DeFatta v. DeFatta

352 So. 2d 287
CourtLouisiana Court of Appeal
DecidedOctober 31, 1977
Docket13375
StatusPublished
Cited by20 cases

This text of 352 So. 2d 287 (DeFatta v. DeFatta) 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
DeFatta v. DeFatta, 352 So. 2d 287 (La. Ct. App. 1977).

Opinion

352 So.2d 287 (1977)

Sammie Joseph DeFATTA, Jr., Plaintiff-Appellee.
v.
Marianne Farmer DeFATTA, Defendant-Appellant.

No. 13375.

Court of Appeal of Louisiana, Second Circuit.

October 31, 1977.
Rehearing Denied December 5, 1977.

*288 Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for defendant-appellant.

Dale G. Cox, Shreveport, for plaintiff-appellee.

Before HALL, MARVIN and JONES, JJ.

En Banc. Rehearing Denied December 5, 1977.

HALL, Judge.

Appellant, Marianne Farmer DeFatta, appeals from a judgment of the district court sustaining a declinatory exception of lack of jurisdiction filed by appellee, Sammie Joseph DeFatta, Jr., and dismissing her demands for alimony and child support made incidental to her action for a final divorce.

The issue on appeal is whether the court has jurisdiction over the person of the husband to render a judgment for permanent *289 alimony and child support in connection with a petition for final divorce and custody filed by the wife where the husband originally filed the separation suit but moved out of the state after the separation judgment was rendered and before the divorce petition was filed.

We hold that when a party initiates an action for separation from bed and board, thereby submitting himself to the exercise of jurisdiction over him personally by the court, the court's jurisdiction over the person is not divested by the party's moving from this state, but continues throughout the pendency of the proceeding to the judgment of divorce as to all facets of the proceeding, including all matters incidental to the separation and divorce such as custody, child support and alimony, pendente lite and permanent.

The appellee-husband filed suit against the appellant-wife in January, 1976, seeking a separation from bed and board on the grounds of cruel treatment and abandonment. Appellee's petition asked that the determination of custody of the three minor children born of the marriage be deferred until the final divorce. The appellant filed an answer in the nature of a general denial and did not ask for custody, alimony or child support.

After trial, judgment was rendered granting the separation as prayed for. The separation judgment, pursuant to the agreement of the parties, deferred the matter of custody "until a divorce hearing in these proceedings"; however, appellee was ordered to pay to appellant $150 per month for the support of their minor daughter as long as she lived with the mother. Appellee was also ordered to pay as alimony the monthly mortgage payment on the family home until such time as the home is sold. At the time of the separation judgment the two sons were living with the appellee and the daughter was living with the appellant.

Subsequently, appellee was transferred to Houston, Texas by his employer. The sons returned to live with their mother.

In February, 1977, appellant filed a motion to increase child support for the minor daughter and to obtain child support pendente lite for the support of the two sons. An attorney was appointed to represent the nonresident appellee, his original attorney of record having withdrawn as counsel. Judgment was rendered increasing the amount of the support for the daughter from $150 per month to $200 per month, but support was denied for the two sons because there was no judgment awarding their custody to appellant.

Later in February, 1977, appellant filed a rule to show cause why she should not be awarded the legal custody of the three minor children and be granted child support and alimony during the pendency of the suit. Service of the rule was made on the attorney previously appointed to represent the nonresident appellee. The appellee's court-appointed attorney filed a declinatory exception of lack of jurisdiction over the person of the appellee. At the hearing, judgment was rendered awarding appellant custody of the three children, but sustaining the declinatory exception of lack of personal jurisdiction and refusing alimony and child support for the two sons.

In March, 1977, appellant filed a petition for a final divorce alleging that more than one year and sixty days had transpired since appellee obtained a decree of separation, and seeking permanent custody of the three children, permanent alimony for herself, and permanent support for the three children. Service of process was made on the attorney previously appointed to represent the nonresident appellee. The attorney filed an exception to the jurisdiction of the court alleging that since appellee was a resident of the State of Texas, the court was without authority to render any money judgment against him. After hearing, judgment was signed on May 2, 1977, sustaining appellee's exception to the jurisdiction on appellant's claim for permanent alimony and child support. Judgment of divorce granting permanent custody of the three minor children to appellant was signed on May 11, 1977. Appellant perfected an appeal.

*290 Appellee has filed a motion to dismiss the appeal based on the fact that appellant's motion for appeal referred to a judgment of March 4, 1977, as to which a new trial was denied on May 2, 1977, which judgment denied alimony and child support pendente lite. Appellee contends that matters relating to alimony and child support pendente lite were merged into or abated by the judgment of final divorce and have become moot and the judgment relating thereto is unappealable. It is clear from the record and subsequent filings made by the appellant in response to the motion to dismiss that it was appellant's intention to appeal from the final judgment of May 2, 1977, sustaining plaintiff's exception to the jurisdiction and denying appellant's claim for permanent child support and alimony. The inadvertent reference to the March 4 judgment should not defeat appellant's appeal from the May 2 judgment. Appellee's motion to dismiss is overruled.

Upon the jurisdictional issue, appellant contends essentially that an action for separation and a subsequent action for divorce based on the separation and nonreconciliation is one continuous proceeding and that the court's jurisdiction over the person, once attached, cannot be divested by a party's moving out of the state. Appellee contends that the action for separation and the action for divorce, and the incidents of each, are entirely separate and distinct actions, and that the court had no jurisdiction over the person of the nonresident appellee in the divorce action and could not render a personal judgment against him for child support or alimony in that proceeding.

Jurisdiction is the legal power and authority of the 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. LSA-C. C.P. Art. 1. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon: (1) service of process on the defendant or his agent for the service of process; (2) service of process on an attorney at law appointed to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this State; or (3) the submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto. LSA-C.C.P. Art. 6.

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352 So. 2d 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/defatta-v-defatta-lactapp-1977.