APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2014-01155, DIVISION " E" . Honorable Clare Jupiter, Judge.
Laurel A. Salley, Sandra S. Salley, Kristyl R. Treadaway, Dixon C. Brown, SALLEY & SALLEY, Metairie, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Lila M. Samuel, Scott R. Samuel, George R. Coleman, LAW OFFICES OF LILA M. SAMUEL, Gretna, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet.
Rosemary Ledet, J.
[2015-0085 La.App. 4 Cir. 1] This is an international child custody dispute. The dispositive issue is whether the trial court erred in finding that the parties' minor child's home state under the Uniform Child Custody Jurisdiction and Enforcement Act (the " UCCJEA" ) is Canada. Both the mother, Jennifer Lyn Baxter, and the minor child, AB, currently reside in Fort Erie, Ontario, Canada. The father, Adrian Baxter, is in the United States Navy; and he is currently stationed in Washington, D.C. Mr. Baxter, nonetheless, commenced this divorce and custody proceeding in Orleans Parish. In his petition, he averred that the parties established their matrimonial domicile in Orleans Parish and that they retained their domicile there despite their current residence elsewhere--Canada and Washington, D.C.
In response, Ms. Baxter filed various declinatory exceptions, including lack of subject matter jurisdiction over the child custody matter. Finding the child's home state is Canada, the trial court sustained Ms. Baxter's jurisdictional exception as to the custody matter. From the jurisdictional ruling, Mr. Baxter appeals. For the [2015-0085 La.App. 4 Cir. 2] reasons that follow, we convert Mr. Baxter's appeal to an application for supervisory writ, grant his writ application, and deny the relief he requests.
FACTUAL AND PROCEDURAL BACKGROUND
On December 21, 2006, the parties were married in New Orleans, Louisiana, and established a matrimonial domicile there. Before their marriage, the parties lived in Fort Erie, Ontario, Canada. Ms. Baxter was raised in Fort Erie; she lived there until she went to college. Her family still lives there. Her status in Canada is a landed immigrant with permanent residence status. Mr. Baxter's family lives in Newark, New Jersey. He last lived in New Jersey about eighteen years before the hearing in this matter; however, the parties have used his New Jersey home address for various purposes, including receiving mail there.
In February 2006, the parties purchased a farm house in Fort Erie, Ontario, Canada, which is where Ms. Baxter currently resides with their minor child, AB. In late 2006, the parties purchased a second house in New Orleans, Louisiana. The parties last resided as a family in the New Orleans house in early 2012.
AB, the parties' only child, was born on January 13, 2007, in Canada. When AB was born, the parties were residing in New Orleans. Nonetheless, the parties traveled to Canada for AB to be born there. They did so in order for AB, unlike Ms. Baxter, to have dual citizenship in the United States and Canada. Two weeks after AB's birth, they returned to live in New Orleans.
[2015-0085 La.App. 4 Cir. 3] During the time the parties were married, they moved multiple times due to Mr. Baxter's military employment. Over the years, Mr. Baxter has been deployed overseas four times--three times to Afghanistan and once to Japan. Generally, Ms. Baxter and AB lived in Canada when Mr. Baxter was deployed overseas. When he was deployed to Japan, however, Ms. Baxter was working as a school teacher in New Orleans. Hence, she and AB thus remained in New Orleans when he went to Japan. Mr. Baxter also has been stationed in multiple locations in the United States, including New Orleans, Louisiana; Athens, Georgia; Norfolk, Virginia; Gulfport, Mississippi; and Washington, D.C. Indeed, the parties first came to New Orleans in 2006 because Mr. Baxter was stationed there. Ms. Baxter and AB have lived with Mr. Baxter in New Orleans, Louisiana; Athens, Georgia; and Norfolk, Virginia. During the time Mr. Baxter was stationed in Gulfport, Mississippi, they all lived in New Orleans; and Mr. Baxter commuted to Gulfport.
In August 2012, Ms. Baxter and AB left New Orleans and moved to Canada, where they have lived since that time. Mr. Baxter was aware of, consented to, and physically assisted in the move to Canada. Indeed, in November 2012, he drove a moving truck with some of their belongings from New Orleans to Canada. Since August 2012, Mr. Baxter has lived in Afghanistan and Washington, D.C. Neither party currently lives in New Orleans. They, however, still own the house they purchased in New Orleans, which they lease fully furnished on a yearly basis.
In October 2013, the parties physically separated. In February 2014, Mr. Baxter filed a petition for divorce in Orleans Parish. In his petition, he requested, [2015-0085 La.App. 4 Cir. 4] among other things, sole custody of AB; and he made the following averments pertinent to the jurisdictional issue before us:
o Adrian Baxter is currently deployed with the United States Navy. He returns from active deployment and active duty in March, 2014. Adrian Baxter's current deployment is the fourth time he has been deployed. During the couple's marriage, when Adrian Baxter deployed overseas, Jennifer Lyn Baxter took the minor child to the parties' secondary home in Fort Erie, Ontario;
o Adrian Baxter started training for his most recent deployment in October, 2012. During this time, Jennifer Lyn Baxter and the minor child went to Fort Erie, Ontario, where they usually stay during Adrian Baxter's deployment. Adrian Baxter deployed for Afghanistan in May, 2013.
o Jennifer Lyn Baxter's actions show that she does not intend to return to the New Orleans area. Her decision to relocate to Canada with the minor child was made without Adrian Baxter's consent and without judicial authorization, in violation of the Louisiana Relocation Statute.
In response, Ms. Baxter filed declinatory exceptions of lack of subject matter jurisdiction over the child custody matter, lack of personal jurisdiction, and improper venue. On May 8, 2014, the parties entered into a written stipulation continuing the hearing on the exceptions to June 2014 and agreeing that Mr. Baxter be allowed daily telephone communication with AB.
On June 11, 2014, an evidentiary hearing was held on Ms. Baxter's exceptions. At the time of the hearing, Ms. Baxter and AB were living in Canada. They had been living there since August 2012. AB was enrolled in school and extracurricular activities there. Mr. Baxter was living in Washington, D.C., as a result of a military
assignment. At the hearing, both parties testified. Ms. Baxter also called several other witnesses. The gist of her witnesses' testimony was that Ms. Baxter's August 2012 move to Canada was a permanent, not a temporary, one. [2015-0085 La.App. 4 Cir. 5] The gist of the parties' testimony was that the August 2012 move was mutually agreed upon by the parties; however, the parties vehemently disputed whether the move was intended to be a permanent one, as Ms. Baxter testified, or a temporary one, as Mr. Baxter testified. Following the hearing, the trial court took the matter under advisement.
On August 11, 2014, the trial court rendered an interim judgment ordering that Mr. Baxter be allowed to initiate daily telephone contact with AB. On August 25, 2014, Mr. Baxter filed a Rule for Contempt, alleging that Ms. Baxter had violated the parties' stipulation and the court's interim order allowing him to initiate daily telephone contact with AB. In response to the contempt rule, Ms. Baxter re-urged her declinatory exceptions of lack of subject matter jurisdiction and lack of personal jurisdiction. She requested that the trial court decline to rule on the motion for contempt until after the court ruled on her pending exceptions to the divorce petition.
On October 13, 2014, the trial court rendered a judgment on the pending exceptions to the divorce petition. The trial court sustained Ms. Baxter's exception of lack of subject matter jurisdiction over the child custody matter, denied her exceptions of lack of personal jurisdiction and improper venue, and found that it had jurisdiction over the parties' divorce and ancillary matters.
As to the exception of personal jurisdiction, the trial court concluded that Ms. Baxter " presented persuasive evidence that she had established her domicile in Fort Erie, Ontario, Canada by the time Adrian [Baxter] filed for divorce." [2015-0085 La.App. 4 Cir. 6] Nonetheless, the court found that Ms. Baxter had maintained sufficient minimum contacts with this state for it to exercise personal jurisdiction over Ms. Baxter based on the following facts:
Adrian [Baxter] testified that the parties married in New Orleans in December, 2006. They purchased a home in New Orleans and returned repeatedly between Adrian [Baxter's] assignments out of state, and the country, all in connection with his employment with the United States Navy. For the 2011/2012 school year, Jennifer [Baxter] worked full-time as a public school teacher in New Orleans. The parties annually claim the homestead exemption on the immovable property they still own [in] New Orleans. These activities alone constitute sufficient contacts with Louisiana to subject Jennifer [Baxter] to the jurisdiction of this court.
As to the venue exception, the trial court pointed out that Orleans Parish was the only parish in this state in which this action could have been filed. The trial court thus overruled the exception. Nonetheless, the trial court noted that the substance of Ms. Baxter's venue exception was that the court lacked subject matter jurisdiction over the parties' divorce and ancillary matters. Rejecting this contention, the trial court reasoned as follows:
The parties admittedly lived a " nomadic lifestyle," traveling frequently for extended periods of time. However, the weight of the evidence indicates that prior to August of 2012, the parties were domiciled in New Orleans, Louisiana, and that their home located here was in fact their primary residence. The Court finds Adrian [Baxter]'s testimony, that the parties' absences were temporary and that they always returned to New Orleans between assignments, to be credible.
Continuing, the court cited La. C.C.P. art. 10 (B), which provides a rebuttable presumption that if a spouse has established and maintained his or her residence in a parish for a period of six months, the spouse's domicile is in that parish. The court found that Ms. Baxter had not rebutted the presumption that the [2015-0085 La.App. 4 Cir. 7] parties' domicile was in Louisiana immediately before she and AB moved to Fort Erie in August 2012. The court further reasoned as follows:
Jennifer [Baxter] urges that when the spouses moved Jennifer [Baxter] and the minor child to Canada in August 2012, they intended to change their domicile to Canada. Adrian [Baxter] testified that as a member of the United States Navy, he could not have a domicile outside of the United States. His other residences since August 2012 were Afghanistan and later the Washington D.C. area for a training program. Adrian [Baxter] testified that his Washington D.C. area residence was shared with several other men. He stated that he uses plastic utensils and left his furnishings and other " comforts of home" in the Orleans Parish house.
Finding the evidence was insufficient to rebut the presumption against a change of domicile as to Mr. Baxter, the trial court found that it had jurisdiction over the divorce and ancillary matters.
Finally, as to subject matter jurisdiction over the child custody matter, the trial court reached a contrary result, reasoning as follows:
The domicile of a minor is that of the parent or parents with whom the minor usually resides. Louisiana Civil Code Article 41. From August, 2012 until the present, the child has resided and attended school in Fort Erie, Ontario, Canada. Jennifer [Baxter] testified to her actions showing her intent to establish a domicile in Fort Erie. She renovated the family home, started a vegetable garden, and moved more of her personal belongings from the family's New Orleans home to the home in Fort Erie. Jennifer [Baxter] also testified that she and [the] minor child have many friends and family members in and around Fort Erie.
Generally, a state has jurisdiction over child custody matters when it is the home state of the minor child. [La. R.S. 13:1813] . . .
Since the minor child has not resided in this state since August of 2012, the courts of Fort Erie have greater access than this court to relevant information concerning the child's care, protection, training, and personal relationships. Accordingly, this court lacks jurisdiction to determine child custody issues in this case.
[2015-0085 La.App. 4 Cir. 8] From this judgment, Mr. Baxter filed both a notice of intent to file a writ application on October 24, 2014, and a motion for appeal on November 14, 2014.
Meanwhile, Mr. Baxter attempted to reset his contempt rule. In response, on October 28, 2014, Ms. Baxter filed exceptions of res judicata and lack of subject matter jurisdiction over custody pursuant to La. R.S. 13:1801-1842, and an opposition to the contempt rule. Ms. Baxter informed the court that subsequent to the October 13, 2014 jurisdictional ruling, she filed a child custody proceeding in Fort Erie, Ontario, Canada, and that a hearing on child custody was scheduled in Canada for November 5, 2014. She requested that, given the trial court's decision that it lacked subject matter jurisdiction over any
issue relating to the child custody matter, the trial court dismiss the contempt rule. She, however, acknowledged that Mr. Baxter had filed a notice of intent to file a writ application with this court to seek review of the October 13, 2014 jurisdictional ruling.
On October 29, 2014, the trial court overruled Ms. Baxter's objection to it hearing Mr. Baxter's contempt rule. At the hearing, the trial court noted its belief that it had " continuing jurisdiction to enforce its own orders with respect to visitation, [and] that this is a visitation issue not a custody issue." The trial court thus expressed its intent to exercise jurisdiction to address the contempt rule. The trial court, however, granted Ms. Baxter's request to stay the proceeding pending her filing a writ application with this court. In her writ application, Ms. Baxter acknowledged that Mr. Baxter was appealing the October 13, 2014 jurisdictional ruling. Nonetheless, she contended that the trial court's finding that it lacked [2015-0085 La.App. 4 Cir. 9] subject matter jurisdiction was dispositive of the issue presented by her writ, which was whether the trial court had jurisdiction to hear Mr. Baxter's contempt rule. On January 27, 2015, this court granted Ms. Baxter's writ application, stating as follows:
After review, we find that the trial court erred in overruling relator's [Ms. Baxter's] objection to the court hearing the contempt rule. The district court correctly determined that it lacked subject matter jurisdiction relative to custody issues. As the contempt rule directly flows from the interim order allowing telephonic visitation with the child, which is a custody/visitation matter, it necessarily follows that the district court lacks subject matter jurisdiction to hear the rule.
Baxter v. Baxter, 14-C-1303 (La.App. 4 Cir. 1/27/15) ( unpub. ).
Mr. Baxter did not seek review of this court's ruling granting Ms. Baxter's writ application. Nor did he file a writ to seek review from the trial court's October 13, 2014 jurisdictional ruling. Instead, he filed the instant appeal seeking review of the jurisdictional ruling. Before reaching the merits of ...