: No abuse of discretion in not obtaining a new recommendation |
| Whether Daniel should have received sole custody (domestic-abuse presumption) | Consuela’s marriage to an incarcerated felon and volatile relationship rebutted placement with her; presumption favored Daniel | Trial court credited Consuela as primary caregiver; credibility findings went for Consuela | Court: No clear error; trial court’s credibility and best-interest finding affirmed |
| Whether the court should have deviated downward from the child-support chart | Daniel cites trust for children, equal physical custody, and insurer payment as reasons to deviate | Trial court made no deviation findings because Daniel never requested deviation after sole-custody award | Court: Issue not preserved; appellant failed to request deviation or obtain ruling, so no review |
Key Cases Cited
- Montez v. Montez, 518 S.W.3d 751 (Ark. Ct. App. 2017) (reversed maintenance of joint custody; held parental inability to cooperate is material change)
- Montez v. Montez, 539 S.W.3d 630 (Ark. Ct. App. 2018) (remanded for sole-custody determination where prior mandate was not executed)
- Word v. Remick, 58 S.W.3d 422 (Ark. Ct. App. 2001) (parental inability to cooperate can be a material change warranting custody modification)
- Doss v. Miller, 377 S.W.3d 348 (Ark. Ct. App. 2010) (reversal of joint custody where parties could not cooperate)
- Riddick v. Harris, 501 S.W.3d 859 (Ark. Ct. App. 2016) (appellate court declines to consider issues not raised and ruled on at trial)
- Ceola v. Burnham, 139 S.W.3d 150 (Ark. Ct. App. 2003) (family-support chart presumptively reasonable; deviations require written findings)