Marshall v. Cornwall

134 So. 3d 605, 13 La.App. 5 Cir. 62, 2013 WL 3336725, 2013 La. App. LEXIS 1381
CourtLouisiana Court of Appeal
DecidedJuly 3, 2013
DocketNo. 13-CA-62
StatusPublished

This text of 134 So. 3d 605 (Marshall v. Cornwall) 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
Marshall v. Cornwall, 134 So. 3d 605, 13 La.App. 5 Cir. 62, 2013 WL 3336725, 2013 La. App. LEXIS 1381 (La. Ct. App. 2013).

Opinion

[606]*606JUDE G. GRAVOIS, Judge.

| ¡^Appellant, Floyd A. Marshall, Jr., appeals a trial court judgment that sustained the Louisiana Department of Children and Family Services’ declinatory exception of lack of jurisdiction over Mr. Marshall’s Petition for Ex-Parte Custody over his minor children. The trial court found that under the Uniform Child Custody Jurisdiction and Enforcement Act, La. R.S. 13:1801 et seq., the State of Florida had continuing jurisdiction over the parties and had not relinquished such jurisdiction. For the following reasons, we vacate the judgment of the trial court under review and remand the matter to the trial court for further proceedings.

PROCEDURAL HISTORY AND FACTS The record shows that on July 28, 2011, Mr. Marshall filed a Petition for Ex-Parte Order for Temporary Custody, Change in Custody and Request for Psychological Evaluation in the 40th Judicial District Court, Parish of St. John the Baptist. Therein, Mr. Marshall alleged that he was the father of three minor children (Callie Marshall, Kieran Marshall, and Quentin Marshall), that their mother was Amanda Cornwall, that all parties lived in St. John the Baptist Parish, |aand that he had been awarded custody of the children pursuant to a judgment rendered in Orleans Parish on May 23, 2005. Mr. Marshall further alleged that a temporary ex parte order awarding custody of the minor children to him was needed because Ms. Cornwall was associating with drug dealers. He also alleged that Ms. Cornwall had been the subject of a restraining order in favor of Lyner Vazquez due to domestic violence.1

On July 29, 2011, the duty judge of the 40th Judicial District Court (Division “C”) issued the temporary ex parte order of custody requested by Mr. Marshall, and set the matter for a hearing before Division “A” of the 40th Judicial District Court for August 19, 2011 in order for Ms. Cornwall to show cause why Mr. Marshall should not be awarded sole custody of the minor children. However, in an Order dated July 30, 2011, the duty judge vacated his July 29, 2011 Order. He noted that through intervening communication with the State of Florida Department of Children and Families and the Circuit Judge of Florida’s 11th District Court in Miami-Dade County, he had learned that Mr. Marshall’s petition had omitted considerable and “highly pertinent” information that would have established, if furnished, “a full and total picture of the parties, the various relationships appertaining, and the previous Orders of Florida that remain in full force and effect.” Specifically, he noted that the “highly pertinent” and material information omitted by Mr. Marshall in his petition was that the family was the subject of on-going proceedings in the Florida court pertaining to the placement and custody of the minor children, and that the Florida court had allowed the children to move to Louisiana in 2011 under the Interstate Compact for the Placement of Children (La. Ch. C. art. 1608 et seq.), with the Florida court (as the “sending state”) expressly retaining jurisdiction over the proceedings. The duty 1¿judge further noted that the Florida court had a hearing in the matter scheduled for August 1, 2011. The duty judge also noted in his July 30, 2011 Order that the' matter remained on the August 19, 2011 docket of Division “A” of the 40th Judicial District Court, to which Division the custody matter was randomly assigned for hearing/status conference.

[607]*607On September 14, 2011, the Louisiana Department of Children and Family Services (“DCFS”) filed exceptions of lack of jurisdiction, no cause of action, and failure to join indispensable parties to Mr. Marshall’s petition. In its exceptions, the DCFS argued that the children were under the custody of the State of Florida, under the order and jurisdiction of the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Juvenile Division, and were being supervised by the State of Louisiana, DCFS, pursuant to the Interstate Compact for the Placement of Children (La. Ch. C. art. 1608 et seq.). The DCFS further argued that the Florida court maintained protective juvenile jurisdiction over the children that was continuing under the Uniform Child Custody Jurisdiction Act, La. R.S. 13:1801 et seq.,2 until such time as the Florida court closed the case or chose to relinquish jurisdiction. The DCFS noted that Mr. Marshall was a named defendant and participant in the Florida proceedings, and charged that he had fraudulently filed the ex parte petition for custody and had withheld information from the trial court regarding the on-going nature of the Florida proceedings. Following a hearing conducted on October 17, 2011, the trial court (Division “A”) sustained DCFS’s exception of lack of jurisdiction, pretermitting any decisions on the other exceptions.

On October 25, 2011, Mr. Marshall filed a motion for a new trial. The hearing on that motion was continued several times, and was ultimately heard on ^August 24, 2012. By written judgment (with reasons) signed on September 18, 2012, the trial court (Division “A”) denied the motion. This timely appeal followed.

On appeal, Mr. Marshall argues that (1) the trial court erred in sustaining the exception, and (2) the trial court erred in ruling that Mr. Marshall’s telephone conversation with the Florida court on August 1, 2011 constituted a submission to the Florida court’s jurisdiction.

FIRST ASSIGNMENT OF ERROR

Mr. Marshall first argues that the trial court’s ruling sustaining the DCFS’s exception of lack of jurisdiction violates the jurisdictional principles of the UCCJEA. He argues that under its provisions, Louisiana is the children’s home state since the children and the parties moved back to Louisiana in 2011. He argues that once the trial court found that all of the parties and relevant evidence were located in Louisiana, Louisiana was the only state with jurisdiction to render a custody judgment. Upon review, we find that the trial court erred in granting the exception of lack of jurisdiction, but for a different reason.

We first note that plaintiffs arguments seem to ignore the Interstate Compact for the Placement of Children (“ICPC”), cited by the DCFS in its exception and memorandum in support thereof, which allows a sending state (here, Florida) to permit a child to be relocated to a receiving state (here, Louisiana) that will supervise the placement, but with the sending state retaining jurisdiction over the proceedings. See La. Ch.C. art. 1623 et seq. Children’s Code arts. 1626(A) and (B) provide that the sending state shall retain jurisdiction over a child with respect to all matters of custody and disposition of the child which it would have had if the child had remained in the sending state, and that when an [608]*608issue of child protection or custody is brought before a court in the receiving state, “such court |fishall confer with the court of the sending state to determine the most appropriate forum for adjudication.”

The DCFS supported its exception with several exhibits,3 to-wit:

• The first page of the first exhibit was a placement order generated on July 1, 2011, less than one month before Mr.

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Bluebook (online)
134 So. 3d 605, 13 La.App. 5 Cir. 62, 2013 WL 3336725, 2013 La. App. LEXIS 1381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-cornwall-lactapp-2013.