Lucas v. LucasLucas v. Lucas
Mrs. Maria Lucas on March 25, 1963, obtained a judgment of divorce from her husband, Richard Lucas, in the First Judicial District Court, Caddo Parish, Louisiana. In that suit the trial judge awarded the custody of the two minor children of the marriage, Richard Danied Lucas and George Luis Lucas, to the mother, Mrs. Lucas. Soon after the divorce was granted Mrs. Lucas movеd to Mexico City, Mexico, accompanied by her two minor children. Mr. Lucas thereafter traveled to Mexico City and brought the children back to Louisiana with him. The judgment awarding custody of the children to Mrs. Lucas was amended by consent of the parties on October 15, 1964, and the amended judgment provided:
“That the aforesaid children who are now in the physical care, custody and control of Mr. Lucas are temporarily awarded to his custody until June 1, 1965, at which time the judgment previously rendered herein on March 12, 1963, and read, signed and filed on March 25, 1963, shall immediately become effectivе as if this judgment had not been rendered.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that should the parties hereto not agree on the custody arrangement prior to August 1, 1965, and enter into a judgment accordingly, that this court, as an express condition hereof, does and shall retain jurisdiction over the parties hereto to adjudicate and determine proper custody of these minors.”
On or about June 1, 1965, Mr. Lucas returned the children to Mexico City pursuant to the modified custody agreement above. Upon returning to Louisiana, Mr. Lucas filed a rule in the First Judicial District Court, Caddo Parish, Louisiana, seeking another modification of the custody judgment and a permanent award of the custody of the children. Through her attorney, Mrs. Lucas filed a declinatory exception to the jurisdiction of the First Judicial District Court, alleging that the court had no power to alter the custody order to her prejudice since she and the two children were domiciliaries of Mexico City, Mexico, and were not physically present in the State of Louisiana. On the authority of Nowlin v. McGee, 180 So.2d 72 (La.App. 2 Cir., 1965), certiorari denied, 248 La. 527, 180 So.2d 541, the trial judge sustained the declinatory exception to the jurisdiction. Thereafter, Mr. Lucas, allegedly without the consent or permission of Mrs. Lucas, traveled to Mexicо City in a private airplane, retrieved the children and brought them back to Alexandria, Louisiana. Mr. Lucas then filed the present suit in the Ninth Judicial District Court for the Parish of Rapides, seeking a judgment awarding the custody of the two children to him. Mrs. Lucas, again through her attorney, filed exceptions of res judicata, lack of jurisdiction over the subject matter, improper venue, lis pendens and, alernatively, a motion for a change of venue. The district court sustained the exceptions to the jurisdiction, holding that if any court of the State of Louisiana had jurisdiction, then it was the First Judicial District Court in the Parish of Caddo, which rendered the original divorce and
This appeal presents two issues for our determination:
First, may the courts of the State of Louisiana, under the doctrine of parens patriae, adjudicate the status of children physically present within the state even though the spouse originally awarded custody is outside the state and the children are brought into or retained within the state in contravention of the wishes of the custodian-spouse?
Second, assuming that the courts of Louisiana have jurisdiction over the status of such children, is the court which rendered the judgment of divorce and the original order of custody the only court competent to entertain a subsequent suit to redetermine the custody of the children?
Although there are divergent lines of authority, the trend of deсisions throughout the United States seems to be toward assuming jurisdiction over the status of minor children physically within the jurisdiction of the court regardless of the manner in which the children were brought within the confines of the state. See Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, (1949); In re Smith‘s Guardianship, 147 Cal.App.2d 686, 306 P.2d 86 (1956); DiGiorgio v. DiGiorgio, 153 Fla. 24, 13 So.2d 596 (1943); Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, and the annotation at 4 A.L.R.2d 1.
In Louisiana the power of our courts to adjudicate the custody of minor children is regulated by Code of Civil Procedure Article 10, Section 5, which provides:
“A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
* * * * * *
“(5) A proceeding to obtain the legаl custody of a minor if he is domiciled in, or is in, this state;
“* * *.”
In the case of State ex rel. Girtman v. Ricketson et ux., 221 La. 691, 60 So.2d 88 (1952), our Supreme Court had this to say with regard to the jurisdictional requirements of domicile and physical presence:
“There is no doubt but that once the legal domicile of the child has been established by the court of one state, the question of his custody can be re-examined by that court if any changes in his condition present themselves and a change of custody is found necessary for his best interest and welfare. That does not mean however that if by reason of some circumstance, the child is fоund in a State other than that of such domicile, in custody of one of the parents, such as is the child in this case, the courts of that State do not have jurisdiction to make the same sort of investigation regarding any changes of conditions which may lead to a change of custody for his better welfare. The court, no matter of which State, having his person before it, has the right, and even the duty according to some cases, under the doctrine of parens patriae, to act for the best interest of the child. The basic principle on which jurisdiction is assumed in such cases is the welfarе of society in general and primarily as evidenced by the welfare of the child. See Wicks v. Cox, supra, and Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937.”
Having decided that the courts of Louisiana are competent to entertain this suit, we are faced with the problem of determining which court within the state is the proper forum to hear and decide the matter of the custody of these children. The appellant, Mr. Lucas, contends that since the children are physically present within the Parish of Rapides, then the district court of that parish is a proper court in which to bring a custody suit. On the other hand, Mrs. Lucas, the appellee, maintains that the First Judicial District Court, Caddo Parish, is the only court in which this suit may be maintained since both the judgment which dissolved the marriage and the judgment awarding custody of the children to the mother issued from that court.
Although our research discloses no case exactly in point, we feel that the principle announced in State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (1953), is applicable to the facts at bar and requires that the present suit be brought in the Parish of Caddo. In that case the Supreme Court said:
“It is also well settled that when two courts have concurrent jurisdiсtion over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controversy to the exclusion of all others. Demoruelle v. Allen, 218 La. 603, 50. So.2d 208; State ex rel. Terry v. Nugent, 212 La. 382, 31 So.2d 834; Geilinger and Blum v. Philippi, 133 U.S. 246, 10 S.Ct. 266, 33 L.Ed. 614; Lake Bisteneau Lumber Co. v. Mimms, 49 La.Ann. 1283, 22 So. 730 and cases cited therein.”
The trial judge expressed the same view, relying on State ex rel. Paul v. Department of Welfare, 166 So.2d 7 (La.App. 3 Cir., 1964). See also State ex rel. Terry v. Nugent et ux., 212 La. 382, 31 So.2d 834; Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936); and Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953).
The appellant argues earnestly that he should not be required to bring his suit in the First Judicial District Court of the Parish of Caddo since that court, in a prior suit, declined to exercise jurisdiction. Under the circumstances that existed at that time we feel that the ruling of the Caddo Parish court was entirely proper since the Lucas children were neither domiciliaries of the State of Louisiana nor physically present within its boundaries. But, as we indicated earlier in this opinion, the physical presence of the children within the State now gives the courts of Louisiana jurisdiction over their status and for this reason we feel that the First Judicial District Court of the Parish of Caddo is the proper court to rule on the custody of these children.
For the foregoing reasons the judgment of the Ninth Judicial District Court, Parish of Rapides, sustaining the declinatory exception of lack of jurisdiction is affirmed, the costs of this appeal to be borne by the appellant.
Affirmed.
CULPEPPER, Judge (dissenting).
I do not concede that the First Judicial District Court for the Parish of Caddo has concurrent jurisdiction with the Ninth Judicial District Court for the Parish of Rapides over the status, i. e., the legal custody, of these minor children. Counsel for the plaintiff makes a very strong argument that
However, regardless of whether the two courts have concurrent jurisdiction, I think the defendant has waived whatever rights she had to object to the jurisdiction of the Rapides Parish court. As the majority opinion states, Mrs. Lucas employed her own attorney and filed in the Rapides Parish court not only a declinatory exception to the jurisdiction, but a perеmptory exception of res judicata (based on the prior custody judgment rendered in the Caddo Parish court). In my view, the filling of the peremptory exception of res judicata constituted a general appearance, waiving whatever objections Mrs. Lucas can make to the jurisdiction of the Rapides Parish court.
I recognize that jurisdiction over the subject matter cannot be waived or conferred by consent,
“Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
“(1) Entry or removal of the name of an attorney as counsel of record;
(2) Extension of time within which to plead;
(3) Security for costs;
(4) Dissolution of an attachment issued on the ground of the nonresidence of the defendant; or
(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.
“This article does not apply to an incompеtent defendant who attempts to appear personally, or to an absent or incompetent defendant who appears through the attorney at law appointed by the court to represent him.
“When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.”
As I understand the scheme of
The only possible argument, that defendant is excepted from the provisions of
There can be no question that the Ninth Judicial District Court for the Parish of Rapides has jurisdiction over the subject matter, which in this case is the status of these children, under the clear provisions of
There is some discussion of venue in the briefs filed by counsel. Venue means the parish where an action may be brought,
I recognize there are many policy arguments which can be made for both courts. Caddo Parish heard the original divorce proceedings and the evidence and arguments concerning the custody of the children. It is therefore more familiar with the background of the case than the Rapides Parish court. But this alone is not sufficient reason to say Caddo Parish shall forever retain exclusive jurisdiction over the custody of these children. For instance, if the mother had moved back to Louisiana to Rapides Parish with the children, could there be any question that Rapides Parish would then have jurisdiction, despite the previous proceedings in Caddo Parish. Also, suppose the father had found the children detained by the mother, or some other party, in Rapides Parish, and had filed habeas corpus proceedings there. That court could have entertained such proceedings under the clear provisions of
On the other hand, there are many policy arguments that Rapidеs Parish should have jurisdiction of these proceedings. These
Nevertheless, I do not base my dissent on any of these policy arguments. As stated above, it is my view that Mrs. Lucas has waived whatever right she had to object to the jurisdiction of the Rapides Parish court by appearing therein and filing the peremptory exception of res judicata. Also, there is no statutory rule to deny Rapides Parish jurisdiction, and no logical reason to do so.
For the reasons stated, I respectfully dissent.
On Application for Rehearing En banc.
CULPEPPER, Judge.
On rehearing, all members of this court agree that, for the reasons stated in our original opinion, the courts of Louisiana have jurisdiction over the status of these children, even though they were brought to Louisiana from Mexico without the mother‘s consent.
However, a majority of this court is now of the opinion that the Caddo Parish cоurt, which rendered the original custody decree in the divorce proceedings, did not retain forever the exclusive jurisdiction and venue to modify that decree. This question is res nova in Louisiana.
At the outset, it is appropriate to state that all counsel agree we have no statute which supplies the answer.
Likewise, the venue article,
Counsel for Mrs. Lucas cites several cases from which he argues it must be inferred that only the court that rendered the custody judgment has the jurisdiction to modify it “from an intrastate point of view“. He cites first, State ex rel. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (1953), for the general rule that where two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction of the res, retains it to the end of the controversy, to the exclusion of all others. But, the Marston case is readily distinguishable from the present matter. There, the wife filed suit for separation from bed and board in Orleans Parish and while her suit was pending the husband filed a suit for separation from bed and board in Caddo Parish. The court held that since the Orleans court obtained jurisdiction first, it retained jurisdiction to the end of the controversy. The wife‘s exception of lis pendens was accordingly sustained. In the present case, unlike the Marston case, there are no proceedings presently pending in the Caddo Parish court respecting the custody of these children. The custody proceedings in Caddo were concluded and judgment rendered on the facts existing at the time. And, although that custody decree may be subsequently modified, on a showing that changed circumstances require it, there can be no collision
Counsel for Mrs. Lucas also cites State ex rel. Terry v. Nugent, 212 La. 382, 31 So. 2d 834 (1947) where an adoption proceedings was pending in a juvenile court at the time a custody proceedings was filed in the district court; and State ex rel. Paul v. Department of Welfare, 166 So.2d 7 (La.App., 3rd Cir. 1964) also involving concurrent proceedings in a juvenile court and a district court. These cases are certainly correct, but are also distinguishable from the present matter on the grounds that they involved concurrent proceedings in different courts regarding custody of the same children. That is not the case here.
Defense counsel relies heavily on Pullen v. Pullen, 161 La. 721, 109 So. 400 (1926). There, a divorce proceedings in DeSoto Parish resulted in a custody award of three of the five children to the father. The father moved to New Orleans but did not take the three children with him. The mother remained in DeSoto Parish and took care of these children. Two years later the mother petitioned the DeSoto Parish court to change the previous custody decree to award her custody, alleging that the father was threatening to take the children from her. The father filed exceptions to the jurisdiction ratione personae and ratione materia. Our Supreme Court held that the DeSoto Parish court retained jurisdiction to modify its former custody decree. But, the Pullen case did not hold, since the issue was not raised, that DeSoto Parish retained exclusive jurisdiction. The question as to whether an independent action to change custody, on the grounds of a change in circumstances, can be brought in a different parish, under a new venue, was not presented. We notice particularly that no quеstions of venue were raised.
Another principle established by our jurisprudence is that where the matter of custody was not at issue in the original divorce proceedings, and the judgment made no mention thereof, a subsequent demand for custody of the children must be brought in an independent action, rather than in the divorce proceedings. Thornton v. Floyd, 229 La. 237, 85 So.2d 499; Thornton v. Thornton, 234 La. 108, 99 So.2d 43 (1958); McLin v. McLin, 130 So.2d 748 (La.App., 1st Cir.); Thibodeaux v. Roscoe, 182 So. 2d 77 (La.App., 3rd Cir. 1966). Although these cases are not controlling here, they do show that independent actions for custody of children of divorced parents, have long been a part of our practice.
A review of the jurisprudence of other states reveals a lack of uniformity as to the issue at hand. Although the annotation in 146 A.L.R. 1153, at page 1168, indicates the general rule at the time was that the court which renders a custody order is the only court in the state which can modify it, there are many later cases to the contrary. See 27B C.J.S. Verbo Divorce, § 317(3), pp. 558-561; and 24 Am.Jur.2d 926, Verbo Divorce and Separation, Section 814. In our sister state of Texas it is provided by statute that an action to change a former custody decree must be brought by a new and independent suit, which of course might have a new venue. See Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940); Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (Tex.S.Ct.1954) and cases cited therein. Other cases to the same effect, whether based on statutes or jurisprudence, are: Pirkle v. Pirkle, 212 Ga. 752, 95 S.E.2d 663 (1956); Damm v. Damm, 77 R.I. 24, 72 A. 2d 839; State ex rel. Maureman v. Superior Court, 44 Wash.2d 228, 271 P.2d 435; Cooney v. Cooney, 25 Cal.2d 202, 153 P.2d 334.
It is our view that a strict adherence to the rule, that the court which renders a custody decree retains exclusive jurisdiction and venue of any action to modify that decree, is objectionable on several grounds: It would work undue hardship where the parties move to a far distant parish and would be faced with the
Having reached a decision on this basic issue, we can proceed fairly easily to the conclusion that Rapides Parish has jurisdiction and venue in the present case. If Caddo Parish has not retained exclusive jurisdiction to modify its decree, then Rapides Parish has jurisdiction of this independent action to change the custody, simply because the children are physically present in this state.
Since this is an independent action, not filed in the original divorce prоceedings, it can have a new venue. The pertinent portion of
“The general rules of venue are that an action against:
* * * * * *
“(5) Except as otherwise provided by
R.S. 13:3471(1) , a foreign corporation not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in a parish where the process may be, and subsequently is, served on the defendant; ”
The Official Comments under
“(d) Heretofore, nonresident individuals could be sued where service could be made, whether or not they had appointed agents. The above article restricts the venue as to nonresident individuals who have appointed аgents. Otherwise, there is no change as to nonresident individuals.”
“The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
“(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is: (a) a nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has made no general appearance; * * *.”
LSA-C.C.P. Vol. 3, page 501, Chapter 2, Service on Persons, Caveats (2) gives this explanation:
“2. When the court has jurisdiction over the property, or over the status involved, a nonresident defendant may be served through the attorney at law appointed
by the court to represent him. Arts. 5091, 5251(1, 11).”
Applying these codal articles to the present case, it is clear that the defendant, Mrs. Lucas, is a nonresident (her domicile is in Mexico) who has not appointed an agent for service of process. Hence venue of a suit against her is where proper service is made. Since the court has jurisdiction over the status involved, i.e., the custody of these children, an attоrney at law was properly appointed to represent her and service of process was made on him in Rapides Parish.
It is our conclusion that the district court of Rapides Parish has jurisdiction over the status involved and that it also is a court of proper venue in these proceedings. Hence, the exception to the jurisdiction, as well as the exception to venue, must be overruled.
For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Richard L. Luсas, and against the defendant, Maria Medina Lucas, overruling the defendant‘s declinatory exceptions to the jurisdiction and venue of the court. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant, Mrs. Maria Medina Lucas. Costs of the lower court may be assessed on completion of the proceedings there.
Reversed and remanded.
FRUGE, J., dissents for the reasons assigned upon original opinion.
HOOD, J., dissents for the reasons assigned on our original opinion.
On application for rehearing.
En Banc. Rehearing denied.
FRUGE, and HOOD, JJ., are of the opinion that a rehearing should be granted.