Baxter v. Baxter

171 So. 3d 1159, 2015 La.App. 4 Cir. 0085, 2015 La. App. LEXIS 1264, 2015 WL 3894291
CourtLouisiana Court of Appeal
DecidedJune 24, 2015
DocketNo. 2015-CA-0085
StatusPublished
Cited by7 cases

This text of 171 So. 3d 1159 (Baxter v. Baxter) 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
Baxter v. Baxter, 171 So. 3d 1159, 2015 La.App. 4 Cir. 0085, 2015 La. App. LEXIS 1264, 2015 WL 3894291 (La. Ct. App. 2015).

Opinion

ROSEMARY LEDET, Judge.

_JjThis is an international child custody dispute. The dispositive issue is whether the trial court erred in finding that the parties’ minor child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”) is Canada. Both the mother, Jennifer Lyn Baxter, and the minor child, AB,1 currently reside in Fort Erie, Ontario, Canada. The father, Adrian Baxter, is in the United States Navy; and he is currently stationed in Washington, D.C. Mr. Baxter, nonetheless, commenced this divorce and custody proceeding in Orleans Parish. In his petition, he averred that the parties established their matrimonial domicile in Orleans Parish and that they retained their domicile there despite their current residence elsewhere — Canada and Washington, D.C.

In response, Ms. Baxter filed various declinatory exceptions, including lack of subject matter jurisdiction over the child custody matter. Finding the child’s home state is Canada, the trial court sustained Ms. Baxter’s jurisdictional exception as to the custody matter. From the jurisdictional ruling, Mr. Baxter appeals. For the treasons that follow, we convert Mr. Baxter’s appeal to an application for supervisory writ, grant his writ application, and deny the relief he requests.

FACTUAL AND PROCEDURAL BACKGROUND

On December 21, 2006, the parties were married in New Orleans, Louisiana, and established a matrimonial domicile there. Before their marriage, the parties lived in Fort Erie, Ontario, Canada. Ms. Baxter was raised in Fort Erie; she lived there until she went to college. Her family still lives there. Her status in Canada is a landed immigrant with permanent residence status.2 Mr. Baxter’s family lives in Newark, New Jersey. He last lived in New Jersey about eighteen years before the hearing in this matter; however, the parties have used his New Jersey home address for various purposes, including receiving mail there.

In February 2006, the parties purchased a farm house in Fort Erie, Ontario, Canada, which is where Ms. Baxter currently resides with their minor child, AB. In late 2006, the parties purchased a second house in New Orleans, Louisiana. The parties last resided as a family in the New Orleans house in early 2012.

AB, the parties’ only child, was born on January 13, 2007, in Canada. When AB was born, the parties were residing in New Orleans.' Nonetheless, the parties traveled to Canada for AB to be born there. They did so in order for AB, unlike Ms. Baxter, to have dual citizenship in the United States and Canada. Two weeks after AB’s birth, they returned to live in New Orleans.

[1162]*1162|sDuring the time the parties were married, they moved multiple times due to Mr. Baxter’s military employment. Over the years, Mr. Baxter has been deployed overseas four times — three times to Afghanistan and once to Japan. Generally, Ms. Baxter and AJB lived in Canada when Mr. Baxter was deployed overseas. When he was deployed to Japan, however, Ms. Baxter was working as a school teacher in New Orleans. Hence, she and AJB thus remained in New Orleans when he went to Japan. Mr. Baxter also has been stationed in multiple locations in the United States, including New Orleans, Louisiana; Athens, Georgia; Norfolk, Virginia; Gulf-port, Mississippi; and Washington, D.C. Indeed, the parties first came to New Orleans in 2006 because Mr. Baxter was stationed there. Ms. Baxter and AJB have lived with Mr. Baxter in New Orleans, Louisiana; Athens, Georgia; and Norfolk, Virginia. During the time Mr. Baxter was stationed in Gulfport, Mississippi, they all lived in New Orleans; and Mr. Baxter commuted to Gulfport.

In August 2012, Ms. Baxter and AJB left New Orleans and moved to Canada, where they have lived since that time. Mr. Baxter was aware of, consented to, and physically assisted in the move to Canada. Indeed, in November 2012, he drove a moving truck with some of their belongings from New Orleans to Canada. Since August 2012, Mr. Baxter has lived in Afghanistan and Washington, D.C. Neither party currently lives in New Orleans. They, however, still own the house they purchased in New Orleans, which they lease fully furnished on a yearly basis.

In October 2013, the parties physically separated. In February 2014, Mr. Baxter filed a petition for divorce in Orleans Parish. In his petition, he requested, 14among other things, sole custody of AJB; and he made the following averments pertinent to the jurisdictional issue before us:

• Adrian Baxter is currently deployed with the United States Navy. He returns from active deployment and active duty in March, 2014. Adrian Baxter’s current deployment is the fourth time he has been deployed. During the couple’s marriage, when Adrian Baxter deployed overseas, Jennifer Lyn Baxter took the minor child to the parties’ secondary home in Fort Erie, Ontario;
• Adrian Baxter started training for his most recent deployment in October, 2012. During this time, Jennifer Lyn Baxter and the minor child went to Fort Erie, Ontario, where they usually stay during Adrian Baxter’s deployment. Adrian Baxter deployed for Afghanistan in May, 2013.
• Jennifer Lyn Baxter’s actions show that she does not intend to return to the New Orleans area. Her decision to relocate to Canada with the minor child was made without Adrian Baxter’s consent and without judicial authorization, in violation of the Louisiana Relocation Statute.

In response, Ms. Baxter filed declinato-ry exceptions of lack of subject matter jurisdiction over the child custody matter, lack of personal jurisdiction, and improper venue. On May 8, 2014, the parties entered into a written stipulation continuing the hearing on the exceptions to June 2014 and agreeing that Mr. Baxter be allowed daily telephone communication with AJB.

On June 11, 2014, an evidentiary hearing was held on Ms. Baxter’s exceptions. At the time of the hearing, Ms. Baxter and AJB were living in Canada. They had been living there since August 2012. AB was enrolled in school and extracurricular activities there. Mr. Baxter was living in Washington, D.C., as a result of a military [1163]*1163assignment. At the hearing, both parties testified. Ms. Baxter also called several other witnesses. The gist of her witnesses’ testimony was that Ms. Baxter’s August 2012 move to Canada was a permanent, not a temporary, one. | sThe gist of the parties’ testimony was that the August 2012 move was mutually agreed upon by the parties; however, the parties vehemently disputed whether the move was intended to be a permanent one, as Ms. Baxter testified, or a temporary one, as Mr. Baxter testified. Following the hearing, the trial court took the matter under advisement.

On August 11, 2014, the trial court rendered an interim judgment ordering that Mr. Baxter be allowed to initiate daily telephone contact with AB. On August 25, 2014, Mr. Baxter filed a Rule for Contempt, alleging that Ms. Baxter had violated the parties’ stipulation and the court’s interim order allowing him to initiate daily telephone contact with AB. In response to the contempt rule, Ms. Baxter re-urged her declinatory exceptions of lack of subject matter jurisdiction and lack of personal jurisdiction. She requested that the trial court decline to rule on the motion for contempt until after the court ruled on her pending exceptions to the divorce petition.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burds v. Skidmore
267 So. 3d 192 (Louisiana Court of Appeal, 2019)
In re Harrier Trust
259 So. 3d 488 (Louisiana Court of Appeal, 2018)
In re Marriage of Milne
2018 IL App (2d) 180091 (Appellate Court of Illinois, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
171 So. 3d 1159, 2015 La.App. 4 Cir. 0085, 2015 La. App. LEXIS 1264, 2015 WL 3894291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-baxter-lactapp-2015.