Fuge v. UiterwykFuge v. Uiterwyk
This litigation arises from Laurie Fuge‘s suit for divorce from Hendrik Uiterwyk. Mr. Uiterwyk appeals from adverse judgments by the Civil District Court in the Parish of Orleans. After ruling that it had jurisdiction over the subject matter and jurisdiction over his person, his motion for termination of alimony was denied, his obligation for child support was increased, his visitation rights with his minor children were restricted, and, he was adjudicated to be in contempt of court.1
PROCEDURAL BACKGROUND
Ms. Fuge and Mr. Uiterwyk were married in New Orleans, Louisiana in 1970. Two years later they moved to Florida. The children of their union were born in Florida. The couple separated in 1980 and were divorced in Florida in 1985. The Florida court in its final judgment of divorce awarded shared parental responsibility. Ms. Fuge was the primary residential custodian and Mr. Uiterwyk the secondary residential custodian.
One year and three months later on September 29, 1987, Ms. Fuge filed a rule in Orleаns Parish asking the trial court to change custody, alter visitation and increase child support. The trial court issued an injunction prohibiting Uiterwyk from filing suit in Florida on the same issues. Three weeks later, on October 20,1987, Mr. Uiterwyk filed suit in Florida to revoke the 1986 consent judgment and to hold Ms. Fuge in contempt for failure to abide by the court ordered visitation. In addition, in Orleans Parish, Mr. Uiterwyk filed an exception to the jurisdiction of Louisiana relying on the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA).
On March 23, 1988, Ms. Fuge filed a motion for a new trial which was denied without a hearing. Ms. Fugе then appealed the trial court‘s determination and this Court concluded that the Louisiana courts did have jurisdiction according to the UCCJA.
On August 2, 1989, the Florida courts deferred jurisdiction to the Louisiana courts in accordance with the Fourth Circuit‘s determination. On June 29, 1990 and July 13, 1990 the Louisiana trial court rendered its judgments and from these, as well as various contempt proceedings, Mr. Uiterwyk appeals. Mr. Uiterwyk raises numerous assignments of error, many of which concern jurisdiction. We will address those first.
JURISDICTION
As previously determined by this Court, Louisiana meets all of the UCCJA requirements for jurisdiction.
The UCCJA imposes two basic requirements for the establishment of jurisdiction. They are: (1) the “home state” test and, (2) the “best interest of the child” test.
Mr. Uiterwyk attempts to assert that the provisions of the Parental Kidnapping Prevention Act (PKPA) would prevent Louisiana from modifying the Florida visitation and support orders. In support of this contention, Mr. Uiterwyk relies on a federal case interpreting the provisions of PKPA. Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985). In this cаse Texas was found to retain jurisdiction in accordance with the divorce decree and relevant Texas statutes. The court was careful to note that the provisions of the PKPA apply when states issue conflicting orders. Since the decision in this case, it has been subsequently determined that federal courts do not have jurisdiction to hear disputes between states raised under the PKPA. Rogers v. Platt, 814 F.2d 683, 687 (D.C.Cir. 1987). The court in Rogers also concluded that the intent of the PKPA was to require all states to conform to the provisions of the UCCJA. Id. In the comments of the Act itself the intended purpose is stated to, “create a recognizable standard” by which all states may resolvе jurisdictional disputes.
Since the intended purpose of the PKPA is to apply the same standards as the Uniform Child Custody Act, we feel that the Louisiana court correctly asserted jurisdiction. Both the Louisiana and Florida courts were aware of the other‘s jurisdictional claims and were careful not to issue conflicting orders. This is further reinforced
Mr. Uiterwyk also asserts that Louisiana lacks personal jurisdictiоn.
Mr. Uiterwyk then asserts the Louisiana courts erred by entеring a judgment relating to the custody determination of the Florida courts. This contention is without merit because both the UCCJA and PKPA grant the right to modify custody determinations.
INJUNCTION PROHIBITING PROCEEDINGS IN FLORIDA COURTS
Mr. Uiterwyk further asserts that the Louisiana trial court lacked authority to enjoin proceedings in the Florida courts. This power to enjoin proceedings arises out of the authority given in the UCCJA and PKPA.
We find Mr. Uiterwyk‘s arguments concerning jurisdiction to be without merit.
ALIMONY
We next turn to Mr. Uiterwyk‘s assignment of error concerning the amount of alimony. He sought to decrease or terminatе alimony while Ms. Fuge sought an increase in alimony. The trial court ruled that although each party has experienced a change in circumstances, these changes cancel each other out. A trial court‘s alimony order will not be reversed except for abuse of discretion. Hogan v. Hogan, 549 So.2d 267, 271 (La.1989). Alimony is that which is necessary for the nourishment, lodging and support of the person who claims it, including education in the case of a minor or a full time dependent student under nineteen years.
We now turn to Mr. Uiterwyk‘s arguments that the trial court erred in assessing child support. The trial court found a material chаnge of circumstances from the time a Florida court first assessed child support at $2,000. The trial court in Orleans Parish raised child support to $9000. By jurisprudential rule of practice, a trial court‘s child support order will not be reversed except for abuse of discretion. Hogan v. Hogan, 549 So.2d 267, 271 (La. 1989); Loyacano v. Loyacano, 358 So.2d 304, 310-312 (La.1978) on original hearing, vacated and remanded on other grounds, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979). In considering child support
The trial court in this case found that there was a “significant change in circumstances” warranting a modification of the child support award in accordance with
We cannot say that the trial court abused its discretion by increasing the amount from two thousand ($2,000) to nine thousand ($9,000) dollаrs a month.
RETROACTIVITY OF THE CHILD SUPPORT AWARD
Mr. Uiterwyk also contends that the trial court abused its discretion by making the child support retroactive.
Mr. Uiterwyk disagrees with the dаte that the trial court determined for retroactivity. The trial court ruled that the child support payments would be retroactive to September 27, 1987, the filing date of the first rule. Mr. Uiterwyk alleges that the correct date for retroactive application should be in 1989 after Louisiana accepted jurisdiction undеr the UCCJA. The words of the statute itself state, “retroactive to the filing date of the petition.”
VISITATION
Mr. Uiterwyk‘s next two assignments of error concern visitation rights. He contends that the trial court erred in limiting his visitation to Orleans Parish and requiring him to post a $250,000.00 bond. The trial court‘s discretion in custody matters is entitled to great weight and should not be disturbed on appeal, unless a clear showing of abuse of discretion is made.
CONTEMPT PROCEEDINGS AND ATTORNEYS’ FEES
Finally, we address Mr. Uiterwyk‘s last three assignments of error concerning the contempt proceedings. Mr. Uiterwyk‘s twelve contempt judgments are the result of his failure to pay the amended child support award. Two of the judgments arise from his violation of the trial court‘s order enjoining the parties from proceedings in the Florida court on the issue of custody and visitation.
Mr. Uiterwyk argues that the contempt judgments are unconstitutional because they have no purge periods or that the temporary purge periods hаve expired in violation of his due process rights. Regarding the argument on constitutionality, we note that it is only when a contempt proceeding is criminal in nature that the party is entitled to the rights guaranteed under the United States and Louisiana Constitutions.
The United States Supreme Court set out guidelines for determining whether a contemрt proceeding is civil or criminal in nature in Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). The court fashioned a test, that if the relief imposed is in fact a determinate sentence without a purge clause, then it is civil in nature. However, if the sentence is determinate then the punishment is criminal in nature. Id. The Louisiana courts interpreted the Feiock holding in Champagne v. Champagne, 541 So.2d 933 (La.App. 5th Cir.1989) and in Dunn v. Dunn, 546 So.2d 819 (La.App. 5th Cir.1989). We have determined that the contempt charges in this casе are civil and find that the trial court was within its great discretion in holding Mr. Uiterwyk in contempt. Tschirn v. Tschirn, 434 So.2d 113 (La.App. 5th Cir. 1983).
We turn next to Mr. Uiterwyk‘s complaints concerning the assessment of attorneys’ fees. Ms. Fuge filed rules of contempt on September 26, 1990 and December 28, 1990, because Mr. Uiterwyk had persisted in filing pleadings in the Florida courts, although Louisiana and Floridа courts had clearly held jurisdiction to be in Orleans Parish. Appellant contends that there is no basis for awarding attorneys’ fees to the prevailing party on a contempt rule. Mr. Uiterwyk also challenges the award of attorneys’ fees granted in connection with a rule of contempt filed by Ms. Fuge for failure to pаy child support. He asserts that these fees are either unauthorized by statute and/or excessive and unreasonable. We disagree. Considering the endless avalanche of repetitive filings of pleadings both here and in Florida, Mr. Uiterwyk‘s resolute resistance to any and all opinions and orders by the courts in Florida and Louisiana, and Ms. Fuge‘s obligation to either prosecute or defend on behalf of her children, we find the awards of attorneys’ fees sound and supportable.
CONCLUSION
In sum, we decide these issues as follows: Ms. Fuge‘s right to alimony is terminated and the trial court award of child support is affirmed. Although the trial court may issue a bond “for good cause ... to insure compliance with a visitation order“,
Appellee has requested that this сourt assess sanctions against appellant for raising repetitive claims definitively decided long ago. We decline to do so, as there were sufficient legal issues to be considered by this court.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.