Willis v. Duck

733 So. 2d 707, 1999 WL 274842
CourtLouisiana Court of Appeal
DecidedMay 5, 1999
Docket98-1898
StatusPublished
Cited by4 cases

This text of 733 So. 2d 707 (Willis v. Duck) 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
Willis v. Duck, 733 So. 2d 707, 1999 WL 274842 (La. Ct. App. 1999).

Opinion

733 So.2d 707 (1999)

Kimberly Mayon Lovas WILLIS, Plaintiff-Appellant,
v.
Carron Hanks DUCK, Defendant-Appellee.

No. 98-1898.

Court of Appeal of Louisiana, Third Circuit.

May 5, 1999.
Rehearing Denied June 30, 1999.

*708 Charles Overton LaCroix, Alexandria, for Kimberly Mayon Lovas Willis.

Michael Hathorn Davis, Alexandria, for Carron Hanks Duck.

Before: DOUCET, C.J., COOKS, and PICKETT, JJ.

DOUCET, Chief Judge.

Plaintiff, Kimberly Mayon Lovas Willis appeals a judgment of the trial court dismissing her petition to change the custody of Plaintiff's minor son, Blake A. Mayon, from Defendant, Carron Hanks Duck, to herself. We affirm the judgment of the trial court.

FACTS

This case involves the custody of eleven year old Blake Mayon who was born, out of wedlock, to Kimberly Mayon on April 5, 1987. The dispute is between his mother, Kimberly Mayon Willis and Kimberly's sister, Carron Duck. Kimberly voluntarily, via Notarial Act, gave custody of Blake to Carron in December 1993. Thereafter, on January 14, 1994, Carron filed a petition for custody of Blake, docket No. CC 20009, in Juvenile Court in Rapides Parish, entitled State of Louisiana, in the Interest of Blake A. Mayon. A hearing on the petition was held on April 13, 1995, and after the introduction of testimony and evidence, custody of Blake was awarded to Carron Duck.

On March 18, 1998, Kimberly Mayon Willis filed a petition for change of custody in the Juvenile Court of Rapides Parish. The judge who reviewed the petition determined that the Juvenile Court did not have jurisdiction over the matter and transferred the matter to the docket of the Ninth Judicial District Court.

Trial of the matter took place on May 11 and 27, 1998. Written reasons for judgment were handed down June 2, 1998, and judgment in the matter, denying Plaintiffs requested change of custody, was signed July 6, 1998. After a motion for a new trial was denied, Plaintiff filed the instant appeal.

LAW AND DISCUSSION

First, Plaintiff argues that the judgment of the Juvenile Court in docket No. CC 20009 should be declared null and void as the Juvenile Court was without jurisdiction over the subject matter of Mrs. Duck's petition.

*709 We find the facts in this case strikingly similar to those in Girouard v. Halpin, 368 So.2d 1139, 1140-43 (La.App. 3 Cir.), writ denied, 369 So.2d 1377 (La.1979):

The general facts are that on October 20, 1975, while unmarried but living with Donald Chaisson, a married man, Ms. Halpin gave birth to the minor child, Brett Louis Halpin. On October 20, 1977, she had another illegitimate child, a daughter named Tanya. Ms. Halpin testified that Donald Chaisson, whom she married on February 28, 1978, is the father of the second child.
In early January of 1978, Ms. Halpin consented to give custody of Brett to her step-sister and her husband, Mr. and Mrs. Girouard, Jr. Ms. Halpin testified her reason was that she was working and couldn't pay babysitters. Witnesses for the Girouards testified that because of complaints to the Welfare Department about child abuse, Brett was about to be removed from Mr. Halpin's custody, so she consented to the Girouards taking the child. In any event, on January 17, 1978 the Girouards filed a summary proceeding in the district court alleging that Brett was in their home, having been placed there on January 13, 1976 by Ms. Halpin for the best interest of the child, and that they desired judgment awarding custody to them. Ms. Halpin was named defendant in the rule, and she was personally served. At the hearing on January 30, 1978, Ms. Halpin made no appearance. Judgment by default was entered on that date awarding the permanent care, custody and control of the child to Mr. Girouard, subject to reasonable visitation rights by Ms. Halpin.
On May 17, 1978, Ms. Halpin filed the present summary proceedings alleging that she gave the child to the Girouards only because of financial difficulties, that she is now married to Donald Chaisson who is employed, that they are able to care for the child, and that the best interest of the child will be served by changing custody to her.
JURISDICTION OF THE DISTRICT COURT
On appeal, Ms. Halpin contends the January 30, 1978 judgment of the district court awarding custody to Mr. Girouard is null and void for lack of jurisdiction of the subject matter. She argues that the district court has jurisdiction of a child custody suit by a non-parent against a parent only by writ of habeas corpus, and since this was neither a habeas corpus action nor a proceeding in juvenile court, the prior judgment is null.
This precise question of jurisdiction appears to be res nova in the appellate courts of Louisiana. A discussion of the problem begins with the constitutional and statutory provisions. Article 5, Section 16 of the Louisiana Constitution of 1974 provides in part: "Except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters." Article 5, Section 18 provides: "Notwithstanding any contrary provision of Section 16 of this Article, juvenile and family courts shall have jurisdiction as provided by law." These are essentially the same provisions as were contained in Article VII, Sections 35 and 52 of the Louisiana Constitution of 1921 as to jurisdiction of district and juvenile courts.
LSA-C.C.P. Article 10(5) provides:
"Art. 10. Jurisdiction over status
"A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
"(5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state;"
LSA-R.S. 13:1570 provides the jurisdiction of juvenile courts as follows:
*710 "Except as otherwise provided herein, the court shall have exclusive original jurisdiction in proceedings:
"A. Concerning any child whose domicile is within the parish or who is found within the parish;
"(1) Whose parent or other person legally responsible for the care and support of such child neglects or refuses, when able to do so, to provide proper or necessary support, education as required by law, or medical, surgical or other care necessary for his well-being; or who is abandoned by his parent or other custodian; or who is otherwise without proper care, custody or support;...." (This portion of the statute has been in effect since added by Act 73 of 1973.)
In Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972), a grandfather brought an action in district court alleging his grandchildren were neglected by their mother following the divorce of the children's parents. He sought custody. By default judgment the grandfather was awarded custody. Later, the mother filed a writ of habeas corpus action in the district court seeking custody. The majority opinion in the Supreme Court held that although the grandparent's prior suit was styled a custody proceeding, it was actually a suit by a third party to have a child declared "neglected", and that such a suit could only be brought in the juvenile court under Article 7, Section 52 of the Louisiana Constitution of 1921.

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Bluebook (online)
733 So. 2d 707, 1999 WL 274842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-duck-lactapp-1999.