Zachary Charles McNeil v. Victoria Ann Stern

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-314 consolidated with 23-315

ZACHARY CHARLES MCNEIL

VERSUS

VICTORIA ANN STERN

consolidated with

VICTORIA ANN STERN

VERSUS

ZACHARY CHARLES MCNEIL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 109248 C/W 110343
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Elizabeth K. Fox
Mitchell J. Hoffman
Hoffman, Nguyen, & Kuehl, LLC
643 Magazine Street, Suite 401
New Orleans, LA 70130
(504) 507-1288
COUNSEL FOR DEFENDANT- APPELLANT:
Victoria Ann Stern

Gabe A. Duhon
Attorney at Law
105 Tivoli Street
Abbeville, LA 70511-0478
(337) 893-3423
COUNSEL FOR PLAINTIFF-APPELLEE:
Zachary Charles McNeil

PICKETT, Chief Judge.

The appellant, Victoria Stern, appeals the judgment which found that the

district court has subject matter jurisdiction in this custody dispute and denied Ms.

Stern’s motion to register a foreign order.

FACTS

Ms. Stern gave birth to a son, Christian, on December 1, 2020 at a Texas

hospital. After Christian was born, Ms. Stern contacted Zachary McNeil to suggest

that he may be the father of Christian. Mr. McNeil traveled to Texas, where he

completed a paternity test, which determined that he is the father of Christian.

On March 4, 2021, Mr. McNeil filed a Rule to Establish Paternity and

Custody, for Joint Custody Implementation Plan and for Injunctive Relief

(assigned docket number 109248) in Vermilion Parish. Mr. McNeil alleged that he

was the father of Christian, and that he and Ms. Stern had never been married. He

also alleged that Ms. Stern and Christian were domiciled in Vermilion Parish, and

thus venue was proper in Vermilion Parish. Citing a paternity test attached to his

petition, he sought judicial recognition as the biological and legal father of

Christian. He further alleged that Ms. Stern was threatening to leave the state of

Louisiana and requested that the court issue a temporary restraining order

prohibiting Ms. Stern from removing Christian from the jurisdiction of the court.

Attached to the petition was an affidavit signed by Mr. McNeil stating that there

were no proceedings “concerning the custody, visitation, paternity, protective

order, . . .. or any other proceeding concerning the child in this state or any other

state[.]”

On March 5, 2021, Judge Earles signed a temporary restraining order

prohibiting Ms. Stern from removing Christian from the jurisdiction of the

Fifteenth Judicial District Court and issued a Rule to Show Cause ordering Ms.

Stern to appear for a hearing officer conference scheduled for April 6, 2021. Ms.

Stern was personally served with the petition and the restraining order at her

Abbeville residence on March 10, 2021.

In response, on March 15, 2021, Ms. Stern filed a petition in a Texas court

seeking to establish Mr. McNeil’s paternity of Christian and to establish custody of

Christian. In her First Amended Petition in the Texas court, Ms. Stern alleged that

she and Christian lived in Texas since his birth on December 1, 2020. Ms. Stern

executed an affidavit acknowledging the proceeding filed in Vermilion Parish by

Mr. McNeil. The court in Texas held a hearing on subject matter jurisdiction on

April 5, 2021. Judge Heppard deferred a ruling on the issue of jurisdiction pending

a conference call with Judge Earles. Judge Heppard was never able to contact

Judge Earles.

Meanwhile, on March 21, 2021, Ms. Stern traveled to Texas with Christian,

in violation of the temporary restraining order issued by Judge Earles on March 5.

On March 22, 2021, Mr. McNeil filed a rule for contempt in the Louisiana case.

Ms. Stern was personally served with the rule for contempt at her home in

Abbeville.

Also on April 5, 2021, Ms. Stern filed an Exception of Lack of Subject

Matter Jurisdiction, Lis Pendens, and Forum Non Conveniens in the Louisiana suit.

On June 8, 2021, Mr. McNeil filed an amended petition to establish paternity, and

alleged that Ms. Stern removed the child to Texas, and he had not been able to see

Christian since March 4, 2021. Judge Frederick, the duty judge in the 15 th JDC,

signed an order on June 9, 2021, directing law enforcement to assist in the return of

Christian to Mr. McNeil in Louisiana.

Judge Earles held a hearing on June 18, 2021, on Ms. Stern’s exceptions.

Judge Earles found that Ms. Stern and Christian had significant contacts with
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Louisiana. He denied Ms. Stern’s exceptions of lack of subject matter jurisdiction,

lis pendens, and forum non conveniens in a judgment dated June 23, 2021. That

judgment set a hearing before a hearing officer on July 20, 2021. That hearing

occurred on July 21, 2021, though Ms. Stern did not appear. The hearing officer

issued a recommendation on that same date granting sole custody of Christian to

Mr. McNeil, with supervised visitation for Ms. Stern. Mr. McNeil has had custody

of Christian since June 24, 2021. When neither Mr. McNeil nor Ms. Stern filed an

objection to the recommendation by July 30, 2021, Judge Earles signed a judgment

adopting the recommendation of the hearing officer on August 2, 2021.

Ms. Stern filed a Notice of Intention to Apply for Supervisory Writs of

Review and Request for Stay on July 22, 2021. On July 26, Judge Earles signed an

order granting Ms. Stern until August 26, to file an application for supervisory

writs with this court. That order also stayed the proceedings in the district court

“pending resolution of the Application for Writs of Review.”

Ms. Stern’s application for supervisory writs on the issue of subject matter

jurisdiction of the Louisiana court was denied by this court on September 20, 2021.

The Louisiana Supreme Court denied an application for writ of review on October

28, 2021. On October 29, 2021, Ms. Stern filed an objection to the July 21, 2021,

recommendation of the hearing officer.

Ms. Stern filed a Petition to Annul Judgment, for Stay Order, and for

Injunctive Relief in a separate docket number (110343) on December 20, 2021.

She argued that the August 2, 2021, judgment signed by Judge Earles should be

annulled on three grounds. First, she argued that the trial court lacked subject

matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA) (La.R.S. 13:1801 et seq.), because Louisiana is not

Christian’s home state. Second, she argued that the trial court issued its judgment
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without a legal finding of paternity pursuant to La.R.S. 392.1. Third, she argued

that the judgment was issued by Judge Earles while a stay order, also issued by

Judge Earles, was pending. She also argued in her petition that the judgment

should be annulled because of Judge Earles’ failure to communicate with the court

in Texas. Ms. Stern argued that the trial court should stay proceedings in the

original suit pending determination of the issue of nullity and asked the court to

enjoin enforcement of the August 2, 2021, judgment. This action was consolidated

with docket number 109248 by judgment dated February 7, 2022.

On March 4, 2022, Ms. Stern filed a motion to recuse Judge Earles. After a

hearing before an ad hoc judge, Judge Earles was recused in a judgment dated June

30, 2022. The case was reallotted to Judge Blanchet.

In Texas, Judge Heppard ruled that Texas was Christian’s home state and

her court had jurisdiction of the custody dispute on September 8, 2021. On March

10, 2022, Judge Heppard ruled that Mr. McNeil is the biological father of

Christian. The court granted custody to Ms. Stern and supervised visitation to Mr.

McNeil, citing his refusal to return the child to Ms. Stern’s custody.

On June 24, 2022, Ms. Stern filed into the record of these proceedings the

order issued by Judge Heppard in Texas on March 10, 2022. By letter, she

requested that the order of the Texas court be registered in this case pursuant to

La.R.S. 13:1827 and La.Ch.Code art. 1306.5. Mr. McNeil timely filed an

objection to the registration of the Texas order, and Judge Blanchet set a hearing

for August 24, 2022.

At the hearing set for August 24, 2022, three issues were before the court:

the December 20, 2021 petition to annul filed by Ms. Stern, a motion in limine not

relevant to the issues in this appeal, and the request to register the Texas order filed

by Ms. Stern on June 24, 2022. The parties entered into a stipulation to settle the
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jurisdictional issues between the Texas and Louisiana courts, setting forth a

framework for reaching an agreement in this case. After a ZOOM conference

among the parties, their attorneys in Louisiana and Texas, Judge Heppard and

Judge Blanchet, the parties were unable to perfect a settlement. The matters

originally set for August 24, 2022, were reset for October 26, 2022, and continued

on December 20, 2022.

Following two days of trial, the trial court issued written reasons for

judgment on February 10, 2023. The trial court found that the August 2, 2021,

judgment should not be annulled based on the argument that Texas is the home

state of the child. The trial court specifically found that as of March 4, 2021, the

date that Mr. McNeil filed his original petition in this case, Ms. Stern and Christian

were domiciled in Louisiana, and thus Louisiana, not Texas, was the home state of

the child for the purposes of this case. The trial court found that the failure of

Judge Earles to communicate with Judge Heppard in Texas is not a ground for

nullification of the August 2, 2021 judgment. The trial court did find that the

August 2, 2021 judgment was a nullity because it was signed after Judge Earles

issued a stay order on July 26, 2021, pending supervisory review of the issue of

subject matter jurisdiction. The trial court also found that Mr. McNeil

acknowledged that he was the father of Christian by authentic act dated February

21, 2021, and that Ms. Stern has been in possession of that document since that

date. He thus determined the issue of Mr. McNeil’s paternity is moot. The trial

court declined to register the Texas order, finding that the March 10, 2022,

judgment of Judge Heppard is a nullity because of the failure of the Texas court to

follow the requirements of the UCCJEA once the Louisiana court determined it

had subject matter jurisdiction. The court further found that Mr. McNeil has a

defense to the Texas order specifically as it addresses child support because Mr.
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McNeil has a defense under the laws of this state in that he has had sole custody of

Christian since June 2021.

The trial court issued a judgment on February 10, 2023 (1) declaring the

August 2, 2021 judgment null, (2) making the hearing officer recommendation of

July 21, 2021 the temporary order of the court, (3) setting a hearing on permanent

custody for March 15, 2023, (4) denying the petition for nullity on the grounds of

lack of subject matter jurisdiction and failure to communicate with the Texas court,

(5) denying as moot the claim that the August 2, 2021 judgment is null because of

the failure to enter into the record Mr. McNeil’s acknowledgement of paternity,

and (6) denying the request of Ms. Stern to register the Texas order.

ASSIGNMENT OF ERROR

Ms. Stern now appeals the judgment of the trial court, asserting four

assignments of error:

1. The trial court committed legal error in denying Ms. Stern’s
Registration of Foreign Order, and, in essence, granting Mr.
McNeil’s Opposition to Registration of Foreign Order under
La.R.S. 13:1827(D) and La.Ch.Code art. 1306.6, without a
contradictory hearing.

2. The trial court committed legal error in denying Ms. Stern’s
Registration of Foreign Order, and, in essence, granting Mr.
McNeil’s Opposition to Registration of Foreign Order, by
placing the burden of proof on Ms. Stern to show why the
Texas court’s child custody order was valid, rather than placing
the burden of proof on Mr. McNeil to show why the Texas
court’s child custody order was invalid, under La.R.S.
13:1827(D).

3. The trial court committed legal error in denying Ms. Stern’s
Registration of Foreign Order, and, in essence, granting Mr.
McNeil’s Opposition to Registration of Foreign Order, by (1)
failing to recognize the Texas court’s child support order as
controlling under La.Ch.Code art. 1302.7, (2) finding that Mr.
McNeil had a defense to enforcement of the Texas court’s child
support order under La.Ch.Code art. 1306.7, and (3) finding
that Mr. McNeil met his burden of proof.

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4. The trial court committed legal error in denying Ms. Stern’s
Petition to Annul Judgment on the basis of subject matter
jurisdiction, inter alia, by misapplying the UCCJEA and
interpretive jurisprudence.

Ms. Stern further asserts that these four assignments of error can be

condensed into one issue: whether Texas or Louisiana is Christian’s home state

under the UCCJEA.

DISCUSSION

On appeal, we review a ruling on whether a court has subject matter

jurisdiction de novo. Banerjee v. Banerjee, 17-245 (La.App. 3 Cir. 12/13/17), 258

So.3d 699.

Louisiana courts have jurisdiction over a minor’s status in a
“proceeding to obtain the legal custody of a minor if he is domiciled
in, or is in, this state.” La.Code Civ.P. art. 10(A)(5). However, a
second tier of inquiry into the jurisdiction over custody issues exists
under the UCCJEA, La.R.S. 13:1801, et seq. Even if a Louisiana court
has subject matter jurisdiction, that jurisdiction must be declined
based on limitations imposed by the UCCJEA. Albitar v. Albitar, 16-
167 (La.App. 5 Cir. 6/30/16), 197 So.3d 332. The UCCJEA's
limitation on jurisdiction was designed to avoid jurisdictional
competition among states, to “assur[e] that custody litigation takes
place in the state with which the child and his family have the ‘closest
connection’ and where relevant evidence is located, promot[e] a stable
home environment, deter[ ] abductions, and encourag[e] cooperation
among the courts of different states.” Id. at 345, quoting Stelluto v.
Stelluto, 05-74, p. 8 (La. 6/29/05), 914 So.2d 34, 39.

Id. at 701-02.

Louisiana Revised Statutes 13:1813 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
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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.

(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.

Thus, the threshold question in determining if the courts of this state have subject

matter jurisdiction for the purposes of the UCCJEA is whether Louisiana was the

home state of Christian at the commencement of this custody proceeding filed by

Mr. McNeil on March 4, 2021. Because Christian was only three months old at the

time of the initial filing of this petition for custody, we note the definition of

“home state” at La.R.S. 13:1802(7)(a):

“Home state” means the 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
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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.

The evidence presented at trial showed that Christian was born in Texas on

December 1, 2020. Ms. Stern had a Caesarian section and remained in Texas with

Christian to convalesce until January 2, 2021. She returned to Abbeville,

Louisiana, where she rented a trailer and exercised visitation with her older child

who lived in Louisiana on a 2-day/2-day/3-day schedule. She remained in

Abbeville for at least fifty-one of the sixty-one days between January 2, 2021 and

March 4, 2021. As reflected in Christian’s medical records, Ms. Stern indicated to

the social worker at the hospital where Christian was born that her home address

was in Abbeville, and she received Louisiana unemployment benefits and

Louisiana food stamps during this time. While Ms. Stern listed an address in

Texas as her mailing address on certain documents, she consistently provided her

address in Abbeville on legal documents, including the document Mr. McNeil

signed acknowledging paternity of Christian and the document correcting

Christian’s birth certificate to add Mr. McNeil as his father. Ms. Stern also signed

Christian up for Louisiana Medicaid when she returned to Louisiana in January

2021.

We also note that Ms. Stern lived in a home in Erath, Louisiana, with

Sammie Hardy, from July 2020 through October 1, 2020, before Christian’s birth.

Ms. Stern testified she only stayed in the home with Ms. Hardy when she had

custody of her older son, and otherwise she returned to Texas. Ms. Hardy testified

that Ms. Stern only returned to Texas one weekend a month. Ms. Hardy assisted

Ms. Stern with the move to the residence in Abbeville in October 2020, the same

residence where Ms. Stern resided when she returned to Louisiana after Christian

was born.
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Further, Ms. Hardy testified that Ms. Stern told her she wanted her child to

be born in Texas, and that if she went into labor early, Ms. Hardy should drive her

to the Texas border. According to Ms. Hardy, Ms. Stern wanted to avoid dealing

with the custody issues in Louisiana.

Ms. Stern argues in this court that the fact that Christian was born in Texas

is dispositive of the issue of his home state, and thus the jurisdictional issue. She

cites In re Calderon-Garza, 81 S.W.3d 899 (Tex.App. 2002). In Calderon-Garza,

the mother and father met and had a relationship while both were in medical school

in Guadalajara, Mexico. At the time of the child’s birth, the mother lived in

Mexico and the father lived in New York. The mother traveled to her parents’

home in El Paso, Texas, to deliver the child. The child was born on January 27,

2001, in El Paso. The father visited from New York twice, but never resided in

Texas. When the child was three months old, on or about March 25, 2001, the

mother and the child returned to her home in Mexico. The father filed a petition to

establish paternity of the child in Texas on March 26. The mother contended that

the child’s home state pursuant to the relevant UCCJEA provision identical to

La.R.S. 13:1802(7)(a) was Mexico, and that the child was only temporarily absent

from Mexico from the time of his birth until the day before the petition was filed in

the Texas court. She urged the Texas court to refuse jurisdiction. The Texas court

of appeal ruled that the child could not be temporarily absent from Mexico because

he had never lived there.

We find the facts of Calderon-Garza distinguishable. Christian lived with

his mother in both Texas and Louisiana before Mr. McNeil filed his petition in

Louisiana. Thus, either Texas or Louisiana could be Christian’s home state.

The evidence at trial shows that Ms. Stern lived in Louisiana immediately

preceding Christian’s birth. She returned to Texas to give birth, and, before she
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had even been cleared by her physician to drive, she returned to her residence in

Abbeville on January 2, 2021. She remained in Abbeville for forty-one of the next

fifty days before Mr. McNeil filed his petition for custody on March 4, 2021. She

was in Louisiana at her Abbeville home when she was served with the petition and

the temporary restraining order on March 10, 2021. We find that Louisiana was

the home state of Christian on the date of the commencement of the action in

Louisiana. La.R.S. 13:1813(A)(1).

Because we find no error in the trial court’s judgment that Louisiana, not

Texas, has jurisdiction over this custody matter, we also find the trial court did not

err by refusing to register the Texas order. The trial court clearly held a two-day

hearing, and thus the first assignment of error is without merit. The trial court did

not err in recognizing a defense to the registration of the order pursuant to

La.Ch.Code art. 1306.7(A)(5), in that Mr. McNeil has had exclusive custody of

Christian since June 2021. Thus, we find no merit in assignments of error two and

three.

CONCLUSION

We once again find that the Fifteenth Judicial District Court has subject

matter jurisdiction of this custody proceeding. The case is remanded for further

proceedings. Costs of this appeal are assessed to Ms. Stern.

AFFIRMED.

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