Shanika Edmond v. Dominique Edmond

STATE OF LOUISIANA

COURT OF APPEAL

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2023 CU 1270

SHANIKA RENA EDMOND

yZ_ DATE OF JUDGMEAIT.-
MAY 2 9 202

ON APPEAL FROM THE FAMILY COURT
FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
NUMBER 200342, DIVISION B

HONORABLE ERfK.A GREEN, JUDGE

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ReAzalia Z. Allen Counsel for Plaintiff A
- ppellant
Baton Rouge, Louisiana Shanika Edmond

Angela F. Lockett Counsel for Defendant -Appellee
Baton Rouge, Louisiana Dominique Edmond

BEFORE: GUIDRY, C. J., CHUTZ, AND LANIER, JJ.

Disposition: AFFIRMED.

CHUTZ, J.

Shanika Edmond appeals a judgment of the Family Court sustaining a

peremptory exception filed by Dominique Edmond raising the objections of res

judicata and no cause of action and dismissing her motion to modify custody. We

This matter arises from extended litigation between the parties over custody
of their minor child, J.E.' ( born on September 30, 2008). Since Shanika filed her

petition for divorce from Dominique in 2015, the ensuing litigation has included

stipulated judgments providing for joint custody' and related matters, motions for

modification of custody, petitions for protection from abuse filed by Shanika, and

rules for contempt filed by both parties. Although it appears the Family Court

dismissed Shanika' s petitions for protection from abuse, at some point, the court

issued an order suspending Dominique' s " one on one" visitation with J.E3.

Dominique was allowed, however, to attend and participate in J.E.' s school

activities.

On March 9, 2020, the Family Court rendered a judgment recognizing the
joint custody of the parties pursuant to a September 2015 stipulated judgment. In

the judgment, the Family Court reiterated its prior ruling " that considering all the
evidence presented, testimony ofthe witnesses and the parties, the Court did not find

sufficient evidence to issue a Protective Order and on April 19, 2017 dismissed the

1 Pursuant to Rules 5- 1( A)(3) and 5- 2 of the Uniform Rules, Courts ofAppeal, we reference the
minor child by initials only. State in Interest of T.C., 22- 1284 ( La. App. 1st Cir. 2/ 17/ 23), 361
So.3d 505, 507 n. 1.

2inAthis
second child was born ofthe marriage on June 27, 2013, but custody ofthat child is not at issue
matter.

3 Because Shanika designated the appellate record to include only certain pleadings, transcripts,
and judgments, our review is limited to those items. Consequently, the record is lacking in some
details regarding the extended litigation between the parties.

2

Petition for Protection from Abuse with Orders, specificallyfinding that the Court
did notfind that Dominique ... abused [JET." ( Emphasis added.)

Subsequently, the Family Court held a hearing over the course of several days

on various matters, including custody and contempt, after which it took the matter

under advisement.
On December 2, 2020, the Family Court rendered a judgment

ordering the parties to share joint custody of JR, with no designation of a

domiciliary parent, and finding Shanika in contempt. Additionally, on December 17,
2020, the Family Court signed a second judgment, which ordered continued

counseling for J.E. for purposes of aiding the process of reunification with

Dominigue. The judgment set out a detailed, ten-month reunification plan " based

upon two tracks with the ' counseling [ track]' being the aggressive track and the

contact track' being the less aggressive track."

In January 2021, Domique filed a rule for contempt against Shanika. In April

2021,
Shanika filed a combined motion for modification of custody, request for a
Watermeie? hearing, and opposition to Dominique' s rule for contempt. Therein,

she alleged Dominique " present[ ed] an environment of sexual abuse, which the

minor child may or may not have been subjected to." She acknowledged the Family

Court had previously concluded there was insufficient evidence to support the claim

of sexual abuse of J.E. by Dominique, but alleged there had been a change of

circumstances since the considered custody decrees rendered by the Family Court in
December 2020. Specifically, she alleged that as a result of the resumption of

visitation with her father, J.E. began to suffer setbacks and experience mental health
issues.
She alleged J.E.' s pediatrician opined it was not in J.E.' s best interest "to be

4 See Watermekr v. Waternteler, 462 So.2d 1272 ( La. App. 5th Cir.), writ denied, 464 So.2d 301
La. 1985).
A Watermekr hearing is a hearing in chambers, outside the presence of a child' s
parents, but in the presence of their attorneys, with a record ofthe hearing to be made by the court
reporter, to inquire as to the competency of the child to testify as to custody. In re D.C.M., 13-
0085( La. App. 1st Cir. 6/ 11/ 13), 17OSo.3dl65, 168n.9, writ denied 13- 1669 ( La. 7/ 17/ 13), 118
So3d 1102.

3

continuously introduced to ... stimuli [ her father] that would trigger her." Shanika

requested the Family Court hold a Watermeier hearing with J.E. in chambers to elicit

candid testimony regarding her preferences for physical custody and to inform the

court of her interactions with both parties. Shanika requested sole custody of J.E.,

with no visitation for Dominique. She further asserted she should not be held in

contempt for following the advice of medical professionals regarding the care ofher

minor child.

On November 16, 2021, a hearing was held on Dominique' s January 2021

rule for contempt. On December 8, 2021, the Family Court signed a judgment

holding Shanika in contempt, stating her conduct over the course ofthe proceedings

suggested intentions to alienate [ J.E.] from Dominigue." The court further

concluded the deposition of [J.E.]' s pediatrician, which was provided to support

Shanika' s allegation that J.E.' s trauma was correlated to her exposure to Dominique,

indicated the pediatrician' s opinions were based solely on the limited facts and

opinions Shanika provided to her regarding the alleged abuse. Additionally, the

court found Shanika' s intentional failure to comply with the court' s order by "taking

J.E. to [ medical] professionals of her choice while only providing her own limited
views ofthe facts and circumstances ... have not only alienated the minor child from

Dominique], but have also contributed to the mental health issues of [J.E.] ... and

exacerbate[ ed] [ her] feelings of anxiety towards [ Dominique]." The court appointed

a new reunification professional to facilitate the continued reunification of J.E. and

Dominique.

In March 2022, Shanika filed another petition for protection from abuse on

behalf of J.E., naming Dominique as defendant.
Following an evidentiary hearing,

the Family Court concluded Shanika failed to meet her burden of proving the
allegations of the petition and signed a judgment on June 27, 2022, dismissing the
petition.

4

Thereafter, Dominigue filed an answer to Shanika' s April 2021 motion for

modification of custody and request for a Watermeier hearing, as well as exceptions

of res judicata and no cause of action. Dominique alleged res judicata was

applicable to the issues raised in Shanika' s motion to modify custody because those

issues had previously been raised
and litigated before the Family Court.

Additionally, he asserted Shanika' s motion to modify custody failed to state a cause

of action because it failed to allege facts showing a material change of circumstances

or that a modification was in J.E.' s best interest, both essential elements for a

modification of custody. Shanika then filed an amended motion to modify custody

and request for a Watermeier hearing. Therein, she alleged J.E. was admitted to the

Tau Cener of Baton Rouge in January 2022 due to suicidal ideations with a defined

plan and was later sent to a group home in Arkansas until approximately March
2022. Shanika further alleged several healthcare professionals other than J.E.' s

pediatrician " have identified [ Dominique] as a trigger to her psychological health

based on her own accounts of sexual abuse and trauma."

On October 4, 2022, Shanika' s motion to modify custody and request for a

Watermeier hearing, as well as Dominique' s exceptions ofresjudicata and no cause

of action, came before the Family Court. At the conclusion of the hearing, the

Family Court found the alleged grounds for modification concerning a correlation
between J.E.' s mental health issues and the reunification process with Dominique

had been previously litigated at a hearing in November 2021 and resolved by the
December 8, 2021 judgment holding Shanika in contempt ( the December 2021

judgment).' Accordingly, the Family Court signed ajudgment on October 25, 2022,

sustaining both of Dominique' s exceptions and dismissing Shanika' s motions to

I The trial court incorrectly referred to the date of the judgment as being November 16, 2021. In
fact, although a contempt hearing was held and the matter was taken under advisement on that
date, the judgment was not signed until December 8, 2021.
5

modify custody and requests for a Watermeier hearing. Shanika now appeals,

raising two assignments of error.

DISCUSSION

Shanika argues the Family Court erred in sustaining Dominique' s exceptions
a

of resjudicata and no cause of action because custody judgments are always subject

to modification given a change in circumstances and, therefore, are never final,

which is an essential element for res judicata. She argues the Family Court further

erred in sustaining the exception of resjudicata on the basis that issues within her

motion to modify had already been litigated and without considering new evidence

and diagnoses concerning J.E.' s mental health status. She maintains the issues raised

by her motion to modify custody have never been litigated.

The doctrine of res judicata, codified in La. R.S. 13: 4231, bars relitigation of

matters that have previously been litigated and decided, as well as those that have

never been litigated but should have been advanced in an earlier suit. K Mart
-

Corporation v. Malbrough, 04- 2609 ( La. App. Ist Cir. 12/ 22/ 05), 928 So.2d 133,
137. The rule governing resjudicata as set forth in La. R.S. 13: 4231 provides:

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) Ifthe judgment is in favor ofthe 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 ofeither the plaintiff or the defendant is conclusive,
in any subsequent action between them, with respect to any issue actually
litigated and determined ifits determination was essential to thatjudgment.
Emphasis added.)

Louisiana Revised Statutes 13: 4232 provides certain exceptions to the application
of res judicata. In particular, Section ( B) provides that in an action for divorce or

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incidental matters thereto, including custody, a judgment " has the effect of res

judicata only as to causes of action actually adjudicated." ( Emphasis added.)

In Louisiana, res judicata encompasses both claim preclusion ( res judicata)

and issue preclusion ( collateral estoppel). See La. R.S. 13: 4232. Under claim

preclusion, the res judicata effect of a judgment on the merits precludes the parties

from relitigating matters that were or could have been raised in that action. Under

issue preclusion/ collateral estoppel, however, once a court decides an issue of fact

or law necessary to its judgment, that decision precludes relitigation of the same

issue in a different cause of action between the same parties. Global Marketing

Solutions, L.L.C. v. Chevron U.S.A. Inc., 18- 1765 ( La. App. 1st Cir. 9/ 27/ 19), 286

So. 3d 1054, 1061, writ denied 19- 01886 ( La. 2/ 10/ 20), 437 So.3d 741.

Thus, res judicata used in the broad sense has two different aspects: 1)

foreclosure ofrelitigating matters that have never been litigated but should have been

advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been

previously litigated and decided ( issue preclusion/collateral estoppel). It is the

second aspect of res judicata that is pertinent in this matter. Under La. R.S.

13: 4231( 3), the three requirements for issue preclusion/ collateral estoppel are: ( 1) a

valid and final judgment; ( 2) identity of the parties; and ( 3) an issue essential to the

prior judgment that has been actually litigated and determined. Global Marketing

Solutions, L.L.C., 286 So.3d at 1061.
The standard of review of a peremptory
exception of resjudicata requires an appellate court to determine if the lower court' s

decision is legally correct. Sutton v. Adams, 22- 01672 (La. 3/ 7/ 23), 356 So.3d 1017,

1020 ( per curiam).

In this case, Shanika bore a heavy burden of proof in seeking to modify the
considered custody judgment rendered by the Family Court in December 2020.

Specifically, she was required to prove a change of circumstances had occurred, such

that the continuation of the existing custody arrangement would be so deleterious to
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J.E. as to justify a modification of the custody decree, or to prove by clear and
convincing evidence that the harm likely caused by a change of environment was

substantially outweighed by its advantages to J.E. Bergeron v. Bergeron, 492 So.2d

1193, 1200 ( La. 1986); Morgan v. Morgan, 23- 0945 ( La. App. 1st Cir. 4/ 19/24),

So3d 2024 WL 1694682, at * 7.

In her motion to modify custody, Shanika alleged Dominique presented " an

environment of sexual abuse."
While she admitted the Family Court previously

found there had been no sexual abuse by Dominique, she asserted the insufficiency
of the evidence of sexual abuse did not " necessarily mean" it did not occur. She

maintained " the trauma that has been experienced is very real to [J.E.]." The change

in circumstances she asserts is that as a result of this alleged trauma, the physical

custody schedule and reunification efforts with Dominique ordered by the December

2020 judgment has been extremely deleterious to J.E.' s mental health. Specifically,

she alleged that as a result ofthe resumption ofvisitation with Dominique, J.E. began

to regress, to fail in school, and her entire disposition changed, leading to diagnoses
of depression and anxiety requiring medication. She alleged J.E.' s pediatrician

opined it was not in J.E.' s best interest " to be continuously introduced to ... stimuli
her father] that would trigger her." Shanika further alleged J.E. was fearful and

discomforted by visits with Dominique due to the trauma she had experienced and

expressed a desire to self h- arm if forced to visit him. Shanika requested the Family

Court hold a Waterineier hearing with J.E. in chamber to elicit candid testimony
from her regarding her preferences for physical custody and to inform the court of
her interactions with both parties. Shanika asserted she should be granted sole

custody of LE., with Dominique having no visitation with her.

In his exception of res judicata, Dominique asserted the issues raised in

Shanika' s motion to modify custody and request for Watermeier hearing had already
been raised, litigated, and heard by the Family Court. At the hearing on Dominique' s

exceptions, the Family Court agreed 6 In sustaining the exception of res judicata,

the Family Court stated:

Page two of that [ motion for] modification says, [ J.E.] faced setbacks
in school and ha[ d] to be evaluated by a therapist based on her
assessment of the mental status of [J.E.]. This is all based on ... a

medical provider. They even attached an exhibit of [Dr.] Amanda
Talbot —I may not be stating it correctly. Her deposition occurred on

March 18, 2021, and then she goes on to say that ... being reunified
with Dominique] would trigger [J.E.].

The issue was litigated on through a November 16, 2021 [ contempt]
judgmentYl That extinguished it .... The transaction and occurrence
of that pleading [ Shanika' s April 28, 2021 motion to modify custody],
i.e. the custody is extinguished as well, which also extinguishes the
Watermeier hearing. If you even look in that [ December 8, 2021 ]
judgment, the judgment even addresses the issue of [ Dr.] Amanda
Talbot.

So, I don' t see how it could not have resolved that issue and
extinguished it if the judgment in itself even addresses [ Dr.] Talbot' s --
and I can even go to it. I wanted to -- I thought I wrote it. ... [ The
December 8, 2021 judgment] said ... " Further, the deposition of Dr.
Amanda Talbot provided evidence of Shanika Edmond' s self-serving
attempts to solidify her position [ sic] choices contrary to thejudgment
ofthis court." Even if we go further into that paragraph, the one fact —
Thus, the court concluded that the deposition was offered to justify
Shanika Edmond's noncompliance with the order [sic]."

Therefore, even if --
the medical provider' s conclusion which is the fact
that [ Shanika is] using to start the case or to have ... an issue before the
court is specifically addressed on page two of the [ December 8, 2021 ]
judgment.

Based on the record before us, we find no error in the Family Court judgment

sustaining Domique' s exception of resjudicata. There is no question the element of

an identity of parties is met. Shanika and Dominique are the only two parties in all

Me burden of proving the facts essential to sustaining an exception of resjudicata rests on the
party raising the objection. Global Marketing Solutions, L.L.C., 286 So.3d at 1061. Dominique
did not introduce any evidence in support of his exception ofresjudicata, merely referring to the
pertinent prior proceedings held before the Family Court. Nevertheless, each of the prior
proceedings forming the basis for res judicata were conducted before the Family Court, which
could properly take judicial notice of its own proceedings. See Pullin a Chauvin, 17- 1292 ( La.
App. 1st Cir. 3/ 15118), 244 So.3d 472, 474 n. l, writ denied, l8-0572 (La. 6/ 1/ 18), 243 So.3d 1061;
Pinegar v. Harris, 06-2489 (La. App. 1 st Cir. 5/ 4/07), 961 So.2d 1246, 1249; Elliott a Elliott, 22-
789 ( La. App. 3d Cir. 10/ 18/ 23), 372 So.3d 447, 450; Chrysler Credit Corporation v. Henry, 221
So.2d 529, 534 ( La. App. 2d 1969).

7 As previously noted, Dominique' s rule for contempt was heard on November 16, 2021, but the
contempt judgment was actually signed on December 8, 2021.
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pertinent, prior proceedings. Further, an examination of Shanika' s combined motion

to modify custody and opposition to Dominique' s rule for contempt shows she raised

identical issues and relied on identical allegations to show a change of circumstances

justifying a modification of custody that she relied on as a defense to the rule for
contempt filed against her ( i.e., as justification for her noncompliance with the

December 2020 custody judgment). Thus, since the issues raised and allegations

made in Shanika' s motion to modify custody were identical to those raised in her

opposition to the rule for contempt, those issues and allegations were the same ones

litigated at the November 2021 contempt hearing and resolved by the December
2021 contempt judgment rendered against Shanika. Moreover, the resolution of the

issues and allegations raised concerning J.E.' s mental health, particularly the effect
the process of reunification with Dominique was having on her mental health, was

critical to the disposition of the contempt matter before the Family Court since
Shanika raised these issues to justify her noncompliance with the court' s December

2020 judgment. Thus, as indicated by the Family Court at the hearing on Dornique' s
exceptions, in rendering the December 2021 contempt judgment against Shanika,

the court likewise disposed of the identical issues and allegations raised in Shanika' s

motion to modify custody.

As to the amended motion to modify custody and request for a Watermeier

hearing filed by Shanika in September 2022, which added some new allegations and

details regarding J.E.' s mental health status, the Family Court held it was improperly
filed without leave ofcourt. Additionally, the Family Court further held the matters
contained therein were " resolved and extinguished"
by the June 2022 judgment

dismissing the petition for protection from abuse filed by Shanika on J.E.' s behalf
in March 2022.
This judgment of dismissal was rendered after an evidentiary
hearing held before the Family Court on June 22 and 27, 2022.

IN

Because Shanika designated the record pursuant to La. C.C.P. art. 2128, only
limited portions of the lower court record are included in the record before us.

Shanika did not designate the transcripts of the November 2021 contempt hearing
and the June 2022 hearing on her petition for protection from abuse as portions of

the appellate record. While an appellant may designate the record pursuant to Article

2128, the inadequacy of the record is imputed to the appellant. A reviewing court

must presume the lower court' s judgment is correct when a designated record does

not enable an adequate review of the matter at issue. Rover Group, Inc. v. Clark,

18- 1576 ( La. App. 1st Cir. 12/ 12/ 19), 291 So3d 699, 707, writ denied, 20- 00101

La. 3/ 9/ 20), 294 So.3d 481.

Given the absence of the transcripts of the November 2021 contempt hearing
and the June 2022 hearing on Shanika' s petition for protection from abuse, we are

unable to review Shanika' s contention that the issues raised in her motions to modify
custody were never fully litigated. Contrary to Shanika' s contention, the Family

Court stated these issues were previously litigated. Under the circumstances, a

presumption of correctness applies to the Family Court' s conclusion that the

exception of res judicata was well- founded because the issues raised in Shanika' s

motions to modify were raised and litigated at the hearings held on Dominique' s rule

for contempt and Shanika' s petition for protection from abuse and disposed of by
the December 8, 2021 contempt judgment and June 27, 2022 judgment of dismissal,

respectively. Accordingly, since these judgments are final and there is no question

an identity of parties exists in the current and the prior proceedings, all of the
elements for issue preclusion/ collateral estoppel are present. We find no error in the

Family Court' s judgment sustaining Dominique' s exception of res judicata and

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dismissing Shanika' s original and amended motions to modify custody and requests

for a Watermeier hearing.'

CONCLUSION

For these reasons, the October 25, 2022 judgment of the Family Court is
affirmed. Shanika Edmond is to pay all costs of this appeal.

AFFE MED.

As indicated by the Family Court, the dismissal ofthe motions to modify custody on the basis of
res judicata likewise disposed of Shanika' s requests for a Watermeier hearing, rendering the
requests moot. Additionally, since we find no error in the dismissal of Shanika' s claims on an
exception of res judicata, we pretermit consideration of any issues regarding the Family Court' s
ruling on the exception of no cause of action.
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