Lewis v. Marcotte

339 So.3d 1189

Sheena LEWIS

v.Reginald C. MARCOTTE

2021 CA 0432

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: December 22, 2021

Emily Jones Albany, Louisiana, Counsel for Appellant Plaintiff—Sheena Lewis

Douglas Brown Hammond, Louisiana., Counsel for Appellee Defendant—Reginald Marcotte

Before: McClendon, Welch, and Theriot, JJ.

WELCH, J.

In this custody proceeding between the parents of a minor child that originated in Jefferson Parish, the plaintiff, Sheena Lewis, appeals a judgment sustaining an objection to venue in Tangipahoa Parish and dismissing, without prejudice, her suit seeking a modification of custody. We amend the judgment to order that Ms. Lewis's suit be transferred to Jefferson Parish and, as amended, affirm the judgment.

On July 21, 2020, Ms. Lewis filed a petition in the 21^st Judicial District Court for the Parish of Tangipahoa, Louisiana, seeking to make several child custody judgments rendered in the proceedings entitled "Reginald C. Marcotte v. Sheena Lewis," number 732,754 on the docket of the 24^th Judicial District Court for the Parish of Jefferson, Louisiana, executory in Tangipahoa Parish, where she was a resident.¹ The Jefferson Parish judgments that Ms. Lewis sought to make executory were dated May 9, 2014, August 7, 2015, September 16, 2016, and June 20, 2019.

The May 9, 2014 judgment was a considered decree, and it awarded the parties joint custody of their minor child, designated Ms. Lewis as the child's domiciliary parent, and allocated Mr. Marcotte physical custodial periods² with the child every other weekend from Friday through Sunday and every Wednesday until Thursday morning. By consent of the parties, the May 9, 2014 judgment was modified by the August 7, 2015 judgment, which extended Mr. Marcotte's physical custodial time every other weekend from Sunday to Monday morning. Again by consent of the parties, the August 7, 2015 judgment was modified by the September 16, 2016 judgment to provide that the parties would share physical custody on an equal or 50/50 basis, i.e. Mr. Marcotte would have physical custody every Wednesday and Thursday, plus every other weekend from Friday morning or after school through Monday morning at 8 a.m. or to school that Monday morning. The June 20, 2019 judgment was a considered decree, and it provided that the minor child would remain in school at St. Rosalie, a Catholic School located in Harvey (Jefferson Parish), Louisiana.

In Ms. Lewis's petition, she also sought a modification of the custodial arrangements set forth in the Jefferson Parish judgments. More specifically, she claimed that the current schedule was no longer in the child's best interest, was disruptive to the child's routine, and required a lot of travel time. Therefore, Ms. Lewis sought to decrease Mr. Marcotte's physical custodial time from 50/50 to every other weekend, plus specific holidays and time during the summer. She also sought an order allowing the child to attend school in Tangipahoa Parish rather than Jefferson Parish.

In response to Ms. Lewis's petition, Mr. Marcotte filed a declinatory exception raising the objection of improper venue and an objection to the transfer of venue, a peremptory exception raising the objections of res judicata and no cause of action, and a motion for sanctions. With respect to venue and res judicata, Mr. Marcotte, alleged that the custody matter had been pending on the docket of the 24^th Judicial District Court and that the issues raised by Ms. Lewis's new petition had been litigated a year ago in Jefferson Parish, resulting in the June 20, 2019 judgment. Mr. Marcotte further asserted that the proper procedure for the transfer of venue from Jefferson Parish to Tangipahoa Parish was pursuant to La. C.C.P. art. 123, that Ms. Lewis had failed to comply with those provisions, and that he objected to any change in venue from Jefferson Parish to Tangipahoa Parish. With respect to no cause of action, Mr. Marcotte contended that Ms. Lewis failed to allege facts warranting a modification of custody under the applicable burden of proof. Lastly, with respect to sanctions, Mr. Marcotte alleged that Ms. Lewis was forum shopping and that she had urged this action without any cause or basis, as she had just been denied the relief she sought a year ago in the original court of proper venue. Therefore, Mr. Marcotte sought sanctions from her and the assessment of court costs and attorney fees.

After a hearing, the trial court rendered judgment sustaining Mr. Marcotte's objections to venue and the transfer of venue. In doing so, the trial court noted that the issue of the child's school had just been litigated in Jefferson Parish, resulting in the June 20, 2019 judgment and that the parties’ living arrangements had not changed since that litigation and resulting judgment, in that Mr. Marcotte was still residing in Jefferson Parish and that Ms. Lewis had been residing in Tangipahoa Parish at the time of that judgment. The trial court also noted that the trial judge in the Jefferson Parish proceedings was already familiar with the parties and their custodial arrangement. Therefore, the trial court found that the issues raised in Ms. Lewis's petition "need[ed] to go back to the place ... they initially sued," i.e. Jefferson Parish. A judgment in accordance with the trial court's ruling, which also dismissed Ms. Lewis's suit without prejudice, was signed on December 1, 2020.³ From this judgment, Ms. Lewis has appealed, arguing that the trial court erred in sustaining Mr. Marcotte's objections to venue and in dismissing her suit without prejudice because Tangipahoa Parish is a parish of proper venue under La. C.C.P. art. 74.2.

Louisiana Code of Civil Procedure article 74.2 provides, in pertinent part, as follows:

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.

* * *

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.

Thus, under La. C.C.P. art. 74.2(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. Comment (c) of the 1983 comments to this article provides: "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." When there is joint custody, the "parish where the person awarded custody is domiciled" means the parish where the domiciliary parent is domiciled. See St. Amant v. St. Amant, 564 So.2d 1312, 1315 (La. App. 1st Cir.), writ denied, 567 So.2d 622 (La. 1990).

At the time Ms. Lewis filed her petition to make the judgments executory and to modify custody, there had been several custody decrees rendered in...