Sullivan v. Mitchell

750 So. 2d 1173, 99 La.App. 5 Cir. 946, 2000 La. App. LEXIS 90, 2000 WL 61685
CourtLouisiana Court of Appeal
DecidedJanuary 25, 2000
DocketNo. 99-CA-946
StatusPublished
Cited by2 cases

This text of 750 So. 2d 1173 (Sullivan v. Mitchell) 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
Sullivan v. Mitchell, 750 So. 2d 1173, 99 La.App. 5 Cir. 946, 2000 La. App. LEXIS 90, 2000 WL 61685 (La. Ct. App. 2000).

Opinion

| .CHEHARDY, Judge.

This is a proceeding under the Uniform Child Custody Jurisdiction Act, in which the Louisiana court has declined jurisdiction. The plaintiff, the mother of the child, has appealed. We affirm.

On November 18, 1998 Brenda Sullivan filed a petition against Frank Edward Mitchell, Jr., in Jefferson Parish. Sullivan sought an ex parte emergency order for temporary custody of her four-year-old daughter, A.N.M., citing La. C.C.P. art. 10(A)(5) as the basis for jurisdiction.1 Plaintiff asserted that the child had made allegations of sexual abuse against the defendant, who is the child’s father. Plaintiff requested she be awarded physical custody with no visitation by the father, pending investigation of the allegations by Child Protective Services and a hearing. She requested evaluation and/or therapy by a court-appointed expert.

| .Plaintiffs affidavit in support of her petition alleged that she is domiciled in Jefferson Parish and the defendant is domiciled in Calhoun County, Alabama; that the parties were never married;' that there was one child born of their relationship, A.N.M., age 4; that the parties had joint custody of the child by a 1997 consent judgment from the Circuit Court of Calhoun County, Alabama; that the child had made allegations of sexual abuse against the defendant (details of which were speei-[1174]*1174fied in the affidavit); and that the allegations were currently under investigation by Child Protective Services.

On November 19, 1998 the district court’s domestic commissioner issued an ex parte order granting plaintiff extended visitation with her child and suspending visitation of the child by defendant pending a hearing and further orders of court.

On November 30, 1998, defendant filed declinatory exceptions of lis pendens and lack of personal jurisdiction, asserting he is physical custodian of A.N.M. by judgment of the Circuit Court of Calhoun County, Alabama, Family Court Division, confirming a consent agreement between himself and Brenda Lee Nichols a/k/a Brenda Sullivan. He alleged the agreement was made pursuant to his pending petition for modification seeking custody and control of the child.

Defendant stated that both he and the child are domiciliarles and residents of the State of Alabama; that he had allowed plaintiff to take the child to her home in Louisiana for an unscheduled visit from October 27, 1998, until November 3, 1998, but that plaintiff failed to return the child to him and would not allow him to pick the child up and return home to Alabama with her.

Defendant alleged further that plaintiff had contacted the Louisiana Office of Community Services with allegations of sexual abuse of A.N.M. by him, that an investigation had been conducted by an employee of O.C.S., that the child had denied abuse to the investigator, and that no action had been taken against him. He stated that | ¿plaintiff had made similar allegations of abuse against him to the State of Alabama Department of Human Resources, which had been dismissed as unsubstantiated.

Defendant asserted that the Louisiana court is without jurisdiction in personam over the child because Louisiana is not her home state, the child is in Louisiana in violation of an Alabama court order, and there is no substantiated evidence that the care given to the child by her father at their home in Alabama is substandard or that the child is in any way endangered. He asserted further that there is ongoing litigation in the State of Alabama, which has established jurisdiction, and that the custody litigation is pending because it may be reopened by changes in circumstance. In support of his exceptions defendant attached a copy of the Settlement Agreement and the Alabama judgment based on it.

On December 16,1998 the commissioner maintained defendant’s exceptions and verbally rescinded his ex parte order of extended visitation.

On December 17, 1998 plaintiff filed a motion for review of the commissioner’s ruling granting defendant’s exceptions. On December 21, 1998 after the district court had reviewed the record, considered the ruling and orders of the commissioner, and taken notice of the Alabama court order granting physical custody to defendant, the district court ordered that plaintiff immediately relinquish custody of the child and surrender the child to defendant.

On December 21, 1998 the domestic commissioner signed a written order maintaining the exceptions and rescinding the ex parte order of extended visitation. Defendant obtained a civil warrant for return of the child to him and the warrant was executed by police officers.

On January 14, 1999 defendant filed a rule for contempt, alleging that pursuant to the court’s order of December 21, 1998, police had recovered the child from plaintiff and returned her to him; that he and the child had returned to Alabama; but that on or about | January 3,1999, plaintiff had taken the child from the home of the child’s paternal grandparents, without permission or authority. He sought a contempt ruling against plaintiff for willful disobedience of the court’s orders.

According to defendant’s brief, on January 14, 1999 plaintiff was arrested in Jefferson Parish on an Alabama criminal warrant for felony interference with a child custody order. Following plaintiffs ar[1175]*1175rest, the child was placed in custody with OCS until January 19, 1999, when a hearing took place in juvenile court at which the investigating OCS case workers testified. Defendant states that after the hearing the juvenile court released the child to the defendant’s custody.

On February 11, 1999 plaintiff filed a petition for emergency custody under the Uniform Child Custody Jurisdiction Law, pursuant to La. R.S. 13:1702(A)(3)(ii). Plaintiff asserted that on January 3, 1999 she had noticed bruises on the body of A.N.M. and that the child said her dad beat her “for telling what he did to her.” Plaintiff stated she had removed the child from defendant’s custody [in Alabama] to protect her and had returned to Louisiana with her to seek medical attention. Plaintiff asserted she had documented abuse of the child by defendant and she sought to have the child placed under jurisdiction of the Louisiana court and in custody of plaintiff or of another relative pending determination of jurisdiction. She sought immediate removal of the child from defendant’s home for that purpose.

The district court refused to order emergency transfer of physical custody to plaintiff, but set the matter for hearing on February 18, 1999, the same date as previously set for hearing of defendant’s contempt rule against plaintiff. The hearing date was later continued to March 26, 1999.

On March 5, 1999, defendant filed decli-natory exceptions of lis pendens and lack of personal jurisdiction, on the same ground as previously asserted in his prior exceptions. He also filed an exception of lack of subject matter jurisdiction. On April 8, |fi1999 the district court signed a judgment sustaining defendant’s exceptions of lis pendens and lack of jurisdiction and decreeing that the proper venue for the matter is the State of Alabama.

Plaintiff has appealed that ruling. She contends the trial court erred in ruling that Alabama is the appropriate jurisdiction in this matter. She asserts the trial court erred in refusing to allow her to present evidence regarding her abuse allegations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Ex Rel. Drp
862 So. 2d 1073 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
750 So. 2d 1173, 99 La.App. 5 Cir. 946, 2000 La. App. LEXIS 90, 2000 WL 61685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-mitchell-lactapp-2000.