Donald Brunt v. Lisa Ostic Abernathy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-705

DONALD BRUNT

VERSUS

LISA OSTIC ABERNATHY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 83,639, DIV. C
HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and J. David Painter, Judges.

REMANDED.

David C. Hester, Attorney at Law
2820 Jackson Street
Alexandria, LA 71301
COUNSEL FOR PLAINTIFF/APPELLEE:
Donald Brunt

Jennifer Matte, Attorney at Law
426 Kirby Street, Suite B
Lake Charles, LA 70601
COUNSEL FOR DEFENDANT/APPELLANT:
Lisa Ostic Abernathy

PAINTER, Judge

Lisa Ostic Abernathy appeals the judgment of the trial court awarding joint

custody of the minor child, designating Donald Brunt as the domiciliary parent

subject to her visitation, and failing to give full faith and credit to the judgment

issued in her favor in Oklahoma. For the following reasons, we remand the matter

to the trial court to communicate with the Oklahoma court.

FACTS AND PROCEDURAL HISTORY

The parties are the parents of a minor child, born January 15, 2006, custody

of whom is disputed in this matter. The parties were divorced in Oklahoma in

2007, and an Oklahoma judgment gave them joint custody with the mother, Lisa

Ostic Abernathy, being designated “primary careteaker.” Custody was to be on a

six month rotation until the child started school. The father, Donald Brunt, is in

the military and is currently stationed at Fort Polk, Louisiana.

Abernathy alleges that Donald failed to return the child to her custody on

May 29, 2010, following a visit which took place in Alaska. Donald alleges that

Lisa failed to show up for the exchange and that she currently has no permanent

residence. Donald also alleges that Lisa gave physical custody of the child to him

on September 25, 2009, in Colorado. Abernathy did sign a handwritten note

stating that Brunt and his wife, Nathaly, had permission to take the child to Alaska,

to be returned to Abernathy on May 29, 2010.

Donald filed this rule for custody in Vernon Parish on August 19, 2010, and

this rule referenced the consent judgment as to custody rendered in Oklahoma.

Lisa filed an answer in Vernon Parish and did not object to subject matter

jurisdiction. Lisa also filed a petition for habeas corpus in Oklahoma and obtained

same on September 3, 2010. Donald alleges that this writ was never served on

him. A trial, at which Lisa was present but unrepresented by counsel, occurred on
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November 8, 2010. At that time, the trial court found that Louisiana was the

child’s home state since the child had been living in Louisiana over a year. The

court awarded joint custody of the child, with Donald being named domiciliary

parent subject to the child’s visitation with Lisa. The judgment was signed on

January 3, 2011. Lisa filed a motion for appeal, and Donald filed a motion to

dismiss the appeal on the ground that the motion for appeal was untimely. Lisa

then filed an exception of lack of subject matter jurisdiction. The trial court denied

Donald’s motion to dismiss appeal and granted Lisa’s motion for appeal. With

respect to Lisa’s exceptions as to subject matter jurisdiction, the trial court denied

these exceptions, finding that Louisiana is the child’s home state and that Lisa

acquiesced to jurisdiction in Louisiana.

On appeal, Lisa asserts that the trial court erred in failing to give full faith

and credit to the Oklahoma judgment and should have declined jurisdiction in

Louisiana.

DISCUSSION

In Otwell v. Otwell, 10-1176, pp. 2-4 (La.App. 3 Cir. 2/9/11), 56 So.3d

1232, 1233-35, this court stated:

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
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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 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;

(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 Statutes 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
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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 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.

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Here, there is ample evidence that Louisiana is a more convenient forum

than Oklahoma since no one currently resides in Oklahoma. However, there is no

evidence that the Oklahoma court has determined that it no longer has jurisdiction.

As in Otwell, it is the court of the other state, Oklahoma, that must determine that

Louisiana is the more convenient forum.

However, in this instance, we find that La.R.S. 13:1816 providing for

temporary emergency jurisdiction is applicable. That statute reads:

A. A court of this state has temporary emergency jurisdiction if
the child is present in this state and the child has been abandoned or it
is necessary in an emergency to protect the child because the child, or
a sibling or parent of the child, is subjected to or threatened with
mistreatment or abuse.

B. If there is no previous child custody determination that is
entitled to be enforced under this Act and a child custody proceeding
has not been commenced in a court of a state having jurisdiction under
R.S. 13:1813 through 1815, a child custody determination made under
this Section remains in effect until an order is obtained from a court of
a state having jurisdiction under R.S. 13:1813 through 1815. If a
child custody proceeding has not been or is not commenced in a court
of a state having jurisdiction under R.S. 13:1813 through 1815, a child
custody determination made under this Section becomes a final
determination, if it so provides and this state becomes the home state
of the child.

C. If there is a previous child custody determination that is
entitled to be enforced under this Act, or a child custody proceeding
has been commenced in a court of a state having jurisdiction under
R.S. 13:1813 through 1815, any order issued by a court of this state
under this Section shall specify in the order a period that the court
considers adequate to allow the person seeking an order to obtain an
order from the state having jurisdiction under R.S. 13:1813 through
1815. The order issued in this state remains in effect until an order is
obtained from the other state within the period specified or the period
expires.

D. A court of this state which has been asked to make a child
custody determination under this Section, upon being informed that a
child custody proceeding has been commenced in, or a child custody
determination has been made by a court of a state having jurisdiction
under R.S. 13:1813 through 1815, shall immediately communicate
with the other court. A court of this state which is exercising
jurisdiction pursuant to R.S. 13:1813 through 1815, upon being
informed that a child custody proceeding has been commenced in, or a
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child custody determination has been made by a court of another state
under a statute similar to this Section shall immediately communicate
with the court of that state to resolve the emergency, protect the safety
of the parties and the child, and determine a period for the duration of
the temporary order.

We find that the evidence is sufficient to warrant temporary emergency jurisdiction

under subsection A. However, the order issued by the trial court should have

contained a time period for the mother to obtain an order from the Oklahoma court.

Moreover, this statute also requires the trial court to communicate with the

Oklahoma court, and we find no evidence that this was done or that Oklahoma has

determined that it no longer has jurisdiction. We agree with the trial court that

Louisiana is now the home state of the minor child; however, we are forced to

remand this matter for compliance with La.R.S. 13:1816 and for a determination

by the Oklahoma court as to its jurisdiction. Custody of the minor child with Brunt

is maintained pursuant to temporary emergency jurisdiction, pending the trial

court’s compliance with La.R.S. 13:1816.

DECREE

For all of the foregoing reasons, we remand this matter to the trial court for

compliance with La.R.S. 13:1816. Costs are assessed equally between the parties.

REMANDED.

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