Imperial v. Hardy
| Decision Date | 11 October 1974 |
| Docket Number | No. 54409,54409 |
| Citation | 302 So.2d 5 |
| Parties | Benjamin E. IMPERIAL, M.D. v. Laura HARDY. |
| Court | Louisiana Supreme Court |
John M. Page, McCloskey, Dennery & Page, New Orleans, for defendant-applicant.
Rene A. Pastorek and James D. Estopinal, Gretna, for plaintiff-respondent.
Benjamin E. Imperial and Laura Hardy were divorced in Michigan on April 27, 1965. She was awarded custody of the two children of the marriage with the right to remove their domicile to Louisiana. She was also awarded the sum of $124 biweekly for the support and maintenance of the children. When the husband later petitioned, on June 5, 1967, to reduce the support award and for a more definite order in regard to visitation, he was found to be $4,250 in arrears in the payments required by the decree of April 27, 1965. In addition, the support payments were increased to $130 biweekly. Later, in October 1967, the Michigan court ordered that the arrearage of $4,250 be declared a money judgment subject to execution.
In the meantime, the wife moved with the children to Louisiana and established their domicile here. Based on their residence in Orleans Parish, the husband filed these proceedings there to obtain custody of the children. He alleged that he was being denied visitation rights by the wife and that she was subjecting the children to improper influences.
The wife answered, denying that she obstructed or hindered the exercise of the husband's rights of visitation, and asserting her right to retain custody of the children. She then reconvened, praying that the Orleans Parish court fix the amount to be paid by the husband for support of the children at $130 biweekly in keeping with the amount ordered paid by the Michigan Court. She also prayed that the amount of the arrearage in support payments due for the children be fixed at $4,250, less a credit of $1,000, and made executory.
On these pleadings a judgment was rendered on February 26, 1968 by the Orleans Parish District Court reciting that it was rendered 'in view of the agreement reached by the parties.' It rejected the husband's demand for custody of the children. A decree was entered in that judgment 'granting unto defendant (the wife) the care, custody and control of the aforesaid minor children subject to plaintiff's (the husband's) right to exercise reasonable visits with the children in New Orleans,' ordering the husband to pay $130 biweekly for the support of the children, and making the Michigan judgment for arrearage executory. Judgment was also awarded in favor of the wife for $3,250, an amount equal to the balance due on the arrearage. No appeal was taken from this judgment, and the husband complied with its decrees by making support payments and by satisfying the judgment for arrearage.
On two occasions thereafter, August 1, 1968 and July 18, 1969, the husband filed rules in these proceedings to enforce his rights of visitation. No further action was taken until, on the wife's motion, on January 25, 1973, the court ordered the husband to show cause why past due child support payments in the amount of $1,626 should not be determined and made executory through a judgment rendered against him in favor of the wife. At the same time, by separate motion, the wife sought an increase in the child support payments to $225. These last two motions were served on counsel of record for the husband, who then, alleging that he had been discharged, moved to withdraw as counsel. The motion was granted.
The husband, through his present counsel, alleging that he was then a resident of Indiana, excepted to the jurisdiction of the court over his person and to the validity of the service of process on his former counsel. These exceptions were overruled by the trial judge. Writs of certiorari were granted by the Fourth Circuit and on review the husband's exception to the jurisdiction was maintained, and the judgment of the trial court was reversed. 287 So.2d 224. On the wife's application, we granted certiorari. 290 So.2d 897.
Sufficiency of the service of process on the husband's counsel of record depends on whether the court has jurisdiction over the person of the husband. If the court does have jurisdiction, the service here was proper under Articles 1312, 1313 and 1314 of the Code of Civil Procedure which permits the service of every pleading subsequent to the original petition by delivering a copy thereof to the adverse party, or to his counsel of record. Walker v. Walker, 246 La. 407, 165 So.2d 5 (1963); Reynolds v. Reynolds, 21 Cal.2d 580, 134 P.2d 251 (1943); Moore v. Superior Court, 203 Cal. 238, 263 P. 1009 (1928); Wells v. Wells, 209 Mass. 282, 95 N.E. 845 (1911); 62 A.L.R.2d, Alimony-Modification-Notice 6(b) p. 557; ALI, Rest., Conflict of Laws, 76; Ehrenzweig, Conflict of Laws, p. 90 (1962). And if the Orleans Parish Court had personal jurisdiction over the defendant, it would also have authority to appoint an attorney to represent the absent defendant under the authority of Article 5091 of the Code of Civil Procedure.
This record makes clear that after the Michigan divorce the wife moved to Louisiana with the children and established their domicile in this State. The Louisiana court, therefore, had jurisdiction over the status of these children and of the husband's proceeding filed here to obtain custody of them. It was upon the husband's initiative that the authority of the Louisiana court was invoked to adjudicate his grievance. La.Code Civ.P. art. 10(5). While custody involves status and jurisdiction over the status is proper at the domicile of the children, alimony does not involve status. It requires a money judgment supported by personal jurisdiction over the party cast. Pennoyer v. Neff, 95 U.S. 714, 24 N.E. 565 (1878); Baker v. Jewell, 114 La. 726, 38 So. 532 (1905). Jurisdiction over the person is the legal power of the court to render a personal judgment against a party to an action or proceeding. Our Code of Civil Procedure recognizes, among other, this ground for personal jurisdiction: 'The submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.' La.Code Civ.P. art. 6.
This authority; the fact that the wife's reconventional demand for support payments, arrearage, etc., was part of the same proceeding in which the husband had invoked the court's jurisdiction; the fact that the demands in reconvention for support for the children were incidental to or concomitants of the custody proceedings; the fact that the judgment of February 26, 1968 resulted from the husband's petition for custody and the wife's reconventional demand; the fact that the judgment awarded custody and simultaneously fixed support payments incidental thereto, made the arrearage executory and cast defendant in a separate decree for the balance due on the arrearage; the fact that the judgment recites that it was rendered 'in view of the agreement reached by the parties'; and the fact that the husband did comply with that judgment by making support payments and by paying the arrearage all make a convincing case of submission to the exercise of jurisdiction by the husband, or at least these facts amount to an express or implied waiver of objections to the exercise of that jurisdiction. For the lack of jurisdiction of the person is a mere personal defense, which, if not pleaded, is waived. Theriot v. Bayard, 37 La.Ann. 689 (1885).
Jurisdiction is power, and it would be meaningless in this case if the husband could submit to the court's jurisdiction and be cast for child support which this court could neither later modify nor enforce within its boundaries.
Once jurisdiction attached for an award of child support, therefore, it continues for a change or modification of the award in the future. La.Civ.Code art. 157; La.Code Civ.P. art. 2592; Davis v. Davis, 238 La. 293, 115 So.2d 355 (1959); Nelson v. McCarter, La.App., 212 So.2d 467 (1968).
This brings us back to the problem we resolved when we began our reasoning. Having decided there that if the court had jurisdiction...
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Lynn v. Lynn
...motion to change custody and terminate child support. Costs of this appeal are assessed to appellee. Reversed. 1 In Imperial v. Hardy, 302 So.2d 5 (1974), the Supreme Court recently reaffirmed the court's continuing jurisdiction in Child support matters. However, no custody issue was presen......
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DeFatta v. DeFatta
...power to render such a judgment only if it has jurisdiction over the person of the party against whom judgment is sought. Imperial v. Hardy, 302 So.2d 5 (La.1974); de Lavergne v. de Lavergne, 244 So.2d 698 (La.App. 4th Cir. 1971), writ refused 258 La. 357, 246 So.2d 680 (1971); Broussard v.......
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Odom v. Odom, 58895
...1976); Lynn v. Lynn, 316 So.2d 445 (La.App.3d Cir. 1975); Pattison v. Pattison, 208 So.2d 395 (La.App.4th Cir. 1968). In Imperial v. Hardy, 302 So.2d 5 (La.1974), we held that when a nonresident father invoked the jurisdiction of Louisiana courts to obtain custody of his children present in......
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Bailey v. Bailey
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