David Morgan Sessions v. Abbygail Wilkerson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-265

DAVID MORGAN SESSIONS

VERSUS

ABBYGAIL WILKERSON

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. C-26935
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Elizabeth A. Pickett, Sharon Darville Wilson, and Guy E.
Bradberry, Judges.

AFFIRMED.

Adam G. Huddleston
Howell D. Jones, IV
Carolyn O. Hines
Jones Law Partners
Post Office Box 14558
Alexandria, Louisiana 71315
(318) 442-1515
COUNSEL FOR PLAINTIFF/APPELLANT:
David Morgan Sessions

Stephen J. Spurgeon
Law Office of Stephen Spurgeon
140 Windermere Boulevard, Suite A
Alexandria, Louisiana 71303
(318) 616-5677
COUNSEL FOR DEFENDANT/APPELLANT:
Abbygail Wilkerson

WILSON, Judge.

David Morgan Sessions (Mr. Sessions) appeals the trial court’s ruling that
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Louisiana retains continuing jurisdiction over the minor child, E.G.W.

I.

ISSUES

Mr. Sessions asserts one assignment of error: that the trial court erred in

denying his exception to jurisdiction and motion transfer the case back to Marion

County, Texas.

II.

STANDARD OF REVIEW

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

jurisdiction de novo.” McNeil v. Stern, 23-314, 23-315, p. 7 (La.App. 3 Cir.

9/27/23), 371 So.3d 1187, 1192, writ denied, 23-1431 (La. 1/10/24), 376 So.3d 847.

III.

FACTS AND PROCEDURAL HISTORY

E.G.W. was born on August 4, 2020. Her parents are Mr. Sessions and

Abbygail Wilkerson (Ms. Wilkerson). Mr. Sessions and Ms. Wilkerson were never

married, but they entered into a consent judgment, which granted them joint custody

of E.G.W., with the parties exchanging custody weekly. The consent judgment was

signed on August 31, 2021, by Judge Warren D. Willett of the Thirty-Fifth Judicial

District Court in Grant Parish, Louisiana.

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The parties use the initials “E.G.W.” in their briefs; however, trial testimony established
that the child’s initials from her birth certificate are “E.G.S.”

At some point in 2022, Ms. Wilkerson admittedly delegated her custodial

responsibility to Tonya Sessions (Ms. Sessions), E.G.W.’s paternal grandmother, in

Louisiana. From the testimony, it appears that E.G.W. primarily stayed in Texas
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with Mr. Sessions’ girlfriend, Amber Tigert (Ms. Tigert), from January to June of

2023. During this time, Ms. Sessions would keep E.G.W. one week or weekend per

month. E.G.W. went to doctor’s appointments in both Texas and Louisiana. At

some point after June of 2023, Mr. Sessions and his mother had a dispute about Ms.

Wilkerson’s being involved in E.G.W.’s care, and he stopped allowing Ms. Sessions

to have custody of E.G.W. Sometime around August 4, 2023 (E.G.W.’s birthday),

Ms. Wilkerson obtained physical custody of E.G.W. and refused to return her to Mr.

Sessions.

On August 16, 2023, Mr. Sessions filed a “Petition to Modify Parent-Child

Relationship” in Marion County, Texas. He alleged that Ms. Wilkerson was unable

to care for E.G.W. and that she had voluntarily relinquished “the actual care, control,
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and possession of the child.” Mr. Sessions further alleged that he had physical

custody of E.G.W. in Texas for at least six months. The pleadings allege that Mr.
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Sessions moved to Texas on September 1, 2022. On August 17, 2023, the Texas

court issued a temporary restraining order (TRO) preventing Ms. Wilkerson from

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Mr. Sessions and Ms. Tigert were married on August 18, 2023.
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Attached to the pleading is a document purportedly signed by Ms. Wilkerson on March
23, 2022. The document is notarized and states that Ms. Wilkerson grants provisional custody of
E.G.W. to Ms. Tigret in Lonestar, Texas, to provide for the health, education, and welfare of the
child “as provided by the law of provisional custody.” However, Judge Willett determined that
this document is a fraudulent alteration of a document signed by Ms. Wilkerson on March 23,
2022, to allow Ms. Sessions to take E.G.W. to doctors’ appointments without Ms. Wilkerson being
present.
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At trial, Mr. Sessions testified that he moved to Texas in November of 2021. Ms. Tigert
testified that he moved to Texas at the end of September of 2022.

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disturbing the peace of the child, withdrawing the child from the school or day-care

facility in which she is enrolled, hiding or secreting the child from Mr. Sessions, and

making disparaging remarks regarding Mr. Sessions or his family in the presence or

within the hearing of E.G.W.

On September 25, 2023, in the Thirty-Fifth Judicial District Court of

Louisiana, Ms. Wilkerson filed a motion to modify custody and child support based

on an allegation that Mr. Sessions had recently moved to Lonestar, Texas, and was

residing with his then-girlfriend, Ms. Tigret. She sought to have the custody

arrangement modified so that she would have primary custody with Mr. Sessions

having custody every other weekend.

On September 25, 2023, in the Thiry-Fifth Judicial District Court of

Louisiana, Mr. Sessions filed a “Motion to Continue Protective Order Hearing Until

Rule Hearing, Motion to Transfer Jurisdiction to Texas, Peremptory Exception of

No Cause of Action Regarding Relocation and Protective Order, Declinatory

Exception of Insufficient of Service and Citation, Answer, Rule for Child Custody,

Rule for Child Support, Rule for Contempt of Court, Motion to Consolidate and

Incorporated Memorandum of Law.”

A hearing was held in Louisiana on October 10, 2023. Pursuant to La.R.S.

13:1818(B), Judge Willett conferred with Judge Dean Fowler, the judge presiding

over the litigation in Marion County, Texas, concerning the evidence and testimony

adduced at that hearing. On October 12, 2023, Judge Willett signed a “Minute Entry

of Court Communication” staying the Louisiana proceedings pending Judge

Fowler’s determination of whether or not Louisiana is the more appropriate forum.

On October 16, 2023, Judge Willett signed a “Minute Entry of Second Court

Communication” stating that:

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Judge Fowler advised that he reviewed the evidence presented
by Mr. [] Sessions[,] which had indicated that the child had resided in
Texas and been enrolled in the Texas Medicaid program until [Ms.]
Wilkerson took the child back to Louisiana. I advised Judge Fowler
that I was uncertain what effect the child’s continued monthly visits in
Louisiana would have on the establishment of Texas as the home state,
given that Mr. Sessions continued to work in Louisiana and only stayed
in Texas on the weekends until recently. Judge Fowler and I agreed
that while Texas may have jurisdiction under the [Uniform Child
Custody Jurisdiction and Enforcement Act,] UCCJEA, Louisiana
clearly retains jurisdiction given the prior custody judgment, the mother
residing here, the father’s continued work here[,] and the child’s
monthly visits with the paternal grandmother and mother. Judge
Fowler agreed that given those contacts, Louisiana would be the more
appropriate, convenient forum. Judge Fowler indicated that he would
be dismissing the Texas proceeding.

On January 25, 2024, Judge Willett signed a judgment stating that “Louisiana

retains continuing jurisdiction over the minor child, . . ., that Louisiana is the more

convenient forum[,] and the proceedings in Louisiana shall proceed[] according to

Louisiana law.” The judgment was designated as a final judgment, and Mr. Sessions

appeals. For the reasons that follow, we affirm the trial court’s ruling.

IV.

LAW AND DISCUSSION

The jurisdictional limitations imposed by the UCCJEA further its purposes,

“including avoiding jurisdictional competition, assuring 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, promoting a stable home environment,

deterring abductions, and encouraging cooperation among the courts of different

states.” Albitar v. Albitar, 16-167, p. 18 (La.App. 5 Cir. 6/30/16), 197 So.3d 332,

345 (quoting Stelluto v. Stelluto, 05-74, p. 8 (La. 6/29/05), 914 So.2d 34, 39).

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According to La.R.S. 13:1802(7)(a), “‘Home state’ means the state in which

a child lived with a parent or person acting as a parent for at least six consecutive

months immediately before the commencement of a child custody proceeding.”

Ms. Wilkerson contends that the Texas court did not have jurisdiction to

modify the Louisiana judgment and that Louisiana, not Texas, is E.G.W.’s home

state. Mr. Sessions contends that the action by the Texas court in issuing a TRO is,

on its face, an assertion of subject matter jurisdiction such that his “request for relief

for the dismissal of the pending Louisiana proceedings over this custody dispute

should be granted peremptorily for the lack of subject matter jurisdiction.” He

argues that La.R.S. 13:1818(A) specifically states that a Louisiana court:

may not exercise its jurisdiction under this Subpart if, at the time of the
commencement of the proceeding, a proceeding concerning the custody
of the child has been commenced in a court of another state having
jurisdiction substantially in conformity with this Act, unless the
proceeding has been terminated or is stayed by the court of the other
state because a court of this state is a more convenient forum under R.S.
13:1819.

This argument, however, does not address the provisions of La.R.S. 13:1814(A),

which state the Louisiana court that has made an initial child custody determination

maintains:

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; or

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

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Mr. Sessions also cites Hebert v. Hebert, 18-499 (La.App. 3 Cir. 3/27/19), 269

So.3d 831, in support of his argument that Louisiana no longer has jurisdiction in

this matter. In Hebert, this court found that Louisiana no longer had exclusive

jurisdiction because the children had resided in Texas for eighteen months prior to

the commencement of the visitation proceeding at issue and because the only

remaining connection to Louisiana was that the father and his family resided there.

In Hebert, 269 So.3d at 834, this court noted that “[t]he law and jurisprudence

require more than just the fact that one parent continues to reside in this State.” This

court went on to state that “[t]o determine the more appropriate forum in which this

matter should be heard[,] we are required to make a comparative determination of

which court’s jurisdiction serves the best interest of the child.” Id. This court found

that the trial court focused more on the parents’ concerns rather than on the best

interest of the child. After conducting a de novo review, this court determined that

the Texas court was in a better position to hear the matter because almost all

witnesses were located in Texas, the child had not seen a doctor in Louisiana nor

attended school in Louisiana in over two years, and the child did not attend church

in Louisiana. The court recognized the importance of fostering a relationship with

the child’s father’s family but concluded that “the mere presence of the father and

his family in Louisiana is not a basis to continue to exercise our court’s jurisdiction

long after Louisiana is no longer the child’s home state.” Id. at 836.

We find that Hebert is distinguishable. Judge Willett noted that “the selective

memory of the witnesses along with their lack of candor” make it difficult to

determine the child’s residence/custodial care after the August 31, 2021 judgment.

The amount of time she spent in Texas is uncertain.

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Ms. Tigert did obtain Texas Medicaid benefits for E.G.W. and take her to

various doctors in Dallas and Mount Pleasant, Texas. E.G.W. also went to a

babysitter in Texas; however, it is unclear how often that was.

Mr. Sessions testified that he put down a Dry Prong, Louisiana address on his

2022 tax return even though he was not living there at the time. He obtained a Texas

driver’s license on May 5, 2023.

Ms. Sessions testified that her son did not legally become a resident of Texas

until May of 2023 and that until then, he was working in Louisiana, banking in

Louisiana, and had his vehicles registered in Louisiana. She did acknowledge that

he was staying in Texas when he was not working. Ms. Sessions testified that until

the end of the summer of 2022, E.G.W. stayed a week with her and then would go

to Mr. Sessions for a week. After the summer of 2022, E.G.W. “went to [Mr.

Sessions], and then she would come back to me for like a week out of the month.”

Ms. Sessions testified that when her daughter went to Texas to pick up E.G.W. in

August of 2023, Mr. Sessions said that it would be the last time E.G.W. would come

to Louisiana. According to Ms. Sessions, she told Ms. Wilkerson this, and Ms.

Wilkerson decided not to send E.G.W. back to Texas.

E.G.W. is only four years old. Mr. Sessions acknowledged, in brief, that

E.G.W. “simply hasn’t aged and matured enough to have the contacts that were

present in the Hebert matter.” E.G.W. has spent the majority of her four years in

Louisiana. Following our de novo review of the record, we agree with Judge Willett

and Judge Fowler that Louisiana retains jurisdiction over matters related to her

custody under the UCCJEA and find no error in the trial court’s ruling that Louisiana

is the more convenient forum and that all future proceedings shall be conducted

according to Louisiana law.

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V.

CONCLUSION

We find that the Thirty-Fifth Judicial District Court of Louisiana has

continuing jurisdiction over this custody proceeding. The trial court’s January 25,

2024 judgment is affirmed, and all costs of this appeal are assessed to David Morgan

Sessions.

AFFIRMED.

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