Brunt v. Abernathy

79 So. 3d 425, 11 La.App. 3 Cir. 705, 2011 La. App. LEXIS 1300, 2011 WL 5172356
CourtLouisiana Court of Appeal
DecidedNovember 2, 2011
DocketNo. 11-705
StatusPublished
Cited by2 cases

This text of 79 So. 3d 425 (Brunt v. Abernathy) 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
Brunt v. Abernathy, 79 So. 3d 425, 11 La.App. 3 Cir. 705, 2011 La. App. LEXIS 1300, 2011 WL 5172356 (La. Ct. App. 2011).

Opinion

PAINTER, Judge.

_JjLisa Ostic Abernathy appeals the judgment of the trial court awarding joint custody of the minor child, designating Donald Brunt as the domiciliary parent subject to her visitation, and failing to give full faith and credit to the judgment issued in her favor in Oklahoma. For the following reasons, we remand the matter to the trial court to communicate with the Oklahoma court.

FACTS AND PROCEDURAL HISTORY

The parties are the parents of a minor child, born January 15, 2006, custody of whom is disputed in this matter. The parties were divorced in Oklahoma in 2007, and an Oklahoma judgment gave them joint custody with the mother, Lisa Ostic Abernathy, being designated “primary caretaker.” Custody was to be on a six month rotation until the child started school. The father, Donald Brunt, is in the military and is currently stationed at Fort Polk, Louisiana.

Abernathy alleges that Donald failed to return the child to her custody on May 29, 2010, following a visit which took place in Alaska. Donald alleges that Lisa failed to show up for the exchange and that she currently has no permanent residence. Donald also alleges that Lisa gave physical custody of the child to him on September 25, 2009, in Colorado. Abernathy did sign a handwritten note stating that Brunt and his wife, Nathaly, had permission to take the child to Alaska, to be returned to Abernathy on May 29, 2010.

Donald filed this rule for custody in Vernon Parish on August 19, 2010, and this rule referenced the consent judgment as to custody rendered in Oklahoma. Lisa filed an answer in Vernon Parish and did not object to subject matter jurisdiction. Lisa also filed a petition for habeas corpus in Oklahoma and obtained same on September 3, 2010. Donald alleges that this writ was never served on him. A trial, at which Lisa was present but unrepresented by counsel, occurred on |2November 8, 2010. At that time, the trial court found that Louisiana was the child’s home state since the child had been living in Louisiana over a year. The court awarded joint custody of the child, with Donald being named domiciliary parent subject to the child’s visitation with Lisa. The judgment [427]*427was signed on January 3, 2011. Lisa filed a motion for appeal, and Donald filed a motion to dismiss the appeal on the ground that the motion for appeal was untimely. Lisa then filed an exception of lack of subject matter jurisdiction. The trial court denied Donald’s motion to dismiss appeal and granted Lisa’s motion for appeal. With respect to Lisa’s exceptions as to subject matter jurisdiction, the trial court denied these exceptions, finding that Louisiana is the child’s home state and that Lisa acquiesced to jurisdiction in Louisiana.

On appeal, Lisa asserts that the trial court erred in failing to give full faith and credit to the Oklahoma judgment and should have declined jurisdiction in Louisiana.

DISCUSSION

In Otwell v. Otwell, 10-1176, pp. 2-4 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232, 1233-35, this court stated:

A most basic tenet of our law is a court’s power to hear an action before it. “Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La.Code Civ.P. art. 1. Subject matter jurisdiction is “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. Code Civ.P. art. 2. “The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.” La.Code Civ.P. art. 3. The issue of whether a court has subject matter jurisdiction can be raised at any time and by the court on its own motion. Boudreaux v. State, Dept. of Transp. and Development, 01-1329 (La.2/26/02), 815 So.2d 7. Furthermore, the court has the duty to examine subject matter jurisdiction sua sponte, even if the litigants have not raised the Isissue. Id. Whether a district court has subject matter jurisdiction over a case is subject to a de novo review. Hartman v. Lambert, 08-1055 (La.App. 3 Cir. 2/04/09), 7 So.3d 758.

The Uniform Child Custody Jurisdiction and Enforcement Act, found in La. R.S. 13:1801 et seq., effective August 2007, pertains to this litigation. Particularly applicable to these circumstances is La.R.S. 13:1815 which applies to the jurisdiction of a Louisiana court to modify the determination of another court (emphasis added):

Except as otherwise provided in R.S. 13:1816, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under R.S. 13:1813(A)(1) or (2) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under R.S. 13:1814 or that a court of this state would be a more convenient forum under R.S. 13:1819;
(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

Louisiana Revised Statutes 13:1813 pertains to an initial determination of child custody and states:

A. Except as otherwise provided in R.S. 13:1816, a court of this state [428]*428has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child’s home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
(2) A court of another state does not have jurisdiction or a court of the home state of the child has |4declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.
(3)All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under La.R.S. 13:1819 or 1820; or

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Cite This Page — Counsel Stack

Bluebook (online)
79 So. 3d 425, 11 La.App. 3 Cir. 705, 2011 La. App. LEXIS 1300, 2011 WL 5172356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brunt-v-abernathy-lactapp-2011.