Shamp v. Jezek

836 So. 2d 185, 2002 WL 31548303
CourtLouisiana Court of Appeal
DecidedNovember 8, 2002
Docket2002 CU 1346
StatusPublished
Cited by2 cases

This text of 836 So. 2d 185 (Shamp v. Jezek) 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
Shamp v. Jezek, 836 So. 2d 185, 2002 WL 31548303 (La. Ct. App. 2002).

Opinion

836 So.2d 185 (2002)

William Joseph SHAMP
v.
Jennifer Jiles JEZEK.

No. 2002 CU 1346.

Court of Appeal of Louisiana, First Circuit.

November 8, 2002.

*186 Charlotte A. Pugh, Denham Springs, for Plaintiff/Appellant, William Joseph Shamp.

Paul M. Hebert, Jr., Baton Rouge, for Defendant/Appellee, Jennifer Jiles Jezek.

Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.[1]

WHIPPLE, J.

Plaintiff, William Joseph Shamp, appeals from a judgment of the Family Court of East Baton Rouge Parish ("Family Court") granting defendant's, Jennifer Jiles Jezek's, motion to transfer jurisdiction of this child custody and visitation matter to the District Court of Tom Green County, State of Texas. For the following reasons, we affirm the trial court's judgment transferring jurisdiction herein.

FACTS AND PROCEDURAL HISTORY

The parties hereto are the biological parents of P.S., now three years old. P.S., the child whose custody is at issue herein, was born on July 24, 1999. Although the parties sporadically and briefly resided together, they never married. However, Mr. Shamp was present at the child's birth and signed a formal acknowledgement of paternity. Shortly thereafter, in early October of 1999, Ms. Jezek moved to San Angelo, Texas with the infant and her three children born from a previous marriage. On October 18, 1999, Mr. Shamp filed suit against Ms. Jezek in the Family Court of East Baton Rouge seeking to "confirm" his paternity of P.S., and upon "verification of paternity," to establish visitation.

Mr. Shamp eventually dismissed his request for paternity testing and in a stipulated judgment signed on February 8, 2000, the parties agreed that joint custody should be awarded, with Ms. Jezek designated as the domiciliary parent, and that the parents would subsequently confect or have the court establish a visitation plan. Almost seven months later, on August 7, 2000, the Family Court signed a judgment establishing an interim visitation schedule. Pursuant to the Family Court's judgment of December 6, 2000, a permanent visitation schedule eventually was established.

On December 7, 2000, Mr. Shamp filed a rule for contempt, re-calculation of child support, and other relief, including a demand that the Family Court retain exclusive jurisdiction of this matter. In response, on January 23, 2001, Ms. Jezek filed a motion in the Family Court requesting that the court transfer the matter to Texas, contending that as of December 7, 2000, she had filed an "Original Petition to Modify Possession Rights and Duties of Conservators" in the District Court of Tom *187 Green County, Texas in the matter entitled "In the Interest of [P.S.], A Minor Child" under Cause No. D-00-1424-F.

Both Mr. Shamp's rule requesting that the Family Court of East Baton Rouge retain exclusive jurisdiction and Ms. Jezek's motion to transfer the matter to Texas were not heard by the Family Court until November 13, 2001. A decision was rendered and entered into the minutes on November 26, 2001, and a judgment in conformity therewith was signed on January 17, 2002, granting the motion to transfer the matter to Texas.

Mr. Shamp appeals, contending that the Family Court erred in transferring the matter to Texas, as the Family Court retained exclusive and continuing jurisdiction under either LSA-R.S. 9:355.17 and/or LSA-R.S. 13:1700, et seq. and/or the Parental Kidnapping Prevention Act ("PKPA" or "the Act").

DISCUSSION

On appeal, Mr. Shamp contends that the transfer of this matter to San Angelo, Texas will assure prejudicial results against him and in Ms. Jezek's favor. Additionally, he asserts that because she relocated the minor child to Texas without his express consent or approval, he should not be forced to litigate this matter in Texas. Ms. Jezek counters in brief that she did not request a transfer to gain judicial favor, but, rather, because Louisiana was no longer a convenient forum for her to litigate these proceedings.

In support of his argument that the Family Court erred, Mr. Shamp cites LSA-R.S. 9:355.17 which provides as follows: "If the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child as long as the non-relocating parent remains in the state." Contending that LSA-R.S. 9:355.17 applies and is controlling herein, Mr. Shamp cites Bonar v. Bonar, 2000-232 (La.App. 5th Cir.8/29/00), 768 So.2d 194.

In Bonar, the appellate court determined that it was not necessary to file a petition seeking the court's authority to relocate pursuant to LSA-R.S. 9:355.17 where the parties had previously stipulated in a consent judgment that "this agreement and judgment is to be given full faith and credit, and that neither party shall attack in any other court the provisions set forth herein." Bonar, 2000-232 at p. 3, 768 So.2d at 196.

However, in the instant case, there is no stipulation that jurisdiction was to remain in Louisiana; Ms. Jezek did not seek the Family Court's authorization to relocate; and Mr. Shamp does not challenge her relocation. Instead, on appeal, Mr. Shamp is not challenging Mr. Jezek's physical relocation to Texas with the child, but the Family Court's transfer of jurisdiction of this matter. Thus, LSA-R.S. 9:355.17, on its face, is not truly determinative herein.

However, Mr. Shamp also contends the PKPA applies herein and is determinative of jurisdiction of this matter. He argues that the Family Court erred in transferring the matter to Texas based upon its erroneous application of the Uniform Child Custody Jurisdiction Act ("UCCJA"), codified as LSA-R.S. 13:1700, et seq., in contravention of the provisions of the PKPA.

28 U.S.C. § 1738A, entitled "Full faith and credit given to child custody determinations" and referred to as the "Parental Kidnapping Prevention Act," provides, in pertinent part:

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsections (f), (g) and (h) of this section, any custody determination or visitation made consistently with the *188 provisions of this section by a court of another State.
(b) [Definitions omitted]
(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

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Bluebook (online)
836 So. 2d 185, 2002 WL 31548303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shamp-v-jezek-lactapp-2002.