Stewart v. Carter

634 So. 2d 1226, 1994 WL 65224
CourtLouisiana Court of Appeal
DecidedMarch 2, 1994
Docket93-830
StatusPublished
Cited by4 cases

This text of 634 So. 2d 1226 (Stewart v. Carter) 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
Stewart v. Carter, 634 So. 2d 1226, 1994 WL 65224 (La. Ct. App. 1994).

Opinion

634 So.2d 1226 (1994)

Carla Anne STEWART, Plaintiff-Appellee,
v.
John Fraser CARTER, Defendant-Appellant.

No. 93-830.

Court of Appeal of Louisiana, Third Circuit.

March 2, 1994.

*1227 Patricia A. Thomas, Abbeville, for Carla Anne Stewart.

Thomas James Frederick, Abbeville, for John Fraser Carter.

Before KNOLL and COOKS, JJ., and CULPEPPER,[*] J. Pro Tem.

KNOLL, Judge.

John Fraser Carter (Carter) appeals the judgment of the trial court which ordered him to pay Carla Anne Stewart (Stewart), his ex-wife, $854 per month for the support of his two minor children.

Carter contends that the trial court erred in: (1) determining that it had personal jurisdiction over him sufficient to render a money judgment against him; (2) determining that the previously entered URESA support order was not res judicata on the issue of child support; (3) determining that Stewart was entitled to an increase in child support; and, (4) determining the amount of child support Carter owes without having an evidentiary basis.

Stewart answered the appeal, seeking an increase in child support.

FACTS

Carter and Stewart were married in Vermilion Parish on April 18, 1982. Subsequently, they moved to Houston, Texas and then to New York. Two children were born of this marriage, Lauren on October 23, 1982, and Eric on August 31, 1987.

After separating in New York, Stewart and her two minor children moved to Vermilion Parish, Louisiana where she filed a petition for separation on September 1, 1988. Incidental to the petition, Stewart also asked for custody of the two children, together with alimony for herself and child support.

Stewart's petition was met with a declinatory exception urging that the Louisiana courts lacked subject matter jurisdiction as well as personal jurisdiction over Carter. Thus, Carter averred that the Louisiana court lacked authority to entertain the petition for separation, together with the incidental demands for child custody, alimony pendente lite and child support.

On November 17, 1988, the trial court ruled as follows:

"IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the exception of lack of personal jurisdiction over the defendant is maintained. It is further ordered that the exception of lack of jurisdiction of the court to adjudicate the custody of the minor children is also maintained. Plaintiff [Stewart], however, is granted a reasonable amount of time within which to amend her petition to attempt to make proper allegations regarding the jurisdiction of this court to adjudicate the custody issue."

On March 29, 1989, Stewart filed an amended petition, seeking custody of their two minor children and prayed for a legal separation.

On April 17, 1989, Stewart and Carter, represented by retained counsel, entered into a stipulation which granted Stewart child custody, subject to reasonable visitation privileges. A judgment to that effect was signed on May 25, 1989.

On October 25, 1989, Stewart filed a petition which supplemented her earlier petition for legal separation. In this supplemental petition, Stewart sought an absolute divorce under the provisions of LSA-R.S. 9:301 and asked that the earlier custody order be maintained. Counsel for Carter accepted service of the supplemental petition and filed an answer denying all of the allegations. On January 22, 1990, Stewart and her attorney, together with counsel for Carter, appeared in open court. After hearing evidence, the trial court granted Stewart a legal divorce and granted her custody of both children, subject to Carter's visitation privileges which were detailed in the judgment.

*1228 The next proceeding was a motion filed on December 18, 1991, in which Stewart sought a modification of Carter's visitation schedule and a prayer that child support be fixed in accordance with the child support guidelines. In response to the trial court's order that a hearing be held on February 10, 1992, on the issues of visitation and child support, Carter, in proper person, moved for a continuance. In accordance with Carter's motion, the trial court granted the continuance and rescheduled the hearing for June 22, 1992.

On June 4, 1992, Carter, now represented by counsel, motioned the court to transfer custody of the two minor children from Stewart to himself, and asked that this proceeding be held on the same date as Stewart's previously filed motion.

Subsequently, on June 17, 1992, Stewart obtained an ex parte continuance of the motions until August of 1992. After Carter asked the trial court to reconsider its ex parte continuance order, Carter and Stewart jointly petitioned the trial court to move the hearing to November 23, 1992.

On November 4, 1992, Carter excepted to Stewart's motion to fix child support, urging in a peremptory exception of res judicata that the petition and judgment rendered in Carla Stewart versus John Carter, dated January 13, 1989, a URESA action which ordered Carter to pay child support of $260 per month, prohibited the relitigation of child support.

The trial court minutes next show that on November 23, 1992, counsel for Stewart and Carter appeared in court, and that "[A] pre-trial [was] held in judges chambers. This matter was then set aside."

The trial court then rendered written reasons for judgment on January 4, 1993, stating, "By agreement of counsel [on November 23, 1992], the matter was submitted on the record and the Court took it under advisement for the purpose of allowing counsel to file memoranda." In its written reasons for judgment, the trial court determined that: (1) it had personal jurisdiction over Carter; (2) the URESA judgment did not constitute res judicata between Carter and Stewart; and, (3) after consulting the child support guidelines and taking into account Carter's payment through URESA of $260 per month, Stewart was entitled to receive an additional sum of $854 per month from Carter for child support. A judgment in accordance with the trial court's written reasons was signed on January 25, 1993.

This appeal followed.

PERSONAL JURISDICTION OVER CARTER

Carter contends that the trial court lacked personal jurisdiction over him in order to adjudicate Stewart's motion which sought a money judgment against him to pay monthly child support for his two minor children.

LSA-C.C.P. Art. 6 provides:

"Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
(1) The service of process on the defendant, or on his agent for the service of process;
(2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or
(3) The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto."

LSA-C.C.P. Art. 7 further provides:

"A. Except as otherwise provided in this Article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
(1) Entry or removal of the name of an attorney as counsel of record;
(2) Extension of time within which to plead;
(3) Security for costs;

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Cite This Page — Counsel Stack

Bluebook (online)
634 So. 2d 1226, 1994 WL 65224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-carter-lactapp-1994.