Opinion
CIVIL ACTION NO. 16-610-JJB-RLB
11-07-2016
JOHN CHAMPAGNE on behalf of his minor child, N.C. v. BARRY PARRISH
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on November 7, 2016.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is a "Motion to Remand" filed by the defendant Barry Parrish. (R. Doc. 7). The motion is opposed. (R. Doc. 8).
I. Background
This action was commenced on September 14, 2016 when John Champagne, on behalf of his minor child, N.C., filed an original Complaint for Damages. (R. Doc. 1). Mr. Champagne alleges that N.C. lived in Livingston Parish, Louisiana, with her mother and stepfather, defendant Barry Parrish, until July 16, 2016. Mr. Champagne further alleges that for several years up to that date, Mr. Parrish sexually assaulted N.C., as confirmed by positive DNA identification.
Mr. Champagne alleges that the Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. In an Amended Complaint filed on September 30, 2016 (R. Doc. 6), Mr. Champagne specifically alleges that both he and N.C. are "domiciled in the State of Mississippi" and that Mr. Parrish is "domiciled in the State of Louisiana."
On October 5, 2016, Mr. Parrish filed the instant motion, seeking an order remanding this action to the 21st Judicial District Court, Livingston Parish, Louisiana, on the basis that that there is not complete diversity between the parties because both Mr. Parrish and N.C. are citizens of Louisiana. (R. Doc. 7). Mr. Parrish acknowledges that he is subject to criminal charges related to the allegations in the Complaint, and that his arraignment was set for October 12, 2016 in state court in Livingston Parish.
As the instant action was originally in federal court, there is no state court to which "remand" of the action is possible. Considering the arguments raised by the instant motion, however, the Court will determine whether there is complete diversity between the parties to support diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Considering the allegations of sexual assault of a minor, and the damages sought in recovery, there is no dispute that the amount in controversy requirement has been satisfied.
II. Arguments of the Parties
Mr. Parrish argues that N.C. is a citizen of Louisiana on the basis that, pursuant to Louisiana Civil Code Article 41, an unemancipated minor shares the same domicile as the parent with whom the minor has been placed with under court order. (R. Doc. 7-1 at 1). Mr. Parrish further argues that at the time of the filing of the Complaint, N.C. had only resided in Mississippi for two months, without authority of the state court, which is insufficient time to establish "Mississippi as her new home under the Uniform Child Custody and Jurisdiction Act and Louisiana law," i.e., La. R.S. § 13:802. (R. Doc. 7-1 at 1-2). Finally, Mr. Parrish suggests that this action should be litigated in the same jurisdiction in which his criminal action is being litigated for judicial efficiency purposes.
In support of his position that N.C. was a citizen of Louisiana at the time the Complaint was filed, Mr. Parrish submits a copy of a July 20, 2012 state court order providing that Mr. Champagne's ex-wife, Mrs. Parrish, shall maintain primary physical custody of N.C., and a February 17, 2011 stipulated judgment providing that "custody matters shall be heard by the children's home State of Louisiana in the 21st Judicial District Court by the Honorable Brenda Bedsole Ricks." (R. Doc. 7-2).
In opposition, Mr. Champagne argues that his daughter became a citizen of Mississippi for diversity jurisdiction purposes on July 28, 2016, in light of a "Protective Temporary Custody Agreement" entered between him and Mrs. Parrish. (R. Doc. 8 at 1). Mr. Champagne provides a copy of this document, which was recorded in the conveyance records for Livingston Parish on July 29, 2016. (R. Doc. 8-1). Mr. Champagne argues that based on this temporary custody agreement, N.C. assumed his place of residence and domicile of Mississippi. (R. Doc. 8 at 2). Finally, Mr. Champagne argues that La. R.S. § 13:1802 is inapplicable because it merely defines the "home state" of the child for the purposes of initial child custody jurisdiction. (R. Doc. 8 at 2).
III. Law and Analysis
When jurisdiction depends on citizenship, the citizenship of each party must be "distinctly and affirmatively" alleged in accordance with § 1332(a) and (c). Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991) (quoting McGovern v. American Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975)). "Failure adequately to allege the basis for diversity jurisdiction mandates dismissal." Stafford, 945 F.2d at 805 (citing Patterson v. Patterson, 808 F.2d 357, 357 (5th Cir. 1986); McGovern, 511 F.2d at 654)).
"The concept of complete diversity requires that all persons on one side of the controversy be citizens of different states than all persons on the other side." McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (citing Harrison v. Prather, 404 F.2d 267, 272 (5th Cir. 1968)). "As is the case in other areas of federal jurisdiction, the diverse citizenship among adverse parties must be present at the time the complaint is filed." Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citing Mullen v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154, 155 (1824)). "The burden of proving that complete diversity exists rests upon the party who seeks to invoke the court's diversity jurisdiction." Getty Oil Corp., a Div. of Texaco v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988).
"For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (citing Texas v. Florida, 306 U.S. 398, 424 (1939)). "In determining [an adult] litigant's domicile, the court must address a variety of factors. No single factor is determinative. The court should look to all evidence shedding light on the litigant's intention to establish domicile. The factors may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver's and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family." Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996). "A litigant's statement of intent is relevant to the determination of domicile, but it is entitled to little weight if it conflicts with the objective facts." Id.
"Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents." Mississippi Band of Choctaw Indians, 490 U.S. 30, 48 (citing Yarborough v. Yarborough, 290 U.S. 202, 211, 54 (1933); see 28 U.S.C. § 1332(c)(2) ("[T]he legal representative of an infant or incompetent shall be deemed to be a citizen only of the same state as the infant or incompetent."); Restatement (Second) of Conflict of Laws § 22 (1971) ("(1) A minor has the same domicil[e] as the parent with whom he lives. (2) Special rules are applied to determine the domicil[e] of a minor who does not live with a parent.").
"When determining a minor's domicile, courts look to the domicile of the minor's guardian if the minor lives with her guardian." Daffern v. State Auto Prop. & Cas. Ins. Co., No. 10-1211, 2011 WL 1085664, at *2 (W.D. La. Mar. 18, 2011) (citing Elliott v. Krear, 466 F. Supp. 444, 447 (E.D. Va. 1979) (finding a minor's domicile to be that of his grandparents, who acted in loco parentis, even though his parent retained legal custody); Linville v. Price, 572 F. Supp. 345, 347-48 (S.D. W.Va. 1983) (minor's domicile was his aunt and uncle's domicile because they acted in loco parentis ); Restatement (Second) of Conflict of Laws § 22, cmts. h & i (1971) (if a minor lives with her guardian, then whether the guardian is court-appointed or acts in loco parentis, the minor takes the guardian's domicile)); see also Daffren v. State Auto Property & Cas. Ins. Co., No. 10-01211, 2010 WL 5103102 (W.D. La. Dec. 2, 2010) (domicile of minor child whose mother had not had custody since she was a young child due to substance abuse problems and whose father was incarcerated, was determined by her maternal aunt, who had been ordered to serve as her provisional tutrix).
Under Louisiana law, "[t]he domicile of an unemancipated minor is that of the parent or parents with whom the minor usually resides," but "[i]f the minor has been placed by court order under the legal authority of a parent or other person, the domicile of that person is the domicile of the minor, unless the court directs otherwise." La. C.C. art. 41.
Here, there is no dispute that Mr. Champagne is a citizen of Mississippi, and that Mrs. Parrish is a citizen of Louisiana. The issue is whether N.C. assumes the domicile of her father or her mother for the purposes of determining diversity jurisdiction.
The record indicates that on July 20, 2012, Judge Ricks of the 21st Judicial District Court issued an "Agreed Order of Modification" with regard to the custody of Mr. Champagne's children. (R. Doc. 7-2). The document appears to constitute a joint custody decree and implementation order as provided by La. R.S. § 9:335. Through this Order, Judge Ricks awarded Mr. Champagne and Mrs. Parrish joint legal custody of N.C., but provided that Mrs. Parrish would maintain primary physical custody of N.C., i.e., serve as the "domiciliary parent" in the joint custody arrangement as defined by La. R.S. § 9:335(B)(2). (R. Doc. 7-2 at 2).
Neither party has filed the Agreed Judgment of Divorce dated April 23, 2009 referenced in this document into the record.
On July 28, 2016, Mr. Champagne and Mrs. Parrish entered into a "Protective Temporary Custody Agreement" through which Mrs. Parrish agreed to provide Mr. Champagne with "temporary custody and legal domicile" over N.C. (R. Doc. 8-1). In addition, she gave permission for Mr. Champagne "to care for the child in his home and to apply for, consent to, or otherwise obtain any medical treatment or any economics, social, educational, and/or other service that the child may need." (R. Doc. 8-1). There is no dispute that N.C. lived with her father in Mississippi for approximately three months prior to the filing of the instant lawsuit.
Pursuant to La. R.S. § 9:335.3 and 9:335.4, Mrs. Parrish has the legal authorization "to propose relocation of the principal residence" of N.C. and may do so after "the express written consent of the other person . . . recognized as a parent and any other person awarded custody or visitation under a court decree. . . ." In light of Mr. Champagne's consent to the relocation, Mrs. Parrish did not need to obtain court authorization for the relocation of N.C. See La. R.S. § 9:335.5.
Mr. Parrish suggests that the approximately three months that N.C. lived in Mississippi with her father is insufficient to establish Mississippi as her "new home state under the Uniform Child Custody and Jurisdiction Act and Louisiana law." (R. Doc. 7-1 at 2). Louisiana's Uniform Child Custody Jurisdiction and Enforcement Act defines "home state," for the purposes of establishing initial child custody jurisdiction, as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." La. R.S. § 13:1802(7)(a); see La. R.S. § 13:1813. While this statute is relevant to determining a state court's jurisdiction in a custody proceeding, it has no bearing on whether a minor is domiciled in a particular state for the purposes of determining federal diversity jurisdiction.
Based on the foregoing, the Court concludes that the N.C. assumed the domicile of her father, Mr. Champagne, prior to the commencement of this action. The state court granted Mr. Champagne joint legal custody of N.C. For the purposes of the joint custody arrangement, she and her ex-husband agreed that Mr. Champagne would, as of July 28, 2016, serve as the parent with whom N.C. usually resides and that Mr. Champagne would have the authority to make decisions regarding N.C.'s education and health. They agreed that Mr. Champagne would have legal domicile over N.C. Accordingly, at the time the instant action was commenced, N.C. was under both under her father's legal custody and physical custody.
While the Court is not holding that the temporary custody agreement between the parents of N.C. modifies the state court's joint custody plan order, it is certainly not precluded by the joint custody plan order and may have bearing on whether that order should be modified. See Roberie v. Roberie, 749 So. 2d 849 (La. App. 2nd Cir. 1999) (while a joint custody plan remains in effect "despite intervening modifications of physical custody via agreement of the parties," the subsequent agreement of the parties has bearing on whether, in a proceeding to modify the joint custody plan, the primary domiciliary parent status should be changed). --------
Based on the foregoing, the Court concludes that N.C. was domiciled in Mississippi at the time this action was commenced, and, accordingly, there is complete diversity between the parties.
IV. Conclusion
Based on the foregoing,
IT IS RECOMMENDED that the Motion to Remand (R. Doc. 7) be DENIED.
Signed in Baton Rouge, Louisiana, on November 7, 2016.
/s/ _________
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE