Anton v. Anton

694 So. 2d 1217, 1997 WL 232207
CourtLouisiana Court of Appeal
DecidedMay 14, 1997
Docket97-C-0792
StatusPublished
Cited by5 cases

This text of 694 So. 2d 1217 (Anton v. Anton) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anton v. Anton, 694 So. 2d 1217, 1997 WL 232207 (La. Ct. App. 1997).

Opinion

694 So.2d 1217 (1997)

Thomas Leonard ANTON
v.
Susan Bourgeois ANTON.

No. 97-C-0792.

Court of Appeal of Louisiana, Fourth Circuit.

May 14, 1997.

*1218 D. Douglas Howard, Jr., New Orleans, for Defendant/Relator Susan Bourgeois Anton.

Lisa C. Matthews, Maria I. O'Byrne Stephenson, Aimee Lonergan, Stephenson, Matthews, Chavarri & Cerniglia, New Orleans, for Plaintiff/Respondent Thomas Leonard Anton.

Before BYRNES, PLOTKIN and MURRAY, JJ.

MURRAY, Judge.

We grant this writ application to review the trial court's judgment overruling an exception to its jurisdiction in this child custody proceeding. Because no evidence was presented which would support the exercise of jurisdiction, and for the reasons explained below, we vacate the judgment on the exception and remand the matter for further proceedings in accordance with this opinion. The stay order previously entered is hereby vacated.

FACTS AND PROCEDURAL HISTORY

Thomas Anton and Susan Bourgeois were married in New Orleans in 1975 and thereafter established their matrimonial domicile in DeSoto Parish, Louisiana. Two children were born of the marriage, a daughter in 1984 and a son in 1990. The couple separated on June 5, 1994, and a consent judgment regarding ancillary issues was entered into on June 27, 1994. By that judgment, the parents agreed to joint custody of both children, with Ms. Anton designated as domiciliary parent and reasonable visitation privileges for Mr. Anton. Shortly thereafter, Mr. Anton moved to New Orleans and Ms. Anton and the children went to her parents' vacation home in North Carolina. While Mr. Anton asserts that he then believed the out-of-state trip was to be temporary, he *1219 acknowledges that his children have resided with their mother in North Carolina since July 11, 1994. After a rule for contempt and for specific visitation[1] was filed by Mr. Anton in October 1994, a judgment of divorce was entered in DeSoto Parish on December 12, 1994.

On September 26, 1996, Mr. Anton instituted this action in Orleans Parish Civil District Court for modification of the original custody arrangement, alleging that his former wife was denying him reasonable visitation and poisoning his relationship with his children. Ms. Anton responded with an exception of lack of jurisdiction[2] under La.R.S. 13:1702 of the Uniform Child Custody Jurisdiction Act (UCCJA), contending that this proceeding belonged in North Carolina, where the children have been domiciled for more than two years. She argued alternatively that Louisiana should decline to exercise jurisdiction as an inconvenient forum under La.R.S. 13:1706. Mr. Anton filed a written opposition to the exception, asserting that R.S. 13:1700 et seq. was preempted under these facts by 28 U.S.C. § 1738A. He contended that this federal statute conferred "exclusive, continuing modification jurisdiction upon the state which rendered the initial decree, as long as the child or one of the contestants remains in that state."

After hearing oral arguments, the trial court overruled the exception, finding that because Mr. Anton remained in this state where the initial decree was rendered, continuing jurisdiction existed under 28 U.S.C. § 1738A (d) as well as La.R.S. 13:1702 A(2). The court noted that North Carolina was involved only because Ms. Anton had physically removed the children from Louisiana, and that no court in this state had declined jurisdiction. This timely writ application followed,[3] including notice to this court that subsequent to the filing of her exception, Ms. Anton instituted custody proceedings in Transylvania County, North Carolina.[4]

DISCUSSION

28 U.S.C. § 1738A, also known as the Parental Kidnapping Prevention Act (PKPA), provides in pertinent part:

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
(b) [Definitions omitted]
(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State *1220 assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(C) [Emergency provisions omitted]
(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(e) [Notice provisions omitted]
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.

Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
694 So. 2d 1217, 1997 WL 232207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anton-v-anton-lactapp-1997.