Atkins v. Atkins

623 So. 2d 239, 1993 WL 313590
CourtLouisiana Court of Appeal
DecidedAugust 18, 1993
Docket25034-CA
StatusPublished
Cited by2 cases

This text of 623 So. 2d 239 (Atkins v. Atkins) 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
Atkins v. Atkins, 623 So. 2d 239, 1993 WL 313590 (La. Ct. App. 1993).

Opinion

623 So.2d 239 (1993)

Sterling Oliver ATKINS, Jr., Plaintiff-Appellee,
v.
Linda Gail Sloan ATKINS, Defendant-Appellant.

No. 25034-CA.

Court of Appeal of Louisiana, Second Circuit.

August 18, 1993.

Fewell & Rhymes by Richard L. Fewell, Jr., Monroe, for defendant-appellant.

Travis M. Holley, Bastrop, for plaintiff-appellee.

*240 Before HIGHTOWER, BROWN and STEWART, JJ.

STEWART, Judge.

Married on December 27, 1985 in Bastrop, Morehouse Parish, Louisiana, Linda Gail Sloan Atkins and Sterling O. Atkins, Jr., established their matrimonial domicile approximately 30 miles away in Hamburg, Ashley County, Arkansas. On August 14, 1990, Mrs. Atkins returned to Bastrop with the couple's only child, Lindsey Allene Atkins who was born December 28, 1989.

Mrs. Atkins obtained custody of Lindsey in Louisiana, and Mr. Atkins obtained custody of Lindsey in Arkansas. Mr. Atkins then obtained a judgment in Louisiana which granted full faith and credit to the Arkansas custody decree. Mrs. Atkins appeals, asserting that Louisiana should not afford full faith and credit to an Arkansas decree which conflicts with the earlier Louisiana custody determination. Under the unique facts of this case, we affirm the trial court's judgment which recognizes the Arkansas decree.

FACTS

The Louisiana Judgment of Separation

Mrs. Atkins filed her petition for separation and divorce on August 28, 1990, in Morehouse Parish, Louisiana, in which she requested custody of their child. Mr. Atkins was served via the Louisiana Long Arm Statute on or about September 4, 1990 in Ashley County, Arkansas. He objected to the jurisdiction of the Louisiana court, but his exception was overruled. In an October 25, 1990 judgment, the trial court awarded custody of the child to Mrs. Atkins and ordered Mr. Atkins to pay alimony and child support.

Mr. Atkins appealed only the issue of the Louisiana court's jurisdiction to order alimony and child support. He did not appeal the child custody determination, or the jurisdiction of the Louisiana court over the minor child. On appeal, this court ruled that Louisiana had no personal jurisdiction over Mr. Atkins. Accordingly, the trial court judgment was reversed to the extent that it condemned Mr. Atkins to pay child support and alimony pendente lite. Atkins v. Atkins, 588 So.2d 407 (La.App.2d Cir.1991).

The Arkansas Judgment of Divorce

On September 7, 1990, shortly after being served with Mrs. Atkins' petition, Mr. Atkins filed a Complaint in Equity seeking a divorce in Ashley County, Arkansas. The Arkansas trial court rendered its decree on March 25, 1991, in which Plaintiff (Sterling Oliver Atkins, Jr.) was "awarded custody of the minor child subject to Defendant's (Linda Gail Sloan Atkins) right to visitation as set out hereinbelow".

Mrs. Atkins appealed the Arkansas decree, asserting that the Arkansas trial court exercised jurisdiction in violation of the Uniform Child Custody Jurisdiction Act (UCCJA), which had been adopted by both Louisiana and Arkansas. The Arkansas Supreme Court examined the UCCJA and concluded that (1) the only provision under which the Louisiana trial court could have exercised jurisdiction was under the "significant connection" subsection and (2) there was no record of findings of fact by the Louisiana trial court to support such jurisdiction.

The court determined that, even if the Louisiana trial court properly found a jurisdictional basis under the UCCJA, the Arkansas trial court's ruling was correct under the governing preemptive federal statute, the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. The following excerpt is from the Arkansas Supreme Court opinion, Atkins v. Atkins, 308 Ark. 1, 823 S.W.2d 816 (1992):

The Parental Kidnapping Prevention Act of 1980 (PKPA) was passed by Congress for cases just like this one because the states' UCCJA's flexible provisions, especially those involving "significant connection" and "substantial evidence," can be interpreted to permit two states to assert jurisdiction concurrently. Note, Parental Kidnapping in Arkansas Under the Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 10 U.Ark. Little Rock L.J., 69, 75 (1987-88). The existence of concurrent jurisdiction under the UCCJA continued to allow forum shopping. See Note, North Dakota's Interpretation of the Interplay between the *241 PKPA and the UCCJA, 62 N.D.L.Rev. 231, 269 (1986); Krauskoph, Remedies for Parental Kidnapping in Federal Court, 45 Ohio St.L.J. 429, 431-32 (1984). In response, Congress enacted the PKPA.... We stated in Garrett v. Garrett, 292 Ark. 584, 732 S.W.2d 127 (1987), that the principal distinction between the UCCJA and the PKPA is that the PKPA gives exclusive jurisdiction to the child's home state.... Accordingly, under the PKPA, the Arkansas court had exclusive jurisdiction since it was the home state, while under the UCCJA there might have been concurrent jurisdiction because of the "significant connection" and "substantial evidence" provision. When the UCCJA and the PKPA conflict, the preemptive federal PKPA controls. Norsworthy v. Norsworthy, 289 Ark. 479, 713 S.W.2d 451 (1986).

Accordingly, the Supreme Court of Arkansas affirmed the Arkansas trial court's exercise of jurisdiction and refusal to afford full faith and credit to the Louisiana decree.

The Instant Petition for Full Faith and Credit

After the Arkansas Supreme Court affirmed the Arkansas custody determination, Mr. Atkins filed the instant petition to recognize a foreign decree in the Fourth Judicial District Court, Morehouse Parish, Louisiana. The trial court reluctantly granted full faith and credit to the Arkansas decree. In its reasons for judgment, the trial court observes that Arkansas was the child's home state because it was the child's home prior to August 1990 and the child had not been in Louisiana more than six months at the time Mrs. Atkins filed her petition. Mrs. Atkins appeals the Louisiana trial court judgment which granted full faith and credit to the Arkansas decree.

DISCUSSION

Mrs. Atkins' Argument

Mrs. Atkins obtained a Louisiana custody decree in October 1990. Mr. Atkins obtained the Arkansas custody decree in March 1991. Mrs. Atkins argues that, because the Arkansas custody determination conflicts with the prior Louisiana determination, the Arkansas decree is not entitled to full faith and credit. At issue is whether the instant trial court properly granted full faith and credit to the Arkansas decree, which grants custody to Mr. Atkins subject to visitation by Mrs. Atkins, where the Arkansas decree was preceded by an unappealed award of sole custody to Mrs. Atkins in a Louisiana judgment.

We note at the outset that, in her pleadings, brief, and other argument, Mrs. Atkins erroneously asserts that this court affirmed the Louisiana court's award of custody to her. In our appellate decision, however, this court did not address custody. We addressed only the issues raised by Mr. Atkins, who did not assign as error the trial court's award of custody to Mrs. Atkins. Therefore, there was no appellate disposition of the Louisiana custody award.

Legal Principles

Mrs.

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