Nowlin v. McGee
| Decision Date | 20 September 1965 |
| Docket Number | No. 10428,10428 |
| Citation | 180 So.2d 72 |
| Parties | Mrs. Barbara Dow McGee NOWLIN, Plaintiff-Appellant, v. Henry Wayne McGEE, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Love, Rigby & Donovan, Shreveport, for appellant.
Cook, Clark, Egan, Yancey & King, Shreveport, for appellee.
Mrs. Nowlin, formerly Mrs. McGee, obtained a judgment of divorce and the custody of the minor children in Caddo Parish on October 20, 1961. At that time all parties were residents of Caddo Parish. The judgment is silent as to visitation rights of the father. Mrs. McGee, since remarried, established a domicile in Houston, Texas, where she and the children have resided continuously since the divorce.
On December 11, 1964, Mr. McGee instituted the present action by way of summary process in Caddo Parish seeking to have that court fix visitation privileges with his children. He alleges he has been restricted to visiting his children in the home of his former wife and her second husband and under their supervision.
A curator ad hoc was appointed through whom service was made on Mrs. Nowlin. To this petition relatrix filed a declinatory exception under Article 925 of the Louisiana Code of Civil Procedure, alleging that she and the minors were not physically present in the state but were residing and domiciled in Houston, Texas. In her exception she contends the Louisiana court lacked jurisdiction over the persons and the subject matter. The lower court overruled the exception and we granted certiorari.
It is conceded Mrs. Nowlin and the minor children are nonresidents of Louisiana. In addition we find the domicile of the mother to be in Texas. Since the minor children live with her pursuant to the custody award, their domicile is with their mother. See Louisiana Civil Code Article 39; Person v. Person, 172 La. 740, 135 So. 225 (1931); Graves v. Graves (La.App. 2 Cir., 1960) 122 So.2d 350; Leflar, Conflict of Laws, (1959) Sec. 12.
The sole issue is: does the Caddo Parish District Court have jurisdiction to modify its previous custody judgment when both the minor children and the parent, who has actual and legal custody, are nonresidents of and domiciled in another state, and the parent has been served only by substituted service?
While the precise question appears to be res nova in Louisiana, an examination of the codal authority and jurisprudence established in related and similar situations leads us to conclude the District Court of Caddo Parish is without jurisdiction.
Louisiana Code of Civil Procedure Article 10 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; * * *.' (Emphasis added.)
Plaintiff in rule urges that since the Louisiana court originally had jurisdiction of all the parties in the divorce proceeding such jurisdiction continues for determination of all incidental matters. He likewise contends that Mrs. Nowlin's continued receipt of support payments, made pursuant to the order of the Louisiana court, should preclude her from contending that her removal of herself and the children defeats the jurisdiction of the Louisiana court to modify the custody orders.
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. Lukianoff, 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...
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Lynn v. Lynn
... ... 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 ... ...
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Lucas v. Lucas
...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. ......
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Odom v. Odom, 58895
...is neither domiciled nor physically present in Louisiana. Stewart v. Stewart, 233 So.2d 305 (La.App.1st Cir. 1970); Nowlin v. McGee, 180 So.2d 72 (La.App.2d Cir. 1965). However, the Third and Fourth Circuits have recently noted that a court which rendered a separation or divorce retains jur......
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Cashio v. Cashio
... ... Under the authority of Nowlin v. McGee, 180 So.2d 72 (La.App. 2d Cir. 1965), the Supreme Court denied certiorari, 248 La. 527, 180 So.2d 541 (1965). The father then went to ... ...