Pool v. Luley

508 So. 2d 867, 1987 La. App. LEXIS 9622
CourtLouisiana Court of Appeal
DecidedJune 1, 1987
DocketNo. 87-CA-76
StatusPublished
Cited by1 cases

This text of 508 So. 2d 867 (Pool v. Luley) 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
Pool v. Luley, 508 So. 2d 867, 1987 La. App. LEXIS 9622 (La. Ct. App. 1987).

Opinion

GOTHARD, Judge.

This is a child custody case. The mother’s first husband, a non-resident of Louisiana, appealed from a judgment awarding custody to the mother. At issue are the enforcement of a prior Missouri judgment awarding custody to the appellant, the jurisdiction of the Louisiana court to redetermine custody, and the amount of the child support award. We affirm the district court’s judgment but revise to increase the award of child support.

The following facts are relevant to the jurisdictional issues. The child who is the subject of this proceeding is Michelle Kathleen Pool born April 26, 1978 in St. Louis County, Missouri. The child’s mother is Mary Kathleen Pool Luley. Jim Wilson is the child’s alleged natural father. Ms. Lu-ley married the appellant, Calvin M. Pool, on May 27, 1978, one month after the child’s birth, and they lived with him in St. Louis County, Missouri for approximately four months. Ms. Luley and the child moved to St. Clare, Illinois in September 1978 where she obtained a divorce from [869]*869Mr. Pool shortly thereafter. Ms. Luley and the child remained in Illinois until Ms. Lu-ley’s remarriage in 1984 to Michael Luley and their return to Missouri. On May 15, 1985 Ms. Luley, her husband, and the child moved to Jefferson Parish, Louisiana where they continue to reside.

Prior and subsequent to the separation and divorce of Ms. Luley and Mr. Pool, Mr. Pool acknowledged the child as his own by his words and actions, visiting with her regularly and contributing to her support. The child referred to him as her daddy and still uses his surname. In 1982 Mr. Pool obtained a judicial decree in Missouri establishing his paternity of the child. However, after the family moved to Louisiana, Ms. Luley refused Mr. Pool any contact with the child. Her actions prompted him to file a rule to transfer the child’s custody to him on June 25, 1985 in the 21st Judicial Circuit Court of St. Louis County, Missouri. Ms. Luley moved to dismiss the rule on jurisdictional grounds. She argued that Mr. Pool’s custody claim was baseless because its foundation, the 1982 paternity decree, was defective for failure to join the child in that proceeding as required under Missouri family law. The motion was denied on October 22, 1985, and the denial remains unappealed.

On July 26, 1986 Mr. Pool was granted custody of the child in proceedings # 473878, Division 1, 21st Judicial Circuit Court of St. Louis County, Missouri. On July 29, 1986 Mr. Pool instituted a habeas corpus proceeding against Mary Kathleen Luley and Michael Luley in Jefferson Parish, Louisiana seeking recognition and enforcement of the Missouri custody judgment. Ms. Luley excepted on jurisdictional grounds. In addition, she filed an alternative rule for custody and child support. On August 25,1986 the Louisiana court denied Mr. Pool’s writ of habeas corpus and continued custody of the child with her mother. It directed Mr. Pool to submit certified copies of the entire Missouri court proceedings and continued without date the hearing on the validity of these proceedings.

On September 25,1986, the entire matter was heard. The trial judge found the Missouri proceedings were valid and entitled Mr. Pool to visitation with the child. He redetermined custody of the child in favor of Ms. Luley and ordered Mr. Pool to pay her $300 per month child support. It was further ordered that visitation between Mr. Pool and the child occur only in Jefferson Parish, Louisiana with the requisite that Mr. Pool post a $5,000 bond to secure compliance with the restriction. Intervenor, Jim Wilson, and defendant, Michael Luley, were dismissed from the proceedings. Mr. Pool appealed from this judgment with an answer filed by Ms. Luley.

The issues are: (1) whether Mr. Pool’s award of visitation rights should be set aside because based on invalid Missouri proceedings; (2) whether Louisiana has jurisdiction under the Louisiana Uniform Child Custody Jurisdiction Act to redetermine custody; and if so, (3) whether this Court should increase the award of child support.

RECOGNITION AND ENFORCEABILITY OF MISSOURI CUSTODY JUDGMENT

The question of the jurisdiction of the Missouri court to issue the July 26, 1986 custody judgment goes to the merits of the suit for recognition and enforcement in Louisiana. A state may deny recognition and enforcement of a foreign custody judgment when it is shown by the person attacking the judgment that the court which rendered it lacks jurisdiction over the parties or the subject matter. LSA-R.S. 13:1700 et seq.

Appellee argues that the Missouri custody judgment of July 26,1986 should not be recognized for enforcement for lack of jurisdiction of subject matter or personal jurisdiction over her or the child.

Ms. Luley and the child were residents of Illinois when Mr. Pool instituted the paternity suit. Neither the child’s birth certificate nor the divorce decree of the parties listed Mr. Pool as the father of the child. Although the decree of paternity was issued by default and was based solely on Mr. Pool’s avowal of paternity, the record contains evidence of appellee's appearance in the proceeding with notice of [870]*870the hearing date mailed to her correct previous Illinois address. Thus, the jurisdiction of the Missouri court to issue the paternity decree was established. Further, appellee accepted support from Mr. Pool and allowed visitation with the child in accordance with the decree of paternity for some three years, indicating her acquiescence in its legality. However, Ms. Lu-ley presently protests that she was forced by Mr. Pool to sign the document evidencing her entry of appearance, and also that the document requires her signature twice, and she signed it only once. The trial court found Ms. Luley’s entry of appearance was voluntary. We have reviewed the record and the testimony, including that of the notary who witnessed Ms. Luley’s signature on the document entitled “Entry of Appearance”, and we affirm the trial court’s finding on this issue.

As regards the Missouri court’s jurisdiction over the child, the record contains xeroxed copies of certain Missouri family law statutes which do indicate a possible defect in the paternity proceedings, in that the minor child was not a named party and was without representation in her behalf. However, there was no testimony at trial by a Missouri expert on the proper interpretation of these statutes or their current status. In. the absence of this information, the court may interpret the paternity statutes in conformity with Louisiana law, but we find this unnecessary. Reece v. Reece, 502 So.2d 591 (La.App. 3 Cir.1987). Ms. Luley’s argument on the said defect in the paternity proceeding was presented to the Missouri court as basis for her motion to dismiss Mr. Pool’s custody rule, and the motion was dismissed. Ms. Luley did not appeal the dismissal. Therefore, in view of the Missouri court’s ruling on this issue, we conclude that appellee has not clearly shown that failure to join the child as a party to the prior paternity proceeding is a fatal defect negating the jurisdictional authority of the Missouri custody judgment. Rather, this is a procedural problem which needs to be addressed by a Missouri appeal. Appellee has presented no valid issue of jurisdiction for our review.

Accordingly, we affirm as valid that portion of the trial court judgment on September 26, 1986 which recognized Mr. Pool’s rights to visitation with the child on the basis of the 1982 Missouri decree of paternity.

JURISDICTION OF THE LOUISIANA COURT

In the proceedings below, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
508 So. 2d 867, 1987 La. App. LEXIS 9622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pool-v-luley-lactapp-1987.