LaCroix v. LaCroix

742 So. 2d 1036, 1999 WL 735956
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
Docket32,293-CA
StatusPublished
Cited by7 cases

This text of 742 So. 2d 1036 (LaCroix v. LaCroix) 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
LaCroix v. LaCroix, 742 So. 2d 1036, 1999 WL 735956 (La. Ct. App. 1999).

Opinion

742 So.2d 1036 (1999)

Martha Ann Murphy LACROIX, Plaintiff-Appellee,
v.
James Merle LACROIX, Defendant-Appellant.

No. 32,293-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.
Writ Denied December 17, 1999.

*1037 Michael L. Glass, Alexandria, Counsel for Appellant.

*1038 Weiner Weiss & Madison by Katherine Clark Dorroh, Counsel for Appellee.

Before NORRIS, GASKINS and PEATROSS, JJ.

GASKINS, J.

The defendant, James Merle Lacroix, appeals a trial court judgment overruling an exception of improper venue in a divorce action. He asserts that the trial court erred in permitting the plaintiff, Martha Ann Murphy Lacroix, to "forum shop" by filing suit for divorce in the 26th Judicial District Court, Parish of Bossier, only three days after leaving the matrimonial domicile in the 9th Judicial District Court, Parish of Rapides. For the reasons set forth below, we affirm the trial court judgment.

FACTS

The parties were married in Pineville, Louisiana, Rapides Parish, on January 15, 1994. They established their matrimonial domicile in Rapides Parish. On June 13, 1998, Mrs. Lacroix left the matrimonial domicile and began residing with her daughter in Bossier Parish. On June 16, 1998, Mrs. Lacroix filed a petition for divorce, pursuant to La. C.C. art. 102, in the 26th Judicial District Court in Bossier Parish. Her petition for divorce alleged she was a resident and domiciliary of Bossier Parish and contained sworn verification. Prior to filing for divorce, she had filed a request for change of mailing address from Rapides Parish to Bossier Parish and had opened a checking account in Bossier Parish. On June 25, 1998, she registered to vote in Bossier Parish and obtained a Louisiana driver's license showing Bossier Parish as her residence. She also applied for a Bossier Parish library card and requested a change of address to Bossier Parish on her credit cards. By the time of the hearing on the declinatory exception of improper venue, Mrs. Lacroix had leased an apartment in Bossier City and had begun a job in nearby Caddo Parish. She had begun taking a continuing education course in nursing in Bossier City. She had also filed with the clerks of court in Rapides and Bossier Parishes written declarations of her intention to change her domicile to Bossier Parish.

In response to Mrs. Lacroix's petition for divorce, Mr. Lacroix filed an exception of improper venue, arguing that Mrs. Lacroix was not a domiciliary of Bossier Parish. In addition to pointing out the short period of time that had elapsed between their separation on June 13, 1998, and Mrs. Lacroix's filing for divorce on June 16, 1998, Mr. Lacroix also argued that the community property, witnesses and evidence all were located in Rapides Parish.

Subsequent to a hearing on the exception, the trial court rendered a written opinion reciting the pertinent facts and law. The trial court acknowledged Mr. Lacroix's arguments that domicile once acquired is presumed to continue, that the party alleging a change in domicile has the burden of proving it, and that there is a presumption in favor of the original domicile if there is reasonable doubt as to the alleged change. However, the trial court believed Mrs. Lacroix had clearly shown that she had changed her domicile to Bossier Parish. The trial court's only reservation was whether the circumstances indicating her change of domicile must have occurred prior to the filing of the petition for divorce. After reviewing the case law, the court concluded that the circumstances indicating a change of domicile did not all have to occur prior to the filing of the petition for divorce. Finding that, at the time of the filing of the petition for divorce in Bossier Parish, Mrs. Lacroix had made a good faith change of domicile to Bossier Parish, the trial court denied Mr. Lacroix's declinatory exception to venue. Mr. Lacroix sought review of the trial court judgment.[1]

*1039 LEGAL PRINCIPLES

The venue of a divorce action is jurisdictional and cannot be waived. Wallace v. Wallace, 25,366 (La.App.2d Cir.1/19/94), 631 So.2d 40, writ denied 94-0627 (La.5/13/94), 637 So.2d 1066. The proper venue for a divorce action is the parish where either party is domiciled or in the parish of the last matrimonial domicile. La. C.C.P. art. 3941(A). A divorce judgment rendered in a court of improper venue is an absolute nullity. La. C.C.P. art. 3941(B).

The domicile of a citizen is the parish of his principal establishment or habitual residence. La. C.C. art. 38. The party seeking to show his domicile has changed must overcome the legal presumption that it has not been changed, by positive and satisfactory proof of the establishment of a new domicile as a matter of fact with the intention of remaining and abandoning the former domicile. La. C.C. art. 41; In re Adoption of Rials, 220 La. 484, 56 So.2d 844 (1951).

The intention of making the new residence one's principal establishment is proved by either express declaration of an intent to change before the recorder of the parishes or by proof showing a change in circumstances. La. C.C. arts. 42, 43.

Our courts have interpreted the forgoing articles to hold that a domicile once acquired is presumed to continue; that one alleging a change in domicile has the burden of proving it; and that the presumption in favor of the original domicile prevails if there is any reasonable doubt as to the change. In re Adoption of Rials, supra; Brown v. Brown, 378 So.2d 164 (La.App. 1st Cir.1979). In establishing domicile, intent is based upon the actual state of facts and not what one declares them to be. The circumstances indicating establishment of a domicile include where a person sleeps, takes his meals, has established his household, and surrounds himself with family and the comforts of domestic life. Sheets v. Sheets, 612 So.2d 842 (La.App. 1st Cir.1992).

The determination of Mrs. Lacroix's intent is a question of fact; the district court's findings of fact are not disturbed on appeal unless they are clearly wrong or manifestly erroneous. Stobart v. State, through Department of Transportation & Development, 617 So.2d 880 (La. 1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989). Reversal is warranted only if the appellate court finds that a reasonable factual basis for the district court's finding does not exist in the record, and that the finding is clearly wrong on the record. Mart v. Hill, 505 So.2d 1120 (La.1987). The great discretion accorded the trial court is grounded in the court's superior capacity to assess the credibility of the witnesses, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, supra; Perow v. Lenzly, 30,833 (La.App.2d Cir.8/19/98), 716 So.2d 519.

DISCUSSION

Mr. Lacroix asserts that allowing Mrs. Lacroix's actions to constitute a *1040 change of domicile "would be sanctioning the most blatant of forum shopping." Mr. Lacroix argues that any spouse seeking a divorce and community property partition could move to a more favorable venue, file the petition for divorce, effect an "instantaneous change of domicile," and then take the steps necessary to support the claim of a change in domicile. According to Mr. Lacroix, such a scenario would become commonplace and would clearly defeat both legislative intent and judicial integrity.

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Bluebook (online)
742 So. 2d 1036, 1999 WL 735956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lacroix-v-lacroix-lactapp-1999.