Text from prior Blog where the Louisiana Supreme Court Granted Writs
On October 31, 2014, the Louisiana Supreme Court in Ketric Barnes v. Emma Lee Wise 2014-CJ-2101 granted the writ and reversed the Louisiana Second Circuit Court of Appeals and granted the Declinatory Exception of Improper Venue filed by Hesser Cooper Beckham Law Group, LLC. on behalf of Emma Wise. A portion of the brief is reprinted as follows:RULE X WRIT GRANTING CONSIDERATIONS CONFLICTING DECISIONS BETWEEN SECOND CIRCUIT AND FIRST CIRCUIT
This case involves the decision of the Louisiana Second Circuit Court of Appeals affirming the Trial Courts’ denial of a declinatory exception of venue that is in direct conflict with the decision of the Louisiana First Circuit Court of Appeals. The Second Circuit in affirming the Trial Court interpreted Louisiana Code of Civil Procedure Article 74.2(B) to allow a non-domiciliary father in a joint custody arrangement to file to modify custody in Caddo Parish where he resides (but has not yet established a change of his domicile) which would create chaos in our legal system. Article 74.2(B) provides:
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.
The First Circuit rejected the very same argument that is the basis for the ruling by the Second Circuit in explaining:
We note at least the possibility of an argument that Article 74.2 speaks of “the person awarded custody,” and that in a joint custody situation either parent could claim custody for venue purposes. We dismiss the merits of such an argument because Article 74.2 in speaking of venue uses the singular in referring to “the parish where the person awarded custody is domiciled.” The legislature obviously meant one parish and one person. The one person in a joint custody circumstance would obviously be the domiciliary parent, as is Mrs. St. Amant.
St. Amant v. St. Amant, 564 So. 2d 1312, 1314 (La. App. 1 Cir. 1990).
Since Article 74.2 is unambiguous in using the singular custodian it is clear that the Second Circuit erred and this Court should grant writs to resolve this conflict between the circuits before non-domiciliary parents begin filing to modify custody in the parish of their domicile whenever they do not like the decision of the court in the original venue. . .