Stewart v. Stewart

Decision Date09 March 1970
Docket NumberNo. 7643,7643
PartiesSebron Richard STEWART, Plaintiff-Appellant, v. Rosemary Clayton STEWART, Defendant-Appellee.
CourtCourt of Appeal of Louisiana — District of US

Fannie E. Burch, Amite, for plaintiff-appellant.

Ponder & Ponder, Amite, for defendant-appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

Plaintiff instituted this suit against his wife seeking a divorce on the grounds of adultery, modification of a custody award rendered in a judgment of separation from bed and board between the parties, and disavowal of a child born to the defendant after the judgment of separation.

The trial judge held that the defendant and her children, including the one to be disavowed, are residents of and domiciled in Tennessee and sustained defendant's declinatory exception of jurisdiction over the persons of the children. C.C.P. Article 925. Plaintiff now appeals from this judgment which, for reasons hereinafter stated, we affirmed.

We are not favored with written reasons for judgment nor any testimony that might have been taken at the hearing on the exception . However, the issues presented to the trier of fact for consideration are solely ones of law and for the purpose of determining the correctness of the judgment now appealed we shall accept as true certain allegations of fact which are uncontested as they appear in the pleadings of both parties.

Plaintiff and defendant were married on April 12, 1963 in Livingston Parish, Louisiana. The matrimonial domicile was established in Tangipahoa Parish where the parties resided together until January 10, 1967, when defendant left. She filed suit for separation on January 16, 1967.

On September 19, 1967, defendant obtained a judgment of separation from the plaintiff and was awarded the care, custody and control of their two minor children, then the only issue of the marriage. Shortly thereafter defendant and the children moved to Kingston Springs, Cheatham County, Tennessee where they have continued to remain.

On March 26, 1968 defendant gave birth to another child, a daughter, and notified plaintiff of this fact by letter dated April 8, 1968.

Plaintiff filed the instant action on April 24, 1968 alleging, inter alia, that he and defendant had not lived together since January 10, 1967 and that because of the hostility on the part of defendant and threats of violence against him by members of her family, he was not permitted to see defendant or exercise rights of visitation with his children. Plaintiff further avers that because of such threats it was 'physically impossible' for him to have cohabited with defendant since they ceased living together on January 10, 1967. Plaintiff also alleges that the last time he saw his wife was on July 1, 1967 when the suit for separation was heard on the merits. He claims that defendant left for Tennessee shortly after the judgment of separation on September 19, 1967 and he did not know of her pregnancy or the birth of the child until he received her letter of April 8, 1968.

On information and belief, plaintiff alleges that his wife is living in open adultery in Tennessee with a named corespondent which entitles him to a divorce on the grounds of adultery and renders her unfit for the continued custody of the two older children.

There is attached to this record defendant's Exhibit #1 which is a copy of a petition dated May 6, 1968 filed by her in the Chancery Court for Cheatham County, Tennessee for a divorce from plaintiff on the grounds of certain alleged cruelties which are not germane to the pertinent issues. However, the dates therein set forth coincide with and corroborate those mentioned in plaintiff's petition.

It should be mentioned at this point that the trial judge, while sustaining the exceptions as to the change of custody and action in disavowal, stated that such did not preclude plaintiff's rights to proceed with his demands for a divorce on the grounds of the alleged adultery. The record before us does not disclose any evidence that plaintiff has proceeded further than to perfect the instant appeal.

Under the aforementioned facts the issues for resolution are two-fold, both relating to an adjudication on a matter of status and jurisdiction of the court a quo to make such determinations. One issue is whether or not plaintiff can proceed to obtain a judgment awarding him the custody of the two older children. The other issue is whether or not plaintiff can proceed in the court of his domicile to disavow the youngest child who resides in Tennessee with its mother. On the first issue we have the benefit of prior jurisprudence. The second issue, to our knowledge, is res nova in the jurisprudence of this state.

While we shall discuss these issues in the order mentioned it is well to consider our fundamental rules on jurisdiction. Article 1 of the Code of Civil Procedure defines jurisdiction as:

'* * * (T)he legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.'

Subsequent articles prescribe that there must be jurisdiction over the subject matter 1 and over the person. 2 The articles further recognize that an action may be In rem 3 or Quasi in rem. 4 The last remaining article of this group provides for jurisdiction over Status. 5

These classifications as to jurisdiction form the basis for the declinatory exceptions provided for in C.C.P. Article 925(5)(6), which relate to jurisdiction over the person and the subject matter respectively. We are here concerned with jurisdiction over the persons of the children whose custody plaintiff seeks and the child he now endeavors to disavow. Both of these demands are subject to the provisions of Articles 6 and 10 of the Code of Civil Procedure which read as follows:

C.C.P. Article 6

'Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:

(1) The service of process on the defendant, or on his agent for the service of process;

(2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or

(3) 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.'

C.C.P. Article 10

'A. 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:

(1) An adoption proceeding if the person who has legal custody of the child is Domiciled, or the child is lawfully, in this state, and the court has personal jurisdiction over the adoptive parent; or if the latter is domiciled in this state, and the court has personal jurisdiction over the legal custodian;

(2) An emancipation proceeding if the minor is Domiciled in this state;

(3) An interdiction proceeding if the person sought to be interdicted is Domiciled in this state, or is in this state and has property herein;

(4) A tutorship or curatorship proceeding if the minor, interdict, or absentee, as the case may be, is Domiciled in this state or has property herein;

(5) A proceeding to obtain the legal custody of a minor if he is Domiciled in, or is in, this state;

(6) An action to annul a marriage if one or both of the parties are Domiciled in this state; and

(7) An action of divorce, or of separation from bed and board, if one or both of the spouses are Domiciled in this state and, except as otherwise provided by law, the grounds therefor were committed or occurred in this state, or while the matrimonial domicile was in this state.

B. For purposes of Subparagraphs (6) and (7) of Paragraph (A) of this article, if a spouse had established and maintained a residence in a parish of this state for a period of twelve months, there shall be a rebuttable presumption that he has a domicile in this state in the parish of such residence. Amended by Acts 1968 No. 172, § 1.' (Emphasis added)

Now to the first issue. It is particularly noted that Section (5) of Article 10 quoted above authorizes this particular action over status if the minors are domiciled or are physically in the state. The two older children are not within this state. They reside with their mother who has the legal custody. Therefore, the domicile of their mother is also their domicile. C.C. Article 39; C.C.P. Article 10; Nowlin v. McGee, 180 So.2d 72 (2d La.App., 1965, writs refused, 248 La. 527, 180 So.2d 541). Nowlin v. McGee, supra, was quoted with approval in Pattison v. Pattison, 208 So.2d 395 (4th La.App., 1968, writs refused, 252 La. 168, 210 So.2d 52).

The positions of the parties in the case at bar are similar to those of relator and relatrix in Nowlin, where Judge Bolin speaking for the court succinctly stated: (180 So.2d 72, 73)

'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...

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    • United States
    • Court of Appeal of Louisiana — District of US
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    ... ... 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 ... ...
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    ... ... 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 ... ...
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    ...is clearly reflected by our laws, which insure that the legitimacy of a child will be maintained whenever possible (Stewart v. Stewart, 233 So.2d 305 (La.App.1st Cir . 1970)), provide presumptions of the strictest nature (LSA C.C. Arts. 184--192), and protect helpless children, born legitim......
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