Lucas v. Lucas

• Court: Court of Appeal of Louisiana
• Writing for the Court: FRUGE; CULPEPPER; CULPEPPER; FRUGE; HOOD
• Citation: Lucas v. Lucas, 195 So.2d 771 (La. App. 1966)
• Decision Date: 01 December 1966
• Docket Number: No. 1801,1801
• Parties: Richard L. LUCAS, Plaintiff-Appellant, v. Maria Medina LUCAS, Defendant-Appellee.

Page 771

195 So.2d 771

Richard L. LUCAS, Plaintiff-Appellant, v. Maria Medina LUCAS, Defendant-Appellee.

No. 1801.

Court of Appeal of Louisiana, Third Circuit.

Dec. 1, 1966.

On Rehearing Feb. 15, 1967.

Rehearing Denied March 8, 1967.

Writ Refused April 14, 1967.

Stagg, Cady & Beard, by William M. Cady, III, Shreveport, for plaintiff-appellant.

Love, Rigby & Donovan, by Kenneth Rigby, Shreveport, for defendant-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

FRUGE , Judge.

Mrs. Maria Lucas on March 25, 1963, obtained a judgment of divorce from her husband, Richard Lucas, in the First Judicial District Court, Caddo Parish, Louisiana. In that suit the trial judge awarded the custody of the two minor children of the marriage, Richard Danied Lucas and George Luis Lucas, to the mother, Mrs. Lucas. Soon after the divorce was granted Mrs. Lucas moved to Mexico City, Mexico, accompanied by her two minor children. Mr. Lucas thereafter traveled to Mexico City and brought the children back to Louisiana with him. The judgment awarding custody of the children to Mrs. Lucas was amended by consent of the parties on October 15, 1964, and the amended judgment provided:

'That the aforesaid children who are now in the physical care, custody and control of Mr. Lucas are temporarily awarded to his custody until June 1, 1965, at which time the judgment previously rendered herein on March 12, 1963, and read, signed and filed on March 25, 1963, shall immediately become effective as if this judgment had not been rendered.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that should the parties hereto not agree on the custody arrangement prior to August 1, 1965, and enter into a judgment accordingly, that this court, as an express condition hereof, does and shall retain jurisdiction over the parties hereto to adjudicate and determine proper custody of these minors.'

On or about June 1, 1965, Mr. Lucas returned the children to Mexico City pursuant to the modified custody agreement above. Upon returning to Louisiana, Mr. Lucas filed a rule in the First Judicial District Court, Caddo Parish, Louisiana, seeking another modification of the custody judgment and a permanent award of the custody of the children. Through her attorney, Mrs. Lucas filed a declinatory exception to the jurisdiction of the First Judicial District Court, alleging that the court had no power to alter the custody order to her prejudice since she and the two children were domiciliaries of Mexico City, Mexico, and were not physically present in the State of Louisiana. On the authority of Nowlin v. McGee, 180 So.2d 72 (La.App. 2 Cir., 1965), certiorari denied, 248 La. 527, 180 So.2d 541, the trial judge sustained the declinatory exception to the jurisdiction. Thereafter, Mr. Lucas, allegedly without the consent or permission of Mrs. Lucas, traveled to Mexico City in a private airplane, retrieved the children and brought them back to Alexandria, Louisiana. Mr. Lucas then filed the present suit in the Ninth Judicial District Court for the Parish of Rapides, seeking a judgment awarding the custody of the two children to him. Mrs. Lucas, again through her attorney, filed exceptions of res judicata, lack of jurisdiction over the subject matter, improper venue, lis pendens and, alernatively, a motion for a change of venue . The district court sustained the exceptions to the jurisdiction, holding that if any court of the State of Louisiana had jurisdiction, then it was the First Judicial District Court in the Parish of Caddo, which rendered the original divorce and custody judgment. Mr. Lucas has appealed, urging that the trial court erred in failing to hold that (1) the courts of Louisiana have jurisdiction to determine the custody of children physically before the court regardless of the fact that the children may have entered the state unlawfully or without the permission of the lawful custodian, and (2) that the Ninth Judicial Court for the Parish of Rapides is a proper court to determine the custody of the two children in this case.

This appeal presents two issues for our determination:

First, may the courts of the State of Louisiana, under the doctrine of parens patriae, adjudicate the status of children physically present within the state even though the spouse originally awarded custody is outside the state and the children are brought into or retained within the state in contravention of the wishes of the custodian-spouse?

Second, assuming that the courts of Louisiana have jurisdiction over the status of such children, is the court which rendered the judgment of divorce and the original order of custody the only court competent to entertain a subsequent suit to redetermine the custody of the children?

Although there are divergent lines of authority, the trend of decisions throughout the United States seems to be toward assuming jurisdiction over the status of minor children physically within the jurisdiction of the court regardless of the manner in which the children were brought within the confines of the state. See Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, (1949); In re Smith's Guardianship, 147 Cal.App.2d 686, 306 P.2d 86 (1956); DiGiorgio v. DiGiorgio, 153 Fla. 24, 13 So.2d 596 (1943); Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, and the annotation at 4 A.L.R.2d 1.

In Louisiana the power of our courts to adjudicate the custody of minor children is regulated by Code of Civil Procedure Article 10, Section 5, which provides:

'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;

In the case of State ex rel. Girtman v. Ricketson et ux., 221 La. 691, 60 So.2d 88 (1952), our Supreme Court had this to say with regard to the jurisdictional requirements of domicile and physical presence:

'There is no doubt but that once the legal domicile of the child has been established by the court of one state, the question of his custody can be re-examined by that court if any changes in his condition present themselves and a change of custody is found necessary for his best interest and welfare. That does not mean however that if by reason of some circumstance, the child is found in a State other than that of such domicile, in custody of one of the parents, such as is the child in this case, the courts of that State do not have jurisdiction to make the same sort of investigation regarding any changes of conditions which may lead to a change of custody for his better welfare. The court, no matter of which State, having his person before it, has the right, and even the duty according to some cases, under the doctrine of parens patriae, to act for the best interest of the child. The basic principle on which jurisdiction is assumed in such cases is the welfare of society in general and primarily as evidenced by the welfare of the child. See Wicks v. Cox, supra, and Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937.'

The Girtman case was decided prior to the adoption of the Code of Civil Procedure but the specific language of Article 10, Section 5, codifies the principle expressed in the Girtman case that the mere physical presence of children within the boundaries of the state is sufficient grounds for a Louisiana court to exercise jurisdiction over the status of those children. Accordingly, we are of the opinion that a Louisiana court has the power and authority to modify the award of the custody of the Lucas children, even assuming that the children were brought into the State without the consent or knowledge of Mrs. Lucas.

Having decided that the courts of Louisiana are competent to entertain this suit, we are faced with the problem of determining which court within the state is the proper forum to hear and decide the matter of the custody of these children. The appellant, Mr. Lucas, contends that since the children are physically present within the Parish of Rapides, then the district court of that parish is a proper court in which to bring a custody suit. On the other hand, Mrs. Lucas, the appellee, maintains that the First Judicial District Court, Caddo Parish, is the only court in which this suit may be maintained since both the judgment which dissolved the marriage and the judgment awarding custody of the children to the mother issued from that court.

Although our research discloses no case exactly in point, we feel that the principle announced in State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (1953), is applicable to the facts at bar and requires that the present suit be brought in the Parish of Caddo . In that case the Supreme Court said:

'It is also well settled that when two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controversy to the exclusion of all others. Demoruelle v. Allen, 218 La. 603, 50 So.2d 208; State ex rel. Terry v. Nugent, 212 La. 382, 31 So.2d 834; Geilinger and Blum v. Philippi, 133 U.S. 246, 10 S.Ct. 266, 33 L.Ed. 614; Lake Bisteneau Lumber Co. v. Mimms, 49 La.Ann. 1283, 22 So. 730 and cases cited therein.'

The trial judge expressed the same view, relying on State ex rel. Paul v. Department of Welfare, 166 So.2d 7 (La.App. 3 Cir., 1964). See also State ex rel. Terry v. Nugent et ux., 212 La. 382, 31 So.2d 834; Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936); and Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953).

The appellant argues earnestly that he should not be required to bring his suit in the First Judicial District Court of the Parish of Caddo since that court, in a prior suit, declined to exercise jurisdiction. Under the circumstances that existed at that time we feel that the ruling of the Caddo Parish court was entirely proper since the Lucas children were neither...