Pattison v. Pattison

• Decision Date: 04 March 1968
• Docket Number: No. 2861,2861
• Citation: 208 So.2d 395,252 La. 168
• Parties: Alfred T. PATTISON, II v. Mrs. Alfred T. PATTISON, II (nee Gretchen Rau).
• Court: Court of Appeal of Louisiana — District of US

Page 395

208 So.2d 395

Alfred T. PATTISON, II v. Mrs. Alfred T. PATTISON, II (nee Gretchen Rau).

No. 2861.

Court of Appeal of Louisiana, Fourth Circuit.

March 4, 1968.

Rehearing Denied April 8, 1968.

Writ Refused May 17, 1968.

Wilkinson & Wilkinson, John B. Wilkinson, New Orleans, for plaintiff-appellee.

Herbert J. Garon and Milton E. Brener, New Orleans, for defendant-appellant.

Before BARNETTE, JOHNSON and TUCKER, JJ.

TUCKER, Judge.

On January 25, 1966 the Civil District Court for the Parish of Orleans awarded defendant-appellant (wife) a final divorce from plaintiff-appellee and custody of their four minor children, subject to reasonable visitation rights in favor of plaintiff. On March 11, 1966 the same court ordered plaintiff to pay $575.00 a month child support. On October 11, 1966, in the same court, plaintiff filed a rule to show cause why defendant, who had moved to Long Island, New York, with her children, should not return them to the jurisdiction of the court; why the $575.00 per month child support should not be suspended until the children's return; and why defendant should not be held in contempt of court.

On October 28, 1966 after a hearing on the matter, the rule was made absolute and it was ordered that defendant return the children to the jurisdiction of the court by December 2, 1966 under penalty of contempt and that child support be suspended until she returned the children.

From this judgment defendant has taken a suspensive appeal. It was agreed by both counsel in this court that the defendant has remarried and is living with her husband and her four children in Long Island, New York.

Plaintiff contends that the District Court in which the separation or divorce is acquired continues to have jurisdiction over all matters incidental thereto including child support and custody even though the party having custody has removed the children from the jurisdiction of the court. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321; Pullen v. Pullen, 161 La. 721, 109 So. 400. See also Wheeler v . Wheeler, 184 La. 689, 167 So. 191; Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890.

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 . Even assuming arguendo that there is a question of jurisdiction, defendant, by her general appearance, submitted herself to the jurisdiction of the lower court. See LSA-C.C.P. art. 7 and Lucas v. Lucas, 250 La. 539, 197 So.2d 81.

Therefore the only question we must decide is whether the trial court abused its discretion in ordering defendant to return her children to the jurisdiction of the court, subjecting her to contempt charges for her failure to do so and suspending the children's support payments until their return.

It is well settled that the court in its discretion may permit the party having custody to remove the children from the jurisdiction of the court. Wilmot v. Wilmot, supra; Wheeler v. Wheeler, supra; Carlson v. Carlson, La.App., 140 So.2d 801; Fayard v. Fayard, La.App ., 181 So.2d 304. We have found only one case in our jurisprudence which forbade the party having custody from removing a child from the jurisdiction of the court: Sachse v. Sachse, La.App., 150 So.2d 772 (1st Cir., writs not applied for). In the Sachse case there was apparently no showing by the mother of any reason why she wished...