Douglas v. Douglas

528 So. 2d 699, 1988 WL 43195
CourtLouisiana Court of Appeal
DecidedMay 4, 1988
Docket19,891-CW
StatusPublished
Cited by4 cases

This text of 528 So. 2d 699 (Douglas v. Douglas) 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
Douglas v. Douglas, 528 So. 2d 699, 1988 WL 43195 (La. Ct. App. 1988).

Opinion

528 So.2d 699 (1988)

Cortez DOUGLAS, Plaintiff-Appellee,
v.
Juanita Dykes DOUGLAS, Defendant-Appellant.

No. 19,891-CW.

Court of Appeal of Louisiana, Second Circuit.

May 4, 1988.

*700 Williams & Williams by Moses Junior Williams, Tallullah, for defendant-appellant.

Samuel Thomas, Tallullah, for plaintiff-appellee.

Before JASPER E. JONES, FRED W. JONES, Jr., and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, Juanita Dykes Douglas, filed an application for supervisory writs, objecting to the trial court judgment granting custody of her minor daughter, Valis, to the plaintiff, Cortez Douglas. On February 11, 1988, this court granted the defendant's writ application and ordered that the record be filed and the case docketed for opinion. For the following reasons we reverse and vacate the trial court judgment.

FACTS

The plaintiff and defendant were married in Louisiana. They physically separated before their daughter was born on March 11, 1982. A judicial separation was granted April 6, 1982 in the Sixth Judicial District Court and custody of the child was awarded to the defendant. Following the separation, the defendant went to Texas to live and the plaintiff moved to California. The defendant left the actual custody of the child with her mother, Beatrice Dykes, in Tallulah, Louisiana.

On July 12, 1985, the defendant obtained a divorce from the plaintiff in Texas. The Texas divorce decree awarded custody of the child to the present defendant, Juanita Dykes Douglas.

On April 29, 1987, the plaintiff filed suit in the Sixth Judicial District Court for a divorce and also sought custody of the *701 child. In his petition, plaintiff stated he was domiciled in California and the defendant was domiciled in Texas.

An attorney was appointed to represent the absentee defendant. The record contains a copy of a letter purportedly sent by the appointed attorney to the defendant. The letter was returned to the attorney as undeliverable due to an insufficient address.

The record does not show service of process upon the attorney who was appointed to represent the defendant. However, the attorney filed an answer and general denial to the plaintiff's petition and then waived his own appearance at the hearings conducted January 28 and 29, 1988.

The record fails to show that any notice of the proceedings was given to the grandmother, Beatrice Dykes, who had actual custody of the child.

The defendant was not present at the hearing which commenced on January 28, 1988. On that date, the trial court heard the plaintiff's testimony and ordered that the child be brought to court after the noon recess. The child and the grandmother were present during the afternoon session of court. After verbal objections by the grandmother that the defendant did not receive notice of the proceedings, plaintiff's counsel and the court agreed to allow the proceedings to remain open until the next morning to allow the defendant to make an appearance. However, the trial court signed a judgment that day granting a divorce and custody of the child to the plaintiff.

The next morning, the defendant filed a petition to annul the trial court judgment which had been rendered the previous day. The defendant also moved for a stay of the proceedings. The motion was denied by the trial court. The defendant's counsel then gave notice of intent to apply to this court for supervisory writs. A writ application was subsequently filed.

In her application for supervisory writs, the defendant argued that the trial court erred in failing to decline jurisdiction in this matter because the parties were not domiciled in Louisiana, that the trial court erred in refusing to set aside the judgment which was signed prior to the conclusion of the trial, and that the court erred in failing to set aside its judgment where the parties entitled to notice were not cited or served with process as required by law.

In her brief, the defendant reasserts the issues argued in connection with the writ application. In addition, she argues that the trial court judgment should be vacated because the court did not have jurisdiction to decide the issue of child custody under the Uniform Child Custody Jurisdiction Act (UCCJA), LSA-R.S. 13:1700, et seq., and because, under the requirements of the UCCJA, there was insufficient notice of the proceedings to the defendant and to the child's grandmother.

JURISDICTION

The defendant has raised two objections regarding the trial court's jurisdiction in this case. First, the defendant claims the trial court lacked jurisdiction to decide the question of child custody under the UCCJA. Second, the defendant argues the trial court lacked jurisdiction to grant a divorce to the nondomiciliary parties.

The plaintiff argues that jurisdiction is determined solely by LSA-C.C.P. Art. 10, subd. A(5) which provides that a court which is otherwise competent under the laws of this state has jurisdiction in a proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state.

However, in this case both Louisiana and Texas courts have granted custody of the child to the defendant. When there is a dispute concerning which state properly possesses jurisdiction over a child custody matter, the UCCJA is applied to resolve conflicts.

The UCCJA is applied to interstate custody disputes to avoid jurisdictional competition and conflicts with the courts of other states in matters of child custody and to insure that custody determinations will be made in the state which can best determine the best interest of the child. LSA-R.S. *702 13:1700; Counts v. Bracken, 494 So. 2d 1275 (La.App. 2d Cir.1986).

Because there is a question as to whether Louisiana or Texas properly has jurisdiction over the issue of child custody, the defendant is correct in her assertion that the question of whether the trial court had custody jurisdiction must be determined under the provisions of the UCCJA contained in LSA-R.S. 13:1700 et seq.

LSA-R.S. 13:1702 contains four provisions related to determining whether a court of this state has jurisdiction over a child custody proceeding. It has been suggested that the jurisdictional tests are listed in descending preferential order. Schroth v. Schroth, 449 So.2d 640 (La.App. 4th Cir.1984); Snider v. Snider, 474 So.2d 1374 (La.App. 2d Cir.1985). Determining jurisdiction in this case is complicated by the fact that although the child is physically present in Louisiana, neither of the litigants claiming custody is domiciled here.

The first of the four above mentioned provisions regarding jurisdiction is the "home state" test and provides that jurisdiction is proper in Louisiana if this state is the home state of the child at the time of the commencement of the proceeding or had been the child's home state within six months before commencement of the proceeding. Although at first glance, because the child has lived with her grandmother in this state almost since birth, it might appear that Louisiana is the child's home state, under the statutory scheme, this is not true. LSA-R.S. 13:1701(5) defines "home state" as follows:

(5) "Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned.

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Cite This Page — Counsel Stack

Bluebook (online)
528 So. 2d 699, 1988 WL 43195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-douglas-lactapp-1988.