Winston v. Millaud

• Decision Date: 12 April 2006
• Docket Number: No. 2005-CA-0338.,2005-CA-0338.
• Citation: 930 So.2d 144
• Parties: Calvena WINSTON v. David MILLAUD.
• Court: Court of Appeal of Louisiana — District of US

930 So.2d 144

Calvena WINSTON v. David MILLAUD.

No. 2005-CA-0338.

Court of Appeal of Louisiana, Fourth Circuit.

April 12, 2006.

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Gary S. Brown, Gary S. Brown, LLC, New Orleans, Counsel for Plaintiff/Appellant.

Jerome J. Pellerin, New Orleans, Counsel for Defendant/Appellee.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge EDWIN A. LOMBARD).

CHARLES R. JONES, Judge.

The Appellant, Calvena Winston, appeals the judgment of the district court staying the enforcement of a Tennessee judgment ordering the Appellee, David Millaud, to pay $140,200.00 in past due child support and $2,065.40 per month in ongoing child support, and thus refusing to give the Tennessee judgment full faith and credit under Louisiana law. For the following reasons, we AFFIRM.

On November 18, 1991, the Juvenile Court of Davidson County, Tennessee (hereinafter "Tennessee Juvenile Court") entered an order declaring David Millaud the father of the minor child, David Winston, and reserving the setting of child support. At the time this order was entered, Mr. Millaud, Ms. Winston and the minor child were all residents of the State of Tennessee.

Two years later, Mr. Millaud moved from Tennessee and went to reside in the State of California. Subsequently, Ms. Winston and the minor child moved from Tennessee and also went to reside in the State of California. The relationship between the parties ended, and while all parties still resided in the State of California, Ms. Winston subsequently filed a Petition to Set Child Support (hereinafter "Petition") in the Tennessee Juvenile Court. According to the record, the Petition was served via Tennessee's General Long Arm Statute on Mr. Millaud at his home in California.

The record also reflects that Mr. Millaud then filed an answer into the record of the proceedings before the Tennessee Juvenile Court objecting to the court's subject matter jurisdiction, as well as to its personal jurisdiction over him. We note that Mr. Millaud also acknowledged in his answer that he was "legally responsible for supporting my child." He also stated in his answer that he was in the process of filing a proceeding in the State of California to set child support, custody, and visitation. The record reflects that Mr. Millaud asked the Tennessee court to give him time to file a similar proceeding in the State of California, arguing that the California court had jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction Law (hereinafter "UCCJA").¹ It does not appear from the record that Mr. Millaud ever filed such proceedings.

Approximately one year after the Petition was filed, Mr. Millaud moved from California and took up residence in the State of Louisiana. One year later, Ms. Winston and the minor child moved from California and took up residence in the State of Georgia. Subsequently, Ms. Winston caused her previously filed Petition to be re-set for hearing on the docket of the Tennessee Juvenile Court. The matter was re-set for April 19, 2002.

Mr. Millaud concedes in his brief that he was notified of Ms. Winston's Motion to Re-Set her Petition for hearing via certified mail at his residence in the State of Louisiana. He further acknowledges in his brief that he engaged Tennessee counsel, who while not submitting to personal jurisdiction in Tennessee again filed a response objecting to both the subject matter and personal jurisdiction of the Tennessee Juvenile Court. Apparently, the April 19, 2002, hearing date was postponed and eventually re-set for November 22, 2002. Mr. Millaud argues that the Case Disposition Sheet of the Tennessee Juvenile Court indicates that the hearing set for November 22, 2002, was also continued to December 20, 2002, and that Ms. Winston's attorney was to draft an order to that effect, which was to be served upon Mr. Millaud's Tennessee counsel. Mr. Millaud's counsel states that he never received any such notice.

The record shows that on December 16, 2002, the Tennessee Juvenile Court entered an order stating that the matter had been heard on November 22, 2002, and that after considering the affidavit of Ms. Winston, the Statement of Ms. Winston's attorney, the response filed by Mr. Millaud, and the record as a whole, the court found that the Tennessee Juvenile Court had jurisdiction over the matter; thus, the Petition to Set Child Support was set for December 20, 2002. The court apparently rejected Mr. Millaud's argument that the Tennessee court lacked jurisdiction to hear the matter despite the absence of Mr. Millaud or his counsel.

The record reflects that the trial on child support was held on December 20, 2002, in the Tennessee Juvenile Court. The Tennessee Juvenile Court found in favor of Ms. Winston and accordingly entered judgment ordering Mr. Millaud to pay Ms. Winston ongoing child support in the amount of $2,065.40 per month beginning on December 27, 2002, as well as past due arrearages in the amount of $140,200.00.

As evidenced by the Affidavit of the Clerk of Court for the Tennessee Juvenile Court, there exists no record of the testimony taken and/or evidence received in support of the order rendered and/or in opposition to Mr. Millaud's objection to personal and subject matter jurisdiction.

Due to gaps in the record, it is unclear how the child support matter was set for December 20, 2002, who was notified of the trial or the mode of the notification. Accordingly, we find that the Tennessee Juvenile Court lacked personal jurisdiction over Mr. Millaud because the record is void of any evidence that he had been properly notified of the December 20, 2002, hearing, although the record does show that a copy of the court's judgment was mailed to Mr. Millaud's counsel on December 24, 2002. The Tennessee Juvenile Court judgment became and is now a final judgment.

It appears from the record that Mr. Millaud did not comply with the Tennessee judgment; thus, Ms. Winston filed a petition on February 13, 2004, in Orleans Parish, the present domicile of Mr. Millaud, seeking that the Tennessee judgment be given full faith and credit by the Civil District Court of Orleans Parish, State of Louisiana. Mr. Millaud then filed an action to stay the enforcement of the Tennessee judgment that was granted by the district court on September 7, 2004. This timely appeal follows.

Ms. Winston asserts that the district court erred in allowing the collateral attack on, and not giving full faith and credit to, the Tennessee Juvenile Court judgment that made past due and continued child support amounts executory. Moreover, Ms. Winston contends that the district court erred in finding that Mr. Millaud met his burden of proof that the Tennessee Juvenile Court lacked jurisdiction. We disagree and find that the district court did not err in failing to give full and credit to the Tennessee Juvenile Court judgment because the court lacked subject matter jurisdiction over this matter. We also find that there is insufficient evidence that the Tennessee court had personal jurisdiction over Mr. Millaud.

At issue is whether the evidence produced established that Tennessee courts had personal jurisdiction² over Mr. Millaud and subject matter jurisdiction³ over the matter. While the district court's factual findings are subject to the manifest error standard of appellate review, jurisdiction itself is a question of law subject to de novo review. Sunrise Shipping Agency, Inc. v. Universal Maritime Services, Ltd., 96-2703 (La.App. 4 Cir. 10/3/97), 700 So.2d 1135, 1137, citing Salley v. Colonial Marine Industries, Inc., 95-2215 (La.App. 4 Cir. 9/11/96), 680 So.2d 1242. Mr. Millaud argues that the court lacked personal jurisdiction over him and subject matter jurisdiction over the issue; thus, we find that there are questions of law and will review de novo.

On legal issues, the appellate court gives no special weight to the findings of the district court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Cacamo v. Liberty Mutual Fire Ins. Co., 2004-0074 (La.App. 4 Cir. 9/29/04), 885 So.2d 1248, 1255, citing Gonzales v. Xerox Corp., 320 So.2d 163, 165 (La.1975). Thus, in such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Andrews v. Dufour, 2003-0736 (La.App. 4 Cir. 6/2/04), 882 So.2d 15, 21; See also, O'Niell v. Louisiana Power & Light Co., 558 So.2d 1235, 1238 (La.App. 1 Cir.1990); Conoco, Inc. v. Tenneco, Inc., By and Through Tennessee Gas Pipeline Co., 524 So.2d 1305 (La.App. 3 Cir.1988), writ denied, 525 So.2d 1048 (La.1988).

Our first inquiry is whether Mr. Millaud is legally entitled to collaterally attack the judgment of the Tennessee Juvenile Court on the basis of jurisdiction.

Ms. Winston relies on Essex Crane Rental Corp. v. D & L Machine Works, 93-1656 (La.App. 3 Cir. 10/5/94), 643 So.2d 913, writ denied, 94-2742 (La.1/6/95), 648 So.2d 932, to support her position that Mr. Millaud cannot collaterally attack jurisdiction in the district court. In Essex, a Louisiana defendant was sued in Texas and filed pleadings in the Texas court that placed the question of personal jurisdiction directly at issue. Essex, 643 So.2d at 915. The defendant was properly notified and given the opportunity by the Texas court to litigate the jurisdiction issue but failed to appear for the trial on that issue. A default judgment was then taken against him. This Court concluded that under those circumstances, he was not entitled to collaterally attack the Texas judgment on jurisdictional grounds. Id.

Unlike in Essex, Mr. Millaud raised the issue of jurisdiction in Tennessee, but was never notified and given an opportunity by the Tennessee court to litigate the jurisdictional issues. Thus, we find Essex to be distinguishable from the case at bar.

Ms. Winston also cites Allenberg Cotton...