Wachter v. Wachter

439 So. 2d 1260
CourtLouisiana Court of Appeal
DecidedOctober 12, 1983
Docket83-CA-265
StatusPublished
Cited by14 cases

This text of 439 So. 2d 1260 (Wachter v. Wachter) 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
Wachter v. Wachter, 439 So. 2d 1260 (La. Ct. App. 1983).

Opinion

439 So.2d 1260 (1983)

Robert WACHTER
v.
Angela WACHTER.

No. 83-CA-265.

Court of Appeal of Louisiana, Fifth Circuit.

October 12, 1983.

*1261 Leonard K. Fisher, Jr., Boutte, for appellant.

Randy O. Lewis, Luling, for appellee.

Before CHEHARDY, KLIEBERT and CURRAULT, JJ.

CHEHARDY, Judge.

In this dispute over child custody, the mother appeals from a judgment awarding temporary custody to the father. At issue are the enforcement of a prior New Jersey judgment awarding custody to the mother, and the jurisdiction of the Louisiana court to decide custody, under the Uniform Child Custody Jurisdiction Act. We affirm the district court's judgment in part, and set it aside in part.

The following facts are relevant to the jurisdictional issues. Robert and Angela Wachter had lived in New Jersey with their two minor children, Robert Shawn and Lorelei, since January 1981. In June 1982, Robert was hired to work at the Waterford III Nuclear Plant in St. Charles Parish, Louisiana. On July 3, 1982 Angela informed Robert that she had received a job offer to work at the Oyster Creek Nuclear Generating Station in New Jersey (where Robert was then working) and that she would not move to Louisiana with him. The children were in Idaho during the month of July, visiting their maternal grandparents.

Robert moved to Louisiana in early July to start his new job. On August 4 the children returned to New Jersey from Idaho. On August 10 Robert came back to New Jersey, unknown to Angela. His wife and children were staying with friends of hers. While Angela was temporarily out of the house, Robert took the children, telling Angela's friends he was just taking them to get ice cream. The next day Angela received a telephone call from a friend of Robert's, who told her Robert had taken the children back to Louisiana with him.

*1262 On August 19, 1982, Angela Wachter filed a complaint against Robert in the Superior Court of Ocean County, New Jersey, seeking a divorce and custody of the children. On the same date, the New Jersey court issued an ex parte order vesting temporary custody of the children in Angela, ordering Robert to return the children to their mother within 10 days, and setting a hearing on these matters for September 3, 1982. (In discussing these, and all subsequent pleadings, we omit mention of the allegations relating to the parties' demands for divorce and/or separation, because the only issue before us is the custody of the children.)

As far as can be determined from the record, the hearing set for September 3 did not take place until September 13, 1982. Robert Wachter was neither present nor represented by counsel. The New Jersey court issued an order directing Robert to return the children to Angela by September 13, continuing temporary custody of the children with Angela, and restraining the parties from removing the children again from New Jersey if they were returned to that state. On September 8, Angela's New Jersey attorney had sent a letter to Robert by certified mail to inform him the judge would be signing the order that would demand the return of the children by September 13. The record does not reflect whether Robert received the letter.

On September 17, 1982 the New Jersey court issued an order for a bench warrant and for removal of the children from Louisiana to New Jersey, directing the Sheriff of St. Charles Parish to arrest Robert Wachter and to extradite him to New Jersey for his failure to obey the court's September 13 order. Angela was thereby authorized to remove the children from Robert's domicile to relocate them to New Jersey.

Meanwhile, Robert Wachter had filed his own petition for separation in the 29th Judicial District Court for St. Charles Parish, Louisiana, on September 3, 1982. In that petition he prayed for pendente lite custody of the children and permanent custody thereafter. He also asked for an ex parte order for temporary custody, on the ground that Angela might attempt to remove the children from the jurisdiction. By ex parte order, the court appointed an attorney to represent Angela, granted temporary custody to Robert, and set a hearing on the custody issue for October 13, 1982.

On October 8, 1982, Angela's court-appointed attorney filed a combination exception/motion to recognize foreign judgment. In that pleading Angela alleged the Louisiana court was without authority to grant ex parte temporary custody to Robert because Louisiana law does not provide for such action without a hearing; she pleaded lis pendens and res judicata, on the ground the New Jersey court had jurisdiction over all matters relating to the marriage, and custody of the children had already been awarded to Angela; finally, Angela moved to have the New Jersey court orders recognized and made executory in Louisiana. The hearing on this motion was set for the same date as the hearing on Robert's custody rule.

That hearing was held as set on October 13, 1982. Both Robert and Angela were present and represented by counsel. After hearing testimony from both parties, the trial judge rendered judgment in favor of Robert. The judge ruled that the New Jersey judgment was not entitled to recognition in Louisiana because the New Jersey court did not "follow substantive rules providing for service of process and legal delays within which to respond to any petition for custody." Further, the judge held, the New Jersey court did not have jurisdiction over the children at the time Angela Wachter brought suit, because the children had already arrived in Louisiana and were "residing under the roof of their natural father," so that they were domiciled within the 29th Judicial District Court's jurisdiction "under the provisions of R.S. 13:1570, thus this court became responsible for awarding custody after a contradictory hearing." Accordingly, by judgment dated October 14, 1982, the judge awarded custody *1263 to Robert and set visitation rights for Angela.

Angela Wachter has appealed. She contends on appeal that the trial judge erred in failing to recognize the decree of the New Jersey court; in the alternative, that the trial judge erred in finding it was in the best interest of the children to be placed in Robert's custody.

ENFORCEABILITY OF NEW JERSEY JUDGMENT

Although the result reached by the trial judge on the question of the New Jersey judgment may have been correct, it is clear he did not follow the appropriate law in reaching it. To determine whether he erred, therefore, we must review the New Jersey judgment independently.

Counsel for both parties cited the Uniform Child Custody Jurisdiction Act in support of their positions. In fact, there are two statutory schemes the trial judge should have considered in determining whether to recognize the New Jersey judgment.

The first is Title 28 U.S.C. Sec. 1738A, also known as the Parental Kidnapping Prevention Act of 1980 (PKPA). It mandates that every state shall give full faith and credit to child custody determinations made by courts of another state, provided such determinations are made consistently with the provisions of the PKPA.

Paragraph (e) of the PKPA requires,

"Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child."

In addition, paragraph (g) states,

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Bluebook (online)
439 So. 2d 1260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachter-v-wachter-lactapp-1983.