98-497 La.App. 5 Cir. 10/28/98, Jordan v. Jordan

Decision Date28 October 1998
Citation720 So.2d 1224
Parties98-497 La.App. 5 Cir
CourtCourt of Appeal of Louisiana — District of US

Perry M. Nicosia, New Orleans, for Appellant.

Bernard J. Rice, III, Gretna, for Appellee.

Before DUFRESNE and CANNELLA, JJ., and NESTOR L. CURRAULT, Jr., J. Pro Tem.

[98-497 La.App. 5 Cir. 2] CANNELLA, Judge.

Hardy Ray Jordan appeals from the trial court ruling in this child support matter, granting Wendy Jordan's exception of res judicata. For the reason which follow, we reverse and remand.

The parties were married in 1983. One child was born of the marriage, Hardy Ray Jordan, Jr. In April of 1987, the parties separated. By judgment dated July 14, 1987, Mr. Jordan was ordered to pay temporary child support in the amount of $425 per month. On January 8, 1992, Mrs. Jordan filed a petition for divorce, stating that the parties were separated in 1987 and had not reconciled. She asked for custody of the minor child and asserted that the parties had agreed on child support in the amount of $425 per month. On March 23, 1992, Mrs. Jordan filed a motion to have a curator appointed to represent Mr. Jordan, alleging that she had not received a response to her certified mail and that she had no contact with Mr. Jordan for over 5 years. A curator was appointed [98-497 La.App. 5 Cir. 3] and an answer was filed on Mr. Jordan's behalf by the curator. On April 27, 1992, following a hearing, the trial court signed a judgment in favor of Mrs. Jordan granting the divorce, awarding her custody of the minor child and awarding permanent child support in the amount of $425 per month.

One year later, on April 27, 1993, Mr. Jordan filed a Petition for Nullity of Judgment and to Reestablish Visitation Rights. Therein he alleged that he and Mrs. Jordan reconciled for a 6 month period between April of 1989 and October of 1989. He further stated that any assertions Mrs. Jordan made to the contrary in her divorce and child support action were false and fraudulent. Finally, he argued that he was never contacted by the curator or served with the petition, that he did not agree to child support in the amount of $425 per month, and that the trial court had no jurisdiction over him to set child support. He, therefore, prayed that the child support judgment dated April 27, 1992 against him be annulled. He also requested that the child support judgment dated July 14, 1987 be rendered null and void as of the date of the reconciliation. Finally, he asked that specific visitation be set.

It appears from the record that no further action was taken in the matter until July 25, 1997, when Mr. Jordan filed a Rule to Show Cause why the April 27, 1992 judgment should not be annulled as it relates to child support. On July 31, 1997, Mrs. Jordan filed a Motion for Past Due Child Support, Motion for Executory Judgment, Motion for Contempt and Attorney's Fees. She also filed several exceptions to Mr. Jordan's Petition for Nullity. Specifically, on December 1, 1997, Mrs. Jordan filed an Exception of Res Judicata. The trial court granted the res judicata exception and dismissed Mr. Jordan's Petition for Nullity. It is from this action by the trial court that Mr. Jordan appeals.

[98-497 La.App. 5 Cir. 4] On appeal, Mr. Jordan's primary argument in brief, as it was in the trial court, concerns the effect of reconciliation on a child support judgment. It is on that point that the res judicata exception was grounded. Mrs. Jordan argued that the reconciliation issue was res judicata, having been decided by the divorce judgment which Mr. Jordan is not contesting. She relies on the case of Carter v. Carter, 464 So.2d 799 ( La.App. 5th Cir.1985) in support of her argument.

However, we find that Mrs. Jordan's arguments, as well as the trial court action in granting the res judicata exception, are in error as applied to the facts of this case.

Civilian res judicata applies only to issues actually raised for decision by the parties and actually decided by the court. Williams v. Divittoria, E.D.La.1991, 760 F.Supp. 564. The doctrine requires the existence of three "identities" between the previous and subsequent suits: (1) the thing demanded must be the same; (2) the cause of action must be the same; and (3) the same parties must be appearing in the same capacity. Terrebonne v. Theriot, 94-1632 ( La.App. 1st Cir. 6/23/95), 657 So.2d 1358, rehearing denied, writ denied, 95-2249 (La.11/27/95), 663 So.2d 743.

After reviewing the record in this case, we find that the facts and circumstances presented herein do not come within the ambit of res judicata principles. The issues involved in the nullity action have not been previously raised, considered and decided by the trial court and there is no identity in the thing demanded or in the cause of action.

In the nullity action, Mr. Jordan is...

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