Orantes v. Orantes
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Cite as 2011 Ark. 159
SUPREME COURT OF ARKANSAS
No.
10-405
Opinion Delivered April
JACQUELIN PEREZ ORANTES,
APPELLANT,
VS.
14, 2011
APPEAL FRO M THE GRANT
COUNTY CIRCUIT COURT,
NO. DR-2005-27-1,
HON. PHILLIP SHIRRON, JUDGE,
DANIEL ORANTES,
APPELLEE,
REVERSED AND REMANDED.
KAREN R. BAKER, Associate Justice
Appellant Jacquelin Perez Orantes appeals from a Grant County Circuit Court changeof-custody order awarding custody of the parties’ daughter, J.O., born March 2002, to
appellee Daniel Orantes. On appeal, Jacquelin asserts that the circuit court erred in ordering
a change of custody for three reasons: (1) because there was not a change of circumstances;
(2) because consideration of immigration status violates constitutionally protected, substantivedue-process rights; and (3) because consideration of immigration status violates policy
considerations under Arkansas law. This case presents an issue of first impression and a
significant issue needing clarification or development of the law. Thus, our jurisdiction is
pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (5) (2010). We reverse and remand.
Jacquelin and Daniel were divorced on July 25, 2005. Incorporated into the divorce
decree were the terms of the separation and property settlement agreement that stated that
Jacquelin was a fit and proper person to have sole care and custody of J.O., that Daniel was
Cite as 2011 Ark. 159
to pay child support, that Daniel was to have reasonable visitation, and that Daniel was
responsible for all transportation for visitation. On March 3, 2009, the State of Arkansas,
Office of Child Support Enforcement, filed a motion to modify support asserting that Daniel’s
gross income had changed by more than twenty percent or had changed by more than one
hundred dollars per month. On April 13, 2009, Daniel filed a motion for change of custody
alleging that several factors constituted a change in circumstances: (1) that the minor child
“continues” in the custody of an illegal alien; (2) that Daniel was “now in legal status in the
United States”; (3) that Jacquelin places J.O. in imminent danger by driving a motor vehicle
without a valid driver’s license; (4) that Daniel has remarried and has a stable and loving home
for J.O.; and (5) that J.O. was currently not living in a stable home because Jacquelin was in
the United States illegally.
A hearing was held on the motion for change of custody on December 14, 2009.
Guillermo Hernandez testified as an expert witness and stated that his law practice is ninetynine percent immigration law. He explained that temporary protected status (TPS)1 is a
designation assigned by the United States Attorney General to certain immigrants that are
unable to return to their country of origin because of unsafe conditions or because their
country is not adequately prepared to receive them back. He stated that persons who have
TPS are not subject to removal, are authorized to be in the United States, are able to get an
1
The federal statute governing temporary protected status is codified at 8 U.S.C. §
1254a (2000).
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Cite as 2011 Ark. 159
employment-authorization card that entitles them to get a social security card, and are able
to get a driver’s license. Hernandez testified that the Attorney General reviews TPS cases
every couple of years to determine if the persons are able to return to their countries safely
and that TPS was available to persons who entered the United States both legally and illegally.
Daniel Orantes testified, through an interpreter, that he came to the United States
illegally thirteen years ago from El Salvador, and after five years, he obtained TPS. He stated
that each time it was up for renewal, his TPS had been renewed and that his employmentauthorization card had an expiration date of September 9, 2010. Daniel said that he wanted
custody of his daughter because Jacquelin, without a valid driver’s license, drove with J.O. in
the vehicle, because Jacquelin was in the United States illegally, and because he was afraid that
Jacquelin would take J.O. to Mexico. Daniel also expressed a concern that if Jacquelin was
caught by immigration, J.O. would stay with persons other than him. He admitted that
Jacquelin had never threatened to take J.O. to Mexico; however, he stated that before they
divorced, Jacquelin had taken J.O. to Mexico without his permission.
Daniel testified that he had been married to his wife for six months and that he had
another daughter. He said that his house had three bedrooms and two bathrooms and that if
he had custody of J.O., she would have her own bedroom and bathroom. He stated that he
had his own vehicle and that he would drive her to daycare. He initially said that the last time
he had visited J.O. was three months prior to the hearing, but prior to that he had seen her
every two weeks. Later, he admitted that he had not seen J.O. in a year because Jacquelin
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raised her voice at him and he did not wish J.O. to witness such behavior. He also said that
Jacquelin’s husband threatened him.
Daniel testified that in the last two years he had not called J.O. on her birthday or
spent birthdays with her, attended parent-teacher meetings, or attended any school plays that
J.O. had been in. His reason for not doing these things was that no one had informed him
that he had the right to participate in such things. Daniel admitted receiving a copy of the
divorce decree and the separation and property settlement agreement, but he stated that he
could not read English.
Jacquelin testified, through an interpreter, that she had been married to Eduardo Lara
for seven months at the time of the hearing. She said that she has five children who have four
different fathers. She stated that she does not work outside the home and that her family had
been living at their current two-bedroom, one-bathroom home for four years. She said that
J.O. had her own bedroom now because her older sister, with whom she normally shared the
room, was in Mexico. Jacquelin testified that J.O. needed special-education classes but that
she was doing well in school. She said that it had been one-and-a-half to two years since
Daniel had visited J.O., and she denied forbidding him to see or visit their daughter. She
admitted that Daniel did not have her new phone number but stated that he did know where
she lived and where J.O. went to school. Jacquelin explained that when she suggested to
Daniel that he have visitation with J.O. every weekend, he said that he had to work and did
not have anyone to take care of her.
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At the end of the hearing, the trial court made the following ruling from the bench:
Ms. Perez is an illegal alien. She has had at least five years since they’ve
separated to remedy that, four and a half since the divorce. She drives illegally. She is
subject to being stopped and incarcerated and ultimately deported. The children could
be taken, particularly this child, and maybe delivered to some other family member if
she were to say that the whereabouts of the father is unknown. There were two kids,
there are now five. The oldest is nine and she’s in Mexico for at least the last two
months, [and] thinks she [is] coming back at the end of this month. And there are
three very young children, three, two and one, one of those born by a prior a
relationship when she joined with Mr. Perez. He, too, is an illegal. He works. At least
that’s the testimony. It would be presumptive but probably correct that that probably
means that he doesn’t declare by paying taxes. Neither of these are showing the
concern and dedication to comply with this Country’s laws, this Country’s policies and
procedure. It’s a great place to live, but you have no obligation to it. I believe that
public opinion lashes out at these type conditions, and I believe it’s not appropriate for
a Court to condone them. When at least there’s at hand a legally qualified custodial
parent, or a person that could be a custodial parent. Thus, the Court finds that there
has been a substantial change in custody—I mean circumstances and grants an
immediate change to the Defendant, Daniel Orantes.
A written order was entered on December 9, 2009, stating that Daniel was awarded custody
of J.O. due to a material change in circumstances. This appeal followed.
This court reviews child-custody cases de novo, but will only reverse if the trial court’s
findings are clearly erroneous or clearly against the preponderance of the evidence. Stehle v.
Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009). A finding is clearly erroneous when the
reviewing court, on the entire evidence, is left with the definite and firm conviction that a
mistake has been committed. Id.
Jacquelin argues that the trial court’s finding that there had been a material change in
circumstances was clearly erroneous because the facts allegedly giving rise to a material change
of circumstances—her immigration status and lack of an Arkansas driver’s license—have not
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changed since the entry of the original custody order. A decree establishing custody is final
on conditions then existing. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001); Campbell v.
Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). To facilitate stability and continuity in the
life of a child and to discourage repeated litigation of the same issues, custody can be modified
only upon a showing of a material change of circumstances. See, e.g., Stills v. Stills, 2010 Ark.
132, ___ S.W.3d ___; Stehle, supra; Campbell, supra. The party seeking modification of the
custody order has the burden of showing a material change in circumstances. Jones v. Jones,
326 Ark. 481, 931 S.W.2d 767 (1996). In order to avoid the relitigation of factual issues
already decided, trial courts will restrict evidence on a custodial change to facts arising since
the issuance of the prior order. Campbell, supra.
Jacquelin is correct that neither her immigration status nor Daniel’s has changed since
the entry of the prior custody order. Nonetheless, Daniel argues that these facts support the
trial court’s finding that a material change of circumstances had occurred because they were
not presented to the trial court at the time the original custody decree was entered.
When circumstances affecting the best interests of the child were not presented to the
trial judge at the time the original custody order was entered, they can be considered in
determining whether a material change of circumstances has occurred. Hamilton v. Barrett, 337
Ark. 460, 989 S.W.2d 520 (1999). However, the exception to the general rule that custody
orders are final as to circumstances then existing has no application where the parties were
aware of the circumstances and entered into an agreement that is approved by the court. Cf.
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Brewer v. Brewer, 239 Ark. 614, 390 S.W.2d 630 (1965) (right or claim existing at the time of
settlement is extinguished when agreement is approved by court and incorporated into final
divorce decree). The trial court is rarely, if ever, apprised of all the circumstances leading to
a custody settlement, yet when incorporated into a divorce decree, they are nonetheless final
orders. Miller v. Miller, 208 Ark. 1058, 189 S.W.2d 371 (1945). Agreed orders of custody
would have no finality if these circumstances could later be used as a basis to modify custody.
Cf. Brewer, supra. Circumstances known by the parties when they enter into a custody
agreement cannot be the basis for finding that a material change in circumstances has
occurred. Jones, supra.
Daniel also urges us to look behind the original custody order because Jacquelin and
her divorce attorney “advised” him to “make things easier by just going with them, and just
signing” and that Jacquelin translated both the divorce proceedings and the divorce decree.
A custody order can be modified based upon facts that existed when the previous order was
entered when fraud was committed to obtain custody. Nutt v. Nutt, 214 Ark. 24, 214 S.W.2d
366 (1948); see also Jackson v. Jackson, 253 Ark. 1033, 490 S.W.2d 809 (1973) (party seeking
to not be bound by the effects of an agreement must show by a preponderance of the
evidence the elements of fraud). However, the reasons advanced by Daniel for entering into
the settlement agreement do not rise to the level of fraud.
Daniel argues that even when limited to events occurring subsequent to the original
custody order, both he and Jacquelin had undergone changes in their lives that amounted to
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a material change of circumstances. He points to the fact the he had remarried and had
another child, and Jacquelin had remarried and had three additional children born out of
wedlock and fathered by two different men.2 However, custody awards should not be made
or modified to punish or reward parents. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993);
Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975). Daniel also urges that his threebedroom, two-bathroom home provided a more loving and stable environment for J.O.
because it permitted her to have her own bedroom and bathroom, in contrast to Jacquelin’s
two-bedroom, one-bathroom home where seven persons lived. But, merely because one
parent has more resources or income is not a basis upon which to change custody. Taylor,
supra.
Because Daniel failed to prove a material change of circumstances, we hold that the
circuit court clearly erred in changing custody of J.O. from Jacquelin to Daniel. Accordingly,
we reverse and remand for entry of an order consistent with this opinion. Our holding makes
it unnecessary to address the additional arguments raised by Jacquelin as bases for reversal.
Reversed and remanded.
2
Daniel’s youngest child was also born out of wedlock. At the time of the hearing he
indicated that he had another child who was three years old but had only been married six
months.
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