Martin-Creech v. Armstrong

965 So. 2d 624, 2007 WL 2609944
CourtLouisiana Court of Appeal
DecidedSeptember 12, 2007
Docket42,649-CA
StatusPublished
Cited by6 cases

This text of 965 So. 2d 624 (Martin-Creech v. Armstrong) 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
Martin-Creech v. Armstrong, 965 So. 2d 624, 2007 WL 2609944 (La. Ct. App. 2007).

Opinion

965 So.2d 624 (2007)

Sheila MARTIN-CREECH and Carles A. Creech, Plaintiffs-Appellants
v.
Deidra ARMSTRONG and J.D. Lester, Defendants-Appellees.

No. 42,649-CA.

Court of Appeal of Louisiana, Second Circuit.

September 12, 2007.
Rehearing Denied October 1, 2007.

*625 Charles R. Joiner, for Appellants.

John Clay Hamilton, Oak Grove, for Appellee, Deidra Armstrong.

James Moore Miller, Rayne, for Appellee, J.D. Lester.

Before GASKINS, CARAWAY and DREW, JJ.

CARAWAY, J.

A four-month-old child was brought to Louisiana by his aunt and uncle, the plaintiffs, while his mother remained in jail in West Virginia. Upon the mother's release from jail, plaintiffs filed this custody action against her, bringing into application the Uniform Child Custody Jurisdiction Law ("UCCJL"), which has been adopted in Louisiana as La. R.S. 13:1700, et seq. Plaintiffs also named as defendant the alleged father of the child, who is also a West Virginia resident. The trial court ruled that West Virginia was the proper jurisdiction under the UCCJL, yet initially, this proceeding was only stayed pending the filing of an action in West Virginia by the mother. Upon suit being filed in West Virginia, the case was dismissed and this appeal followed. Finding that the trial court correctly followed the UCCJL, we affirm.

Facts

This custody proceeding was instituted in Louisiana in July 2007 when the child was seven months old. The mother, Deidra Armstrong, was incarcerated in West Virginia when she gave birth on June 8, 2006.[1] Armstrong alleges that she met the alleged father of the child, J.D. Lester, at a work release program. Lester was not named on the birth certificate because he was absent from the birth.

Because she did not anticipate release from prison immediately, Armstrong surrendered temporary custody of the child to her maternal aunt and her husband, Sheila Martin-Creech and Carles[2] A. Creech. *626 Armstrong and Sheila executed a document entitled "Agreement of Care of Minor Child." A West Virginia social worker gave Armstrong the agreement to help the non-parents receive state services for the child.

Although the Creeches previously resided in Oklahoma for six years, they came to West Virginia because Carles had obtained work there in November of 2005. Sheila suffered from heart problems and Armstrong's mother, Lisa Miller, assisted with her sister's recuperation. The Creeches agreed verbally to take the child to the jail for weekend visitation and did so from June until August. In August 2006, they told Armstrong of a proposed trip to Iowa to obtain an RV and take care of business responsibilities in Oklahoma. Armstrong was under the impression that the Creeches would soon return to West Virginia.

The Creeches went back to West Virginia once, on October 22, 2006, to allow visitation between the child and his mother. The Creeches told Deidra at that time that they were going to live in Louisiana. Carles lost his job and Louisiana is the state where his family still resides. Nevertheless, according to Armstrong, the three of them agreed that the couple would bring the child back to visit Armstrong once each month until her release.

The Creeches instituted the present custody proceedings against Armstrong and Lester on January 12, 2007, the same day Armstrong was released from prison.[3] That day, the trial court also issued a "status quo" order granting the Creeches the care, custody and control of the minor child pending further orders of the court. Counsel was appointed to represent the absent defendants, and a hearing date was set for determining custody.

Armstrong and Lester's appointed counsel filed exceptions to the jurisdiction. Subsequently, Armstrong obtained separate counsel, who filed a supplemental exception regarding jurisdiction and an exception of no cause of action. Armstrong also moved to vacate the "status quo" custody order.

A hearing on the issue of jurisdiction under the UCCJL was held on February 23, 2007. Following trial, the trial court denied the exception of no cause of action but sustained the exception of lack of jurisdiction, finding that West Virginia was the proper place for determining custody. Accordingly, the "status quo" order was vacated and the Creeches were ordered to surrender custody to Armstrong immediately. The Creeches were given visitation with the child in West Virginia on alternating weekends.

The trial court ruling also stayed the Louisiana proceedings pending Armstrong's custody proceedings in West Virginia within sixty days. Later, Armstrong filed a true copy of a pleading entitled "Petition to Establish Paternity and to Award Custody" from the Family Court of Harrison County, West Virginia, naming the Creeches and Lester as parties and requesting a hearing within sixty days. On April 4, 2007, the Louisiana trial court vacated the stay and dismissed this action. This appeal by the Creeches ensued.

On appeal, the Creeches raise four specifications of error regarding the trial court's rulings. They contend that the court erred in sustaining the exception of lack of subject matter jurisdiction, in granting Armstrong time to file custody proceedings in West Virginia, in adjudicating *627 custody after declining jurisdiction and in ultimately dismissing the proceedings without a notice or hearing.

The Uniform Child Custody Jurisdiction Law

Broadly speaking, the Louisiana Code of Civil Procedure allows jurisdiction in Louisiana over the minor's status through this proceeding. It is "a proceeding to obtain the legal custody of a minor" where the minor is "domiciled in, or is in, this state." La. C.C.P. art. 10(A)(5) (emphasis added). Although a court's general subject matter jurisdiction is established by either the state constitution or by legislation, the UCCJL functions to "graft a second tier of inquiry onto the question of jurisdiction" in custody cases. Stelluto v. Stelluto, 05-0074 (La.6/29/05), 914 So.2d 34; Amin v. Bakhaty, 01-1967 (La.10/16/01), 798 So.2d 75. The UCCJL imposes jurisdictional limitations that require a court with general subject matter jurisdiction to decline to exercise it. Id. These limitations further the UCCJL's stated purposes of avoiding jurisdictional competition, assuring that custody litigation takes place in the most convenient forum, promoting a stable home environment, deterring abductions, and encouraging cooperation among the courts of different states. La. R.S. 13:1700(A); Revere v. Revere, 389 So.2d 1277, 1279 (La.1980).

Under the UCCJL, home state means in pertinent part, the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months. La. R.S. 13:1701. Person acting as a parent means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody. Id.

Consistent with these stated goals, the UCCJL provides in La. R.S. 13:1702 ("Section 1702") four grounds for exercising jurisdiction in a custody case. Only two of those grounds, Sections 1702(A)(2) and (4), are relevant here since there is no "home state" jurisdiction. The pertinent provisions of Section 1702 are as follows:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

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Cite This Page — Counsel Stack

Bluebook (online)
965 So. 2d 624, 2007 WL 2609944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-creech-v-armstrong-lactapp-2007.