Jonathan Kahn Jones v. Ruey-Jiang Wen, A/K/A Nita Lo

• Court: Louisiana Court of Appeal
• Decided: September 22, 2020
• Docket: 2020-C-0437
• Status: Published

Opinion

JONATHAN KAHN JONES * NO. 2020-C-0437

VERSUS * COURT OF APPEAL RUEY-JIANG WEN, A/K/A * NITA LO FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-05263, DIVISION “K” Honorable Bernadette D'Souza, Judge ****** Judge Rosemary Ledet ****** (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)

Theon Agnes Wilson LAW OFFICES OF THEON A. WILSON 1100 Poydras Street, Suite 2900 New Orleans, LA 70163

COUNSEL FOR RELATOR/JONATHAN KAHN JONES

Marc D. Winsberg Jonathan D. Gamble WINSBERG & ARNOLD, LLC 650 Poydras Street, Suite 2050 New Orleans, LA 70130

COUNSEL FOR RESPONDENT/RUEY-JIANG WEN, A/K/A NITA LO

REHEARING GRANTED FOR CLARIFICATION ONLY

September 22, 2020 RML Respondent—Ruey-Jiang Wen, a/k/a Nita Lo—seeks rehearing of this TFL RBW court’s September 4, 2020 writ disposition. This court’s writ disposition reversed

the trial court’s judgment dismissing the Petition for Protection from Abuse filed

by Relator—Jonathan Jones, the minor child’s father—against Respondent—the

minor child’s grandmother. The trial court’s judgment was based on a finding of

improper venue. Reversing, this court reasoned that venue is proper in Orleans

Parish for two reasons: (1) Mr. Jones is domiciled in Orleans Parish; and (2) there

is a pending suit for divorce and custody in Orleans Parish Civil District Court (the

“Divorce Suit”). We further reasoned that “the trial court abused its discretion in

dismissing the case instead of ordering that it be consolidated with the [Divorce

Suit].”

In her rehearing application, Respondent contends that this court

erroneously considered evidence not presented to the trial court in finding venue

proper and erroneously ordered the Petition for Protection from Abuse be

consolidated with the Divorce Suit. We grant rehearing solely to clarify our prior

1 writ disposition as it pertains to why venue is proper and why consolidation with

the Divorce Suit is appropriate.

VENUE

Venue for a petition for protection from abuse is governed by La.

R.S. 46:2133(B), which enumerates the following five parishes in which venue is

proper:

(1) In the parish where the marital domicile is located or where the household is located.

(2) In the parish where the defendant resides.

(3) In the parish where the abuse is alleged to have been committed.

(4) In the parish where the petitioner resides.

(5) In the parish where an action for annulment of marriage or for a divorce could be brought pursuant to Code of Civil Procedure Article 3941(A).

Louisiana Code of Civil Procedure Article 3941(A) provides that “[a]n action for

an annulment of marriage or for a divorce shall be brought in a parish where either

party is domiciled, or in the parish of the last matrimonial domicile.” Id.

In his Petition for Protection from Abuse, Relator relied on La.

R.S. 46:2133(B)(3)—the parish in which the abuse is alleged to have been

committed. In our writ disposition, we relied on both La. R.S. 46:2133(B)(4)—the

parish where the petitioner resides—and La. R.S. 46:2133(B)(5)—the parish where

an action for divorce could be brought. In her rehearing application, Respondent

contends that this court erroneously considered evidence not presented to the trial

court in finding that Relator resides in Orleans Parish and that “whether the last

marital domicile was in Orleans Parish is irrelevant, as it has no bearing on the

2 proper venue for the Petition for Protection from Abuse filed against a party who is

not a party to that divorce proceeding.”

Contrary to Respondent’s contention, La. R.S. 46:2133(B)(5) contains no

restriction on its use to actions involving the parties to the divorce proceeding,

Rather, it is one of the five enumerated proper venues for a petition for protection

from abuse. Given that Orleans Parish is not only where a divorce proceeding

could be brought, but also where the Divorce Action is currently pending, we find

venue is proper under La. R.S. 46:2133(B)(5). We, thus, pretermit considering the

issues Respondent raises regarding the other grounds for finding venue proper.

CONSOLIDATION

Consolidation is governed by La. C.C.P. art. 1561(A), which provides, in

pertinent part, as follows: “[w]hen two or more separate actions are pending in the

same court, the section or division of the court in which the first filed action is

pending may order consolidation of the actions for trial after a contradictory

hearing, and upon a finding that common issues of fact and law predominate.” Id.

Respondent, in the alternative, contends that it is improper to consolidate the

Petition for Protection from Abuse—an action between the minor child’s father

and grandmother—with the Divorce Action—an action between the minor child’s

father and mother. Stated otherwise, Respondent, in her rehearing application,

contends that “the proceedings are separate and distinct from one another, which is

why the trial court declined to consolidate the matters.” This argument is

unpersuasive.

The two proceedings are interrelated; both proceedings involve the minor

child’s safety and welfare. Indeed, the relief that a court can grant in response to a

petition for protection from abuse includes “[a]warding temporary custody of or

3 establishing temporary visitation rights and conditions with regard to any minor

children or person alleged to be incompetent.” La. R.S. 46:2136(A)(3).

Consolidation of the two proceedings is thus appropriate here. The trial court

abused its discretion in dismissing the action rather than consolidating it.

For these reasons, we grant Respondent’s application for rehearing solely to

clarify our earlier writ disposition. In all other respects, this court’s September 4,

2020 writ disposition remains unchanged.