Melanie Ducote Lindmeier v. Todd D. Lindmeier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1392

MELANIE DUCOTE LINDMEIER

VERSUS

TODD D. LINDMEIER

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2003-5185-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Angelo Joseph Piazza III
Attorney at Law
P. O. Box 429
Marksville, LA 71351
(318) 253-6423
Counsel for Plaintiff Appellee:
Melanie Ducote Lindmeier

Mary Helen Johnson
Johnson Law Firm, LLC
P. O. Box 468
Marksville, LA 71351
(318) 253-0935
Counsel for Defendant Appellant:
Todd D. Lindmeier

PICKETT, JUDGE.

FACTS

Lindsay Mae Elizabeth Lindmeier was born in Lafayette, Louisiana, to a union

between Melanie Ducote, a resident of Avoyelles Parish, Louisiana, and Todd

Dougles Lindmeier, a citizen of Canada. On September 15, 1997, Melanie Ducote

and Todd Lindmeier were married in Louisiana.

Subsequently, Mrs. Lindmeier, Mr. Lindmeier, and Lindsay Mae Elizabeth

Lindmeier resided in Avoyelles Parish, Louisiana, from 1997 until February, 2002.

At some point in 2001 the couple allegedly separated. All parties continued, however,

to reside in Avoyelles Parish until February, 2002.

In February 2002, Mr. Lindmeier went to Canada to look for work. Mrs.

Lindmeier and her two children from a previous marriage went with him. According

to Mr. Lindmeier’s testimony, he drove Mrs. Lindmeier back to Louisiana with the

understanding she was to sell the house and then return to Canada to live with him.

He took Lindsay with him back to Canada.

There is no evidence the Lindmeiers ever established a matrimonial domicile

in Canada. According to Mrs. Lindmeier’s testimony, all attempts on her part to

return Lindsay to Louisiana were in vain. Mr. Lindmeier apparently filed a petition

for divorce and custody in Canada on April 8, 2003. According to Mr. Lindmeier he

retained custody by agreement of the parties, although he acknowledged he had

nothing in writing. According to Mrs. Lindmeier, he retained custody not by

agreement, but because he would not allow Lindsay to leave Canada and she had no

recourse.

Ultimately, in late June 2003, Mrs. Lindmeier went to Canada in an attempt to

bring Lindsay back to Louisiana. On June 24, 2003, she signed an Acknowledgment

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of Receipt, acknowledging she received a copy of the divorce petition Mr. Lindmeier

filed in Canada. That same day, Mrs. Lindmeier signed an affidavit wherein she

stated her intention that Lindsay remain in the custody of her father and that she

would be returning Lindsay to Mr. Lindmeier on July 31, 2003.

Thereafter, Mrs. Lindmeier returned to the State of Louisiana with Lindsay. On

July 14, 2003, she filed a Petition For Divorce and a request for a grant of full custody

of the minor child.

On July 30, 2003, a Divorce Judgment was rendered in Canada which also

purports to grant custody of the minor child to Mr. Lindmeier. According to Mr.

Lindmeier, there was no hearing and he was never required to go before a judge. A

plain reading of the judgment supports that there was no hearing as it indicates the

judgment was granted “ON READING the petition, the notice of motion for

judgment, and the affidavit dated July 28, 2003 of the petition filed a support of the

motion[.]” Notably, neither a copy of the mentioned motion nor a copy of the

accompanying affidavit were produced at the subsequent hearing in Avoyelles Parish,

Louisiana.

August 8, 2003, Mr. Lindmeier filed an Exception of Lis Pendens and Lack of

Subject Matter Jurisdiction as to both the divorce and custody issues. He further

alleged that Avoyelles Parish was an inconvenient forum under La.R.S. 13:1706 and

requested that the court decline jurisdiction on that ground.

Following a hearing, the trial court granted Mr. Lindmeier’s exception of lis

pendens as to the divorce but denied the exception in all respects as to the custody

issue. The trial court did not address Mr. Lindmeier’s argument regarding

inconvenient forum under La.R.S. 13:1706. It is from this judgment the defendant

appeals.

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ASSIGNMENTS OF ERROR

The appellant sets forth three separate assignments of error:

1) The Twelfth Judicial District Court failed to properly consider
the “Home State Jurisdiction” under the Uniform Child Custody
Jurisdiction Act and Louisiana Revised Statute § 13:1702 (A)(1) when
it did not find Canada to be the “Home State” of the minor child,
Lindsay Mae Elizabeth Lindmeier

2) The Twelfth Judicial District Court erred when it found subject
matter jurisdiction in the instant matter based on “Significant
Connection” to Louisiana under the Uniform Child Custody Jurisdiction
Act and Louisiana Revised Statute § 13:1702 (A)(2), and

3) The Twelfth Judicial District Court failed to properly exercise
its discretion when it refused to consider or address Mr. Douglas
Lindmeier’s alternative argument of “Inconvenient Forum” under the
facts and circumstances of this case and based on Louisiana Revised
Statute § 13:1706(A) et seq.

DISCUSSION

The appellant argues the trial court erred in failing to recognize Canada as the

“home state” of the child. Appellant argues Canada is considered a state under the

Uniform Child Custody Jurisdiction Act (UCCJA) relying on La.Civ.Code article

3516 which he argues provides that “[t]he word ‘state’ denotes, as may be appropriate:

. . . any foreign country or territorial subdivision of a foreign country that has its own

system of law.” The appellant’s reliance on Article 3516 is misplaced. Article 3516

is found in Book IV, Conflict of Laws. The first sentence of that article, which was

deleted from the appellant’s quote, sets forth as follows:

As used in this Book, the word “state” denotes, as may be
appropriate. . . .

The clear wording of the statute limits it applicability to matters arising under those

articles contained in the Louisiana Civil Code, Book IV. It is inapplicable to the

provisions of the UCCJA.

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The UCCJA is found at La. R.S. 13:1700, et seq. Louisiana Revised Statute

13:1701 sets forth the definitions applicable to the UCCJA and, in pertinent part,

provides as follows:

(5) “Home State” means the state in which the child
immediately preceding the time involved lived with his
parents, a parent, or a person acting as parent, for at least
six consecutive months, and in the case of a child less than
six months old the state in which the child lived from birth
with any of the persons mentioned. Periods of temporary
absence of any of the named persons are counted as part of
the six-month or other period.

....

(10) “State” means any state, territory, or possession of the
United States, the Commonwealth of Puerto Rico, and the
District of Columbia.

Clearly, no foreign country is considered to be a “state” under the provisions

of the UCCJA. As Canada is, in fact, a foreign country, it does not fall under the

definition of “state” as contemplated by the act.

The provisions of the UCCJA do, however, have international application.

Louisiana Revised Statute 13:1722 provides as follows:

International Application
The general policies of this Part extend to the international area.
The provisions of this Part relating to the recognition and enforcement
of custody decrees of other states apply to custody decrees and decrees
involving legal institutions similar in nature to custody institutions
rendered by appropriate authorities of other nations if reasonable notice
and opportunity to be heard were given to all affected persons.

We must therefore, examine the evidence presented as to the Canadian

proceeding and determine whether the trial court erred in failing to recognize the

apparent judgment rendered in Canada on July 30, 2003, which purported to grant

custody of Lindsay to Mr. Lindmeier.

A petition for divorce was filed by Mr. Lindmeier in Canada on April 8, 2003.

That petition consists of a fill-in-the blank form wherein the applicable sections, as

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they apply to the petitioner, are marked. In that petition Mr. Lindmeier seeks not only

a divorce, but also full custody of the minor child, Lindsay Mae Elizabeth Lindmeier.

Upon reviewing the petition, we note some of the information supplied is

incorrect based on the testimony of both parties at the hearing below. For example,

the petition sets forth that Mr. Lindmeier has been a resident of Dryden, Ontario, since

birth and has resided in Louisiana since 2001. According to both parties, Mr.

Lindmeier was residing in Louisiana in 1997 when Lindsay was born and continued

to reside in Louisiana, in Avoyelles Parish, until February 2002 when he decided to

return to Canada to look for work. If both parties testified truthfully at the hearing,

the statements set forth in the Canadian petition cannot be correct.

Further, the petition reflects the minor child has lived with the petitioner since

birth. The testimony established the minor child lived with her mother from the time

the couple separated in April 2001 until Mr. Lindmeier took her to Canada in February

2002. Although it is set forth in the petition that the child normally resides in Dryden,

Ontario, there is no mention that the child is a United States resident, born in the

United States and has actually resided in the United States 80% of her life.

When Mrs. Lindmeier went to Canada she signed a receipt acknowledging she

had received a copy of the Canadian petition. According to her testimony, it was a

receipt acknowledging she had received the papers the Canadian court had mailed to

her which, according to the receipt, was the petition filed by Mr. Lindmeier. On the

face of the receipt it states, among other things, “You are served by mail with the

documents enclosed...” Those documents were mailed to Mrs. Lindmeier while she

was residing in Louisiana. We note the cover sheet for the Petition For Divorce

clearly states:

If you are served in another province or territory of Canada or in the
United States of America, the period for serving and filing your answer

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is forty days. If you are served outside Canada and the United States of
America, the period is sixty days.

Clearly, since Mrs. Lindmedier was served in the United States she had, under

the clear wording of the notice, forty days to file an answer. Yet we note the judgment

rendered which purports to grant custody to Mr. Lindmeier was issued July 30, 2003,

only thirty-six days after Mrs. Lindmeier signed the Acknowledgment of Receipt.

Mrs. Lindmeier was never given notice of a hearing on the issue of custody.

According to Mr. Lindmeier’s testimony there was no hearing. He clearly states that

he never went to court before a judge.

Mr. Lindmeier argues his wife consented to his being granted custody pursuant

to the Canadian petition. This argument is based upon a sworn statement signed by

Mrs. Lindmeier, at his attorney’s office, wherein she stated it was her intention that

Lindsay continue to reside with Mr. Lindmeier in Dryden, Ontario and her intention

to return Lindsay to him on July 31, 2003. First, we note that nowhere in that

document does Mrs. Lindmeier state she is relinquishing her custodial rights to

Lindsay. Nor does she agree therein that he be granted full custody of Lindsay.

Moreover, at the hearing Mrs. Lindmeier testified she was denied access to her

daughter until she signed the sworn statement, and that she would have signed

anything to gain physical custody of her daughter so that she could bring her back to

the United States. Mr. Lindmeier admitted on cross-examination that had Mrs.

Lindmeier not signed the documents he would not have allowed her to cross the

border back into the United States with Lindsay. The trial court concluded the

affidavit was signed under duress. We agree.

Considering the evidence as a whole, we do not find we are required to

recognize the custody decree issued in Canada on July 30, 2003. Mrs. Lindmeier

clearly was not given reasonable notice. She was not given an opportunity to be

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heard. The information presented to the Canadian court, including that information

as to the length of time the child was in Canada and in the custody of her father was,

by his own testimony, incorrect. There was no court hearing in Canada whereby a

determination of the best interest of the child was made. We are not even provided

with a complete copy of the Canadian proceeding. We do not know what information

was set forth in the affidavit upon which the custody decree was based.

In conclusion, Canada is not a “state” within the meaning of the word ‘state’ as

it is used in the UCCJA. Further, we are not obligated to recognize the judgment of

the Canadian court which purports to grant custody to Mr. Lindmeier for the reasons

noted above. We find no error in the trial court’s refusal to recognize Canada as the

home state of the minor child.

The appellant argues the trial court erred when it found subject matter

jurisdiction based on La.R.S. 13:1702(A)(2), that the child has a significant

connection with this state. Louisiana Revised Statute 13:1702(A)(2) provides:

A court of this state which is competent to decide child custody
matters has jurisdiction to make a child custody determination by initial
or modification decree if:

....

(2) It is in the best interest of the child that a
court of this State assume jurisdiction because
(i) the child and his parents, or the child and at
least one contestant, have a significant
connection with this state, and (ii) there is
available in this state substantial evidence
concerning the child’s present or future care,
protection, training, and personal
relationships.

The appellant argues that at the time the hearing below was held, Lindsay had

only resided in Avoyelles Parish for approximately two weeks. The evidence does not

support this argument.

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In fact, the testimony established that Lindsay was born in Lafayette, Louisiana,

at a time when her parents were residing in Iberia Parish. According to the testimony,

Mrs. Lindmeier is presently residing with Lindsay in the family home in Avoyelles

Parish where she and Mr. Lindmeier resided from 1997 until the time they separated

in April 2001. After the separation, Lindsay continued to live in the family home until

February 2002, when she was taken to Canada by her father. Lindsay lived in

Louisiana, therefore, for a period of four years and nine months before living in

Canada with her father. The vast majority of the time she lived in Louisiana, she

resided in Avoyelles Parish. As the trial court correctly noted, Lindsay has spent 80%

of her life in Louisiana. The majority of Lindsay’s family live in Louisiana, including

her mother, a half-brother, a half-sister, her maternal grandparents, and numerous

aunts, uncles, and cousins. Lindsay lived continuously with her mother and two

siblings in Louisiana for 80% of her life. All her school records and medical records,

except for the sixteen-month period she was in Canada, are located in Louisiana.

This is not a situation where a child has been moved from place to place or from

state to state throughout her life. Lindsay’s contacts with Louisiana are not only

significant, the majority of the contacts in her life have been in Louisiana, in

Avoyelles Parish. The trial court found subject matter jurisdiction existed based on

the significant connections with this state and that substantial evidence is available in

this state concerning the child’s present or future care, protection, training, and

personal relationships. After reviewing the evidence, we find no error in this ruling.

In his final assignment of error, the appellant argues the trial court erred by

refusing to consider or address his alternative argument of “Inconvenient Forum”

based on La. R.S. 13:1706(A) et seq.

La. R.S. 13:1706 provides:

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A. A court which has jurisdiction under this Part to make an initial
or modification decree may decline to exercise its jurisdiction any time
before making a decree if it finds that it is an inconvenient forum to
make a custody determination under the circumstances of the case and
that a court of another state is a more appropriate forum.

B. A finding of inconvenient forum may be made upon the court's
own motion or upon motion of a party or a curator ad hoc or other
representative of the child.

C. In determining if it is an inconvenient forum, the court shall
consider if it is in the interest of the child that another state assume
jurisdiction. For this purpose it may take into account the following
factors, among others:

(1) If another state is or recently was the child's home state.

(2) If another state has a closer connection with the child
and his family or with the child and one or more of the
contestants.

(3) If substantial evidence concerning the child's present or
future care, protection, training, and personal relationships
is more readily available in another state.

(4) If the parties have agreed on another forum which is no
less appropriate, and

(5) If the exercise of jurisdiction by a court of this state
would contravene any of the purposes stated in Section
1700.

D. Before determining whether to decline or retain jurisdiction the
court may communicate with a court of another state and exchange
information pertinent to the assumption of jurisdiction by either court
with a view to assuring that jurisdiction will be exercised by the more
appropriate court and that a forum will be available to the parties.

E. If the court finds that it is an inconvenient forum and that a
court of another state is a more appropriate forum, it may dismiss the
proceedings, or it may stay the proceedings upon condition that a
custody proceeding be promptly commenced in another named state or
upon any other conditions which may be just and proper, including the
condition that a moving party stipulate his consent and submission to the
jurisdiction of the other forum.

F. The court may decline to exercise its jurisdiction under this Part
if a custody determination is incidental to an action for divorce or
another proceeding while retaining jurisdiction over the divorce or other
proceeding.

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G. If it appears to the court that it is clearly an inappropriate forum
it may require the party who commenced the proceedings to pay, in
addition to the costs of the proceedings in this state, necessary travel and
other expenses, including attorneys' fees, incurred by other parties or
their witnesses. Payment is to be made to the clerk of the court for
remittance to the proper party.

H. Upon dismissal or stay of proceedings under this Section the
court shall inform the court found to be the more appropriate forum of
this fact, or if the court which would have jurisdiction in the other state
is not certainly known, shall transmit the information to the court
administrator or other appropriate official for forwarding to the
appropriate court.

I. Any communication received from another state informing this
state of a finding of inconvenient forum because a court of this state is
the more appropriate forum shall be filed in the custody registry of the
appropriate court. Upon assuming jurisdiction the court of this state
shall inform the original court of this fact.

Louisiana Revised Statute 13:1706(C) sets forth those things that may be

considered by the court in determining whether Avoyelles Parish, Louisiana, is an

inconvenient forum, among others. Although the trial court did not expressly deny

the appellant’s request that this be considered an inconvenient forum, it is clear from

the court’s statements that he did not find evidence that would support any of those

circumstances listed in 13:1706(C). The trial court declined to acknowledge Canada

as the child’s home state, he found the child’s significant contacts are in the State of

Louisiana, he specifically found that evidence concerning the child’s present and

future care readily available in Louisiana, the parties have not agreed on another

forum, and there is no evidence to support the argument that the exercise of

jurisdiction by this state would contravene any of the purposes stated in La.R.S.

13:1700.

Further, we note that it is within the discretion of the court whether to find this

an inconvenient forum when jurisdiction otherwise exists. The trial court declined to

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find Louisiana an inconvenient forum. We find no abuse of the trial court’s discretion

in this determination.

CONCLUSION

We affirm the trial court’s ruling in all respects, finding no error in its

determination that Louisiana has subject matter jurisdiction in this custody dispute.

The case is remanded to the trial court for further proceedings consistent with this

opinion. Costs of this appeal are assessed against Mr. Lindmeier.

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