Dillon v. Medellin

• Decision Date: 25 January 1982
• Docket Number: No. 81-C-2012,81-C-2012
• Parties: Patricia A. DILLON v. Hector MEDELLIN.
• Court: Louisiana Supreme Court

Page 570

409 So.2d 570

Patricia A. DILLON v. Hector MEDELLIN.

No. 81-C-2012.

Supreme Court of Louisiana.

Jan. 25, 1982.

F. Smith Knobloch of Knobloch & Knobloch, Thibodaux, for plaintiff-applicant.

Harry F. Cabral, Jr. of Cabral & Cabral, Metairie, for defendant-respondent.

CALOGERO, Justice.

In this case, a woman who has lived in Louisiana with her child for over two years petitioned the district court in Thibodaux, Louisiana on September 5, 1980 to enforce a custody decree in her favor rendered in the State of Texas on May 26, 1977. She sought enforcement under the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1714(A).

When the Texas-residing father filed a declinatory exception of lack of subject matter jurisdiction in the Louisiana proceeding for the reason that the Harris County, Texas court had modified its original decree (i.e., the one the mother was seeking to enforce) with an emergency ex parte order dated July 8, 1980, appointing him temporary managing conservator of the minor child pending the outcome of his suit to change the custody decree, the Louisiana court sustained the exception and dismissed the mother's suit. She appealed to the First Circuit Court of Appeal which affirmed the lower court's dismissal. Dillon v. Medellin, 402 So.2d 149 (La.App. 1st Cir. 1981).

We granted writs on the wife's application to examine her substantial contention that Louisiana has jurisdiction over her action under the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1700 et seq. For the reasons which follow, we find that Louisiana does have jurisdiction in this custody matter.

The pertinent facts are as follow: Patricia Dillon (formerly Medellin) was divorced from her husband in Harris County, Texas on May 26, 1977. She received custody of their minor child, Margarita Lourdes Medellin. Under the terms of the divorce decree, the father was given visitation privileges on alternating weekends and holidays, and for thirty days (30) during the summer months. In April, 1978, the mother and child moved to Louisiana, after which the mother remarried. Both mother and child have continued to reside in Louisiana for the more than two years before this suit was filed.

On July 8, 1980, just before the expiration of a thirty day child visitation period, the Texas father petitioned the Harris County, Texas court to modify the original custody decree, alleging that the court had continuing jurisdiction over the matter, and that the child's circumstances had changed so materially that retention of custody with the mother would be injurious to the child's welfare. The father attached to the motion an affidavit stating, in effect, that his four year old daughter had revealed to him during the visitation period in Texas that her mother and stepfather in the Thibodaux home were smoking marijuana daily, and that the stepfather had played sexual "games" with the child.

The mother filed a special appearance challenging the jurisdiction of the Texas court since she and her daughter had been Louisiana residents for more than six months prior to the filing of the modification petition by the Texas father. The father, before the special appearance motion hearing had been conducted, filed an original petition arguing as an alternative to his modification petition based on continuing jurisdiction, that the Texas court had original jurisdiction, especially under Tex.Fam.Code Ann. § 11.045(a)(2)(B) (Vernon Supp. 1980-81): the child was physically present in Texas and a serious immediate question existed concerning the child's welfare.

On September 5, 1980, the mother petitioned the district court in Lafourche Parish to enforce the 1977 Texas custody judgment and to order that the child be returned to Louisiana and that the father's visitation rights be terminated. On the rule to show cause, the district court sustained the father's declinatory exception to the Louisiana court's jurisdiction and dismissed the case on October 10, 1980. The dismissal, for lack of jurisdiction, was appealed by the mother to the Louisiana Fourth Circuit Court of Appeal.

In the meantime, in Texas, by an order dated October 21, 1980, the Harris County district court denied the mother's challenge to its jurisdiction and named the father temporary managing conservator under its original jurisdiction. Thereafter a default judgment was rendered on February 25, 1981 against the mother, who had made no general appearance and whose pleadings were stricken upon her failure to post a $2500.00 cost bond. In the default judgment, the father was given permanent custody and the mother was ordered to pay $10.00 per month as child support. From that order of the Harris County District Court, the mother appealed to the Texas Court of Civil Appeals. While the mother's appeal was pending in the Texas appellate court, the Fourth Circuit Court of Appeal of Louisiana on June 29, 1981 affirmed the Lafourche Parish district court's dismissal of the mother's Louisiana case "because there is presently pending in the Texas court, under its original jurisdiction, a proceeding concerning the custody of Margarita." From that judgment, the plaintiff mother sought a writ in this Court. We granted her writ on September 28, 1981.

Then, on October 29, 1981, before the case was argued in this Court, the Texas Court of Civil Appeals reversed the Harris County district court's resolution of the jurisdiction question and dismissed the father's Texas case on due process and jurisdictional grounds. The Texas Court of Civil Appeals found that "(i)t would ... be inconvenient, if not impossible, to effectively develop those issues (the welfare and best interests of the child) in the Texas courts, and the mother would not be afforded due process of law if she is required to defend this action in the State of Texas." Dillon v. Medellin, (Tex.Civ.App. 1st Dist. 1981), No. # 18054.

A copy of the opinion of the Texas Court of Civil Appeals was attached to the brief filed in this Court by relator. Counsel for the respondent was afforded an opportunity to respond to that submission and has not done so. ¹ Independent inquiry by this Court directed to the Clerk's office of the Texas Court of Civil Appeals and Texas Supreme Court establishes, to our satisfaction at least, that after the opinion of the Texas Court of Civil Appeals was rendered, the husband sought a rehearing which was denied, and he then filed an application for writs in the Texas Supreme Court, which is pending at the present time. Thus, within the Texas court system the judgment of the Texas Court of Civil Appeals is not final. Nonetheless, because of that extant opinion, there is no outstanding modification decree of the Harris County, Texas district court favorable to the father. The judgment rendered in the district court was upset by the Texas Court of Civil Appeals. And as far as we can appreciate, the only valid outstanding Texas decree is the outset 1977 decree by which the wife was given custody of the child. This case is thus in a different procedural posture today than it was in when the Louisiana Fourth Circuit Court of Appeal decided this case and when we granted writs upon application of relator, Mrs. Dillon.

We are tempted to resolve this litigation simply by relying upon the opinion of the Texas Court of Civil Appeals and upon the information we have obtained from the Texas court system about the status of the Texas litigation. That information would emasculate the very foundation of the decisions we review, (the dismissal of the wife's Louisiana lawsuit by the district court and Court of Appeal), that is, the pendency in Texas of a child custody award deemed by the lower courts to be preclusive of their assuming jurisdiction under R.S. 13:1705. If there is no custody judgment favoring the father pending in the Texas courts, there is no longer, even arguably, any bar to the mother's Louisiana suit. There would surely be jurisdiction in Louisiana under La.R.S. 13:1702 for this Louisiana resident mother to enforce the two year old original custody decree in her favor.

Nonetheless, because there may be some procedural problem about taking cognizance of information we have secured concerning the Texas proceedings subsequent to the district court judgment, we choose instead to decide this case by examining the legal issues which prompted our granting relator's writ.

When we granted this writ we were interested in scrutinizing the Uniform Child Custody Jurisdiction Act as adopted in Louisiana (La.R.S. 13:1700 et seq.) to determine its proper application in the fact situation presented in this case.

We will therefore consider the case simply on the basis of the record as it existed when the case was presented in the district court and the Court of Appeal. In that posture there is simply an outstanding Texas modification decree of February 25, 1981 granting custody to the Texas father under the Texas court's original jurisdiction because "the child is physically present in (the) state and there is a serious immediate question concerning the welfare of the child." Tex.Fam.Code Ann. 11.045(a)(2)(B). With an extant custody decree of another state, Louisiana courts may not take and settle a custody matter between the same parties unless the court of the other state no longer has, or has declined to take, jurisdiction and unless the Louisiana court itself has jurisdiction. See La.R.S. 13:1713(A).

The question presented therefore is whether the Texas district court had jurisdiction in this instance to award custody to the father. Another way of looking at the legal question is this: if the roles of the Texas and Louisiana courts were reversed, and the father was the Louisiana resident asking our courts to grant him custody of his child, a Texas domicilary, would a Louisiana court be the proper forum for resolving this custody matter? If that reverse situation were the case, we believe that under Louisiana's Uniform...