Holdsworth v. Holdsworth

• Court: Court of Appeal of Louisiana
• Writing for the Court: VICTORY
• Citation: Holdsworth v. Holdsworth, 621 So.2d 71 (La. App. 1993)
• Decision Date: 23 June 1993
• Docket Number: No. 24,876-CA,24,876-CA
• Parties: Robert Eugene HOLDSWORTH, Plaintiff-Appellee, v. Dianna Lee Suchey HOLDSWORTH, Defendant-Appellant.

Page 71

621 So.2d 71

Robert Eugene HOLDSWORTH, Plaintiff-Appellee, v. Dianna Lee Suchey HOLDSWORTH, Defendant-Appellant.

No. 24,876-CA.

Court of Appeal of Louisiana Second Circuit.

June 23, 1993.

Rehearing Denied Aug. 12, 1993.

Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellant.

Paul Henry Kidd, Jr., Monroe, for plaintiff-appellee.

Before SEXTON, VICTORY and STEWART, JJ.

VICTORY, Judge.

In this child custody dispute, the trial court maintained a previous award of joint custody with the father as domiciliary parent, modified visitation privileges, found both parties in contempt, ordered the mother to pay child support, and imposed sanctions on the mother for instituting custody litigation in Colorado. The mother appealed, and her former husband answered the appeal. Finding reversible error in the court's ruling on jurisdiction, the imposition of sanctions and summer visitation, we reverse as to those issues, and, as amended, affirm the award of child support.

FACTS

Robert Eugene Holdsworth ("Holdsworth") and Dianna Lee Suchey Holdsworth Goodart ("Goodart") were married in Ouachita Parish in 1984, judicially separated in 1987 and divorced in 1988. Holdsworth was awarded sole custody of their minor child, Forrest Eugene Holdsworth, who was born September 18, 1985. Goodart appealed that judgment and on March 1, 1990, after remand by this court, the trial court awarded joint custody, naming Holdsworth as the domiciliary parent.

During the pendency of the actions in Louisiana, Goodart filed separation and divorce actions in Oklahoma where she was then residing. She later moved to New Mexico, North Carolina and Colorado, where she now resides. Holdsworth currently resides in Kentucky.

The March 1, 1990 judgment declared that Ouachita Parish assumed "permanent jurisdiction" over custody of the minor pursuant to both factual findings of the court and stipulation of the parties. Although Goodart appealed that judgment, she did not attack the issue of permanent jurisdiction, and later dismissed the appeal.

In February 1991, Holdsworth, then living in Kentucky, filed a rule for support, modification of custody and visitation in Louisiana. On August 13, 1991, while the rule was still pending in Louisiana, Goodart filed a custody rule in Colorado. She alleged that a "sudden emergency" existed in that the child was experiencing psychological problems. The Colorado trial court, after a hearing on August 21, 1991, returned custody to Mr. Holdsworth and deferred jurisdiction to Kentucky.

Goodart filed a motion in Louisiana on August 20, 1991, asking the Louisiana court to defer jurisdiction to either Colorado or Kentucky. On September 11, 1991, Holdsworth answered and filed a reconventional demand seeking child support, contempt, a permanent injunction prohibiting Goodart from litigating in other states, and a bond to ensure compliance with the further orders of the Louisiana courts. All these matters were continued pending a ruling on the jurisdiction issue. On October 16, 1991, the trial court denied Goodart's request to defer jurisdiction. The Kentucky court, where Goodart had also filed, deferred jurisdiction to Louisiana.

In December 1991, Goodart filed a rule for sole custody in Louisiana. Holdsworth's February 1991 rule, September 1991 reconventional demand and Goodart's December 1991 rule were tried in January 1992. In its judgment of June 1, 1992, the trial court found that Louisiana would continue to retain permanent jurisdiction over child custody. As sanctions for filing the custody litigation in Colorado, the court permanently enjoined Goodart from instituting custody litigation in any venue other than Ouachita Parish, Louisiana, ordered her to post a $3000 bond to ensure future compliance with Louisiana court orders, and assessed her with $2,500 in attorney fees, travel expenses and court costs expended by Holdsworth in the Colorado proceeding.

UCCJA JURISDICTION

First, Goodart argues that the trial court erred in determining that Louisiana would continue to retain permanent jurisdiction over all custody litigation in accordance with the stipulated provision in the March 1990 judgment. She asserts that, under the Uniform Child Custody Jurisdiction Act, jurisdiction is proper in Kentucky as that is now the child's home state.

Louisiana adopted the Uniform Child Custody Jurisdiction Act, LSA-R.S. 13:1700 et seq., (UCCJA) in 1978 with the stated purpose of avoiding jurisdictional competition in child custody conflicts, promoting interstate cooperation, litigating child custody where the child and family have the closest connections, discouraging continuing conflicts over custody, deterring the abduction and unilateral removal of children, avoiding the relitigation of another state's custody decisions and promoting the exchange of information and other mutual assistance between the courts in different states. LSA-R.S. 13:1700; Fazio v. Fazio, 587 So.2d 91 (La.App. 2d Cir.1991); Snider v. Snider, 474 So.2d 1374 (La.App. 2d Cir.1985), writ denied, 478 So.2d 903 (La.1985). The jurisdictional limitations imposed by the UCCJA are equivalent to declarations of subject matter jurisdiction. Renno v. Evans, 580 So.2d 945 (La.App. 2d Cir.1991); Counts v. Bracken, 494 So.2d 1275 (La.App. 2d Cir.1986).

LSA-R.S. 13:1702 sets forth the conditions necessary for a court to exercise jurisdiction over a child custody case as follows:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from the state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or

(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.

B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Under this statute, jurisdiction is listed in order of descending preference. Renno v. Evans, supra; Schroth v. Schroth, 449 So.2d 640 (La.App. 4th Cir.1984). Therefore, the most favored jurisdiction is the "home state," defined by LSA-R.S. 13:1701(5) as the state in which the child lived with his parents, a parent, or a person acting as a parent for at least six consecutive months immediately preceding commencement of the action. When a state cannot meet the requirements of home state jurisdiction under the UCCJA, jurisdiction may be retained in that state for a period of time due to the state's significant connection with the parties until another state acquires home state jurisdiction. Snider v. Snider, supra.

At the time of the custody decree in 1990, Louisiana had jurisdiction as the home state of the child and one parent. Holdsworth and his son continued to live in Louisiana for approximately six months after the custody decree. However, at the time Holdsworth instituted the February 1991 proceedings which resulted in the June 1992 judgment, Louisiana did not meet the home state jurisdictional requirements under LSA-R.S. 13:1702 A(1), as Holdsworth and his son had both moved to Kentucky on September 15, 1990. Further, although Louisiana had been the home state within six months before the filing of the February 1991 rule, there was no parent continuing to live in Louisiana, as both Holdsworth and Goodart had moved from the state.

Nonetheless, it is clear that Louisiana did have a significant connection with the child and the parents from the initial decree until the commencement of the modification proceedings. Because of the parties' numerous court appearances, Louisiana is a forum intimately familiar with the parties and the evidence in this case. Louisiana was the last home state of the child and no other state had acquired home state jurisdiction at the time Holdsworth instituted the modification proceedings in Louisiana in February 1991. Thus, Louisiana had jurisdiction to hear Mr. Holdsworth's February 1991 rule and the other rules filed during its pendency.

The trial court, however, erred in holding that Louisiana would retain permanent jurisdiction over all future custody litigation between these parties. A Louisiana court has continuing jurisdiction to modify its prior custody decree if it meets the jurisdiction requirements of the UCCJA when the modification is sought. Lee v. Lee, 545 So.2d 1271 (La.App. 2d Cir.1989); Counts v. Bracken, supra. In the event future modifications of...