Heather Roper Kaptein v. Jesse Kaptein

HEATHER ROPER KAPTEIN * NO. 2019-CA-0784

VERSUS *
COURT OF APPEAL
JESSE KAPTEIN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2014-04304, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Terri F. Love
******
(Court composed of Judge Terri F. Love, Judge Regina Bartholomew-Woods,
Judge Tiffany G. Chase)

Robert C. Lowe
Jeffrey M. Hoffman
LOWE STEIN HOFFMAN ALLWEISS & HAUVER
3600 One Shell Square
701 Poydras Street
New Orleans, LA 70139

COUNSEL FOR PLAINTIFF/APPELLANT, HEATHER ROPER
KAPTEIN

Cindy H. Williams
Renee C. McKay
ATTORNEY AT LAW
111 Veterans Blvd., Suite 804
Metairie, LA 70005

COUNSEL FOR DEFENDANT/APPELLEE, JESSE KAPTEIN

REVERSED AND REMANDED
JANUARY 22, 2020

This appeal arises from a contentious visitation battle following a dissolution

of the parties’ marriage. The mother of the minor child filed a motion to suspend

virtual visitation by the father. The father opposed the motion with an exception of

res judicata because he was previously granted virtual visitation. He contended

that the visitation issue could not be re-litigated. The trial court agreed and

maintained the exception.

The mother appeals asserting that visitation judgments are fluid judgments

and are not subject to the doctrine of res judicata. We agree. Judgments regarding

custody and visitation are subject to modification. The mother sought to terminate

virtual visitation. The previous judgment granting the father virtual visitation was

not a final judgment such that res judicata was implicated. The judgment of the

trial court is reversed and the matter is remanded for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This Court is familiar with the parties and their respective history. Heather

Kaptein and Jesse Kaptein were married with one minor child being born of the

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union. The parties divorced and contentious visitation and support litigation

followed. See Kaptein v. Kaptein, 16-1249, p. 1 (La. App. 4 Cir. 6/14/17), 221 So.

3d 231, 232, writ denied, 17-1421 (La. 10/9/17), 228 So. 3d 746.1

Ms. Kaptein filed a Motion to Suspend FaceTime Visitation of Mr. Kaptein

based on his failure to comply with the trial court’s previous orders. Ms. Kaptein

also contended that a purely virtual relationship with the minor child was not in her

best interest. Mr. Kaptein filed an exception of res judicata asserting that the issue

was previously litigated in Kaptein and that Ms. Kaptein did not allege a change in

circumstances. The trial court agreed with Mr. Kaptein and granted the exception

of res judicata. Ms. Kaptein’s devolutive appeal followed.

STANDARD OF REVIEW

“The standard of review of an exception of res judicata requires an appellate

court to determine if the trial court’s decision is legally correct or incorrect.” R-

Plex Enterprises, LLC v. Desvignes, 10-1337, p. 2 (La. App. 4 Cir. 2/9/11), 61 So.

3d 37, 39.

RES JUDICATA

Ms. Kaptein contends that the trial court legally erred by maintaining Mr.

Kaptein’s exception of res judicata. We agree.

“The doctrine of res judicata precludes re-litigation of claims and issues

arising out of the same factual circumstances when there is a valid final judgment.”

Myers v. Nat’l Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La. App. 4 Cir.

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A recitation of the factual and procedural history of the parties is unnecessary for the resolution
of the current appeal.

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5/19/10), 43 So. 3d 207, 210. “Louisiana courts recognize that ‘a final judgment

has the authority of res judicata only as to those issues presented in the pleading

and conclusively adjudicated by the court.’” Id. (quoting Ins. Co. of North

America v. Louisiana Power & Light, 08-1315, p. 6 (La. App. 4 Cir. 3/4/09), 10

So. 3d 264, 268. “Moreover, it is well established that on an exception of res

judicata, the burden is on the exceptor to prove the essential elements by a

preponderance of the evidence.” Igbokwe v. Moser, 12-1366, p. 4 (La. App. 4 Cir.

4/24/13), 116 So. 3d 727, 730.

As noted above, in order for the doctrine of res judicata to apply, the

judgment must be final. “Judgments awarding custody and child support are

always subject to modification and are thus never final.” Kleiser v. Kleiser, 619

So. 2d 178, 179 (La. App. 3rd Cir. 1993). See Hansel v. Hansel, 00-1914, p. 12

(La. App. 4 Cir. 11/21/01), 802 So.2d 875, 883. “Consequently, such judgments

will not bar subsequent actions brought to modify the provisions for custody and

support.” Id. Likewise, this Court determined that a judgment regarding visitation

of the grandparents of a minor child was not a final judgment pursuant to La.

C.C.P. art. 1841. Hero v. Hero, 97-2799, pp. 1-2 (La. App. 4 Cir. 5/27/98), 714

So. 2d 868, 869-70.

Ms. Kaptein’s Motion to Suspend FaceTime Visitation sought a

modification of existing visitation conditions. Visitation, like custody, can be

modified. As such, we find that the trial court legally erred by granting Mr.

Kaptein’s Exception of Res Judicata. The allegation of a change in circumstances

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is a factual determination for the trial court to substantively address on the Motion

to Suspend FaceTime Visitation. Accordingly, the judgment of the trial court is

reversed and the matter is remanded for further proceedings.

DECREE

For the above-mentioned reasons, we find that the trial court committed

legal error by applying the doctrine of res judicata to a motion seeking a

modification in the current visitation conditions between the minor child and Mr.

Kaptein. As such, the judgment of the trial court is reversed and the matter is

remanded for further proceedings.

REVERSED AND REMANDED

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