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Hebert v. Hebert

Court of Appeals of Louisiana, Third Circuit

March 27, 2019

CAITLAND SIOBHAN HEBERT
v.
KEARY RYAN HEBERT

          APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. 2014-151 HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

          Meredith Abrusley Guillory P.O. Drawer Attorney for Appellant, Caitland Siobhan Hebert

          Corcoran Law Firm, LLC Lawrence Sean Corcoran Attorney for Appellee, Keary Ryan Hebert

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         Caitland Siobhan Hebert (Caitland) and Keary Ryan Hebert (Keary) are the divorced parents of a nine-year old child, Kyler Neal Hebert (Kyler), born January 7, 2010. The first court order concerning custody of Kyler was based on a joint stipulation of the parties. The order was signed on June 17, 2014, and at that time both parents and Kyler were domiciled in Louisiana. The stipulated custody agreement awarded joint legal custody and designated Caitland as the domiciliary parent. Caitland moved to Texas shortly thereafter, but only temporarily, and then moved back to Allen Parish, Louisiana in 2014. Kyler attended school in Louisiana until the end of the 2016 school year.

         In June of 2016 Caitland notified Keary via certified mail that she intended to move to Kerrville, Texas and wanted to relocate Kyler with her. Keary opposed the move. The matter was heard on August 1, 2016 in Allen Parish. Following the hearing the trial court granted Caitland permission to relocate with Kyler. The trial court awarded visitation to Keary guided in part by Keary's work schedule which at the time was alternating fourteen days at work and fourteen days at home. The court attempted to afford Keary as much visitation as possible awarding him visitation every other weekend. In order to accommodate Keary's schedule Kyler misses three days of school each month during the school year. Though Kyler's absences are considered unexcused they have not yet been charged against him. He must make up exams he misses during these absences. Exams are given on Fridays. These missed exams are made up on Mondays thus interfering with two more days of schooling each month. He leaves school at 1:00 o'clock in the afternoon on every other Thursday and misses the entire day of school on every other Friday. According to Keary, this puts Kyler at the half-way pick-up point around "four to six o'clock, seven o'clock" depending on road construction and traffic accidents. This means that Kyler is on the road for eight to ten hours of travel time every other weekend. The parents have agreed to meet at a half-way point thus minimizing their travel time. According to Keary it is usually his "mom and step father" who actually pick up Kyler.

         In a subsequent hearing concerning modification of the visitation schedule the trial court denied Caitland's motion to transfer the matter to Texas. At that time the parties stipulated: 1) that Texas is now the child's home state, 2) Texas and Louisiana have concurrent jurisdiction, and 3) Louisiana is a convenient forum for the decision of all issues. The stipulation was made part of the trial court judgment dated November 8, 2017.

         On February 12, 2018, Keary filed a rule for contempt against Caitland alleging willful refusal to abide by the court-ordered visitation for Christmas. In response Caitland filed a pleading entitled "Petition to Make Judgment Executory and to Modify Custody" wherein she sought a transfer of jurisdiction to Texas and a modification of visitation. Caitland's motion to transfer asserted that she and the child no longer have a significant connection to Louisiana. Her basis for a change in the visitation schedule was largely the adverse impact the current schedule is having on the child's education. The trial court denied both the motion to transfer and the motion for a change in visitation and found Caitland in contempt. Caitland was ordered to pay $2, 000 in attorney's fees for contempt. She appeals the trial court rulings.

         ANALYSIS

         The parties' stipulation to jurisdiction is not controlling. Subject matter jurisdiction "cannot be conferred by consent of the parties." La.CodeCiv. P. art. 3. See also Wootton v. Wootton, 49, 001 (La.App. 2 Cir. 5/14/14), 138 So.3d 1253. Additionally, "[a] judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void." La.CodeCiv. P. art. 3. This court has consistently held, "Whether a court has subject matter jurisdiction is reviewed on appeal under the de novo standard of review. Chamberlin v. Chamberlin, 14-1322 (La.App. 3 Cir. 4/22/15), 176 So.3d 1118, writ denied, 15-0972 (La.6/19/15), 172 So.3d 1093; Otwell v. Otwell, 10-1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232." Banerjee v. Banerjee, 17-245 p. 3, (La.App. 3 Cir. 12/13/17), 258 So.3d 699, 701.

         Our de novo review of the record reveals that Louisiana no longer has exclusive jurisdiction over this child custody matter because Caitland and Kyler no longer reside in Louisiana and have both resided in Texas since at least August 1, 2016.

Except as otherwise provided in R.S. 13:1816, a court of this state which has made a child custody determination consistent with R.S. 13:1813 or 1815 has exclusive, continuing jurisdiction over the determination until:
(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's ...

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