Lead Opinion
This case is before us for a second time following remand. In Montez v. Montez ,
Because a full recitation of the facts is included in Montez I , we only briefly discuss the background of the proceedings. On January 9, 2015, the Washington County Circuit Court entered an agreed divorce decree for Daniel and Consuela. The decree incorporated the parties' child-сustody agreement in which they agreed to joint custody of their children, M.M. and J.M., 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 Consuelа had significantly deteriorated. Specifically, Consuela testified that Daniel would not communicate with her and that they had not had a conversation in almost a year. She stated that when they had communicated in the past, Daniel frequently yelled at her, and she admitted that she had engaged in name-calling. Daniel testified that he cannot have a civil conservation with Consuela and that he could not coparent with her. 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
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. Daniel appealed the decision to this court and argued that the circuit court erred in finding that he had failed to establish а 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 cooperatе in sharing physical care of their children, this constitutes a material change in circumstances affecting the children's best interest. See Montez I (citing Word v. Remick ,
On remand, the circuit court held a hearing on May 12, 2017. The court did not consider any new evidence or testimony, and the parties did not make arguments. On June 6, 2017, the court entered a written order finding that a material change in circumstances had occurred following the entry of the divorce decree
Following the entry of the order on remand, Daniel timely filed his notice of appeal in the instant case. On appeal, Daniel argues that the circuit court failed to render а judgment consistent with our opinion in Montez I . We agree.
Our supreme court has long held that the circuit court, upon remand, must execute the mandate. Wal-Mart Stores, Inc. v. Regions Bank Tr. Dep't. ,
The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, еven where there is error apparent; or in any manner intermeddle with it further than to execute the mandate, and settle such matters as have been remanded, not adjudicated, by the Supreme Court.
The history of the mandate rule was reviewed recently by the Third Circuit Court of Appeals. See Casey v. Planned Parenthood , (3d Cir. 1994). In Casey , the Third Circuit observed: 14 F.3d 848
Of these rules, the most compеlling is the mandate rule. This fundamental rule binds every court to honor rulings in the case by superior courts. As the Supreme Court has stated, 'In its earliest days this Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.' Briggs v. Pennsylvania R. Co. ,, 306, 334 U.S. 304 , 68 S.Ct. 1039 (1948). 92 L.Ed. 1403
Casey ,. Quoting from Bankers Trust Co. v. Bethlehem Steel Corp. , 14 F.3d at 856, 949 (3d Cir. 1985), the Third Circuit went on to underscore the deference a trial court must give to the mandate: 761 F.2d 943
A trial court must implement both the letter and spirit of the mandate, taking into account thе appellate court's opinion and the circumstances it embraces.
Casey ,. 14 F.3d at 857
Dolphin ,
A "mandate" is the official notice of action of the аppellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court's judgment duly recognized, obeyed, and executed.
5 Am. Jur. 2d, § 776.
However, the lower court is vested with jurisdiction only to the extent conferred by the appellate court's opinion and mandate. Therefore, the question of whether the lower court followed the mandate is not simply one of whether the lower court was correct in its construction of the case, but also involves a question of the lower court's jurisdiction.
5 Am. Jur. 2d, § 784
....
Any proceedings on remand which are contrary to the directions contained in the mandate from the appellate court may be considered null and void.
5 Am. Jur. 2d, § 791.
Dolphin ,
Here, we hold that the circuit court's decision on remand is contrary to our opinion in Montez I . In Montez I , we held that the circuit court clearly erred in finding that Daniel had failed to establish a change of circumstances warranting a modification of custody.
Reversed and remanded.
Vaught, J., agrees.
Hixson, J., concurs.
Notes
Interestingly, the court also stated in its written order that it "is not convinced that the lack of communication between the parties is the material change in circumstances in this casе."
Daniel asks this court not to remand the case to the circuit court and to award him sole custody of the children. However, because the circuit court maintained the joint-custody arrangement, it made no findings regarding this issue. As such, in order to accommodate his request, we would be forced to make factual and credibility findings, which can only be made by the circuit court. See Doss ,
Concurrence Opinion
While I agree with the majority that we must reverse and remand the circuit court's award of joint custody, I am hesitant to say that the circuit court failed to follow our mandate. In Ingle v. Arkansas Department of Human Services , our supreme court thoroughly explained an appellate mandate and its effect on remand on the lower court.
Essentially, the majority's position is that in Montez v. Montez ,
On remand, the trial court followed our holding and found that Daniel did, in fact, establish a material change of circumstances. Then, the circuit court re-reviewed the evidence and determined that joint custody was in the best interest of the children. While I disagree with the circuit court's finding that joint custody is in the best interest of the children
I would agree with the majority that the record is replete with evidence that conclusively demonstrated these parents showed a substantial lack of cooperation, and we have held when parents cannot cooperate, joint custody is not in the children's best interest. See Stibich v. Stibich ,