Khalid Ataya Versus Nisa Suanphairin

Opinion

KHALID ATAYA NO. 23-CA-46

VERSUS FIFTH CIRCUIT

NISA SUANPHAIRIN COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 760-773, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

December 20, 2023

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

AFFIRMED JGG MEJ RAC COUNSEL FOR DEFENDANT/APPELLANT, NISA SUANPHAIRIN Richard L. Ducote GRAVOIS, J.

This is a protracted custody matter. Appellant, Nisa Suanphairin, appeals

the judgment rendered on October 17, 2022 granting her joint custody of the minor

children (S.A. and M.A.) with her ex-husband, Khalid Ataya, instead of sole

custody as she had prayed for. The judgment also granted Mr. Ataya’s exception

of res judicata in part, relative to Ms. Suanphairin’s allegations that he sexually

abused the children. On appeal, Ms. Suanphairin argues that the trial court erred in

granting Mr. Ataya’s exception, because the statutory predicates of “identity of

parties” and “prior actual adjudication” were not met, and further, that the trial

court should have applied the “exceptional circumstances” test to overrule the

exception. She requests that this Court reverse the judgment granting the

exception and remand the matter for a new hearing on the motion for custody

allowing her to introduce evidence of Mr. Ataya’s abuse of the children, and

reconsider the custody judgment in light of that evidence.

For the following reasons, we find no error in the trial court’s ruling which

granted the parties joint custody of the minor children and granted Mr. Ataya’s

exception of res judicata in part. Accordingly, we affirm the ruling under review

and decline to reopen the custody matter.

FACTS AND PROCEDURAL HISTORY

This domestic matter has an extensive history in the district court and in this

Court.1 The matter was initiated in May of 2016 when Mr. Ataya filed a petition

for protection from abuse under La. R.S. 46:2131, et seq., against Ms. Suanphairin,

while the parties were still married and at which time they had only one child, a

son, S.A. In October of 2016, the parties had a daughter, M.A. The parties were

1 The first appeal in this court, 16-CA-520, was dismissed by appellant Ms. Suanphairin prior to oral argument and opinion. The second appeal, 22-CA-228, resulted in the reversal of a criminal contempt finding against Ms. Suanphairin for lack of due process.

23-CA-46 1 divorced in 2017. A default judgment rendered against Ms. Suanphairin in 2018

granted sole custody of the children to Mr. Ataya. This judgment was rendered

after Ms. Suanphairin had taken the children to Thailand and failed to return in the

time allowed by the court. Ms. Suanphairin returned to Jefferson Parish in 2020,

and according to the evidence in this and prior appellate records, the children have

lived primarily with her despite the judgment granting Mr. Ataya sole custody.

A thorough review of this and prior appellate records in this case shows that

each party has filed multiple petitions for protection from abuse against the other

party. Ms. Suanphairin has filed several petitions for protection from abuse

alleging that Mr. Ataya sexually abused the children. On July 17, 2021, she filed a

(supplemental and amending) petition for protection from abuse against Mr. Ataya,

on behalf of herself and the children, alleging physical abuse, threats, and sexual

abuse by Mr. Ataya against her. The petition also alleged that Mr. Ataya had

committed specifically described acts of sexual abuse of their minor son and

daughter on May 24, 2021.

On September 29, 2021, Ms. Suanphairin filed two additional supplemental

petitions for protection from abuse against Mr. Ataya. Therein, she alleged the

same incidents of sexual abuse by Mr. Ataya against her daughter, occurring on

May 24, 2021, as well as additional allegations of sexual abuse of the children.

These petitions were ultimately heard on October 14, 2021 with both parties

and their counsel being present. After extensive testimony from both parties and

argument of counsel, the trial court ruled that Ms. Suanphairin had failed to bear

her burden of proof that Mr. Ataya had sexually abused the children. Her petition

for protection from abuse was dismissed with prejudice, and Ms. Suanphairin was

ordered to return the children to Mr. Ataya’s custody. Thereafter, Ms. Suanphairin

failed to appear for the custody exchange as ordered. The next day, October 15,

2021, Mr. Ataya filed a request for a civil warrant which was granted that day,

23-CA-46 2 directing law enforcement in the state of Louisiana to assist in locating the children

and returning them to Mr. Ataya. On October 18, 2021, Mr. Ataya filed a rule for

contempt against Ms. Suanphairin for her violation of the domestic commissioner’s

October 14, 2021 Order to return the children to Mr. Ataya.

On October 19, 2021, Ms. Suanphairin filed another petition for protection

from abuse, reiterating identical allegations of sexual abuse that occurred that

occurred on May 24, 2021, that she had previously made in the petitions for

protection from abuse filed on July 17, 2021 and September 29, 2021, which were

dismissed with prejudice at the October 14, 2021 hearing. The October 19, 2021

petition for protection was set for hearing on November 4, 2021. The petition was

dismissed with prejudice on November 4, 2021 because Ms. Suanphairin failed to

appear at the hearing.2

At some point after this, Mr. Ataya regained physical custody of the minor

children and in January of 2022, allegedly removed them from Jefferson Parish to

the Kingdom of Jordan, as claimed by Ms. Suanphairin in brief. Mr. Ataya and the

children have not returned to Louisiana.

Pertinent to this appeal, on September 7, 2022, Ms. Suanphairin filed an ex

parte motion for sole custody under La. C.C.P. art. 3945, which was based in part

on her allegations that Mr. Ataya sexually abused the minor children on May 24,

2021, as she had alleged in her three prior petitions for protection from abuse. As

additional grounds for sole custody in her favor, Ms. Suanphairin alleged Mr.

Ataya removed the children to the Kingdom of Jordan in January of 2022 and

2 Ultimately, on January 6, 2022, the domestic commissioner found Ms. Suanphairin in contempt of court for her failure to exchange the children and levied criminal penalties against her. Counsel for Ms. Suanphairin objected to the ruling; the objection was heard by the district court on February 9, 2022. By written judgment on February 22, 2022, the district court made the domestic commissioner’s judgment final. Ms. Suanphairin appealed the judgment. This Court, in Ataya v. Suanphairin, 22-228 (La. App. 5 Cir. 2/1/23), 358 So.3d 893, vacated the contempt judgment, holding that the contempt proceeding at which the domestic commissioner found Ms. Suanphairin, in absentia, guilty of criminal contempt violated right her to due process and to representation.

23-CA-46 3 refused to comply with court orders to return to Jefferson Parish and surrender

their passports.

Because he was an absentee, the trial court appointed counsel to represent

Mr. Ataya. The trial court set the matter for a contradictory hearing, rather than

ruling on the ex parte motion. On October 3, 2022, Mr. Ataya’s appointed counsel

filed an exception of res judicata, arguing that Ms. Suanphairin’s October 19, 2021

allegations were res judicata due to the November 4, 2021 dismissal of her

October 19, 2021 petition. Ms. Suanphairin opposed the exception. At the

October 4, 2022 hearing on the pending matters, the trial judge sustained the

exception in part, only as to the allegations of sexual abuse of the children.

However, Ms. Suanphairin was allowed to proceed with her case asking for a

modification of the previous custody decree, and presented evidence in support

thereof. The trial judge ultimately awarded Ms. Suanphairin and Mr. Ataya joint

custody. A final judgment to this effect was signed on October 17, 2022.3

This appeal followed. Mr. Ataya has not filed a brief in this appeal.

LAW AND STANDARD OF REVIEW

As this Court recently stated in Obi v. Onunkwo, 21-352 (La. App. 5 Cir.

7/9/21), 2021 WL 2905354, at 2, writ denied, 21-1157 (La. 11/10/21), 326 So.3d

1247:

The doctrine of res judicata bars re-litigation of matters that have been previously litigated and decided. Mangiaracina v. Avis Budget Grp., Inc., 16-211 (La. App. 5 Cir. 9/22/16), 202 So.3d 171, 176. Appellate courts review exceptions of res judicata using the de novo standard of review. Woodlands Dev., L.L.C. v. Regions Bank, 16-324 (La. App. 5 Cir. 12/21/16), 209 So.3d 335, 340. The party pleading the exception has the burden of proving the elements of res judicata by a preponderance of the evidence. Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La. App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277. The doctrine of res judicata is stricti juris, and any doubt concerning application of the principle of res judicata must be

3 The district court denied Ms. Suanphairin’s motion filed on October 10, 2022, which asked that she have sole authority as the designated parent to control the children’s passports, after a November 9, 2022 hearing.

23-CA-46 4 resolved against its application. Bourgeois v. A.P. Green Indus., 09- 753 (La. App. 5 Cir. 3/23/10), 39 So.3d 654, 657, writ denied, 10-923 (La. 6/25/10), 38 So.3d 341.

La. R.S. 13:4231, cited in Obi, provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Louisiana Supreme Court has established the following elements for

finding that a second action is precluded by res judicata: (1) the judgment is valid;

(2) the judgment is final; (3) the parties are the same; and (4) the cause or causes of

action asserted in the second suit existed at the time of final judgment in the first

litigation; and (5) the cause or causes of action asserted in the second suit arose out

of the transaction or occurrence that was the subject matter of the first litigation.

Chevron U.S.A., Inc. v. State, 07-2469 (La. 9/8/08), 993 So.2d 187, 194 (citing

Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049, 1053).

However, as the Obi court noted, supra at 3, certain exceptions to the

application of res judicata exist, citing La. R.S. 13:4232, which provides:

A. A judgment does not bar another action by the plaintiff:

(1) When exceptional circumstances justify relief from the res judicata effect of the judgment; (2) When the judgment dismissed the first action without prejudice; or,

23-CA-46 5 (3) When the judgment reserved the right of the plaintiff to bring another action.

B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

FIRST ASSIGNMENT OF ERROR

On appeal, Ms. Suanphairin first argues that the exception of res judicata

should have been denied because the statutory predicate of identity of the parties

was not met. She argues that in her October 19, 2021 petition for protection from

abuse, the children themselves were party petitioners represented by her, but they

were not parties in this custody modification proceeding. She cites Bethel v.

Simon, 22-198 (La. App. 3 Cir. 6/22/22), 344 So.3d 226, in support of her

argument.

In Bethel, the Third Circuit found that the trial court erred in granting the

mother’s exception of res judicata, as to the father’s filing of a petition for

protection from abuse on his daughter’s behalf, which was filed two days after a

hearing on the father’s motion to modify custody; the judge had ruled on the

motion for custody from the bench, but the written judgment had not yet been

signed or issued. The court of appeal found that res judicata was inappropriate in

that case, because: 1) the exception was orally asserted; 2) there was no final

judgment on the motion to modify custody in the record; 3) the identity of the

parties was lacking; and 4) the identity of the subject matter was lacking. Id. at

230-32. The court also noted that the custody proceeding was filed in a different

suit (different docket number and division), than the protection from abuse

petition. The court reasoned that identity of the parties was lacking because the

daughter was a party to the petition for protection from abuse, which her father

23-CA-46 6 filed on her behalf, but was not a party to the custody matter, each being a separate

case in different divisions. Id. at 231.

Upon review, we find that the present case is distinguishable from Bethel. In

this case, unlike in Bethel, all matters between the parties, including the divorce

suit, the custody motions, and the multiple petitions for protection from abuse filed

by both parties, have all been filed in the same district court proceeding. We thus

find the Bethel court’s reasoning relative to the identity of the parties to be

misplaced here. This assignment of error is without merit.

SECOND ASSIGNMENT OF ERROR

Ms. Suanphairin next argues that the allegations of sexual abuse were not

“actually litigated” because her October 19, 2021 petition, wherein the allegations

were raised for the third time, was dismissed for her failure to show up for court.

Ms. Suanphairin fails to consider that the allegations in the October 19, 2021

petition were identical to the allegations allegations that were raised in her July 17,

2021 petition and her September 29, 2021 supplemental petition. Those

allegations of sexual abuse against the children were fully litigated at the October

14, 2021 hearing and were dismissed with prejudice by a judgment entered the

same day, as noted above. Further, the petition for protection Ms. Suanphairin

filed on October 19, 2021 was dismissed with prejudice on November 4, 2021

because Ms. Suanphairin failed to appear at the hearing. Her claims in question

were thus “actually litigated.” Accordingly, we find no error in the trial court’s

granting of the exception of res judicata, in part, as to these specific allegations.

Further, we find nothing in this record to warrant the application of

“exceptional circumstances” as per La. R.S. 13:4232. Though allegations of child

sexual abuse are grave, the specific allegations of abuse were fully litigated on

October 14, 2021 and were dismissed with prejudice, and no appeal of that

judgment was filed. These arguments are without merit.

23-CA-46 7 SUPPLEMENTAL AUTHORITY

After the briefs were filed, Ms. Suanphairin sent this Court a note of citation

to supplemental authority, providing that this Court’s recent writ decision in

Camarigg v. Heffner, 23-243 (La. App. 5 Cir. 6/3/23), 2023 WL 4013324, “goes to

the core of [Ms. Suanphairin’s] assignment of error and argument in her appeal.”

In Camarigg, this Court held that the application of res judicata in a case

that falls under the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq., is

specifically prohibited by statute, namely La. R.S. 46:2134(E), which provides:

E. If a suit for divorce is pending, any application for a protective order shall be filed in that proceeding and shall be heard within the delays provided by this Part. Any decree issued in a divorce proceeding filed subsequent to a petition filed or an order issued pursuant to this Part may, in the discretion of the court hearing the divorce proceeding, supersede in whole or in part the orders issued pursuant to this Part. Such subsequent decree shall be forwarded by the rendering court to the court having jurisdiction of the petition for a protective order and shall be made a part of the record thereof. The findings and rulings made in connection with such protective orders shall not be res judicata in any subsequent proceeding. There are important differences between this case and Camarigg. The

allegations of abuse Ms. Camarigg made in her petition for divorce were alleged to

have occurred additionally and subsequently to the allegations that had formed the

basis for her earlier-filed and litigated petition for protection from abuse, wherein

the commissioner found evidence of one instance of family violence, but declined

to find a history of family violence. Importantly, the allegations of abuse in the

later-filed petition for divorce were not raised in the earlier-filed petition and thus

had not been litigated. Here, the allegations of abuse were all raised prior to the

hearings thereon and were subsequently dismissed with prejudice. Thus, Ms.

Suanphairin’s reliance on Camarigg is misplaced. This argument is without merit.

23-CA-46 8 DECREE

For the foregoing reasons, the judgment under review is affirmed.

AFFIRMED

23-CA-46 9 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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23-CA-46 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) MICHAEL A. ROSENBLATT (APPELLEE) RICHARD L. DUCOTE (APPELLANT)

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