Lindmeier v. Lindmeier

867 So. 2d 165, 3 La.App. 3 Cir. 1392, 2004 La. App. LEXIS 456, 2004 WL 385294
CourtLouisiana Court of Appeal
DecidedMarch 3, 2004
DocketNo. 2003-1392
StatusPublished
Cited by3 cases

This text of 867 So. 2d 165 (Lindmeier v. Lindmeier) 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
Lindmeier v. Lindmeier, 867 So. 2d 165, 3 La.App. 3 Cir. 1392, 2004 La. App. LEXIS 456, 2004 WL 385294 (La. Ct. App. 2004).

Opinion

hPICKETT, Judge.

FACTS

Lindsay Mae Elizabeth Lindmeier was born in Lafayette, Louisiana, to a union between Melanie Ducote, a resident of Avoyelles Parish, Louisiana, and Todd Dougles Lindmeier, a citizen of Canada. On September 15, 1997, Melanie Ducote and Todd Lindmeier were married in Louisiana.

Subsequently, Mrs. Lindmeier, Mr. Lindmeier, and Lindsay Mae Elizabeth Lindmeier resided in Avoyelles Parish, Louisiana, from 1997 until February, 2002. At some point in 2001 the couple allegedly separated. All parties continued, however, to reside in Avoyelles Parish until February, 2002.

In February 2002, Mr. Lindmeier went to Canada to look for work. Mrs. Lind-meier and her two children from a previous marriage went with him. According to Mr. Lindmeier’s testimony, he drove Mrs. Lindmeier back to Louisiana with the understanding she was to sell the house and then return to Canada to live with him. He took Lindsay with him back to Canada.

[167]*167There is no evidence the Lindmeiers ever established a matrimonial domicile in Canada. According to Mrs. Lindmeier’s testimony, all attempts on her part to return Lindsay to Louisiana were in vain. Mr. Lindmeier apparently filed a petition for divorce and custody in Canada on April 8, 2003. According to Mr. Lindmeier he retained custody by agreement of the parties, although he acknowledged he had nothing in writing. According to Mrs. Lindmeier, he retained custody not by agreement, but because he would not allow Lindsay to leave Canada and she had no recourse.

1 2Ultimately, in late June 2003, Mrs. Lindmeier went to Canada in an attempt to bring Lindsay back to Louisiana. On June 24, 2003, she signed an Acknowledgment of Receipt, acknowledging she received a copy of the divorce petition Mr. Lindmeier filed in Canada. That same day, Mrs. Lindmeier signed an affidavit wherein she stated her intention that Lindsay remain in the custody of her father and that she would be returning Lindsay to Mr. Lindmeier on July 31, 2003.

Thereafter, Mrs. Lindmeier returned to the State of Louisiana with Lindsay. On July 14, 2003, she filed a Petition For Divorce and a request for a grant of full custody of the minor child.

On July 30, 2003, a Divorce Judgment was rendered in Canada which also purports to grant custody of the minor child to Mr. Lindmeier. According to Mr. Lind-meier, there was no hearing and he was never required to go before a judge. A plain reading of the judgment supports that there was no hearing as it indicates the judgment was granted “ON READING the petition, the notice of motion for judgment, and the affidavit dated July 28, 2003 of the petition filed a support of the motion[.]” Notably, neither a copy of the mentioned motion nor a copy of the accompanying affidavit were produced at the subsequent hearing in Avoyelles Parish, Louisiana.

August 8, 2003, Mr. Lindmeier filed an Exception of Lis Pendens and Lack of Subject Matter Jurisdiction as to both the divorce and custody issues. He further alleged that Avoyelles Parish was an inconvenient forum under La.R.S. 13:1706 and requested that the court decline jurisdiction on that ground.

Following a hearing, the trial court granted Mr. Lindmeier’s exception of lis pendens as to the divorce but denied the exception in all respects as to the custody _|jissue. The trial court did not address Mr. Lindmeier’s argument regarding inconvenient forum under La.R.S. 13:1706. It is from this judgment the defendant appeals.

ASSIGNMENTS OF ERROR

The appellant sets forth three separate assignments of error:

1) The Twelfth Judicial District Court failed to properly consider the “Home State Jurisdiction” under the Uniform Child Custody Jurisdiction Act and Louisiana Revised Statute § 13:1702(A)(1) when it did not find Canada to be the “Home State” of the minor child, Lindsay Mae Elizabeth Lindmeier
2) The Twelfth Judicial District Court erred when it found subject matter jurisdiction in the instant matter based on “Significant Connection” to Louisiana under the Uniform Child Custody Jurisdiction Act and Louisiana Revised Statute § 13:1702(A)(2), and
3) The Twelfth Judicial District Court failed to properly exercise its discretion when it refused to consider or address Mr. Douglas Lindmeier’s alternative argument of “Inconvenient Forum” under the facts and circumstances of this case [168]*168and based on Louisiana Revised Statute § 13:1706(A) et seq.

DISCUSSION

The appellant argues the trial court erred in failing to recognize Canada as the “home state” of the child. Appellant argues Canada is considered a state under the Uniform Child Custody Jurisdiction Act (UCCJA) relying on La.Civ.Code article 3516 which he argues provides that “[t]he word ‘state’ denotes, as may be appropriate: ... any foreign country or territorial subdivision of a foreign country that has its own system of law.” The appellant’s reliance on Article 3516 is misplaced. Article 3516 is found in Book IV, Conflict of Laws. The first sentence of that article, which was deleted from the appellant’s quote, sets forth as follows:

As used in this Book, the word “state” denotes, as may be appropriate....

|4The clear wording of the statute limits it applicability to matters arising under those articles contained in the Louisiana Civil Code, Book IV. It is inapplicable to the provisions of the UCCJA.

The UCCJA is found at La. R.S. 13:1700, et seq. Louisiana Revised Statute 13:1701 sets forth the definitions applicable to the UCCJA and, in pertinent part, provides 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 consecutive 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. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.
(10) “State” means any state, territory, or possession of the United States, the Commonwealth of Puerto Rico, and the District of Columbia.

Clearly, no foreign country is considered to be a “state” under the provisions of the UCCJA. As Canada is, in fact, a foreign country, it does not fall under the definition of “state” as contemplated by the act.

The provisions of the UCCJA do, however, have international application. Louisiana Revised Statute 13:1722 provides as follows:

International Application
The general policies of this Part extend to the international area. The provisions of this Part relating to the recognition and enforcement of custody decrees of. other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

We must therefore, examine the evidence presented as to the Canadian proceeding and determine, whether the trial court erred in failing to recognize the 1 .¡apparent judgment rendered in Canada on July 30, 2003, which purported to grant custody of Lindsay to Mr. Lindmeier.

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Bluebook (online)
867 So. 2d 165, 3 La.App. 3 Cir. 1392, 2004 La. App. LEXIS 456, 2004 WL 385294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindmeier-v-lindmeier-lactapp-2004.