Khalid Ataya Versus Nisa Suanphairin

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.
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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,
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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.
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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.
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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,
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(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
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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.
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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.
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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
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
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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