Gambino v. Gambino

396 So. 2d 434
CourtLouisiana Court of Appeal
DecidedMarch 10, 1981
Docket11612
StatusPublished
Cited by6 cases

This text of 396 So. 2d 434 (Gambino v. Gambino) 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
Gambino v. Gambino, 396 So. 2d 434 (La. Ct. App. 1981).

Opinion

396 So.2d 434 (1981)

Anne E. GAMBINO
v.
Adolph E. GAMBINO, a/k/a Frankie Brent.

No. 11612.

Court of Appeal of Louisiana, Fourth Circuit.

March 10, 1981.
Rehearing Denied April 20, 1981.

*436 Mollere, Flanagan & Arceneaux, James T. Flanagan, Metairie, for plaintiff-appellee.

Tooley, Waldmann & Weidner, John F. Tooley, Jr., Gretna, for defendant-appellant.

John M. Mamoulides, Dist. Atty., 24th Judicial District Court for the Parish of Jefferson, William C. Credo, III, Asst. Dist. Atty., Gretna, for State of Louisiana, Parish of Jefferson.

Before REDMANN, SCHOTT and HUGHES, JJ.

HUGHES, Judge.

This is an action for child support initiated on March 16, 1978 in New Jersey and transferred to Louisiana under the Uniform Reciprocal Enforcement of Support Act. It was filed in the Juvenile Court for Jefferson Parish on April 7, 1978. The plaintiff, Anne Gambino, sought alimony for the support of her daughter, Nicole Gambino, and on February 14, 1980 the trial court condemned the defendant-father, Adolph Gambino, to pay the amount demanded which was fifty dollars per week from the date of judicial demand and continuing during the child's minority. The defendant was also ordered to pay the child's future medical and dental expenses, but certain claimed medical expenses were denied. Defendant appealed and we affirm.

A variety of issues are raised by this appeal. The defendant contends: (1) that the juvenile courts of Louisiana do not possess jurisdiction over URESA actions; (2) that URESA is unconstitutional; (3) that the plaintiff's claim for support was subject to a laches, estoppel or prescription defense; (4) that the support award should not be retroactive to the date of judicial demand; (5) that the trial court erred in failing to require plaintiff to prove that the child was in necessitous or destitute circumstances; (6) that the medical expense provision of the judgment was not supported by the evidence and the amount of support was excessive, and; (7) that the trial court erroneously applied the Full Faith and Credit Clause to the certification of the New Jersey Court.

These parties were married on November 9, 1966 in Virginia and on May 29, 1967 they acquired a residence and some apartments in New Jersey. Later they had a child, Nicole Gambino, who was born on January 20, 1968. In December of 1969, defendant conveyed to plaintiff all of the New Jersey property which they had acquired in 1967 in the names of Adolph F. Gambino and Anne E. Gambino. Then, on April 11, 1972, they were divorced in New Jersey by a judgment which granted custody of Nicole to her mother, but it made no mention whatsoever of child support.

In this action, Mrs. Gambino claims that she has received no child support since the divorce in 1972 but she testified that Mr. Gambino paid the mortgage payments on her property for about a year after they separated in 1969. Mr. Gambino contends that he conveyed the New Jersey property to Mrs. Gambino in full settlement of all future claims to alimony for herself or for support of Nicole. Defendant acknowledged Nicole as his legitimate child and that he has not been paying anything for her support beyond that which he provided for her benefit when he gave her mother the property in New Jersey.

THE JURISDICTIONAL ISSUE

The trial judge was initially concerned about challenges bearing on the jurisdiction of the Juvenile Court for Jefferson Parish but ultimately resolved the issue against defendant who suggests that we should remand the case to the 24th Judicial District Court in Jefferson Parish where defendant resides.

The Louisiana Constitution of 1974 provides in Article V, Section 18 that the Juvenile and Family Courts have jurisdiction as provided by law. The Revised Uniform Reciprocal Enforcement of Support *437 Act (1968), La. R.S. 13:1641, et seq., specifically provides that jurisdiction over URESA proceedings is vested in the juvenile courts. La. R.S. 13:1664. Venue provisions declare that the petition may be filed in the parish where the defendant resides. La. R.S. 13:1673(B). These jurisdictional details were carried over into the Louisiana Code of Juvenile Procedure which became effective on January 1, 1979 which declares that exclusive original jurisdiction over URESA support actions is vested in courts exercising juvenile jurisdiction. La.Code of Juv. Proc.Art. 16(A)(4). We conclude that under either La. R.S. 13:1664 or the La.Code of Juvenile Procedure, the Juvenile Court of Jefferson Parish had exclusive jurisdiction over this action for support.

Plaintiff contends on appeal that because this was tried as an action within the scope of URESA he was denied Equal Protection of the Laws and Procedural and Substantive Due Process. This is predicated on his assertion that the Juvenile Court refused to consider and honor his contractual settlement with Mrs. Gambino, specifically the 1969 transfer of property to her in full settlement of all future claims for support for herself or for Nicole. At oral argument plaintiff's counsel contended also that he was denied the opportunity to confront witnesses and to recover his property.

The civil enforcement provisions of URESA have been challenged as unconstitutional elsewhere and here, unsuccessfully. Missouri and Tennessee courts have held that URESA does not violate due process requirements. Ivey v. Ayres, 301 S.W.2d 790 (Mo.1957) and Sinclair v. Sinclair, 196 Tenn. 538, 268 S.W.2d 573 (1954). California courts have held that URESA does not deny equal protection of law. Harmon v. Harmon, 160 Cal.App.2d 47, 324 P.2d 901 cert. denied, 358 U.S. 881, 79 S.Ct. 120, 3 L.Ed.2d 110 (1958) and Smith v. Smith, 125 Cal. App.2d 154, 270 P.2d 613 (1954). In Pennsylvania and Louisiana URESA survived arguments that it unconstitutionally denied a right to confrontation. Commonwealth of Pa. v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430 (1954); Freeman v. Freeman, 226 La. 410, 76 So.2d 414 (1954).

It is our view that URESA as enacted in Louisiana does not violate any procedural or substantive right of due process or any right to equal protection or any right to confrontation of witnesses in a civil proceeding. Furthermore, the evidence and record before us would not support any of the constitutional objections raised by defendant.

There were four hearings in the Juvenile Court in Jefferson Parish and defendant was permitted to submit written interrogatories to plaintiff and to take oral testimony from her and from a former employer in New Jersey in the initiating court. Defendant's Louisiana counsel represented him in New Jersey and interrogated both witnesses who testified there. He was also permitted to examine land records, bank records, Mrs. Gambino's check registers, her personal financial records and her tax returns. There is no indication that he was denied access to any place where public records were kept or refused permission to examine anything he wanted to see or that he was not allowed to represent Mr. Gambino in New Jersey.

The Juvenile Court in Jefferson Parish allowed Mr. Gambino to testify and present hearsay and opinion evidence. The trial judge, acting within the limits of his discretion, afforded Mr.

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396 So. 2d 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gambino-v-gambino-lactapp-1981.