Cleveland Spears, III v. Kimberly Faye McClaine

CLEVELAND SPEARS, III * NO. 2023-CA-0664

VERSUS *
COURT OF APPEAL
KIMBERLY FAYE MCCLAINE *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-01701, DIVISION “K”
Honorable Bernadette D'Souza, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge
Nakisha Ervin-Knott)

Marc D. Winsberg
Jonathan D. Gamble
WINSBERG & ASSOCIATES, LLC
650 Poydras Street, Suite 2050
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT

Kim Ngan Nguyen
Gordon J. Kuehl
HOFFMAN NGUYEN & KUEHL
643 Magazine Street, Suite 401
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
January 10, 2024

TFL
RML
NEK This appeal involves a domestic dispute between parents of a minor child

regarding the proper jurisdiction to hear custodial issues. Appellant Cleveland

Spears—the father—resides in New Orleans, Louisiana. Appellee Kimberly Faye

McClaine—the mother—resides in Houston, Texas, with the minor child—a boy.1

Mr. Spears and Ms. McClaine, who were never married, entered a Consent

Judgment on June 6, 2020. They agreed, in relevant part, that the principal

residence of Ms. McClaine and the minor child would be Houston, Texas. They

also agreed that any future custodial disputes would be filed in Civil District Court,

Orleans Parish, State of Louisiana (“Civil District Court”), as long as one party

resided in Orleans Parish.

Beginning in January 2023, both parties filed actions to modify custody—

Mr. Spears filed in Civil District Court and Ms. McClaine filed in Family Court of

Harris County, Texas (“Texas Family Court”). Mr. Spears requested that the

Texas Family Court decline jurisdiction, and thereafter, filed a motion in Civil

District Court for that court to retain exclusive jurisdiction of custodial matters.

1 The minor child’s date of birth is May 18, 2019.

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Ms. McClaine sought a temporary restraining order against Mr. Spears in

Texas Family Court. She also countered Mr. Spears’ motion for Civil District

Court to retain jurisdiction with a motion to transfer all custodial matters to Texas

Family Court on the grounds of forum non-conveniens or inconvenient forum.

On appeal, Mr. Spears seeks review of the trial court’s judgment from Civil

District Court which denied his motion to retain jurisdiction and granted Ms.

McClaine’s motion to transfer.

The record supports the trial court applied all relevant factors in reaching its

determination that Civil District Court was an inconvenient forum to resolve the

parties’ custodial issues. Finding no abuse of the trial court’s discretion to deny

Mr. Spears’ motion to retain jurisdiction and grant Ms. McClaine’s motion to

transfer, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Mr. Spears filed a Petition to Establish Custody of the minor child on

February 19, 2020, in Civil District Court. In response to Mr. Spears’ petition,

Ms. McClaine filed an Answer and Reconventional Demand to establish paternity,

custody, and support. Thereafter, on June 5, 2020, the parties entered a Consent

Judgment. Pertinent provisions of the Consent Judgment included the following:

(i) Mr. Spears was declared the minor child’s biological father; (ii) joint custody

was awarded to both parties; (iii) a physical custody schedule was established; (iv)

the parties agreed that Civil District Court would remain the venue and jurisdiction

for all disputes related to custody of the minor child as long as one party remained

a resident of Orleans Parish; and (v) Ms. McClaine and the minor child were

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allowed to relocate to Houston, Texas (“Houston”) as the minor child’s principal

residence, effective June 1, 2020.

There was no active litigation between the parties until January 18, 2023.

At that time, Mr. Spears filed a Rule for Contempt and Motion to Modify Consent

Judgment. Thereafter, Ms. McClaine filed a petition to make the June 5, 2020

Consent Judgment executory in Texas and an “Original Petition in Suit Affecting

the Parent-Child Relationship Seeking Modification of Out-of-State Order.” In

response, Mr. Spears sent Ms. McClaine a notice of intent to relocate the principal

residence of their son to Orleans Parish. Additionally, Mr. Spears requested that

the Texas Family Court dismiss Ms. McClaine’s action because “Texas lacks

subject matter jurisdiction. . . .” After receiving notice of Mr. Spears’ intent to

relocate their minor child, Ms. McClaine filed an “Emergency Motion for

Temporary Restraining Order and Temporary Orders After Hearing in the Texas

Proceedings” to prevent Mr. Spears from moving the minor child to Orleans

Parish. The Texas Family Court issued temporary restraining order(s) on March 6,

2023, ordering that Houston would remain the minor child’s principal residence

until further orders.

Mr. Spears followed-up with the motion to retain jurisdiction in Civil

District Court, pursuant to La. R.S. 13:1814. In support of the motion to retain

jurisdiction, Mr. Spears cited the Consent Judgment, whereby the parties had

agreed to confer jurisdiction over custodial matters to Civil District Court as long

as one parent remained an Orleans Parish resident.

In response, Ms. McClaine filed the motion to transfer. Ms. McLaine argued

that the Texas Family Court had jurisdiction and was the more convenient forum

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over Civil District Court to conduct custodial proceedings involving the minor

child.

The Texas Family Court proceedings were stayed pending the outcome of

the Civil District Court hearing on the respective motions to retain jurisdiction and

to transfer. Prior to the hearing on the parties’ motions, the trial court conducted a

judicial communication with the Texas Family Court. The Texas Family Court

expressed that Civil District Court lacked jurisdiction and that it wanted to retain

jurisdiction. In response, Mr. Spears set a date for a contradictory hearing.

Ms. McClaine and Mr. Spears were the only witnesses at the hearing on the

motions. Their respective testimonies are summarized as follows:

Mr. Spears’ Testimony

Mr. Spears’ testimony began with examination by Ms. McClaine’s counsel.

Mr. Spears acknowledged that the minor child’s primary residence has been in

Houston, pursuant to the Consent Judgment reached in June 2020. He verified that

the minor child has attended a school in Houston since August 2020, and admitted

that Ms. McClaine and he were in the process of applying to other schools in

Houston to continue their child’s schooling, including a dual language school.

Mr. Spears testified that his contempt complaint against Ms. McClaine

resulted from his belief that she had been non-compliant with the Consent

Judgment’s requirements to assist in their child’s travel from Houston to New

Orleans for his visits with Mr. Spears. Mr. Spears confirmed ownership of a

Houston property he uses for Houston visitations with the minor child and verified

that the child has a room at this property. He admitted that the minor child’s

proposed new dual language school is about a block away from his Houston

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property. Mr. Spears said he entertains at the property and allows the minor child

to have sleepovers, in particular, with a friend named George.

Mr. Spears noted that he also visits with the minor child in New Orleans. He

also acknowledged using his visitation time to travel with the child to New York,

Colorado, Georgia, and Mexico. Mr. Spears did not dispute the minor child’s

enrollment in extra-curricular activities in Houston, such as language, soccer,

swim, and music classes, along with the child’s memberships in the Houston

Children’s Museum, the Museum of Natural Sciences, and the Houston Zoo. As

to the minor child’s’ medical care, Mr. Spears agreed that the child has undergone

surgeries done by Houston physicians and receives treatment by Houston

physicians for his allergies.

In addition to owning property in Houston, Mr. Spears verified that his

advertising agency produces a festival in Houston. The festival employs two

workers.

Mr. Spears acknowledged that he made an appearance before the Texas

Family Court regarding its jurisdiction. He also conceded that he was served with

the temporary injunction in Houston.

On examination by his attorney, Mr. Spears iterated that he lives and votes

in New Orleans. Moreover, his business ventures are primarily located in New

Orleans. He reiterated that he has only two employees in Houston.

Mr. Spears testified that the clause in the Consent Judgment allowing

jurisdiction to remain in Orleans Parish was an important consideration in his

agreement to the Consent Judgment. He stated that he faces 100% of the

tremendous travel burden in exercising his visitation rights and maintained it

would be even more of a burden if he had to travel to Texas to resolve custodial

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disputes. Mr. Spears admitted that he travels; however, he maintained that he

desires to exercise his visitation rights in New Orleans. Mr. Spears also pointed

out that the minor child has family, friends, and engages in social and

extracurricular activities in New Orleans. Mr. Spears advised that he has inhabited

his Houston property since October 2022, and has stayed with the minor child at

the property less than thirty times. Mr. Spears rents the property when he is not

there.

Mr. Spears acknowledged instigating the litigation that ensued after entry of

the Consent Judgment. He re-submitted that he filed his contempt motion because

he believed Ms. McClaine had not honored the Consent Judgment’s travel

provisions to assist in the minor child’s visits with him in New Orleans. Mr.

Spears insisted that jurisdiction over custody disputes should remain in Civil

District Court because the parties negotiated an agreement to that effect. He

stressed that he should not endure any additional travel burdens to maintain his

relationship with his son by having custodial disputes litigated in Texas Family

Court for the convenience of Ms. McClaine.

On cross-examination by Ms. McClaine’s attorney, Mr. Spears conceded

that in the event a dispute arose as to the minor child’s medical care, the physicians

who performed the child’s surgical procedures and the medical records relating to

the child’s allergies and urology treatment were in Houston. Notwithstanding, Mr.

Spears noted their son’s nut allergy was originally diagnosed in New Orleans and

that the minor child also has a New Orleans pediatrician. He also claimed the

location of the minor child’s medical providers should not have any bearing on the

proper jurisdiction because Ms. McClaine and he did not presently have any

existing disputes over their child’s medical care.

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Mr. Spears conceded that his two Houston employees could be called as

witnesses. He also conceded that it would be a burden for all of Ms. McClaine’s

potential Texas witnesses to travel to New Orleans—where they do not have

homes—to testify in a custody dispute. However, he countered it would also be a

burden for his potential New Orleans witnesses to travel to Houston.

Mr. Spears did not dispute Ms. McClaine’s 2023 custodial calendar which

showed the minor child visited with him in New Orleans for a total of seventeen

days from February 2023, through May 2023, and another four days in Atlanta. He

admitted that the minor child was in Houston on the remaining days.

Ms. McClaine’s Testimony

Ms. McClaine relocated back to Houston in June 2020. She stated that she

has lived in Houston with the minor child since that time. Ms. McClaine’s mother,

her sister, and her sister’s two children also presently reside with Ms. McClaine

and the minor child. Ms. McClaine said she had worked for a health care provider

in New Orleans at the time of the Consent Judgment; however, the job allowed her

to work remotely from Houston. The New Orleans job ended in April 2022, and

now Ms. McClaine works for a Houston investment company.

Ms. McClaine testified that she filed suit in Texas Family Court to make the

Consent Judgment executory and to establish custody after Mr. Spears initiated

litigation in January 2023. Ms. McClaine said Mr. Spears was served with the

temporary injunction at his Houston home or at their son’s school. She contended

that she had never made any actual appearances in Civil District Court, outside of

the present proceedings associated with the motion to transfer. Ms. McClaine

explained that she filed her pleadings in Texas Family Court because “everything

pertaining to our son, his activities, his schools, his you know, faith-based

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community, his friends, a lot of his primary relationships are in Houston, Texas

and I believe that’s the appropriate place for filing.”

Ms. McClaine expounded that the minor child spends time at Mr. Spears’

Houston residence at least once a month, emphasizing that the child has his own

room, toys, clothing, and visits with friends at the residence. According to Ms.

McClaine, Mr. Spears bought the residence, in part, because it was near the

Houston dual language school they want their son to attend.

Ms. McClaine stated that although Mr. Spears exercises his visitation rights

with the minor child amongst Houston, New Orleans, and other vacation

destination cities, she predominantly exercises her custodial time in Houston. Ms.

McClaine added that her work in the Houston area as a corporate controller and

consultant and her present position as CFO and vice-president of a utility services

company have required her to work primarily out of Houston.

As acknowledged by Mr. Spears, Ms. McClaine testified that the choices for

the minor child’s schooling are all in the Houston area. Ms. McClaine amplified

that the bulk of the child’s healthcare providers, such as his allergist and ENT

providers, are from Houston. She maintained that the minor child’s other childcare

providers, such as her mother, sister, a niece, and close friends are also available in

Houston. Ms. McClaine added the child is involved in numerous social and extra-

curricular activities in Houston. She stressed that his best friend lives in Houston.

As to the Consent Judgment, Ms. McClaine clarified that their son was only

thirteen months old when she entered the Consent Judgment. She said many things

have changed since that judgment. In particular, the minor child and she now have

a strong network of friends, family, and activities that are now based out of

Houston. Ms. McClaine re-stated that it would be a hardship for her and the

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Houston-based friends, family, educators, and healthcare providers to come to

Civil District Court to testify in the event of a custodial dispute.

On cross-examination, Ms. McClaine admitted that her father resides in New

Orleans and that she and her sister stayed with him during the motion to transfer

proceedings. Ms. McClaine denied Mr. Spears’ allegation that she has refused

continued assistance with the travel arrangements to allow Mr. Spears to see their

son. Ms. McClaine maintained that she does the airport runs and claimed her

father has also assisted in the travel exchange. Ms. Spears confirmed her job status

with the utility services company; however, she stated she did not have much

flexibility in terms of being able to travel.

Ms. McClaine verified that she had counsel when she entered the Consent

Judgment and understood the Consent Judgment’s terms designated Civil District

Court to hear future custodial disputes. Nonetheless, she maintained that Mr.

Spears spends more time at his Houston property with their son than in New

Orleans.

Trial Court Judgment

After taking the matter under advisement, the trial court denied Mr. Spears’

motion to retain jurisdiction and granted Ms. McClaine’s motion to transfer. In its

reasons for judgment, the trial court noted, in part, that the Consent Judgment was

not controlling because La. C.C.P. art. 3 does not permit parties to confer

jurisdiction by consent. As will be discussed, infra, the trial court then applied the

eight factors outlined in La. R.S. 13:1819(B) to consider in determining the

appropriate forum for child custody disputes in reaching its decision to decline

supervisory jurisdiction and transfer the matter to Texas Family Court.

This appeal followed.

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ASSIGNMENTS OF ERROR

Mr. Spears argues the following three assignments of error: (1) the trial

court erred in declining to exercise its subject matter jurisdiction on the basis that

Texas is the more appropriate forum for the custody proceeding; (2) the trial court

committed legal error in declaring the jurisdictional provision of the Consent

Judgment null and unenforceable; and (3) the trial court committed legal error in

transferring jurisdiction of all child support matters to the Texas Family Court.

Assignments of error numbers one and three essentially require resolution of

the same issue of forum non-conveniens—whether the trial court properly

determined that the Texas Family Court is the proper forum to hear the parties’

custodial disputes—whereas, the issue that requires resolution in assignment of

error number 2 is the enforceability of the Consent Judgment’s jurisdictional

provision. Accordingly, this Court shall first consider the enforceability of the

jurisdictional provision in the Consent Judgment inasmuch as a finding of

enforceability would render moot any questions regarding the proper judicial

forum.

DISCUSSION

Enforceability of Consent Judgment’s Jurisdictional Provision

Mr. Spears represents that the parties knowingly and voluntarily agreed to

the Consent Judgment’s jurisdictional provision in exchange for his agreement to

permit the minor child and Ms. McClaine to relocate to Houston. He emphasizes

that Ms. McClaine was aware at the time the Consent Judgment was confected that

potential custodial disputes could arise, notwithstanding that Ms. McClaine and the

minor child had relocated to Houston. Mr. Spears also urges that the Consent

Judgment’s provision to allow Orleans Parish to retain jurisdiction is plainly

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authorized under the Uniform Child Custody Jurisdiction and Enforcement Act

(“UCCJEA”). For these reasons, Mr. Spears maintains that the trial court

committed legal error in declaring the provision unenforceable. We find Mr.

Spears’ arguments misplaced.

As noted by the trial court, La. C.C.P. art. 3 provides, in part, that “[t]he

jurisdiction of a court over the subject matter of an action or proceeding cannot be

conferred by consent of the parties.” Our jurisprudence has established that this

precept especially holds true in those matters where parties attempt to confer

jurisdiction by consent to resolve child custody disputes. See Wootton v. Wootton,

49,001, p. 12 (La. App. 2 Cir. 5/14/14), 138 So.3d 1253, 1260.

In Wootton, the family had been living in Caddo Parish, Louisiana, at the

time the parents separated. Thereafter, the mother and children moved to

Mississippi. The parents entered a consent judgment and joint custody agreement

whereby the mother was designated the domiciliary parent; however, the consent

judgment stated that Louisiana “shall retain custody jurisdiction over all future

custody litigation involving these parties and their children and child support

issues.” Wootton, 49, 001, p. 1, 138 So.3d at 1254. A custodial dispute arose and

the father filed a motion to transfer venue from Caddo Parish to Ouachita Parish—

his current residence. After the Caddo Parish Court granted the father’s motion to

transfer the matter to Ouachita Parish, the mother filed exceptions, including

exceptions of no jurisdiction and forum non conveniens, maintaining that

Mississippi presently had jurisdiction and was the proper forum to resolve the

custodial dispute. Id. The district court sustained the mother’s exception of no

jurisdiction, reasoning that Ouachita Parish could not assert jurisdiction because

the children had never resided there; moreover, it noted that Mississippi was the

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home state of the children under the UCCJEA. Id., 49,001, p. 4, 138 So.3d at

1255-56. On appeal, the Wootton Court found the father’s argument that Louisiana

should retain permanent jurisdiction over all future child custody disputes because

the parties’ consent judgment contained a provision to that effect lacked merit. Id.,

49,001, p. 12, 138 So.3d at 1260. In relying on La. C.C.P. art. 3 and Holdsworth v.

Holdsworth, 621 So.2d 71 (La. App. 2d Cir. 1993), the decision concluded that

“[s]ubject matter jurisdiction, such as that exercised in resolving child custody

disputes, cannot be conferred by consent of the parties.” Id.

In Holdsworth, the father was initially awarded sole custody of the minor

child. On remand, the trial court awarded joint custody, with the father being

designated the primary domiciliary parent. The March 1990 judgment included a

stipulation by the parties that Ouachita Parish (Louisiana) would have permanent

jurisdiction over all custodial disputes. The mother ultimately relocated to

Colorado and the father moved to Kentucky. After a custodial dispute arose, the

mother filed a motion in Louisiana to defer jurisdiction to either Colorado or

Kentucky. The trial court denied the mother’s request. After a hearing on the

mother’s request for sole custody and the father’s reconventional demand, the trial

court found, in part, that Louisiana would continue to retain permanent jurisdiction

and permanently enjoined the mother from instituting custody litigation in any

venue other than Ouachita Parish, Louisiana. Id., 621 So.2d at 73.

On appeal, the mother argued that the trial court erred in finding that

Louisiana would retain permanent jurisdiction premised on the March 1990

stipulation. The appellate court determined that Louisiana had retained jurisdiction

to hear the dispute because Louisiana was the last home state of the child,

Louisiana was intimately familiar with the parties and the evidence, and that no

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other state had acquired home state jurisdiction at the time the father commenced

modification proceedings. Id., 621 So.2d at 75. Nonetheless, Holdsworth found

that the trial court erred in holding that Louisiana would retain permanent

jurisdiction over all future custody disputes, explaining that “[a] Louisiana court

has continuing jurisdiction to modify its prior custody decree [only] if it meets the

jurisdiction requirements of the UCCJA when the modification is sought.” Id.

However, if future modifications were sought, the decision found that jurisdiction

must be determined at the time of the modification request. Id. Therefore, the

Holdsworth Court opined that “the contention that Louisiana would have

permanent jurisdiction over all future child custody disputes because the parties

agreed to it in the March 1990 judgment is without merit.” Id. The appellate court

reasoned that subject matter jurisdiction, particularly in child custody matters,

cannot be conferred by consent. Id.

As clarified in Holdsworth, supra, the jurisprudential principles that a

consent judgment cannot confer jurisdiction or compel the trial court to retain

permanent, exclusive jurisdiction extend to those cases, such as the present matter,

where a trial court may have had jurisdiction at the time of the initial custody

award. Consequently, Mr. Spears’ argument that the trial court committed legal

error because it was mandated to enforce the jurisdictional provision of the

Consent Judgment is not meritorious.

We now review whether the trial court erred in declining to retain

jurisdiction and transferring the custody matter to Texas Family Court on the

grounds of forum non conveniens.

La. R.S. 13:1814-Retention of Jurisdiction; La. R.S 13:1819-Forum Non

Conveniens

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La. R.S. 13:1814 provides the parameters for a trial court to retain continued

jurisdiction. La. R.S. 13:1814 states, in relevant part, the following:

A. Except as otherwise provided in R.S. 13:1816, a court of this state
which has made a child custody determination consistent with R.S.
13:1813 or 1815 has exclusive, continuing jurisdiction over the
determination until:

(1) A court of this state determines that neither the child, nor the child
and one parent, nor the child and a person acting as a parent have a
significant connection with this state and that substantial evidence
is no longer available in this state concerning the child’s care,
protection, training, and personal relationships; . . .

In the case sub judice, Mr. Spears and Ms. McClaine do not contradict that

they and the minor child were Orleans Parish residents at the time the Consent

Judgment was entered. Therefore, in accordance with La. R.S. 13:1813 (A),2 Civil

District Court clearly had jurisdiction to make the initial award of joint custody as

reflected in the Consent Judgment.3 As such, it also had the resulting authority to

make a determination as provided for under both La. R.S. 13:1814 and La. R.S.

13:1819 to continue or decline that jurisdiction.

La. R.S. 13:1819 specifies the factors a trial court should consider to make a

jurisdictional determination and decide the appropriate forum in child custody

matters. See Burdes v. Skidmore, 2019-0263, pp. 6-7 (La. App. 4 Cir. 3/22/19),

267 So.3d 192, 195-96.

La. R.S. 13:1819 states, in relevant part, the following:

A. A court of this state which has jurisdiction under this Act to make
a child custody determination may decline to exercise its
jurisdiction at any time if it determines that it is an inconvenient
forum under the circumstances and that a court of another state is a
2 La. R.S. 13:1813(A) provides, in relevant part, that a court of this state has jurisdiction to make

an initial custody determination only if “[t]his state is the home state of the child on the date of
the commencement of the proceeding . . .”
3 See also Monteleone v. Monteleone, 591 So.2d 1228, 1234 (La. App. 4th Cir. 1991),which

determined that a consent judgment on child custody constitutes a considered decree.

14

more appropriate forum. The issue of inconvenient forum may be
raised upon motion of a party, the court’s own motion, or request
of another court.

B. Before determining whether it is an inconvenient forum, a court of
this state shall consider whether it is appropriate for a court of
another state to exercise jurisdiction. For this purpose, the court
shall allow the parties to submit information and shall consider all
relevant factors, including:

(1) Whether domestic violence has occurred and is likely to continue
in the future and which state could best protect the parties and the
child.

(2) The length of time the child has resided outside this state.

(3) The distance between the court in this state and the court in the
state that would assume jurisdiction.

(4) The relative financial circumstances of the parties.

(5) Any agreement of the parties as to which state should assume
jurisdiction.

(6) The nature and location of the evidence required to resolve the
pending litigation, including testimony of the child.

(7) The ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence.

(8) The familiarity of the court of each state with the facts and issues
in the pending litigation.

Here, the trial court’s reasons for judgment document that the court applied

all of the above-enumerated factors in its decision. The trial court’s reasons for

judgment are summarized as follows:

(i) Domestic Violence

The trial court noted that there was no history of domestic

violence.

(ii) Length of Time Child has Resided Outside this State

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The trial court cited testimony from Mr. Spears and Ms.

McClaine that the minor child has resided outside the state since June

1, 2020. Moreover, the trial court referenced testimony from each

party that the minor child. attends school in Houston and that his

education will continue in Houston. The trial court also considered

Ms. McClaine’s testimony that the majority of the minor child’s

primary health care providers, educators, extracurricular activities,

friends, and family members are based in Houston, as well as the fact

that Mr. Spears has a Houston home which he uses for his Houston

visits with the minor child.

(iii) The Distance Between Texas Family Court and Civil District

Court

The trial court expressed that the distance between Texas

Family Court and Civil District Court is approximately three-hundred

and seventy miles and about a five (5) to six (6) hour driving distance.

The trial court considered the hardship that this distance would have

on the Houston healthcare providers, educators, family, and friends if

required to travel from Houston to Orleans Parish to testify. The trial

court considered Mr. Spears’ testimony that it would also be a

hardship on Mr. Spears and his New Orleans witnesses to travel to

Houston. However, the trial court found that the overwhelming

number of potential witnesses resided in Houston. Emphasizing Ms.

McClaine’s and the minor child’s Houston residency and that Mr.

Spears had a home in Houston, the trial court concluded that Mr.

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Spears would incur lesser expenses and inconvenience if jurisdiction

of this matter was transferred to Houston.

(iv) The parties’ financial circumstances

The trial court found that both parties were gainfully employed.

However, it concluded that Mr. Spears, who owns his company and

travels extensively, had more flexibility in his work schedule to travel

out of state than Ms. McClaine, who was based in Houston and did

not travel for work.

(v) The Parties’ Agreement as to Jurisdiction

The trial court acknowledged the Consent Judgment stipulated

that jurisdiction would remain in Civil District Court. However, the

trial court mitigated this factor in its reiteration that jurisdiction could

not be conferred via consent so as to permanently circumvent a trial

court’s authority to continue or decline jurisdiction.

(vi) Nature/location of the Evidence to Resolve the Litigation,

Including the Child’s Testimony

The trial court restated its findings that the overwhelming

amount of evidence, including the witnesses and the child, hail from

Houston and its surrounding area. The trial court added that the

child’s daily schedule would be disrupted if required to travel to Civil

District Court, rather than to remain in Houston.

(vii) The Ability of Each Court to Decide the Issues Expeditiously

and Present the Evidence

The trial court found the bulk of any potential evidence and the

witnesses were more readily accessible in the Houston area, therefore,

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the Texas Family Court had the better procedures to present the

evidence.

(viii) Familiarity of Each Court with the Facts and Issues

In applying this factor, the trial court acknowledged that Mr.

Spears’ initial custody petition and the Consent Judgment were filed

and signed in Civil District Court in 2020. Notwithstanding, it noted

that the parties had never litigated any contested matters in Civil

District Court before the present dispute. Accordingly, the trial court

declared that it had no underlying familiarity with the case or the

litigants. In comparison, the trial court pointed out that Texas Family

Court had recently issued a temporary restraining order on March 2,

2023, ordering that Harris County, Texas remain the minor child’s

principal residence, thus, prohibiting Mr. Spears from relocating the

child. Although recognizing that the Texas Family Court

proceedings were currently stayed, the trial court concluded that the

Texas Family Court was more familiar with the present facts, parties,

and issues pending in the litigation. Moreover, the Texas Family

Court indicated its desire to retain jurisdiction in its conference with

the trial court.

Mr. Spears complains in his assigned errors that the trial court improperly

weighed these factors. In particular, he argues that the trial court disregarded the

amount of hardship and inconvenience he and his witnesses would incur in

transferring this matter to Texas Family Court, the child’s Louisiana significant

relationships, and the validity of the Consent Judgment. We find these arguments

are not meritorious.

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Contrary to Mr. Spears’ arguments, as noted, supra, the trial court clearly

considered the child’s Louisiana relationships and the convenience of Mr. Spears

and his potential witnesses in its decision. Mr. Spears’ dissatisfaction with the

trial court’s conclusions upon application of La. R.S. 13: 1819(B) factors is

insufficient to set aside the trial court’s findings. In general, the statute governing

forum non conveniens confers a great amount of discretion on the trial court in

determining if the conditions for forum non conveniens have been met. See Minot

obo Minot v. Waffle House, Inc., 2020-044, p. 9 (La. App. 4 Cir. 10/2/20), 365

So.3d 709, 716. Accordingly, an appellate court reviews a trial court’s ruling on

forum non convdeniens under an abuse discretion standard and that ruling will not

be disturbed absent an abuse of that discretion. Id.

Here, the trial court determined that the minor child’s residency, daily life,

most significant connections, and the best available evidence concerning the

child’s education, health, and social activities were centered in Houston. Well-

settled jurisprudence has found that Louisiana courts have lost jurisdiction and/or

have become an inconvenient forum when another state became the child’s home

state and the place where the most relevant evidence concerning the child was

available. See Wootton, 49,001, p. 11, 138 So.3d at 1259. That is clearly what

transpired in the present matter. Therefore, we find no abuse of the trial court’s

discretion in declining jurisdiction and transferring this matter to Texas Family

Court based on its application of the La. R.S. 13:1819(B) factors.

Mr. Spears also represents that the trial court erred because it did not

consider as a factor that Louisiana retained jurisdiction over the issue of child

support in this matter. Mr. Spears references that under La. Ch. C. art.

1302.5(A)(1), a court of this state that has issued a child support order retains

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continuing and exclusive jurisdiction to modify its child support order.4

Accordingly, Mr. Spears argues that inasmuch as Louisiana retains exclusive

jurisdiction over the child support issue based on Mr. Spears continued residency,

“there is no sense in bifurcating the issues—custody and child support—between

Louisiana and Texas. However, we find the trial court did not err in failing to

consider the jurisdictional impact of potential bifurcation of child custody and

child support issues. Any consideration of this issue would be premature.

We first note that there is no present justiciable controversy between Mr.

Spears and Ms. McClaine on the issue of child support. The matters stayed relate

to custody. A judicial controversy must exist at every stage of the proceedings,

including the appellate stage. See Fidelity Bank v. Dowden, 2020-0241, p. 6 (La.

App. 4 Cir. 10/7/20), 365 So.3d 521, 525. As such, any judicial pronouncement

without an existing controversy is an impermissible advisory opinion. Id.

Moreover, no judicial determination has been made that Civil District Court

would indeed retain exclusive and continuing jurisdiction to modify the present

child support order as provided for under La. Ch. C. art. 1302.5(A)1. Additionally,

in the event Civil District Court retained jurisdiction over the child support

proceeding, no showing or finding has been made or reached that the court would

be precluded from exercising its authority transfer a child support dispute to the

4 La. Ch. C. art. 1302.5(A)(1) states, in relevant part, the following.

A tribunal of this state that has issued a child support order consistent with the
law of this state has and shall exercise continuing, exclusive jurisdiction to
modify its child support order if the order is the controlling order and: (1) At the
time of the filing of a request for modification, this state is the residence of the
obligor, the individual oblige, or the child for whose benefit the support order is
issued . . .

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forum that is the most convenient for all the parties.5 Accordingly, this assigned

error also lacks merit.

CONCLUSION

Based on the above and foregoing reasons, the trial court’s judgment to deny

Mr. Spears’ motion to retain jurisdiction and to grant Ms. McClaine’s motion to

transfer is affirmed.

AFFIRMED

5 La. C.C.P. art. 74.2(E) states ‘[f]or the convenience of the parties and the witnesses and in the
interest of justice, a court upon contradictory motion or upon its own motion after notice and
hearing, may transfer the custody or support proceeding to another court where the proceeding
may have been brought.”

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