Barbry v. Dauzat

• Decision Date: 26 February 1991
• Docket Number: No. W90-25,W90-25
• Parties: James BARBRY, Plaintiff-Relator, v. Carol Turner DAUZAT, Defendant-Respondent. 576 So.2d 1013
• Court: Court of Appeal of Louisiana — District of US

Page 1013

576 So.2d 1013

James BARBRY, Plaintiff-Relator, v. Carol Turner DAUZAT, Defendant-Respondent.

No. W90-25.

576 So.2d 1013

Court of Appeal of Louisiana Third Circuit.

Feb. 26, 1991.

Writ Denied April 26, 1991.

Donald Juneau, Hammond, for plaintiff-applicant.

Charles A. Riddle, III, Marksville, for defendant-respondent.

Before DOUCET, LABORDE and KING, JJ.

KING, Judge.

The issues presented by this writ are whether a state district court has subject matter jurisdiction and personal jurisdiction over the parties in this child custody proceeding.

James Dean Barbry (hereinafter relator) and Carol Turner Dauzat (hereinafter respondent) became involved in litigation in a Louisiana District Court over visitation privileges with their minor child, Jamie Marie Barbry (hereinafter the minor child). Relator filed a motion to dismiss or, alternatively, to transfer this child custody proceeding, contending that the district court lacked both subject matter and personal jurisdiction. Relator urged his motion based on the fact that both he and the minor child were enrolled members of the Tunica-Biloxi Indian Tribe and domiciled and residing on the Tunica-Biloxi Indian Reservation (hereinafter the Reservation) in Avoyelles Parish, Louisiana. Relator contends that the Tribal Council of the Tunica-Biloxi Indian Tribe (hereinafter the Tribal Council) has exclusive subject matter jurisdiction over this child custody proceeding and exclusive personal jurisdiction over him and the minor child. The district court denied plaintiff's motion and a formal written judgment was signed. The district court stayed further action in this child custody proceeding pending a decision on relator's application for supervisory writs to this court. This court granted the writ, ordered the record sent to the appellate court, and ordered the matter docketed for briefing and argument. We now issue a written opinion affirming the decision of the trial court, recall the writ, and remand the matter to the trial court for further proceedings.

FACTS

Relator, James Dean Barbry, and respondent, Carol Turner Dauzat, were married in Avoyelles Parish, Louisiana. The minor child, Jamie Marie Barbry, was born of the marriage on September 13, 1980. The last matrimonial domicile of relator, respondent, and the minor child was in Avoyelles Parish, Louisiana. The matrimonial domicile was never located on the Reservation in Avoyelles Parish, Louisiana. After the parties' divorce, relator established his domicile and residence on the Reservation. When relator acquired legal custody of the minor child, he moved the minor child into his home on the Reservation. Relator, respondent, and the minor child are all presently domiciled in Avoyelles Parish, Louisiana, with relator and the minor child now living on the Reservation in Avoyelles Parish, Louisiana. Relator filed a suit for divorce against respondent in the Twelfth Judicial District Court for Avoyelles Parish, Louisiana in the suit bearing Number 82-2889 on the Docket of that Court (hereinafter the first suit). On January 4, 1984, a judgment of divorce was rendered in the first suit with the judgment also awarding the sole permanent care, custody, and control of the minor child to respondent subject to specific visitation privileges by and with relator. Relator then filed another suit against respondent seeking to change custody of the minor child in the Twelfth Judicial District Court for Avoyelles Parish, Louisiana in the suit bearing Number 84-6190 on the Docket of that Court (hereinafter the second suit). On April 8, 1985, a judgment was rendered in the second suit, granting relator the sole permanent care, custody, and control of the minor child subject to specific visitation privileges by and with respondent. Relator then took the minor child into his home on the Reservation. Respondent subsequently married Daniel Dauzat. On September 2, 1987, relator filed a rule against respondent in the second suit seeking to modify and restrict the visitation privileges previously given to respondent in the judgment rendered in the second suit on April 8, 1985. This rule was subsequently heard and, on October 9, 1987, a judgment was read and signed modifying the visitation privileges given to respondent. On December 13, 1987, the Tunica-Biloxi Tribal Council adopted Resolution Number 25-87 which made the minor child a ward of the Tribal Council, vested custody of the minor child with relator, and requested that relator and respondent attempt to agree on visitation privileges for respondent and, if that could not be accomplished, provided that the Tribal Council would hold a hearing to decide "the extent of the visitation privileges" of respondent with the minor child. Relator then filed in the second suit, on December 17, 1987, a Motion To Dismiss Or, Alternatively, To Transfer the custody proceeding on the basis that relator and the minor child were then enrolled as members of the Tunica-Biloxi Tribe, and were domiciled and residing on the Reservation in Avoyelles Parish, Louisiana. Relator contended that, because of this and under the provisions of 25 U.S.C. Sec. 1901 et seq., the Indian Child Welfare Act (hereinafter ICWA), the district court had been divested of subject matter jurisdiction over the proceeding in the second suit. This motion was ruled on and denied by the trial court, without a hearing, when it rendered written reasons for judgment on the motion on December 8, 1989. This ruling on relator's motion in the second suit is the subject of this writ.

On September 18, 1989, respondent filed in the first suit a rule against relator to enforce and modify visitation with the minor child. On October 13, 1989, the original date scheduled for the hearing of the rule in the first suit, the hearing date was refixed for hearing on November 3, 1989, and the parties stipulated to interim provisional visitation privileges pending the November 3, 1989 hearing. On October 13, 1989, an order was signed granting respondent the stipulated interim visitation privileges. Pending the hearing on the rule in the first suit, which was fixed to be heard on November 3, 1989, relator formally requested that the Tribal Council hold a hearing on the visitation privileges of respondent for her visitation with the minor child. Respondent's rule in the first suit was heard on November 3, 1989, at which time the district court entered, on stipulation of the parties, a consent judgment of visitation privileges for respondent. A formal written judgment, confirming these stipulated visitation privileges for respondent, was signed in the first suit on December 1, 1989. On November 18, 1989, after the hearing of respondent's rule in the first suit on November 3, 1989, but before a judgment on the rule was signed, the Tribal Council held a hearing and gave respondent limited visitation privileges with the minor child at the Tribal Community Center on the reservation with the provision that the minor child could not be removed from the reservation. These visitation privileges for respondent, granted by the Tribal Council, differed from those previously stipulated to by the parties and ordered by the judgment of the court signed on December 1, 1989, in the first suit. Relator then filed in the first suit a motion, which was a renewal of his same motion filed on December 18, 1987 in the second suit, to dismiss the suit or to transfer it to the Tribal Council. This motion was also ruled on and denied by the trial court, without a hearing, when it rendered written reasons for judgment on the motion on December 8, 1989. This ruling on the same motion in the first suit is also the subject of this writ. On December 13, 1989, respondent filed against relator a Rule To Show Cause For Contempt in the first suit which was set for hearing on December 22, 1989. In response to this, relator filed a motion to vacate the rule to show cause for contempt and a motion for reconsideration of the denial of the motions to dismiss in the first and second suits. The rule for contempt and the motion for reconsideration of the motion to dismiss were fixed for hearing on December 22, 1989. At this hearing, the trial court consolidated the first suit, Number 82-2889, and the second suit, Number 84-6190, denied relator's motion for reconsideration of the motion to dismiss, and denied relator's motion to vacate the rule to show cause for contempt. The trial court stayed execution of the consent judgment of visitation in the first suit, dated December 1, 1989, giving respondent specific visitation privileges with the minor child, and also stayed any further proceedings on respondent's rule to show cause for contempt until consideration by this Court of relator's application for supervisory writs. Relator then gave notice and sought supervisory writs from this Court on the trial court's denial of his motions to dismiss or, alternatively, to transfer the first and second suits to the Tribal Council. We granted the writ, ordered the record sent to the appellate court, and ordered the matter docketed for the filing of briefs and oral argument.

Relator contends that the trial court erred in denying his Motion To Dismiss Or, Alternatively, To Transfer The Proceeding To The Tribal Council, filed in both the first and second suits which have been consolidated, for lack of jurisdiction under the provisions of the Indian Child Welfare Act, 25 U.S.C. Sec. 1901, et seq., or, alternatively, for lack of subject matter jurisdiction and personal jurisdiction over relator and the minor child since they are both Indians not subject to the jurisdiction of the Louisiana courts.

LAW

Jurisdiction in Louisiana has been defined as the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled. La.C.C.P. Art. 1. In Louisiana, jurisdiction has been...