Fuge v. Uiterwyk

613 So. 2d 717, 1993 WL 15025
CourtLouisiana Court of Appeal
DecidedJanuary 27, 1993
Docket91-CA-0467, 91-CA-1345
StatusPublished
Cited by7 cases

This text of 613 So. 2d 717 (Fuge v. Uiterwyk) 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
Fuge v. Uiterwyk, 613 So. 2d 717, 1993 WL 15025 (La. Ct. App. 1993).

Opinion

613 So.2d 717 (1993)

Laurie FUGE
v.
Hendrik UITERWYK.

Nos. 91-CA-0467, 91-CA-1345.

Court of Appeal of Louisiana, Fourth Circuit.

January 27, 1993.

*718 David J. Foshee, New Orleans, for defendant/appellant.

Terence L. Hauver, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, for plaintiff/appellee.

Before WARD, ARMSTRONG and WALTZER, JJ.

WALTZER, Judge.

This litigation arises from Laurie Fuge's suit for divorce from Hendrik Uiterwyk. Mr. Uiterwyk appeals from adverse judgments by the Civil District Court in the Parish of Orleans. After ruling that it had jurisdiction over the subject matter and jurisdiction over his person, his motion for termination of alimony was denied, his obligation for child support was increased, his visitation rights with his minor children were restricted, and, he was adjudicated to be in contempt of court.[1]

PROCEDURAL BACKGROUND

Ms. Fuge and Mr. Uiterwyk were married in New Orleans, Louisiana in 1970. Two years later they moved to Florida. The children of their union were born in Florida. The couple separated in 1980 and were divorced in Florida in 1985. The Florida court in its final judgment of divorce awarded shared parental responsibility. Ms. Fuge was the primary residential custodian and Mr. Uiterwyk the secondary residential custodian.

*719 Pursuant to a Florida consent judgment of June 21, 1986, Ms. Fuge was allowed to move the children permanently from Florida to New Orleans so that she could attend Tulane Law School. This judgment provided that Florida would retain jurisdiction over the parties for a period of one year.

One year and three months later on September 29, 1987, Ms. Fuge filed a rule in Orleans Parish asking the trial court to change custody, alter visitation and increase child support. The trial court issued an injunction prohibiting Uiterwyk from filing suit in Florida on the same issues. Three weeks later, on October 20,1987, Mr. Uiterwyk filed suit in Florida to revoke the 1986 consent judgment and to hold Ms. Fuge in contempt for failure to abide by the court ordered visitation. In addition, in Orleans Parish, Mr. Uiterwyk filed an exception to the jurisdiction of Louisiana relying on the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA). La.R.S. 13:1700 et seq. A hearing was held on February 19, 1988, and the District Court of Orleans concluded that Mr. Uiterwyk's exception should be sustained.

On March 23, 1988, Ms. Fuge filed a motion for a new trial which was denied without a hearing. Ms. Fuge then appealed the trial court's determination and this Court concluded that the Louisiana courts did have jurisdiction according to the UCCJA. La.R.S. 13:1700 et seq. The case was then remanded for further proceedings.

On August 2, 1989, the Florida courts deferred jurisdiction to the Louisiana courts in accordance with the Fourth Circuit's determination. On June 29, 1990 and July 13, 1990 the Louisiana trial court rendered its judgments and from these, as well as various contempt proceedings, Mr. Uiterwyk appeals. Mr. Uiterwyk raises numerous assignments of error, many of which concern jurisdiction. We will address those first.

JURISDICTION

As previously determined by this Court, Louisiana meets all of the UCCJA requirements for jurisdiction. La.R.S. 13:1700 et seq. Louisiana has traditionally exercised a broad grant of jurisdiction over the status of minors domiciled or located within this State. La.C.C.P. Art. 10(A)(5). This broad jurisdiction was modified by the adoption of the UCCJA in 1978. La.R.S. 13:1700 et seq.

The UCCJA imposes two basic requirements for the establishment of jurisdiction. They are: (1) the "home state" test and, (2) the "best interest of the child" test. La.R.S. 13:1700 et seq. If the court is found to meet either of these tests, it has jurisdiction. This court has previously determined that Ms. Fuge meets both of these requirements.

Mr. Uiterwyk attempts to assert that the provisions of the Parental Kidnapping Prevention Act (PKPA) would prevent Louisiana from modifying the Florida visitation and support orders. In support of this contention, Mr. Uiterwyk relies on a federal case interpreting the provisions of PKPA. Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985). In this case Texas was found to retain jurisdiction in accordance with the divorce decree and relevant Texas statutes. The court was careful to note that the provisions of the PKPA apply when states issue conflicting orders. Since the decision in this case, it has been subsequently determined that federal courts do not have jurisdiction to hear disputes between states raised under the PKPA. Rogers v. Platt, 814 F.2d 683, 687 (D.C.Cir. 1987). The court in Rogers also concluded that the intent of the PKPA was to require all states to conform to the provisions of the UCCJA. Id. In the comments of the Act itself the intended purpose is stated to, "create a recognizable standard" by which all states may resolve jurisdictional disputes. 28 U.S.C.A. § 1738A.

Since the intended purpose of the PKPA is to apply the same standards as the Uniform Child Custody Act, we feel that the Louisiana court correctly asserted jurisdiction. Both the Louisiana and Florida courts were aware of the other's jurisdictional claims and were careful not to issue conflicting orders. This is further reinforced *720 by the fact that upon the expiration of the one year jurisdictional retention, the Florida courts deferred to Louisiana's jurisdiction. Ms. Fuge meets the requirements of the PKPA because Louisiana was the "home state" at the commencement of the proceedings in accordance with 28 U.S.C.A. § 1738A(c)(2)(A). This section provides in pertinent part, "a child custody determination made by a court of a state is consistent with the provisions of this section only if one of the following conditions is met (i) it is the home state of the child on the date of the commencement of the proceedings, or (ii) had been the child's home state within six months before the date of the proceedings..." 28 U.S.C.A. § 1738A(c)(2)(A). Ms. Fuge and her children have resided in Louisiana since 1986 and therefore clearly meet the requirements of this provision. Therefore, Louisiana has correctly asserted subject matter jurisdiction.

Mr. Uiterwyk also asserts that Louisiana lacks personal jurisdiction. La.R.S. 13:3201 provides that Louisiana may exercise personal jurisdiction over a non-resident on any basis consistent with the constitutions of Louisiana and the United States. However, since this contention was not raised at the trial court level, the issue cannot be raised now. State v. Great Atlantic & Pacific Tea Co., 190 La. 925, 183 So. 219 (1938), cert. den., 305 U.S. 637, 59 S.Ct. 108, 83 L.Ed. 410 (1938).

Mr. Uiterwyk then asserts the Louisiana courts erred by entering a judgment relating to the custody determination of the Florida courts. This contention is without merit because both the UCCJA and PKPA grant the right to modify custody determinations. La.R.S. 13:1700 et seq., 28 U.S.C.A. § 1738A.

INJUNCTION PROHIBITING PROCEEDINGS IN FLORIDA COURTS

Mr. Uiterwyk further asserts that the Louisiana trial court lacked authority to enjoin proceedings in the Florida courts.

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Cite This Page — Counsel Stack

Bluebook (online)
613 So. 2d 717, 1993 WL 15025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuge-v-uiterwyk-lactapp-1993.