62 So. 3d 829
La. Ct. App.2011Background
- Death of Tara Burst in 2005; L.S. was 17 months old at the time.
- Darren Schmolke moved to North Carolina; Yolande and Bernard Burst resided with L.S. and shared caregiving for a period.
- July 2008 consent judgment granted maternal grandparents grandparent visitation, later modified.
- August 4, 2009 (per opinion) the Schmolkes moved to North Carolina, changing circumstances.
- February 11, 2010 Darren Schmolke filed a petition for declaratory judgment asking Louisiana court to determine exclusive jurisdiction under UCCJEA/PKPA; Bursts filed rule for contempt relating to a February 12, 2010 visitation date; trial court stayed proceedings.
- Trial court ultimately stayed proceedings and denied the Burke’s contempt, but did not render a final ruling on jurisdiction; Fourth Circuit remanded to address jurisdictional issue while affirming other rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Louisiana has continuing jurisdiction under UCCJEA | Bursts argue Louisiana retained jurisdiction due to old decree and/or residence in state. | Schmolke contends moviпg to NC ended Louisiana's jurisdiction; NC residency controls. | Remanded to address jurisdiction; court noted need to determine continuing jurisdiction under UCCJEA. |
| Contempt for visitation denial | Bursts alleged Schmolke violated court-ordered visitation. | Schmolke claimed no willful violation; proposed makeup visitation. | Trial court did not abuse discretion; contempt claim rejected; makeup visitation ordered. |
| Effect of NC residency on jurisdiction and PKPA/UCCJEA applicability | Bursts rely on UCCJEA/PKPA to preserve state jurisdiction; NC residency complicates analysis. | Residency in NC removes subject matter from LA; PKPA provides deference but not jurisdiction. | Court acknowledged NC residency; remand to decide continuing jurisdiction; ruled on lack of punishment under contempt. |
| Whether district court erred in not ruling on declaratory judgment petition | Declaratory judgment sought to terminate uncertainty of jurisdiction. | Court postponed; failed to explicitly rule on jurisdiction. | Majority remands for explicit ruling on jurisdiction; otherwise affirmed in part. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (U.S. Supreme Court 2000) (parents' fundamental right to raise children governs visitation decisions)
- Barry v. McDaniel, 934 So.2d 69 (La. App. 1st Cir. 2006) (grandparent visitation rights ancillary to fit parent's rights)
- Shaffer v. Shaffer, 808 So.2d 354 (La. App. 1st Cir. 2000) (distinguishes custody determinations and standards for custody)
- Lang v. Asten, Inc., 918 So.2d 453 (La. 1/13/2006) (constructive contempt standard; abuse of discretion review)
- Baker v. Baker, 960 So.2d 1264 (La. App. 2d Cir. 2007) (abuse of discretion standard in contempt rulings)
- Rogers v. Dickens, 959 So.2d 940 (La. App. 1st Cir. 2007) (abuse of discretion in custodian visitation issues)
- Edgar Benjamin Fontaine Testamentary Trust v. Jackson Brewery Marketplace, 847 So.2d 674 (La. App. 4th Cir. 2003) (declaratory relief afforded wide district court discretion)