Honei Otwell v. Jody Otwell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1176

HONEI OTWELL

VERSUS

JODY OTWELL

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 26,020 "B"
HONORABLE LEO BOOTHE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

REVERSED.

Charles Overton LaCroix
LaCroix, Levy & Barnett, LLC
P. O. Box 1105
Alexandria, LA 71309-1105
(318) 443-7615
Counsel for Defendant/Appellant:
Jody Otwell

Brandy McClure
Smith, Taliaferro & Purvis
P. O. Box 298
Jonesville, LA 71343
(318) 339-8526
Counsel for Plaintiff/Appellee:
Honei Otwell

GREMILLION, Judge.

The defendant/appellant, Jody Paul Otwell, appeals the judgment in

favor of the plaintiff/appellee, Honei Brown Otwell, modifying a Georgia-issued

child custody and support order. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL HISTORY

Jody and Honei are the parents of two children, Savannah born in 1998,

and Marleigh born in 2007. Jody and Honei entered into a Settlement Agreement in

April 2009 and were divorced in May 2009 pursuant to a Final Judgment and Decree

filed in the Superior Court of Henry Country, State of Georgia. The Final Judgment

and Decree approved the agreement of the parties filed in April 2009. Honei and

Jody were ordered to strictly comply with its terms.

In March 2010, Honei filed a Motion to Modify Visitation and Child

Support in the Seventh Judicial District Court in Catahoula Parish urging that venue

was proper in Catahoula because the children had resided there for a more than a year.

She claimed that circumstances had materially changed warranting a change in

visitation and child support. Jody filed an Exception of Lack of Subject Matter

Jurisdiction urging that the Georgia judgment could not be modified for lack of

jurisdiction pursuant to La.R.S. 13:1815 and La.Ch.Code arts. 1306.11 and 1306.13.

Following a hearing in June 2010, the trial court found Jody’s Exception untimely

and, therefore, waived. However, in its July 2010 “Order” it found that ruling

incorrect and determined the exception was timely filed and the merits were to be

considered and ruled on. The July judgment in the record before us does not mention

the Exception of Lack of Subject Matter Jurisdiction, but instead substantially

modified the existing Georgia decree pertaining to visitation and support. Jody now

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appeals and assigns as error the trial court’s denial of his Exception of Lack of

Subject Matter Jurisdiction relating to child support and child custody.

DISCUSSION

Modification of the Georgia Custody Decree

A most basic tenet of our law is a court’s power to hear an action before

it. “Jurisdiction is the 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.” La.Code Civ.P. art. 1. Subject matter jurisdiction is “the

legal power and authority of a court to hear and determine a particular class of actions

or proceedings, based upon the object of the demand, the amount in dispute, or the

value of the right asserted.” La.Code Civ.P. art. 2. “The jurisdiction of a court over

the subject matter of an action or proceeding cannot be conferred by consent of the

parties. A judgment rendered by a court which has no jurisdiction over the subject

matter of the action or proceeding is void.” La.Code Civ.P. art. 3. The issue of

whether a court has subject matter jurisdiction can be raised at any time and by the

court on its own motion. Boudreaux v. State, Dept. of Transp. and Development, 01-

1329 (La.2/26/02), 815 So.2d 7. Furthermore, the court has the duty to examine

subject matter jurisdiction sua sponte, even if the litigants have not raised the issue.

Id. Whether a district court has subject matter jurisdiction over a case is subject to

a de novo review. Hartman v. Lambert, 08-1055 (La.App. 3 Cir. 2/04/09), 7 So.3d

758.

The Uniform Child Custody Jurisdiction and Enforcement Act, found

in La.R.S. 13:1801 et seq., effective August 2007, pertains to this litigation.

Particularly applicable to these circumstances is La.R.S. 13:1815 which applies to the

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jurisdiction of a Louisiana court to modify the determination of another court

(emphasis added):

Except as otherwise provided in R.S. 13:1816, a court of this state may
not modify a child custody determination made by a court of another
state unless a court of this state has jurisdiction to make an initial
determination under R.S. 13:1813(A)(1) or (2) and:

(1) The court of the other state determines it no longer has exclusive,
continuing jurisdiction under R.S. 13:1814 or that a court of this state
would be a more convenient forum under R.S. 13:1819; or

(2) A court of this state or a court of the other state determines that the
child, the child’s parents, and any person acting as a parent do not
presently reside in the other state.

Louisiana Revised Statute 13:1813 pertains to an initial determination of child

custody and states:

A. Except as otherwise provided in R.S. 13:1816, a court of this state
has jurisdiction to make an initial child custody determination only if:

(1) This state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and the
child is absent from this state but a parent or person acting as a parent
continues to live in this state, or had been the child’s home state within
twelve months before commencement of the proceeding and the child is
absent from the state because he was required to leave or was evacuated
due to an emergency or disaster declared under the provisions of R.S.
29:721 et seq., or declared by federal authority, and for an unforeseen
reason resulting from the effects of such emergency or disaster was
unable to return to this state for an extended period of time.

(2) A court of another state does not have jurisdiction or a court of the
home state of the child has declined to exercise jurisdiction on the
ground that this state is the more appropriate forum under R.S. 13:1819
or 1820; and

(a) The child and the child’s parents, or the child and at least one parent
or a person acting as a parent, have a significant connection with this
state other than mere physical presence.

(b) Substantial evidence is available in this state concerning the child’s
care, protection, training, and personal relationships.

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(3) All courts having jurisdiction have declined to exercise jurisdiction
on the ground that a court of this state is the more appropriate forum to
determine the custody of the child under La.R.S. 13:1819 or 1820; or

(4) No court of any other state would have jurisdiction under the criteria
specified in Paragraph (1), (2), or (3) of this Subsection.

B. Subsection A of this Section is the exclusive jurisdictional basis for
making a child custody determination by a court of this state.

C. Physical presence of, or personal jurisdiction over, a party or a child
is not necessary or sufficient to make a child custody determination.

Under the express terms of this statute, a Louisiana court does not have

subject matter jurisdiction over a custody issue if another state has rendered a child

custody determination. Honei argues that because Louisiana is the “home state” of

the children, a Louisiana court had subject matter jurisdiction to modify the order.

This argument fails. When a custody determination has been issued by another state,

a Louisiana court does not have jurisdiction unless the other state has determined that

it no longer has jurisdiction or that the Louisiana court would be a more convenient

forum. La.R.S. 13:1815 (1). See Hughes v. Fabio, 07-1008 (La.App. 5 Cir. 3/25/08),

983 So.2d 946. Honei fails to distinguish that it is the court of the state that has

already issued a child custody order that must determine if the other forum is more

convenient. There is simply no indication in the record that a Georgia court has

determined that it no longer has jurisdiction or that Louisiana would be a more

convenient forum. Accordingly, the trial court erred in exercising subject matter

jurisdiction over the child custody issues and that portion of the judgment is void.

Modification of the Georgia Support Award

The Uniform Interstate Family Support Act found in the La.Ch.Code

arts. 1301.1 et seq. was enacted to unify the law among the states enacting the

provisions. La.Ch.Code art. 1301.2. It has been adopted by every state in the United

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States. Louisiana Children’s Code article 1306.11 provides for the modification of

the child support order of another state:

A. After a child support order issued in another state has been registered
in this state, the responding tribunal of this state may modify that order
only if Article 1306.13 (Jurisdiction to modify child support order of
another state when individual parties reside in this state) does not apply
and, after notice and hearing, it finds that either:

(1) All of the following requirements are met:

(a) The child, the individual obligee, and the obligor do not reside in the
issuing state.

(b) A petitioner who is a nonresident of this state seeks modification.

(c) The respondent is subject to the personal jurisdiction of the tribunal
of this state.

(2) The child or a party who is an individual is subject to the personal
jurisdiction of the tribunal of this state and all of the parties who are
individuals have filed a written consent in the issuing tribunal for a
tribunal of this state to modify the support order and assume continuing,
exclusive jurisdiction over the order. However, if the issuing state is a
foreign jurisdiction that has not enacted a law or established procedures
substantially similar to the procedures under this Chapter, the consent
otherwise required of an individual residing in this state is not required
for the tribunal to assume jurisdiction to modify the child support order.

B. Modification of a registered child support order is subject to the same
requirements, procedures, and defenses that apply to the modification of
an order issued by a tribunal of this state and the order may be enforced
and satisfied in the same manner.

C. A tribunal of this state may not modify any aspect of a child support
order that may not be modified under the law of the issuing sate. If two
or more tribunals have issued child support orders for the same obligor
and child, the order that controls and must be so recognized under the
provisions of Article 1302.7 (Recognition of controlling child support
order) establishes the aspects of the support order that are
nonmodifiable.

D. On issuance of an order modifying a child support order issued in
another state, a tribunal of this state becomes the tribunal having
continuing, exclusive jurisdiction.

Louisiana Children’s Code article 1306.13 provides:

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A. If all of the parties who are individuals reside in this state and the
child does not reside in the issuing state, a tribunal of this state has
jurisdiction to enforce and to modify the issuing state’s child support
order in a proceeding to register that order.

B. A tribunal of this state exercising jurisdiction as provided in this
Article shall apply the provisions of Sections 1 and 2 of this Chapter,
this Article, and the procedural and substantive laws of this state to the
proceeding for enforcement or modification. Sections 3, 4, 5, 7, and 8
of this Chapter do not apply.

Honei argues that pursuant to La.Ch.Code art. 1302.1(2), the trial court

“properly exercised personal jurisdiction for modification of the child support order.”

This argument fails to distinguish between personal and subject matter jurisdiction.

Jody continues to live in the state that issued the support order—Georgia. Again,

according to the clear and express terms of the statutes, a Louisiana court has no

subject matter jurisdiction to modify the child support award. Georgia continues to

have exclusive jurisdiction over this matter. See La.Ch.Code art. 1302.5.

Furthermore, Honei’s argument that Jody made a general appearance

and, thereby, waived “personal jurisdiction” is flawed in two respects. First, Jody’s

attorney’s response to this suit is not a general appearance, and secondly, the issue

is whether the trial court had subject matter jurisdiction, not personal jurisdiction.

Assuming the trial court did have personal jurisdiction over Jody, it still does not

have subject matter jurisdiction over the support issue. Accordingly, the trial court’s

erroneous modification of the child support order is void and the Geogia support

order is reinstated.

CONCLUSION

The judgment of the trial court modifying both the custody award and

the support award is void for lack of subject matter jurisdiction. The Final Judgment

and Decree rendered in May 2009, adopting the Settlement Agreement of April 2009

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entered into by the parties, by the Superior Court of Henry County is hereby

reinstated. All costs of this appeal are assessed against the plaintiff/appellee, Honei

Brown Otwell.

REVERSED.

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