Lynn v. Lynn

Decision Date24 June 1975
Docket NumberNo. 4924,4924
Citation316 So.2d 445
PartiesDouglas D. LYNN, Plaintiff-Appellee, v. Julia Kendall LYNN, Defendant-Appellant.
CourtCourt of Appeal of Louisiana — District of US

Mouton, Roy, Carmouche & Hailey by H. Purvis Carmouche, Lafayette, for defendant-appellant.

J. Minos Simon and Louis M. Corne, Lafayette, for plaintiff-appellee.

Before FRUGE , HOOD and WATSON, JJ.

FRUGE , Judge.

Defendant Julia Kendall Lynn appeals a judgment transferring custody of her minor son Spencer Kendall Lynn to Douglas D. Lynn who is her former husband and the child's father. We reverse.

Douglas D. Lynn and Julia Kendall Lynn were granted a separation from bed and board in Lafayette, Louisiana, on September 20, 1968. At that time custody of Spencer Lynn, the only child of the marriage, was awarded to Mrs. Lynn. Mrs. Lynn was also awarded alimony pendente lite and child support.

After the judgment of separation Mrs. Lynn and the minor child moved to Houston, Texas. On June 12, 1970, Douglas Lynn was granted a final divorce based on living separate and apart for more than a year and sixty days. At this time Mr. Lynn did not petition for custody. Custody was again awarded to Mrs. Lynn and she was granted alimony and child support in the amount of $1,000 per month. This award was later reduced to $800 per month by mutual agreement of the parties.

Some time subsequent to the granting of the divorce Mrs. Lynn moved to California where she and the minor, Spencer Lynn, have since resided.

In 1971 Douglas Lynn filed a petition for the custody of Spencer Lynn. This petition was later dismissed at Mr. Lynn's request.

In July of 1973 Julia Lynn filed in Lafayette for past due alimony and support for an eight-month period in the amount of $6,400. In September Douglas Lynn filed an answer requesting that alimony and child support be set aside and that custody be changed. Julia Lynn excepted to the jurisdiction of the court on the custody question.

When the matter came up for hearing Douglas Lynn dismissed his suit for custody. Judgment was granted in favor of Julia Lynn for past due alimony and child support in the amount of $6,900. This judgment was rendered in September of 1973.

On May 1, 1974, Julia Lynn again filed to make alimony and support payments executory. The petition alleged that Douglas Lynn had made no payments since the September, 1973, judgment. Douglas Lynn responded by filing a motion to terminate child support and change custody. Julia Lynn again excepted to the jurisdiction of the court to change custody.

Julia Lynn dismissed the rule to make child support and alimony executory on September 20, 1974. The custody matter was heard September 24, 1974. The trial court overruled the declinatory exception to jurisdiction and after hearing the evidence rendered judgment transferring the custody of Spencer Kendall Lynn to the father, Douglas Lynn. It is from this judgment that Mrs. Lynn has appealed.

The appellant specifies two errors: (1) the trial court erred in overruling her declinatory exception of jurisdiction, and (2) the court, on the merits, erred in transferring custody to Mr. Lynn.

JURISDICTION

We deal first with the jurisdiction of the court.

Appellant contends that the minor child is in California and has not been in Louisiana since the institution of the rule to change custody in June of 1973. She further contends that neither she nor the child is domiciled in Louisiana as they have been residing in California for several years. This argument of non-jurisdiction is based on Article 10(5) of the Code of Civil Procedure, which provides as follows:

'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 legal custody of a minor if he is domiciled in, or is in, this state; . . ..'

The father does not contend that the minor child, Spencer Lynn, is domiciled in or has been in the State of Louisiana during the course of these proceedings. He contends that the court has jurisdiction to award custody to him based on the continuing jurisdiction of a court to decide matters incidental to a divorce. In the alternative, he contends that appellant has consented to the jurisdiction of the court by making a general appearance.

CONSENT

In Douglas v. Douglas, 146 So.2d 227 (La.App.3rd Cir. 1962), this court held that jurisdiction over the status, with which we are here concerned, could not be conferred by the consent of the parties. In that case jurisdiction over status was held to be a matter of jurisdiction over subject matter which under Article 3 of the Code of Civil Procedure 'cannot be conferred by consent of the parties.' Although the court in Douglas was not specifically concerned with the matter of custody in this holding, we think it applies to all matters of jurisdiction over status including custody. We are in full accord with that holding and follow it here. Thus the fact that the trial court had Personal jurisdiction over Julia Lynn because of a general appearance made through counsel does not confer the court with jurisdiction over the status of her minor child.

CONTINUING JURISDICTION

Douglas Lynn urges that the trial court obtained jurisdiction in this matter when the parties mutually petitioned the court for separation and divorce. He contends that the court retains jurisdiction in all matters incidental to the divorce proceedings including the question of custody. He cites Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (1953); Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936); and Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890 (1928).

Appellant, relying on Nowlin v. McGee, 180 So.2d 72 (La.App.2nd Cir. 1965), writ refused, 248 La, 527, 180 So.2d 541, argues that there is no continuing jurisdiction in the trial court with regard to custody matters. She contends there is jurisdiction in a custody matter only when the requirements of Code of Civil Procedure article 10(5) are met.

It appears that there is a split of opinion among the courts of appeal of this state on the question of continuing jurisdiction with regard to custody matters. In Nowlin v. McGee, supra, and in Stewart v. Stewart, 233 So.2d 305 (La.App.1st Cir. 1970), the First and Second Circuits faced the exact issue posed here. Following a Louisiana divorce the parent with custody removed to another state. The non-custodial parent petitioned the divorce court for a change of custody. In both cases the court of appeal held that there was no jurisdiction. The basis of the holding was stated as follows:

'Numerous cases are cited in support of the theory that Louisiana has continuing jurisdiction over all matters incidental to the divorce proceedings. See Lukianoff v. Ludianoff, 166 La. 219, 116 So. 890 (1928); Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Graves v. Graves (La.App. 2 Cir., 1960) 122 So.2d 350; Blackburn v. Blackburn (La.App. 2 Cir., 1964), 168 So.2d 898; Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936). Examination of these authorities convinces us there are distinguishing features in each of the cited cases.

The contrary position adopted by relatrix is that once the final divorce was rendered and she was awarded custody of her children she was at liberty to change her domicile and that of the children to Texas and that thenceforth the Louisiana court is without jurisdiction to change or modify the custody order. This contention is in accord with the decisions of the Louisiana Supreme Court in State ex rel. Huhn v. Huhn, 224 La. 591, 70 So.2d 391 (1954); and with that In re Ackenhausen (La.App. 4 Cir., 1962) 146 So.2d 37, affirmed by the Louisiana Supreme Court in 244 La. 730, 154 So.2d 380 (1963). Both of the cited cases quoted from the United States Supreme Court case of People of State of N.Y. ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133, in which it was held that if the court of the state which rendered the judgment (of custody) had no jurisdiction over the person or the subject matter, the jurisdictional infirmity is not saved by the Full Faith and Credit Clause.' Nowlin v. McGee, 180 So.2d 72, 73, also quoted in Stewart v. Stewart, 233 So.2d 305, 308--09.

In Pattison v. Pattison, 208 So.2d 395 (La.App.4th Cir. 1968), the Fourth Circuit indicated its disagreement with the holding in Nowlin v. McGee, supra. In that case the jurisdictional issue was whether a Louisiana divorce court retained jurisdiction to order a custodial parent to return with the child to Louisiana after they have moved out of the state. The court stated:

'However, in the recent case of Nowlin v. McGee, La.App., 180 So.2d 72, writs refused 248 La. 527, 180 So.2d 541, it was held that a Louisiana court did not have jurisdiction to modify its previous custody judgment where the parent having legal custody of the minor children had removed them from this state. However, we conclude the Supreme Court decisions, cited above, are controlling in this matter .' Pattison v. Pattison, 208 So.2d 395, 396. (The Supreme Court cases referred to include those relied on by appellee in this case.)

It appears, therefore, that With regard to custody matters the First and Second Circuits do not recognize the continuing jurisdiction of the divorce court while the Fourth Circuit does.

Research has not uncovered any Third Circuit cases which have dealt with the issue posed here. However, in Lege v. Lege , 228 So .2d 202 (La.App.3rd Cir. 1969), we recognized an Alabama divorce court's continuing jurisdiction in a situation which was the inverse of that presented here. In Lege , following an Alabama divorce, the mother moved to Louisiana with the children. She had been granted custody in the divorce proceedings. After the move the father instituted proceedings and was...

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