Daniel Kade Chamberlin v. Kristi Michelle Witten Chamberlin

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-1322

DANIEL KADE CHAMBERLIN

VERSUS

KRISTI MICHELLE WITTEN CHAMBERLIN

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. 85,251, DIV. B
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

David C. Hesser
Hesser & Flynn,
A Limited Liability Partnership
2820 Jackson Street
Alexandria, Louisiana 71301
(318) 542-4102
COUNSEL FOR DEFENDANT/APPELLANT:
Kristi Michelle Witten Chamberlin

William D. Dyess
The Dyess Law Firm
870 West Main Street
Post Office Drawer 420
Many, Louisiana 71449
(318) 256-5667
COUNSEL FOR PLAINTIFF/APPELLEE:
Daniel Kade Chamberlin

GENOVESE, Judge.

At issue in this appeal is whether Louisiana has jurisdiction to make an

initial determination of child custody in light of the mother’s allegation that Texas,

not Louisiana, is the home state of the minor child. After the trial court entered

judgment in May 2014 granting the father sole custody of the minor child, the

mother filed the instant appeal wherein she contests the trial court’s October 2012

ruling that Louisiana has subject matter jurisdiction to decide custody. The mother

argues that the trial court erred in ruling that Louisiana is the home state of the

minor child pursuant to the Uniform Child Custody Jurisdiction and Enforcement

Act (UCCJEA), La.R.S. 13:1801 through La.R.S. 13:1841, and the Parental

Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738A. For the following

reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Daniel Kade Chamberlin (Mr. Chamberlin) instituted this matter on April

23, 2012, in Natchitoches Parish, Louisiana, by filing a Petition for Divorce and

Child Custody.1 According to his petition, Mr. Chamberlin married Kristi

Michelle Witten Chamberlin2 (Ms. Witten) “on May 5, 2011, and established a

matrimonial domicile in Natchitoches Parish. Of the marriage[,] one child was

born, namely Jack Eric Chamberlin [(Jack)] age 8 months.[3]” The petition alleged

that Mr. Chamberlin and Ms. Witten “separated on or about April 22, 2012, with

[Ms. Witten] absconding to Texas with [Jack.]” Mr. Chamberlin sought joint

1
Mr. Chamberlin’s petition alleged that he was entitled to an immediate divorce pursuant
to La.Civ.Code art. 103(2), or, in the alternative, a divorce pursuant to La.Civ.Code art. 103.1.
2
Mr. Chamberlin’s petition originally misspelled Ms. Witten’s name as Kristin Michelle
Whitten Chamberlin.
3
Jack was born on September 1, 2011.

custody of Jack with himself being designated as the domiciliary parent and with

Ms. Witten having reasonable visitation.

On May 25, 2012, Mr. Chamberlin filed a Motion to Appoint Special

Process Server to effectuate service upon Ms. Witten. This order was signed May

31, 2012. On May 30, 2012, Mr. Chamberlin filed a First Amending and

Supplemental Petition for Divorce. On June 25, 2012, a Motion and Order to

Appoint Curator was filed. The court-appointed curator filed an Answer to

Petition for Divorce and Child Custody on July 3, 2012. A hearing in this matter

was set for July 31, 2012.

On July 31, 2012, Ms. Witten appeared with retained counsel4 and filed two

pleadings in open court: (1) an Objection to Subject Matter Jurisdiction and

Request to the Court to Decline Jurisdiction; and, (2) an Exception of Vagueness

and Request for Stay Pursuant to La.R.S. 13:1821(B)5 & 28 U.S.C. §1738A.6 Ms.

Witten alleged that Louisiana is not Jack’s home state according to the UCCJEA or

the PKPA. She argues that Texas is Jack’s home state; therefore, jurisdiction to

decide custody is not proper in Louisiana. According to Ms. Witten’s pleadings,

she and Mr. Chamberlin “lived together in Houston[,] Texas[,] in early 2011 when

[she] became pregnant. It was agreed that [she] would travel to Louisiana to marry

[Mr. Chamberlin.]” She denied living in Louisiana. Instead, it is her contention

that she lived in “Richmond, Texas[,] with [Jack] and has resided there with [him]

since his birth on September 1[,] 2011.”

4
Ms. Witten’s court-appointed curator was discharged.
5
According to La.R.S. 13:1821(B), “If the information required by Subsection A of this
Section is not furnished, the court, upon motion of a party or its own motion, may stay the
proceeding until the information is furnished.”
6
28 U.S.C. §1738A refers to the PKPA.
2

Mr. Chamberlin also filed two pleadings in open court on July 31, 2012: (1)

a Second Amending and Supplemental Petition and Motion for Ex Parte Order of

Custody; and, (2) his Affidavit attesting to facts supportive of his assertion that

Louisiana has jurisdiction to decide child custody pursuant to the UCCJEA in

compliance with La.R.S. 13:1821.7 Mr. Chamberlin alleged “a change in

circumstances” since his initial filing, thereby necessitating an ex parte order
7
Louisiana Revised Statutes 13:1821 addresses the information which must be submitted
to the court and provides:

A. Subject to local law providing for the confidentiality of procedures,
addresses, and other identifying information in a child custody proceeding, each
party, in its first pleading or in an attached affidavit, shall give information, if
reasonably ascertainable, under oath as to the child’s present address or
whereabouts, the places where the child has lived during the last five years, and
the names and present addresses of the persons with whom the child has lived
during that period. The pleading or affidavit shall state whether the party:

(1) Has participated, as a party or witness or in any other capacity, in any
other proceeding concerning the custody of or visitation with the child and, if so,
identify the court, the case number, and the date of the child custody
determination, if any.

(2) Knows of any proceeding that could affect the current proceeding,
including proceedings for enforcement and proceedings relating to domestic
violence, protective orders, termination of parental rights, and adoptions and, if
so, identify the court, the case number, and the nature of the proceeding.

(3) Knows the names and addresses of any person not a party to the
proceeding who has physical custody of the child or claims rights of legal custody
or physical custody of, or visitation with, the child and, if so, the names and
addresses of those persons.

B. If the information required by Subsection A of this Section is not
furnished, the court, upon motion of a party or its own motion, may stay the
proceeding until the information is furnished.

C. If the declaration as to any of the items described in Paragraphs (1)
through (3) of Subsection A is in the affirmative, the declarant shall give
additional information under oath as required by the court. The court may
examine the parties under oath as to details of the information furnished and other
matters pertinent to the court's jurisdiction and the disposition of the case.

D. Each party has a continuing duty to inform the court of any proceeding
in this or any other state that could affect the current proceeding.

E. If a party alleges in an affidavit or a pleading under oath that the health,
safety, or liberty of a party or child would be jeopardized by disclosure of
identifying information, the information shall be sealed and may not be disclosed
to the other party or the public unless the court orders the disclosure to be made
after a hearing in which the court takes into consideration the health, safety, or
liberty of the party or child and determines that the disclosure is in the interest of
justice.
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granting him sole custody. According to Mr. Chamberlin’s motion, Ms. Witten

was involved in an automobile accident “on June 4, 2012, in Richmond, Texas,

which subsequently resulted in [her] being charged” criminally for drug

possession, and “the Texas Department of Family and Protective Services initiated

an investigation of [Ms. Witten] on the basis of alleged abuse or neglect of [Jack].”

The record reflects that the trial court received evidence relevant to whether

Louisiana has jurisdiction to make an initial child custody determination over the

course of three nonconsecutive days—August 22, 2012, September 24, 2012, and

October 26, 2012. On August 22, 2012, Ms. Witten filed her Affidavit for

UCCJEA Information, wherein she attested to facts supportive of her assertion that

Louisiana lacks, or that Texas has, jurisdiction to decide child custody pursuant to

the UCCJEA in compliance with La.R.S. 13:1821.

On September 24, 2012, the second day of trial, Mr. Chamberlin filed two

pleadings in open court: (1) an Answer to Respondent’s Amended Objection to

Subject Matter Jurisdiction and Request to the Court to Decline Jurisdiction; and,

(2) an Amended Affidavit for UCCJEA Information in compliance with La.R.S.

13:1821.

At the conclusion of the hearing in this matter on October 26, 2012, the trial

court ruled that Louisiana is Jack’s home state; therefore, jurisdiction to decide

custody was proper in Louisiana. In reaching this conclusion, the trial court stated,

in pertinent part:

I have a great deal of problems with the credibility of the mother, Ms.
[Witten]. . . . The problem is that I don’t think that Ms. [Witten] has
been honest with anybody including . . . her parents. . . . I don’t think
she’s been honest with anybody. She testified on the stand that she
had purposely lied or told untruths, however you want to call it. She
testified on the stand that it was her intent to move here. It was her
intent because she promised [Mr. Chamberlin] that she would move
here[,] and they were gonna get married[,] and they were gonna move
here. There are multiple . . . things on her . . . Facebook saying how

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happy she is and how she wants to live with him, how his family had
been so supportive of her. These are things that she said. So if she is
telling her parents that they’re not supportive[,] we had testimony that
. . . [Mr. Chamberlin’s] mother has come and helped . . . , there’s too
much other evidence to say that they’re not supportive. She said that
she intended to move here, she established a residence here. She
established bank accounts, she got mail here. She had doctors, she
had a house, she had people mail things here. She told her . . . friends
and family that . . . this is where she wanted to be, this is where she
was happy. Now she may have changed her mind and that’s what
happens sometime[,] but she established a residence here. She
established a domicile here. And she didn’t leave until April, that’s
six months. Under the code, under the [UCCJEA], that gives this
State jurisdiction to make the determination concerning custody. . . .
Now I know that you and your family think that you were visiting
here. But it didn’t look like that. You established and when you said
you moved you had . . . so many clothes here . . . . Okay, that’s
because you lived here. . . . I think factually that the child, that this
family lived and resided in Louisiana from the day that they moved
here when she said she intended to come here and live with her
husband and establish a home here, till she left. Now she may have
had misgivings one way or the other, but she didn’t move. She lived
here. She went and visited her parents. She didn’t have another home
in Texas. She did not establish her own home. . . . [S]he established a
residence here. She testified to it in court today. She testified that she
intended to stay here. There’s a letter in the exhibits dated in
February where she’s talking about having a wedding ceremony in
Louisiana in July. And that’s as late as February. So I just think
that[,] factually speaking[,] the Court has to make a determination that
I have to judge the credibility of each and every witness[,] which I
have done[,] and I believe that this Court has jurisdiction to handle
this matter. We have jurisdiction to do the . . . divorce very definitely
cause it was first filed here. . . . [S]o the only question is about the
child. Now, let me say to you that I spoke to the Judge in Texas
because that’s what we’re supposed to do. When this came up, before
you ever came here[,] before I even spoke to any of you[,] I called the
Judge[,] and we talked about it. And he said you’re right, you should
hear the issue of jurisdiction. The first question he asked me is, where
was the petition for divorce first filed? Here. Cause that’s always one
thing we look at. Now, that being said I determined that we will
proceed, that jurisdiction is here.

Also on October 26, 2012, the trial court signed a Considered Decree Determining

Jurisdiction, which stated:

This matter came up for hearing on August 22, 2012,
September 22, [sic] 2012, and October 26, 2012 for the purpose of
determining Jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). . . . After reviewing the

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pleadings, hearing the testimony of the parties and witnesses[,] and
the law and evidence in favor thereof[:]

IT IS ORDERED, ADJUDGED AND DECREED that the 10th
Judicial District Court in Natchitoches Parish, Natchitoches[,]
Louisiana[,] has jurisdiction over this matter pursuant to LSA R.S.
13:1813 et seq.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Louisiana is the home state of the minor child, Jack Eric
Chamberlin.

The record further reflects that subsequent thereto, Mr. Chamberlin and Ms.

Witten began to alternate physical custody of Jack by agreement; however, on

March 7, 2013, Mr. Chamberlin filed a Motion and Order for Ex Parte Custody,

alleging serious grounds warranted that he be granted emergency provisional

custody of Jack. In his motion, Mr. Chamberlin alleged that: (1) Jack had been “in

his care since January 31, 2013[;]” (2) Ms. Witten no longer lived with her parents;

instead, she was “living in a hotel room with [Eric Freeze;]” (3) Eric Freeze

allegedly had a “drug problem and criminal history[;] and, (4) Ms. Witten was

“pregnant . . . and expecting delivery of her baby in the near future.” On April 15,

2013, Mr. Chamberlin was granted a divorce pursuant to La.Civ.Code art. 103(2).

On May 16, 2014, the trial court ruled in favor of Mr. Chamberlin, awarding him

sole custody of Jack and granting Ms. Witten only supervised visitation on every

other weekend. Ms. Witten appeals, seeking review of the trial court’s October

2012 ruling relative to jurisdiction.8

8
On June 30, 2014, Ms. Witten filed a Motion and Order to Appeal:

[T]he final Judgment signed in the above cause on May 16, 2014. . . . Further,
[Ms. Witten] appeals all rulings made by the Trial court as to the denial of the
declinatory exception of lack of subject matter jurisdiction at the hearing on
September 24, 201[2], [and] the interim order of December 19, 2013[.]
6

ASSIGNMENT OF ERROR

In her sole assignment of error, Ms. Witten asserts: “The [t]rial [c]ourt erred

in finding that Louisiana [is] the home state of the minor child and in finding that

Louisiana has jurisdiction pursuant to the UCCJEA and the PKPA.”

STANDARD OF REVIEW

As pronounced by this court in Otwell v. Otwell, 10-1176, p. 2 (La.App. 3

Cir. 2/9/11), 56 So.3d 1232, 1233-34, “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).” Therefore, we will conduct a de

novo review of the record.

LAW AND DISCUSSION

Under the UCCJEA, La.R.S. 13:1813 (emphasis added) pertains to an initial

determination of child custody and states:

A. Except as otherwise provided in R.S. 13:1816,[9] 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

9
Louisiana Revised Statutes 13:1816, which provides for temporary emergency
jurisdiction, is not at issue in this appeal.
7

(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.

(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 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.

“Home state” is defined by the UCCJEA in La.R.S. 13:1802(7)(a) (emphasis

added) as:

[T]he state in which a child lived with a parent or a person acting
as a parent for at least six consecutive months immediately before
the commencement of a child custody proceeding. In the case of a
child less than six months of age, the term means the state in which
the child lived from birth with any of the persons mentioned. A
period of temporary absence of any of the mentioned persons is part
of the period.

“[H]ome [s]tate” is defined by the PKPA in 28 U.S.C. §1738A(b)(4) (emphasis

added) as:

[T]he State in which, immediately preceding the time involved,
the child 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 such persons. Periods of temporary absence
of any of such persons are counted as part of the six-month or other
period[.]

The parties do not dispute that Mr. Chamberlin was employed in the oil

industry and worked a twenty-one day on and off schedule offshore. The evidence

reveals that when Mr. Chamberlin worked offshore, Ms. Witten and Jack often

8

returned to Texas. Neither party disputes this fact; however, the parties clearly

disagree on the frequency, duration, and characterization of Ms. Witten’s trips with

Jack to Texas. At the crux of this dispute is whether Ms. Witten and Jack were

living in Louisiana and merely visiting Texas, or whether Ms. Witten and Jack

were living in Texas and merely visiting Louisiana.

Ms. Witten testified that she never lived in Louisiana; therefore, Jack never

lived in Louisiana either. She offered her Texas voter registration, vehicle

registration, and probation documentation in support thereof. According to Ms.

Witten, she and Jack would merely visit Louisiana in order to see Mr. Chamberlin

when he returned from working offshore. Then, once Mr. Chamberlin went back

to work offshore, Ms. Witten claims that she and Jack would return to their home

in Texas. According to Ms. Witten, she and Jack spent more time in Texas than in

Louisiana between Jack’s date of birth on September 1, 2011, and April 22, 2012,

the date she and Mr. Chamberlin separated.

Mr. Chamberlin refutes Ms. Witten’s claim that she and Jack lived in Texas.

According to Mr. Chamberlin, Jack lived in Natchitoches, Louisiana, from

September 29, 2011 until April 22, 2012, and thus, Louisiana was Jack’s home

state. This allegation is supported by statements made by Ms. Witten on a social

media website while she was in Texas on September 28, 2011, wherein she stated

that she, Mr. Chamberlin, and Jack were preparing for their move to Louisiana.

Mr. Chamberlin testified that on September 29, 2011, he, Ms. Witten, and Jack

moved to Natchitoches, Louisiana. According to Mr. Chamberlin, he and Ms.

Witten actually lived together in Natchitoches prior to Jack’s birth, but because

Ms. Witten wished to give birth in Texas, Mr. Chamberlin obliged, and Jack was

born in Texas. When Jack was born on September 1, 2011, he was born

prematurely; therefore, Mr. Chamberlin and Ms. Witten actually remained in

9

Texas, living at Ms. Witten’s parents’ home, until September 29, 2011. Mr.

Chamberlin admitted that they moved together to Louisiana and that Ms. Witten

did frequently return to Texas; however, he claims she was merely reporting to her

Texas probation officer on a monthly basis and/or visiting her parents while he was

working offshore.

From our de novo review of the record, we find that the trial court did not err

in rejecting, as unbelievable and unreliable, Ms. Witten’s self-serving testimony.

When Mr. Chamberlin petitioned for custody of Jack on April 23, 2012, Jack had

“lived for at least six consecutive months” with his parents, Mr. Chamberlin and

Ms. Witten, in Louisiana as set forth in La.R.S. 13:1802(7)(a) and 28 U.S.C.

§1738A(b)(4). Jack did, in fact, live in Louisiana with his parents, Mr. Chamberlin

and Ms. Witten, since September 29, 2011. The trial court correctly found that

Louisiana is the home state of Jack and that Louisiana has jurisdiction to determine

custody herein. We find no merit to Ms. Witten’s assignment of error raised in this

appeal.

Finally, the May 2014 ruling of the trial court relative to custody has neither

been designated as an assignment of error on appeal, nor has this issue been briefed

by the parties. The appellate briefs of both Ms. Witten and Mr. Chamberlin

address the merits of the jurisdiction issue only. Ms. Witten addresses the trial

court’s custody ruling in favor of Mr. Chamberlin, awarding him sole custody of

Jack, and granting her only supervised visitation on every other weekend,

fleetingly and only in the conclusion of her appellate brief, stating: “Should this

Court rule that Louisiana does not have subject matter jurisdiction, it is requested

that the custody judgment and the judgment allocating cost of the custody

evaluation be found null for the lack of subject matter jurisdiction.” The trial

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court’s custody determination memorialized in the Judgment dated May 16, 2014,

is not before this court and, thus, is not considered.

DECREE

For the foregoing reasons, we affirm the trial court’s ruling that Louisiana is

the home state and has subject matter jurisdiction in this case. Costs of this appeal

are assessed to Defendant/Appellant, Kristi Michelle Witten Chamberlin.

AFFIRMED.

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