Johnson v. Johnson

718 So. 2d 629, 1998 La. App. LEXIS 2586, 1998 WL 646856
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1998
DocketNo. 31038-CA
StatusPublished
Cited by3 cases

This text of 718 So. 2d 629 (Johnson v. Johnson) 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
Johnson v. Johnson, 718 So. 2d 629, 1998 La. App. LEXIS 2586, 1998 WL 646856 (La. Ct. App. 1998).

Opinion

hCARAWAY, Judge.

In this child custody case, a nonresident father who was not present or represented by counsel at the hearing appeals a judgment of the trial court which changed sole custody of the child from the father to the mother and denied the father visitation until he had received psychological counseling. Although we find that the trial court had subject matter jurisdiction over this dispute involving a nonresident defendant, we vacate and set aside the judgment of the trial court because of a lack of service on the nonresident pursuant to the Uniform Child Custody Jurisdiction Act, La. R.S. 13:1700 et seq. (UCCJA).

Facts and Procedural History

Michael Johnson (“Michael”) married Bonnie Durham Johnson (“Bonnie”) on January 29, 1986 and the parties were divorced in DeSoto Parish on February 26, 1990. One child, Charles Michael Johnson (“Charles”), was born of this marriage on January 1, 1987. Michael and Bonnie were initially granted joint legal and substantially equal physical custody of Charles. Nevertheless, [631]*631at a hearing in June 1990 on allegations that Bonnie violated the court order by failing to return Charles in accordance with the joint custody judgment, the court granted sole custody of Charles to Michael, subject to Bonnie’s rights of reasonable visitation. After being granted sole custody, Michael moved with Charles to Mississippi, then briefly back to Louisiana and then to Texas.

On March 21, 1995, Bonnie filed a petition in DeSoto Parish district court seeking modification of custody. Michael filed declinatory and dilatory exceptions to the petition alleging lack of jurisdiction, insufficient service of process and vagueness and in a written ruling, the trial court granted Michael’s exception of lack of jurisdiction. Despite the ruling, no judgment of dismissal was entered.

|2Bonnie then filed a petition to modify custody in district court in Panola County, Texas. In the Texas action, Michael again filed an exception to jurisdiction arguing that Louisiana was the proper forum for the custody litigation. The Texas court overruled the exception and set the matter for trial. Without disclosing the ongoing Texas proceedings, Michael returned to these proceedings in DeSoto Parish and obtained an ex parte order to withdraw his previously filed declinatory exception and have the case proceed in Louisiana. Bonnie then moved to set aside this action of the Louisiana trial court and allow the matter to continue to trial in Texas. After a hearing, the Louisiana court issued a ruling on June 27,1996 withdrawing its prior ex parte order and declining jurisdiction based on Michael’s fraudulent conduct. Nevertheless, a few weeks later, after the Texas and Louisiana courts communicated pursuant to provisions of the UCCJA regarding the exercise of jurisdiction, the Texas court concluded that the custody issue should be tried in Louisiana.

The Texas court, in an order dated July 16, 1996, found that although it had continuing jurisdiction of the matter, Texas was an inconvenient forum. At that time, Michael and Charles had moved back to Louisiana so all the parties then resided in Louisiana. The Texas court entered a specific visitation interim order to be implemented until a hearing could be held in Louisiana and abated its proceedings pending setting of the ease in Louisiana.

On August 15,1996, Michael filed a motion with the Louisiana court to refix for trial Bonnie’s March 1995 petition for change of custody. The trial court granted this motion and set the trial for October 1, 1996; however, due to various circumstances, the case was continued several times. With no hearing date pending, on July 28, 1997, Michael’s attorney was allowed to withdraw as his j^ounsel of record. At that time the record indicates that Michael had moved back to Texas and was residing in Conroe.

On July 31, 1997, with no trial setting pending for her motion for change of custody, Bonnie moved for an order resetting the trial on the motion for September 26. The order was granted on August 18; however, other than a certificate of Bonnie’s counsel showing a mailing of the proposed action to Michael on July 31, there is no evidence that Michael received notice of the September 26 setting. At the hearing on September 26, when Michael failed to appear, the court minutes reflect that the trial court ordered the hearing to be reset again for October 30. A notice of the October 30 trial was sent by the court clerk by certified mail to Michael’s Texas address; however, the notice was sent to an incomplete address and was returned to the court marked “no such number.” The record reveals that Bonnie’s attorney was also unsuccessful in giving notice by certified mail to Michael’s Conroe, Texas address. Michael did not appear at the hearing and was not represented by counsel.

After trial on October 30, the trial court rendered judgment modifying the custody decree to grant sole custody of Charles to Bonnie, requiring Michael to attend psychological counseling before he could exercise visitation with Charles and ordering Michael to pay Bonnie $384.71 per month in child support. Bonnie obtained physical custody of Charles which she has maintained following the trial court’s ruling.

Subject Matter Jurisdiction

Michael first attacks the trial court’s action based upon a claim of lack of subject matter jurisdiction. This issue involves a [632]*632review of the Uniform Child Custody Jurisdiction Act.

^Louisiana adopted the UCCJA in 1978. ■ See La. R.S. 13:1700, et seq. The UCCJA serves two paramount purposes: avoiding jurisdictional competition among states and promoting resolution of custody disputes by the forum deemed most likely to have the maximum amount of relevant information about the case. Lopez v. Lopez, 27,330 (La.App. 2d Cir.9/27/95), 661 So.2d 665; La. R.S. 13:1700. Jurisdiction may exist con-, currently in two different states under the “home state” and “significant connection” tests of the UCCJA. See La. R.S. 13:1702. Jurisdiction in Louisiana in a child custody dispute is proper under the “significant connection” test of the UCCJA if it is in the child’s best interest to determine custody in Louisiana, the child and at least one parent have significant connection to Louisiana, and the maximum amount of evidence concerning the child is available in Louisiana. Broadway v. Broadway, 623 So.2d 185 (La.App. 2d Cir.1993).

In this case, Michael admitted in his Motion to Withdraw and Rescind Declinatory and Dilatory Exceptions filed in April 1996 that Louisiana met the “significant connection” test because of the ties between both parties and Charles to Louisiana and because of the substantial evidence available in Louisiana ' concerning Charles’ care, protection, training and personal relationships. See La. R.S. 13:1702(A)(2). We-find that when the Louisiana court learned there were simultaneous custody modification proceedings being conducted in Texas, the Louisiana court properly communicated with the Texas court in accordance with the UCCJA in order to determine the most appropriate forum for the litigation. La. R.S. 13:1705. The Texas court, also acting pursuant to the UCCJA, V.T.C.A., Family Code §§ 152.001 et seq., found that although it had jurisdiction of the |5matter, it was an inconvenient forum given these facts.1 The Texas court then abated its proceedings pending a setting of the case in Louisiana finding that Louisiana was the more appropriate forum.

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Bluebook (online)
718 So. 2d 629, 1998 La. App. LEXIS 2586, 1998 WL 646856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-lactapp-1998.