Opinion
No. 2010 CU 1833.
May 6, 2011.
ON APPEAL FROM THE 32ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE TRIAL COURT NO. 157, 601 HONORABLE RANDALL L. BETHANCOURT, JUDGE PRESIDING.
Jerri G. Smitko, Houma, Louisiana, Counsel for Plaintiff/Appellant Mariana De La Cruz Nezat.
Angela Wilt Cox, Slidell, Louisiana, Counsel for Defendant/Appellee Rafael A. Guzman.
BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.
NOT DESIGNATED FOR PUBLICATION
This is an appeal from a district court judgment, which granted exceptions pleading the objections of res judicata, lack of subject matter jurisdiction, and lack of personal jurisdiction, and dismissed an action raising issues related to custody, visitation, and support of the parties' minor children. For the reasons that follow, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
The parties in this case were previously before this court in Guzman v. Sartin, 2009-1677 (La. App. 1 Cir. 12/23/09), 31 So.3d 426, wherein the antecedent facts and procedural history were stated as follows:
Mr. Guzman and Ms. Sartin were married on June 21, 1995, in the Municipality of Baruta of the State of Republic of Venezuela. Two children were born of their union, [I.G.] (d/o/b November 3, 1994) and [G.G.] (d/o/b May 15, 1997). On May 23, 2001, the parties were divorced in Venezuela, and Ms. Sartin was awarded custody of the children, while Mr. Guzman enjoyed an open visitation schedule to conform to his military duties.
In the prior suit, the plaintiff, Mariana De La Cruz Nezat, used the surname of "Sartin," but has remarried and now uses the surname of "Nezat."
In December of 2007, Ms. Sartin and the children moved from Venezuela to Slidell, Louisiana. According to Mr. Guzman, sometime thereafter he began encountering problems when he attempted to visit his children. He subsequently filed a verified petition to set specific custody and incidental matters, seeking to have the court in St. Tammany Parish modify the original Venezuelan judgment. On April 29, 2009, Mr. Guzman filed a motion to supplement and amend the original petition, to request the enforcement of visitation, and to seek attorney's fees and incidental relief.
After Mr. Guzman filed his original petition, the trial court ordered that he and Ms. Sartin appear in person, with their respective attorneys, before a hearing officer at the parish courthouse. The conference was held on May 4, 2009, and the parties addressed the issues raised in Mr. Guzman's petition. Following the conference, the hearing officer issued a conference report recommending that the parties share joint custody of the minor children, designating Ms. Sartin as the domiciliary parent, setting a specific visitation schedule, and issuing co-parenting guidelines. Both parties filed objections in response to the recommendations made in the hearing officer's report.
On June 18, 2009, the parties participated in another conference before the hearing officer to address the issues raised in Mr. Guzman's motion to supplement and amend his original petition. After the conference, the hearing officer issued a report finding that Mr. Guzman's request for additional visitation was moot and denying his request for reimbursement for costs, attorney's fees, and travel expenses as it related to the April 2009 visitation. Thereafter, Ms. Sartin filed an objection to the hearing officer's report asserting that the court lacked venue, that the action was premature, and that Mr. Guzman has no cause of action or no right of action. In addition to the objection, Ms. Sartin filed exceptions raising the objections of improper venue, prematurity, no cause of action or no right of action.
Following a hearing on the matters presented in the petitions and exceptions, the trial court rendered judgment on July 20, 2009, in favor of Mr. Guzman and denied Ms. Sartin's exceptions. . . .
Additionally, at the hearing on the matters presented to the court, Ms. Sartin raised the objection of lack of subject matter jurisdiction because Mr. Guzman failed to register or make the Venezuelan judgment executory in St. Tammany parish pursuant to La.R.S. 13:4241 or La.C.C.P. art. 2541.
* * *
. . . Louisiana is the "Home State" of the children because the children have been residing in Louisiana with their mother since December of 2007, approximately a year and a half before the child custody proceedings, and neither the children nor their parents presently reside in Venezuela.
Mr. Guzman is currently a resident of the state of Texas.
Guzman v. Sartin, 2009-1677 at pp. 2-3, 7, 31 So.3d at 427-28, 431. On appeal of the 22nd Judicial District Court judgment, this court affirmed the district court rulings, specifically holding that the district court did not err in determining that Louisiana had subject matter jurisdiction over the child custody proceedings. Guzman v. Sartin, 2009-1677 at p. 7, 31 So.3d at 431.
After moving to Terrebonne Parish, Ms. Nezat filed the instant suit, on June 11, 2009. Her petition sought to have the Venezuelan judgments made executory in Louisiana, which was done by ex parte order of the 32nd Judicial District Court. On June 18, 2009 Ms. Nezat filed a rule seeking to have Mr. Guzman cited to show cause why a joint custody implementation plan should not be rendered. By means of the rule to show cause, Ms. Nezat sought: a ruling on visitation issues; an increase in the amount of child support paid by Mr. Guzman; a provision for the contribution by Mr. Guzman to the children's expenses for private school tuition, extracurricular activities, and child care; an order that Mr. Guzman provide health and hospitalization insurance for the children; a ruling on issues related to communications between the parties and to the children; and an injunction prohibiting Mr. Guzman from taking the children to Venezuela.
Mr. Guzman responded to the suit with exceptions of lis pendens, res judicata, lack of subject matter jurisdiction, and lack of personal jurisdiction. Mr. Guzman further pointed out Ms. Nezat's lack of disclosure, to the 32nd Judicial District Court, of the 22nd Judicial District Court litigation, which was then on appeal to this court and had not yet been decided. He also alleged that Ms. Nezat "lured" him to Louisiana during the 2009 Thanksgiving holiday to enable a private process server to serve him, in order to obtain personal jurisdiction in Terrebonne Parish; he maintained such personal jurisdiction was improper. Mr. Guzman also sought sanctions (reasonable attorney fees, court costs, and all other relief allowed under law and/or equity) against Ms. Nezat, pursuant to LSA-C.C.P. art. 863, asserting that her filing was imposed for an "improper purpose" or to "harass or cause unnecessary delay or needless increase in cost of litigation" and was not warranted by "existing law or good faith argument."
Mr. Guzman later amended his exceptions to acknowledge that this court had rendered its decision in the appeal of the 22nd Judicial District Court suit, thus ending that litigation and removing the basis for his plea of lis pendens; however, Mr. Guzman maintained his plea of res judicata based on the 22nd Judicial District Court final judgment.
After a hearing on the issues presented by the parties, the district court ruled in favor of Mr. Guzman, sustaining his exceptions of res judicata, lack of subject matter jurisdiction, and lack of personal jurisdiction, and dismissing Ms. Nezat's rule to adjudicate custody, visitation, and support issues. Ms. Nezat has appealed to this court, assigning error as follows:
The judgment rendered further stated that the court "adopt[ed] as its Reasons for Judgment all oral and written arguments presented by counsel for [Mr. Guzman]."
The only items of evidence submitted to the district court in conjunction with the hearing were pleadings previously filed in the 22nd Judicial District Court and an affidavit filed by Mr. Guzman in which he stated that: the 22nd Judicial District Court awarded him visitation with his children during the Thanksgiving holiday, he had purchased airline tickets in advance of his Thanksgiving 2009 visitation for his children to travel from New Orleans to his home in Texas, Ms. Nezat notified him on October 28, 2009 that he would have to personally pick up the children in Louisiana to exercise his Thanksgiving visitation, and he travelled to Louisiana from November 19, 2009 through November 21, 2009 for that purpose. (Mr. Guzman alleged that the Thanksgiving incident was contrived to secure his presence in Louisiana for personal service and that he was served by a private process server upon his arrival in Louisiana to pick up his children.) The matters before the district court were submitted without testimony, following argument of counsel.
We note that prior to filing an appeal, Ms. Nezat applied for supervisory review, which was denied by this court in Nezat v. Guzman, 2010-0774 (La. App. 1 Cir. 7/6/10) (unpublished), stating the judgment at issue was a final, appealable judgment.
The District Court committed legal error sufficient to reverse [its] ruling when it:
1. Granted defendant's exception of lack of subject matter jurisdiction;
2. Granted defendant's exception of lack of personal jurisdiction;
3. Granted defendant's exception of res judicata;
4. Granted defendant's exception of lis pendens;
We pretermit Ms. Nezat's assignment of error asserting the district court erred in sustaining Mr. Guzman's exception of lis pendens, as the district court sustained only the exceptions of res judicata, lack of subject matter jurisdiction, and lack of personal jurisdiction; Mr. Guzman had abandoned his exception of lis pendens by the time the exceptions were heard by the court.
5. Allowed the introduction of an affidavit into evidence;
6. Rendered judgment allowing the defendant to present evidence on his request for sanctions by affidavit[.]
LAW AND ANALYSIS
Subject Matter Jurisdiction over Child Custody Issues
Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled. LSA-C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. LSA-C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3. See also Bordelon v. Dehnert, 99-2625, p. 3 (La. App. 1 Cir. 9/22/00), 770 So.2d 433, 435, writ denied, 2000-2923 (La. 3/19/01), 787 So.2d 995. It is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 2000-1058, p. 3 (La. App. 1 Cir. 9/12/01), 809 So.2d 258, 260.
In the present case, the district court in Terrebonne Parish clearly had subject matter jurisdiction, under LSA-Const. art. V, § 16(A), to adjudicate the particular class of action, i.e., child custody and support matters. See Jurado v. Brashear, 2000-1306, p. 3 (La. 3/19/01), 782 So.2d 575, 577. However, Louisiana's child custody jurisdiction law grafts a second tier of inquiry onto the question of subject matter jurisdiction for Louisiana courts considering child custody issues. A Louisiana court may have general subject matter jurisdiction, but must decline that jurisdiction based on jurisdictional limitations imposed by the child custody jurisdiction law. See Amin v. Bakhaty, 2001-1967, p. 6 (La. 10/16/01), 798 So.2d 75, 80. These limitations further the purposes of the child custody jurisdiction law, including avoiding jurisdictional competition, assuring that custody litigation takes place in the state with which the child and his family have the "closest connection" and where relevant evidence is located, promoting a stable home environment, deterring abductions, and encouraging cooperation among the courts of different states. Stelluto v. Stelluto, 2005-0074, p. 8 (La. 6/29/05), 914 So.2d 34, 39. Although likened to subject matter jurisdiction, the choice of the optimum jurisdiction to resolve custody matters under Louisiana's child custody jurisdiction law actually focuses on the strength of connections between the minor child and the state, more akin to a personal jurisdiction analysis. However, our lower courts have generally approached the limitations imposed by Louisiana's child custody jurisdiction law as equivalent to declarations of subject matter jurisdiction that mandate that the law's jurisdictional requirements be met when the custody request is filed. See Amin v. Bakhaty, 2001-1967 at pp. 6-7, 798 So.2d at 80-81.
Louisiana Constitution Article V, § 16(A), provides in pertinent part:
Original Jurisdiction. (1) Except as otherwise authorized by this constitution . . ., a district court shall have original jurisdiction of all civil and criminal matters. . . .
While Amin v. Bakhaty and Stelluto v. Stelluto were specifically interpreting the former Uniform Child Custody Jurisdiction Act (UCCJA), LSA-R.S. 13:1700 et seq., which was repealed by 2006 La. Acts, No. 822, § 2 (effective August 15, 2007), the UCCJA was substantially re-enacted as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), LSA-R.S. R.S. 13:1801 et seq., and contains nearly identical jurisdictional provisions as the UCCJA. For this reason, we conclude that the rationale expressed in these cases is equally applicable to the current child custody jurisdiction law, the UCCJEA. Accordingly, since LSA-R.S. 13:1842 provides that a motion or other request for relief made in a child custody proceeding or to enforce a child custody determination, which was commenced before August 15, 2007, is governed by the law in effect at the time the motion or other request was made, and since the instant proceeding was instituted by Ms. Nezat in June of 2009, the UCCJEA applies rather than the UCCJA.
In the instant case, pursuant to LSA-R.S. 13:1802 and LSA-R.S. 13:1813 of the UCCJEA (which contain nearly identical provisions as in former LSA-R.S. 13:1701(5) and LSA-R.S. 13:1702 of the UCCJA), jurisdiction to resolve custody issues existed in Louisiana as Louisiana was the home state of the Guzman children. Section 1813 provides:
A. Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child's home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
"Home state" is defined by LSA-R.S. 13:1802(7)(a) 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period."
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
(3) All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under R.S. 13:1819 or 1820; or
(4) No court of any other state would have jurisdiction under the criteria specified in Paragraph (1), (2), or (3) of this Subsection.
B. Subsection A of this Section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
[Emphasis added.]
Since Louisiana was the state in which the Guzman children lived with a parent (Ms. Nezat) "for at least six consecutive months immediately before the commencement of [the] child custody proceeding," jurisdiction was proper in Louisiana. Additionally, no other state or country would have had jurisdiction under the facts of this case.
Pursuant to LSA-R.S. 13:1805, a court of this state is required to treat a foreign country as if it were a state of the United States, for the purposes of and unless as otherwise provided in the UCCJEA.
The children had lived in Louisiana for approximately eighteen months (since December of 2007) prior to the June, 2009 filing of this suit. No allegation has been made in these proceedings that the children have lived in any other U.S. state, including the home state of the father, Texas. Further, neither the children, nor the parents, continued to reside in their prior home of Venezuela, and the parties did not attempt to litigate there beyond the judgment of divorce and initial custody disposition.
More importantly, with respect to the issues associated with child custody, this case did not involve the conflicting exercise of jurisdiction by two states; rather, it presented the question of which of two separate Louisiana judicial district courts had jurisdiction to decide the issues raised. However, the UCCJEA applies only to interstate custody disputes, not intrastate conflicts. See Hartman v. Lambert, 2008-1055, pp. 4-5 (La. App. 3 Cir. 2/4/09), 7 So.3d 758, 761; Hughes v. Fabio, 2007-1008, p. 7 n. 4 (La. App. 5 Cir. 3/25/08), 983 So.2d 946, 951 n. 4; Shamp v. Jezek, 2002-1346 (La. App. 1 Cir. 11/8/02), 836 So.2d 185, 189-91. See also LSA-R.S. 13:1840.
Subject matter jurisdiction with regard to child support is subject to the application of Louisiana's version of the Uniform Interstate Family Support Act (UIFSA), LSA-Ch.C. art. 1301.1 et seq. See Bordelon v. Dehnert, 99-2625 at p. 4, 770 So.2d at 436. Article 1301.2 states: "This Chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Chapter among states enacting it." (Emphasis added.) We note that, as with the UCCJEA, the UIFSA deals with an interstate conflict, not an intrastate conflict.
Louisiana Revised Statute 13:1840 provides: "In applying and construing this Part [Part IV. Uniform Child Custody Jurisdiction and Enforcement Act], consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it." (Emphasis added.)
On this issue, we agree with the Third Circuit, which stated in Hartman v. Lambert, 2008-1055 at pp. 4-6, 7 So.3d at 761-62 (in reversing a St. Landry Parish district court's ruling that it did not have jurisdiction over the child custody matters presented because a previous judgment reached by an Orleans Parish court stated that it "shall retain continuing, exclusive jurisdiction of this proceeding and all orders herein"), as follows:
Our Legislature has determined that district courts generally have original jurisdiction over civil matters, noting that some exceptions arise when the legislature deems it necessary. One such exception that grants a district court with general subject matter jurisdiction to retain "continuing and exclusive jurisdiction" over matters of custody and support is La.R.S. 13:1814(A). It forms part of the Uniform Child Custody Jurisdiction and Enforcement Act (La.R.S. 13:1801-1842) and provides for continuing, exclusive jurisdiction in interstate custody disputes. Here, we do not have such a dispute as the case before us is an intrastate dispute. Therefore, La.R.S. 13:1814 does not apply.
A second piece of legislation that provides for a court to have continuing, exclusive jurisdiction is La.R.S. 9:355.17, which provides, "[i]f the court grants authorization to relocate, the court may retain continuing, exclusive jurisdiction of the case after relocation of the child as long as the non-relocating parent remains in the state." The case before us does not implicate relocation of the child as defined in La.R.S. 9:355.1(4), because Hartman neither moved the child to another state nor established the legal residence of the child at a distance of more than one hundred and fifty miles from her original domicile.
This court's reading of the trial court decision convinces us that the court below felt the cited provisions were applicable to the present case. They are not. This court further reads the judgment of the Orleans Parish District Court to be an effort to maintain jurisdiction to the extent allowed by La.R.S. 9:355.17. We do not read it as an attempt to expand its jurisdiction beyond that granted by our legislature nor an attempt to limit jurisdiction granted to its sister court by our legislature.
Therefore, we find that the St. Landry Judicial District Court made an error of law in granting Lamberts' exceptions to jurisdiction. The court does have subject matter jurisdiction over Hartman's Petition to Register Support Orders and the Rule to Modify Child Support and Physical Custody.
[Footnotes omitted.]
Whether successive Louisiana judicial district courts can hear a custody issue between the same parties is generally a matter of venue. See Pinegar v. Harris, 2006-2489, pp. 6-7 (La. App. 1 Cir. 5/4/07), 961 So.2d 1246, 1250-51; Addington v. McGehee, 29, 729, p. 4 (La. App. 2 Cir. 8/20/97), 698 So.2d 702, 705; Clark v. Clark, 600 So.2d 880, 883 (La. App. 1 Cir.), writ denied, 604 So.2d 1305 (La. 1992); St. Amant v. St. Amant, 564 So.2d 1312, 1315 (La. App. 1 Cir.), writ denied, 567 So.2d 622 (La. 1990). The venue provision applicable to this case is LSA-C.C.P. art. 74.2, which, at the time the instant proceeding was filed, provided:
The venue provisions of LSA-C.C.P. art. 74.2 applicable to an action to obtain custody or to change custody are applicable to an action to modify aspects of a custody decree. See Clark v. Clark, 600 So.2d at 883.
Article 74.2 was amended by 2010 La. Acts, No. 689, § 1, effective June 29, 2010, to add the following proviso to the statement, "The parish where the person awarded support is domiciled," in paragraph (C)(1): "if the award has been registered in that parish pursuant to the provisions of Article 2785 et seq., regardless of the provisions of Article 2786(A) relative to the domicile of the parties."
A. A proceeding to obtain the legal custody of a minor or to establish an obligation of support may be brought in the parish where a party is domiciled or in the parish of the last matrimonial domicile.
B. A proceeding for change of custody may be brought in the parish where the person awarded custody is domiciled or in the parish where the custody decree was rendered. If the person awarded custody is no longer domiciled in the state, the proceeding for change of custody may be brought in the parish where the person seeking a change of custody is domiciled or in the parish where the custody decree was rendered.
C. A proceeding for modification of support may be brought in any of the following:
(1) The parish where the person awarded support is domiciled.
(2) The parish where the support award was rendered if it has not been registered and confirmed in another court of this state, pursuant to the provisions of Article 2785 et seq.
(3) The parish where the support award was last registered if registered in multiple courts of this state.
(4) Any of the following, if the person awarded support is no longer domiciled in the state:
(a) The parish where the other person is domiciled. (b) The parish where the support award was rendered if not confirmed in another court of this state pursuant to Article 2785 et seq.
(c) The parish where the support order was last confirmed pursuant to the provisions of Article 2785 et seq.
D. A proceeding to register a child support, medical support, and income assignment order, or any such order issued by a court of this state for modification, may be brought in the parish where the person awarded support is domiciled.
E. For the convenience of the parties and the witnesses and in the interest of justice, a court, upon contradictory motion or upon its own motion after notice and hearing, may transfer the custody or support proceeding to another court where the proceeding might have been brought.
F. Notwithstanding any other provision of law, if after August 26, 2005, and before August 15, 2007, a party has changed his domicile within the state and the other party resided in another state prior to the hurricanes, the custody or support proceeding shall be transferred to the parish of the domicile, upon motion made prior to December 31, 2007.
[Emphasis added.]
Under Article 74.2, venue for a proceeding for change of custody would be the parish where the person awarded custody is domiciled or where the original decree was rendered because both courts would be familiar with the circumstances of the case and could rule in the best interest of the minor. Article 74.2, 1983 Comment (c). Thus, even though a custody action was previously brought in one Louisiana judicial district court, if venue is authorized under the provisions of Article 74.2 in another Louisiana judicial district court, the action is properly before the second court. See Hartman v. Lambert, 2008-1055 at pp. 4-6, 7 So.3d at 761-62; Pinegar v. Harris, 2006-2489 at pp. 6-7, 961 So.2d at 1250-51; Clark v. Clark, 600 So.2d at 882-83; St. Amant v. St. Amant, 564 So.2d at 1315.
However, we note that prior to the enactment in 1983 of LSA-C.C.P. art. 74.2(A) and (B), there was no article specifying venue for a custody proceeding and that omission had created a difficult problem for the courts. Article 74.2 was intended to fill the gap by providing venue for proceedings to obtain custody or change custody. See LSA-C.C.P. art. 74.2, 1983 Comment (a). Thus, as noted in Fournier v. Fournier, 475 So.2d 400, 401 (La. App. 1 Cir.), writ denied, 477 So.2d 1130 (La. 1985), prior to the enactment of LSA-C.C.P. art. 74.2, the general rule was that once the venue of a court attached in a divorce case, it continued exclusively for the purpose of modifying child custody and support (citing Hopkins v. Hopkins, 300 So.2d 661, 662 (La. App. 3 Cir. 1974), which held that the court rendering the initial custody decree in a separation judgment retained exclusive venue to modify that judgment).
Therefore, we conclude that the 32nd Judicial District Court had subject matter jurisdiction over the child custody issues presented in this case, and that under LSA-C.C.P. art. 74.2, venue over these issues was also proper in Terrebonne Parish, as it was the parish where Ms. Nezat was domiciled. See also Guzman v. Sartin, 2009-1677 at pp. 7-8, 31 So.3d at 431 (holding that venue was proper as to the child custody issues in either St. Tammany or Terrebonne Parish).
Personal Jurisdiction over Mr. Guzman
Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The exercise of this jurisdiction requires: (1) the service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under LSA-C.C.P. art. 1201; or (2) the service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; or (3) the submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception. In addition, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and with the Constitution of the United States. LSA-C.C.P. art. 6.
Mr. Guzman contends that the 32nd Judicial District Court had no personal jurisdiction over him since he "does not now, nor has ever lived in the State of Louisiana." Further, Mr. Guzman maintains that the personal service on him in Terrebonne Parish by a private process server was insufficient to obtain personal jurisdiction over him, as Ms. Nezat had "lured" him into Louisiana under the auspices of picking up his children for visitation. Ms. Nezat contends that Mr. Guzman filed his declinatory exceptions of lis pendens and res judicata without including his exception of lack of personal jurisdiction, which was filed at a later date, and thus, under LSA-C.C.P. art. 925, the objection of lack of personal jurisdiction was waived, citing Vardaman v. Airosol Co., 98-1740, p. 2 (La. 11/6/98), 722 So.2d 985, 986. Alternatively, Ms. Nezat further argues that personal service on Mr. Guzman was valid and that Mr. Guzman submitted to personal jurisdiction in Louisiana by availing himself of the benefits and protections of Louisiana law.
We first address Ms. Nezat's contention that any lack of personal jurisdiction was waived by Mr. Guzman, who failed to file his declinatory exception in accordance with LSA-C.C.P. art. 925, which at the time provided:
Louisiana Code of Civil Procedure Article 925(A)(2) was amended by 2010 La. Acts, No. 407, to read:
Insufficiency of service of process, including failure to request service of citation on the defendant within the time prescribed by Article 1201(C), or failure to request service of petition within the time prescribed by Article 3955.
A. The objections which may be raised through the declinatory exception include but are not limited to the following:
(1) Insufficiency of citation.
(2) Insufficiency of service of process, including failure to request service of citation on the defendant within the time prescribed by Article 1201(C).
(3) Lis pendens.
(4) Improper venue.
(5) The court's lack of jurisdiction over the person of the defendant.
(6) The court's lack of jurisdiction over the subject matter of the action.
B. When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order.
C. All objections which may be raised through the declinatory exception , except the court's lack of jurisdiction over the subject matter of the action, are waived unless pleaded therein. [Emphasis added.]
In interpreting Article 925, the supreme court, in Vardaman v. Airosol Co., held that LSA-C.C.P. art. 925, read in conjunction with LSA-C.C.P. art. 6 (stating that the exercise of jurisdiction on a party can be based on the submission of the party to the jurisdiction of the court by the waiver of objection to jurisdiction by failure to timely file the declinatory exception), requires all declinatory exceptions to be pled "at the same time." Further, the supreme court held that if a party pleads certain declinatory exceptions and not others, those that are not pled are waived. Because the defendants in Vardaman filed many exceptions, but did not plead the declinatory exception of lack of personal jurisdiction at the same time that they pled their other exceptions, the exception of lack of personal jurisdiction was found to have been waived. Vardaman v. Airosol Co., 98-1740 at p. 2, 722 So.2d at 986. See also LSA-C.C.P. art. 928.
In the instant case, on January 4, 2010, Mr. Guzman filed an "Exception of Lis Pendens and Res Judicata." No contention was made in that pleading that the 32nd Judicial District Court lacked personal jurisdiction over him. On January 20, 2010 Mr. Guzman filed a "Motion to Supplement Exception of Lis Pendens and Res Judicata and Exception of No Subject Matter or Personal Jurisdiction." A strict application of the Vardaman holding to the facts of this case requires this court to conclude that Mr. Guzman's failure to plead a lack of personal jurisdiction at the same time as his exceptions of lis pendens and res judicata resulted in the waiver of his objection to the exercise of personal jurisdiction over him by the 32nd Judicial District Court.
Further, we find merit in Ms. Nezat's argument that Mr. Guzman submitted to personal jurisdiction in Louisiana by commencing an action in this state and availing himself of the protections afforded under the laws of this state. See LSA-C.C.P. art. 6(A)(3); Amin v. Bakhaty, 2001-1967 at pp. 19-21, 798 So.2d at 88-89 (holding that personal jurisdiction was established over the non-resident party when he commenced a civil action to enforce a legal right "by the filing of a pleading presenting the demand to a court of competent jurisdiction," as provided in LSA-C.C.P. art. 421 (a petition was filed in the East Baton Rouge Parish Family Court that was deemed a petition for child custody under Louisiana's fact-based system of pleading)). Based on these authorities, we conclude that Mr. Guzman submitted to personal jurisdiction in Louisiana by his filing an action in the 22nd Judicial District Court to enforce his visitation rights, such that personal jurisdiction continued to be proper in the 32nd Judicial District Court to adjudicate the custody issues raised by Ms. Nezat.
Louisiana Code of Civil Procedure Article 421 states, in full:
A civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. Amicable demand is not a condition precedent to a civil action, unless specifically required by law.
We also reject Mr. Guzman's argument that personal service was improper due to the fact that Ms. Nezat "lured" him to Louisiana (by changing travel plans for Mr. Guzman's Thanksgiving 2009 visitation with the children and requiring him to personally pick the children up, rather than allowing them to travel alone via an airline to Texas) for the purpose of having him served. Our review of the record presented on appeal reveals that Mr. Guzman failed to sufficiently prove this claim, offering only his speculation as to Ms. Nezat's motivation in changing the travel plans. Mr. Guzman did not appear at the hearing on his exceptions and submitted no evidence in support of his assertions. Although an affidavit and other documents were filed into the record as attachments to his exceptions and/or memoranda in support thereof, these documents were not introduced into evidence at the hearing. We agree with Ms. Nezat that these documents were properly not considered by the district court in rendering a decision on the exceptions.
See Bordelon v. Dehnert, 99-2625 at pp. 9-12, 770 So.2d at 433 (noting that personal service in Louisiana, alone, is a sufficient basis for personal jurisdiction, and that although it was alleged that a spouse had acted unscrupulously, which would be an evidentiary factor to be considered when determining if the exercise of in personam jurisdiction would be unfair, there was no evidence that the matter actually involved unscrupulous behavior by the former spouse).
On the trial of the dilatory exception, "evidence" may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 930. The supreme court has interpreted the word "evidence" in LSA-C.C.P. art. 930 to mean competent legal evidence. A sworn affidavit is hearsay and is not competent evidence unless its use is specifically authorized by statute. Michael F. Smith, CPA v. Alford, 2004-0586, p. 4 (La. App. 1 Cir. 3/24/05), 906 So.2d 674, 676. Accordingly, Mr. Guzman's affidavit, even if it had been formally offered at the hearing, would not have constituted admissible evidence. See Id.
Consequently, we find the district court erred in sustaining Mr. Guzman's exception pleading the objection of lack of personal jurisdiction.
Subject Matter Jurisdiction over Child Support Issues
In support of the district court's ruling that there was no subject matter jurisdiction over Ms. Nezat's claims for modification of Mr. Guzman's child support obligation, Mr. Guzman asserts that the matter is governed by the Uniform Interstate Family Support Act ("UIFSA"), LSA-Ch.C. art. 1301.1 et seq. Mr. Guzman further asserts that his child support obligation is currently governed by a Venezuelan Order, and that while "Ms. Nezat may register and enforce this foreign Order under the Foreign Judgment Act, she may not simply modify this Order without compliance with UIFSA which treats foreign judgments the same as interstate orders." Further, Mr. Guzman contends that "if Ms. Nezat wishes to modify the Venezuelan Order, it must be done . . . in either . . . Venezuela where the original Order was issued, or Texas where Mr. Guzman resides." Contrarily, Ms. Nezat contends that Louisiana has subject matter jurisdiction under UIFSA to adjudicate the child support issues raised.
The general rule under UIFSA is that a party may register a child support order issued in another "state," and that order is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state, but the order may not be modified if the issuing tribunal had jurisdiction to issue the order. LSA-Ch.C. art. 1306.3. A "state" is defined by LSA-Ch.C. art. 1301.3 as follows:
We note that if the circumstances prescribed in LSA-Ch.C. art. 1306.9 et seq. exist, then a court of this state may entertain an action for modification of an out-of-state child support order. In particular, LSA-Ch.C. art. 1306.11(A)(2) provides that after a child support order issued in another "state" has been registered in this state, the responding tribunal of this state may modify that order (when LSA-Ch.C. art. 1306.13 does not apply (when all individual parties reside in this state)) if, after notice and hearing, it finds that the child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed a written consent in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. However, LSA-Ch.C. art. 1306.11(A)(2) further provides that if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under UIFSA, "the consent otherwise required of an individual residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order."
(22) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term "state" includes both of the following:
(a) An Indian tribe.
(b) A foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders that are substantially similar to the procedures under this Chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act. [Emphasis added.]
Our review of the record on appeal in this case does not reveal that Mr. Guzman established that Venezuela is a "foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders that are substantially similar to the procedures under this Chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Reciprocal Enforcement of Support Act," pursuant to LSA-Ch.C. art. 1301.3(22), which would entitle the Venezuelan support award to the deference afforded under UIFSA. Since personal jurisdiction as to Mr. Guzman was proper, as previously stated, we conclude that the 32nd Judicial District Court had subject matter jurisdiction to address child support issues between these parties, and therefore, the court erred in sustaining Mr. Guzman's exception to subject matter jurisdiction as to the child support matters raised by Ms. Nezat. See Amin v. Bakhaty, 2001-1967 at p. 19, 798 So.2d at 88-89.
See also LSA-Ch.C. art. 1302.1(1), (2), and (8).
Exception of Res Judicata
On appeal, Ms. Nezat contends the district court also erred in granting Mr. Guzman's exception of res judicata, asserting that "[i]t is well settled that issues of custody and support of minors are always subject to review upon [a] proper showing," though she concedes that "to properly address issues of custody/visitation which had been decided in St. Tammany Parish, the pleadings would have to have been amended to aver a material change in circumstances." However, Ms. Nezat further contends that no court has addressed the continued propriety of the prior award of support, which was fixed at less than $100 per month, or the other support issues she raised.
We note that Mr. Guzman's child support obligation had been fixed by a Venezuelan court in an amount less than $100 per month. However, he stated, in documents filed into the record, that he voluntarily increased the amount of support he paid to $500 per month, and that he also paid for insurance and other expenses incurred by the children.
In support of the ruling in his favor, Mr. Guzman maintains that the rulings of the 22nd Judicial District Court were res judicata as to the claims raised by Ms. Nezat in the 32nd Judicial District Court, as stated in his appellate brief:
At the time the original Exception of Lis Pendens and Res Judicata were filed, Ms. Nezat's Appeal was pending in the First Circuit. By the time the matter was set to be heard in the 32nd Judicial District Court, the First Circuit had affirmed the 22nd Judicial District Court's ruling thereby no longer making it Lis Pendens, but strictly Res Judicata. The 22nd Judicial District Court's Judgment is still controlling and in effect. Again, the Petition for Custody and Incidental Matters filed in the 32nd Judicial District Court by Ms. Nezat was seeking to establish an original custody implementation plan and enjoin the children from travelling to the parents' country of origin, Venezuela, for visits with their extended family of both parents. Ms. Nezat sought an injunction to prohibit same. This exact issue was specifically decided by Judge Mary Devereux at the 22nd Judicial District Court after a lengthy trial where ample evidence was admitted [and] is clearly Res Judicata. [Emphasis omitted.]
The doctrine of res judicata is governed by LSA-R.S. 13:4231, which provides that "[e]xcept as otherwise provided by law," a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent: (1) if the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment; (2) if the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action; (3) a judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment. Comment (c) to LSA-R.S. 13:4231 further provides: "This makes it clear that the general [principle] of res judicata is subject to the exceptions set forth in R.S. 13:4232 and to any other exceptions that may be provided for in the substantive law as, for example, in cases of family matters." An exception for divorce actions and related matters is found in LSA-R.S. 13:4232(B), which provides:
In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse's education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated. [Emphasis added.]
Louisiana Civil Code Article 105 provides: "In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property."
The comments to LSA-R.S. 13:4232 further state: "Subsection B is added to this Section to make it clear that failure to raise related causes of action in any of the specified actions will not result in the actions that were not urged being barred by the subsequent judgment, if that judgment is silent as to the actions in question." When a party raises new allegations pertaining to matters incidental to divorce, as set forth in LSA-C.C. art. 105, the LSA-R.S. 13:4232(B) limitation to the general res judicata rules applies. See Richardson v. Richardson, 2002-2415, pp. 4-5 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 85.
The record presented on appeal does not support the district court's application of the doctrine of res judicata in this case. In support of the exception, copies of the pleadings filed by Mr. Guzman in the 22nd Judicial District Court and a copy of the judgment rendered by the 22nd Judicial District Court were filed into the 32nd Judicial District Court record; however, none of Ms. Nezat's 22nd Judicial District Court pleadings appear in the instant record, and no evidence was submitted at the hearing of Mr. Guzman's exception of res judicata.
As provided in LSA-C.C.P. art. 931, "[o]n the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition."
In Mr. Guzman's 22nd Judicial District Court pleadings, he sought: joint custody, liberal and structured visitation; application of the court's standard strict co-parenting guidelines; relief from allegedly detrimental behavior by Ms. Nezat affecting his relationship and visitation with the children; an award of the tax exemption attributable to the children; and an award of travel expenses in accordance with LSA-R.S. 9:346 and 9:375(B). The July 20, 2009 judgment of the 22nd Judicial District Court denied Ms. Nezat's request to transfer venue and her exceptions of no cause of action, no right of action, and prematurity; the court also ruled that Ms. Nezat had made a general appearance and that jurisdiction and venue were appropriate. Further, the 22nd Judicial District Court adopted the "Hearing Officer's Recommendations dated May 4, 2009 . . . with the additional modifications as outlined" in the judgment. Those modifications included the decree that Mr. Guzman "be granted liberal visitation with his children," that the children be allowed to accompany him "for a vacation to Venezuela from approximately June 25th through July 15th, 2009," and that Ms. Nezat tender to him the children's passports and residency cards for the trip. The 22nd Judicial District Court further adopted "with the exception of the right of first refusal provision, the Co-Parenting Guidelines" and specifically ordered that "no third parties, particularly step-parents, interfere with the parents' custodial rights and visitation." The claim for award of the tax exemption was deferred "to the Non-Support Court handling the child support issues." We further note that neither the "Hearing Officer's Recommendations" nor the "Co-Parenting Guidelines" were filed into the 32nd Judicial District Court record. Also, no ruling was made by the 22nd Judicial District Court as to child support.
Although some allegations were made by Mr. Guzman that Ms. Nezat had filed a non-support action with the St. Tammany Parish District Attorney's office, which had been referred to a Texas agency, Mr. Guzman indicated that that claim had been dismissed without further action.
Based on this limited showing, we find Mr. Guzman failed to establish that the relief sought by Ms. Nezat in the 32nd Judicial District Court had already been presented to and ruled on by the 22nd Judicial District Court. In particular, there was no evidence that: Mr. Guzman's child support obligation had been evaluated with respect to the current, allegedly changed circumstances of the parties; an order was in place with respect to Mr. Guzman's responsibility for the children's expenses for private school tuition, extracurricular activities, childcare, or health and hospitalization insurance costs; the tax exemption attributable to the children had been allocated; a joint custody implementation plan was in place; a ruling had been made as to the occurrence of allegedly harmful communications between the parties and the children; or a ruling had been made with respect to future travel by the children with Mr. Guzman to Venezuela, in light of United States hazardous travel advisories regarding the country. All of the foregoing issues were raised by Ms. Nezat in the 32nd Judicial District Court, but were not shown to have been previously adjudicated in the 22nd Judicial District Court, nor were they shown to have been issues that cannot be re-urged upon a showing of changed circumstances. See LSA-C.C. art. 142; LSA-R.S. 9:311; Bonnecarrere v. Bonnecarrere, 2009-1647, pp. 5-6 (La. App. 1 Cir. 4/14/10), 37 So.3d 1038, 1043, writ denied, 2010-1639 (La. 8/11/10), 42 So.3d 381. Accordingly, we find the district court erred in sustaining Mr. Guzman's exception pleading the objection of res judicata.
Louisiana Civil Code Article 142 provides: "An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary."
Louisiana Revised Statute 9:311(A) provides in pertinent part: "(1) An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award."
The burden of proof on a party seeking to modify a prior permanent custody award is dependent on the nature of the underlying custody award. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control of a child. When the original custody decree is a stipulated judgment, a party seeking modification of custody must prove that a change materially affecting the welfare of the child has occurred since the original decree and that the proposed modification is in the best interest of the child. However, when a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is "so deleterious to the child as to justify a modification of the custody decree," or of proving by "clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child." Bonnecarrere v. Bonnecarrere, 2009-1647 at pp. 5-6, 37 So.3d at 1043 (citing Evans v. Lungrin, 97-0541, p. 13 (La. 2/6/98), 708 So.2d 731, 738).
Evidence Submitted by Affidavit as to Sanctions
In her final assignment of error, Ms. Nezat contends the district court erred in allowing the defendant to present evidence by affidavit, in support of his request for sanctions. We first note that no judgment appears in the record on appeal as to the issue of sanctions. In the judgment appealed, the district court deferred ruling on Mr. Guzman's motion for sanctions until a later date. Therefore, any ruling made by the district court related to the issue of sanctions is not before this court in this appeal, so we pretermit this assignment of error.
Mr. Guzman's Claim for Damages for Frivolous Appeal
In brief to this court, Mr. Guzman requests damages for frivolous appeal. Having found this appeal has merit, we find it unnecessary to address the claim for frivolous appeal damages.
CONCLUSION
For the reasons assigned herein, the judgment of the district court in favor of Rafael A. Guzman and dismissing the action of Mariana De La Cruz Nezat is hereby reversed and is remanded for further proceedings consistent with the foregoing. All costs of this appeal are to be borne by Rafael A. Guzman.