Miller v. MillerMiller v. Miller
Love, Rigby, Dehan, Love & McDaniel by Hani E. Dehan, Shreveport, for plaintiff-appellee.
Before PRICE, HALL and JONES, JJ.
PRICE, Judge.
This is an appeal by the divorced mother of three children from a judgment changing their custody to the father and terminating the previous judgment for child support.
The рarties were residents of Shreveport at the time a judgment was rendered awarding appellant pendente lite custody and child support during the pendency of their reciprocal demands for a legal separation. After a separation judgment was rеndered in November 1975, appellant, in July 1976, moved with the three children to Portland, Oregon, and later to the state of Washington. During the summer of 1977,
Appellant, who refused to accept the certified letter from thе appointed attorney notifying her of the pendency of the proceeding, made no appearancе by the filing of pleadings or in person at the trial of the rule. An oral objection to the jurisdiction of the court was made by the сourt appointed attorney.
Appellant has concisely framed the issues presented on her limited appeаl in brief to this court as follows:
(1) Did the trial court retain jurisdiction to modify or terminate child custody and therefore support?
(2) If not, did the trial court obtain jurisdiction therefor by reason of the children‘s forced, admittedly surreptitious presence in Caddo Parish on the date suit was filed and on the date the curаtor was served?
(3) If so, did it lose that jurisdiction over the two younger children when Mrs. Miller removed them from the State of Louisiana prior to the trial on the rule nisi?
(4) If there was no jurisdiction over one or more of these children, since the support award was in globo and no proration thereof was sought, did the court have jurisdiction to terminate any or all thereof?
Appellant contends that the children‘s domicile follows that of the custodial parent, and as she has become a domiciliary of Washington, the сhildren are no longer domiciled in Louisiana, and the courts of this state lack jurisdiction to render any judgment on their custody. The statutory law defining the jurisdiction of the court is
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:
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(5) A proceeding to obtain the legal custody of a minor if hе is domiciled in, or is in, this state;
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There is no dispute as to the fact that the children were all three present within this state on the datе of the filing of this proceeding. It is immaterial that two of the children were removed prior to trial as once jurisdiction has attached it is not lost by the subsequent removal of the person from the jurisdiction of the court. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953), DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2d Cir. 1977).
It is therefore apparent that the facts of this case fall within the literal wording of the above statute conferring jurisdiction on the court unless some further qualifiсation is read into the statute relating to the presence of the children in this state having been improperly obtained by dеvious methods. Appellant contends this court should interpret the phrase “or is in, this state;” as used in the statute to exclude children brought into the state through subterfuge. Any other interpretation, appellant contends, would be against public policy and
In Odom the custodial parent had become domiciled in Texas and the children in question were in Texas at the time thе other parent attempted to recover custody through the Louisiana court which had originally granted the custody decree. The Supreme Court held the trial court did not have jurisdiction under
The Fourth Circuit in Smith v. Ford, supra, did read into the statute, in addition to the requirement of presence of the children in this state, that there must be somе compelling state interest to justify the exercise of jurisdiction. This rationale has since been rejected by the same court, and the plain language of the statute was followed in Rafferty v. Rafferty, 313 So.2d 356 (La. App. 4th Cir. 1975).
The state of Louisiana is the state which initially assumed jurisdiction over the children and from whose jurisdiction the children were removed by appellant. The trial court had jurisdiction under the plain wording of
There is no question that if the court had jurisdiction to modify the custody award that the judgment of support for the сhildren could also be deleted. The continuing jurisdiction of a Louisiana court to modify a support award has been decided by this court recently in DeFatta v. DeFatta, supra.
For the reasons assigned, the judgment is affirmed at appellant‘s cost.