Montemayor v. Rosen

2015 Ark. App. 597, 474 S.W.3d 114, 2015 Ark. App. LEXIS 675
CourtCourt of Appeals of Arkansas
DecidedOctober 21, 2015
DocketCV-15-67
StatusPublished
Cited by3 cases

This text of 2015 Ark. App. 597 (Montemayor v. Rosen) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montemayor v. Rosen, 2015 Ark. App. 597, 474 S.W.3d 114, 2015 Ark. App. LEXIS 675 (Ark. Ct. App. 2015).

Opinion

CLIFF HOOFMAN, Judge

11 Appellant Candise Michelle Montema-yor appeals from the circuit court’s order awarding joint custody of the parties’ son, M.R., to her and the child’s father, appel-lee Dave Ellison Rosen. On appeal, Montemayor argues that the circuit court clearly erred by awarding the parties joint custody instead of awarding her sole custody of M.R. We affirm.

The parties to this appeal were never married but were in a romantic relationship for approximately .eighteen months. They lived together in Fort Smith, Arkansas, and M.R. was born on October 17, 2012. The relationship ended in early April 2013, and Rosen filed a petition for paternity, requesting that he be declared the father of M.R. and that he be awarded primary custody of the child. He attached an acknowledgment of paternity that was executed by both parties shortly after M.R.’s birth. Rosen also filed an ex parte petition for temporary emergency custody, alleging that Montemayor had threatened to leave Arkansas |awith M.R. in order to keep Rosen from having contact with his child. Rosen further alleged that he had been the primary caretaker for M.R. and that Montemayor was mentally unstable and provided an inappropriate and unhealthy environment for the child.

Montemayor filed an answer and a coun-terpetition for custody, alleging that she was the proper person to have custody of M.R. She indicated that she was in the process of moving to Texas at the time she was served with Rosen’s petition, and she sought permission from the circuit court to relocate with M.R. She also requested that Rosen’s visitation be restricted and listed prior criminal proceedings in Oregon in which Rosen had been involved.

A temporary custody hearing was held on May 9, 2013. Rosen testified, that he had been very involved in M.R.’s care and that he had stayed at home with the child when Montemayor returned to work after maternity leave. He testified that he left Montemayor in April 2013 because she was verbally abusive to him. Rosen. stated that Montemayor had exhibited bouts of rage and .hysteria in front of M.R. and that she had also physically, assaulted him while he was holding the child. He stated that Montemayor had attempted, suicide when she lived in Oregon, that she was subsequently hospitalized, and that she had been diagnosed with bipolar disorder. He further indicated that her older children, who now lived with their father, had previously been removed from her custody due to her mental instability. Rosen testified that he did not take M.R. with him when he left Montemayor because he was concerned about the legal ramifications of not having had his paternity formally established. After their relationship ended, Ro-sen stated that Montemayor repeatedly called and texted him, threatening to move with M.R. to Texas if he did not reconcile with her.' He testified |¡¡that she also came to his workplace and relayed the same threat to his boss.

Subsequent to the filing of his petition for paternity and for custody, Rosen stated that Montemayor had not contacted him and that he did not know where she and M.R. were currently residing. Rosen testified that he was very concerned about M.R. due to Montemayor’s mental instability and violent outbursts and that he wished to have primary custody, with Montemayor receiving standard visitation. He indicated that he had a great job, which was very flexible, and that he had arranged for childcare if necessary. Ro-sen admitted that he .had been convicted of multiple felonies in 2007, including burglary, theft, unlawful possession of a firearm, and possession of methamphetamine; however, he indicated that the majority of his convictions resulted from a single, isolated incident. He testified that he had successfully completed his probation on those charges, that he had rededicated his life and moved on, and that he had not been in trouble. since that time. Rosen also agreed to. take a drug test to demonstrate that he no longer had a substance-abuse problem.

Montemayor'testified that-she and M.R. •had moved to Texas in April and were currently living with her grandmother. Montemayor stated that she was aware that she was prohibited by Administrative .Order No. 1, which.had been attached to the petition and summons, from leaving the state- with the child but claimed that she had no choice because she had been evicted from her residence and had nowhere else, to stay. She denied threatening Rosen that she would leave with M.R. Montemayor also denied Rosen’s allegar tions that she had been verbally abusive or that she had displayed violent outbursts; instead, she claimed that Rosen had physically. assaulted her on numerous occasions during | ¿her pregnancy. She further stated that Rosen had used methamphetamine while she was pregnant and that he began drinking heavily after M.R. was born. Montemayor testified that, on one occasion, Rosen had taken M.R. in the car, and when he returned, he forgot that the child was still in the car until Montemayor questioned him. She claimed that she was unaware of Rosen’s 2007 convictions until after she became, pregnant. Montemayor testified that she would not let, Rosen have unsupervised or overnight visits after their break up-because of her concerns abqut Rosen’s alcohol use.

Darcy Bates,-who: was M.R.’s babysitter both before and after the parties’ relationship had ended, testified that- the child appeared to be well cared for. Although Montemayor had mentioned her concerns about Rosen’s drinking, Bates indicated that she had never witnessed any issues in that regard. • Bates testified that she had no concerns about either party’s parenting abilities.

At the conclusion of the temporary hearing, the-circuit court found that Rosen had established paternity of . M.R. and that Montemayor had violated Administrative Order No. 1 by removing M.R: from Arkansas. The court ordered Montemayor to return the child to this state pending the final custody hearing and found that it was in M.R.’s best interest for the parties to share custody on a temporary basis. Thus, Rosen-was to have the child on his days off from work, from Saturday evening through Tuesday: evening, and Montema-yor was to have custody from Tuesday evening through Saturday evening. The court also ordered that both parties complete a psychological evaluation and a drug-and-alcohol assessment.

The final custody hearing was held on August 14, 2014. Rosen testified that since the ^temporary hearing, there had been some issues with the parties’-custody exchanges due to Montemayor’s hostility, and they agreed to move the exchanges to the police - department. He also stated that Montemayor had called the police for a welfare check on three occasions when he had custody of M.R. According to Ro: sen, Montemayor would phone his home ten to twelve times during the course of a day, becoming increasingly belligerent, and he would finally refuse to answer the phone. He further testified that Monte-mayor had driven by his home at least fifty times and that his neighbors had seen her in his yard when he was at work. Rosen introduced copies of multiple texts between the parties containing threatening and hostile statements by Montemayor. For example, in one text, Montemayor stated, “I hate your guts David.” In another text discussing her issues with M.R.’s behavior, she responded to Rosen’s reference to his home with, “This is not his home and it is offensive that you would use that term. Do not confuse my child.

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Related

Grimsley v. Drewyor
2019 Ark. App. 218 (Court of Appeals of Arkansas, 2019)
Grindstaff v. Strickland
2017 Ark. App. 634 (Court of Appeals of Arkansas, 2017)
Neumann v. Smith
2016 Ark. App. 14 (Court of Appeals of Arkansas, 2016)

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Bluebook (online)
2015 Ark. App. 597, 474 S.W.3d 114, 2015 Ark. App. LEXIS 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montemayor-v-rosen-arkctapp-2015.