Obianuju T. Obi Versus Maduabuchi O. Onunkwo ( 2023 )

OBIANUJU T. OBI NO. 23-CA-116
VERSUS FIFTH CIRCUIT
MADUABUCHI O. ONUNKWO COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 74,551, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING
December 06, 2023
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Stephen J. Windhorst
AFFIRMED IN PART, REVERSED IN PART
JGG
FHW
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
OBIANUJU T. OBI
Richard L. Ducote
COUNSEL FOR DEFENDANT/APPELLANT,
MADUABUCHI O. ONUNKWO
Mark D. Plaisance
Marcus J. Plaisance
GRAVOIS, J.
In this child custody dispute, defendant/appellant, Maduabuchi O. Onunkwo,
appeals a trial court judgment which designated plaintiff/appellee, Obianuju T.
Obi, as domiciliary parent and cast Mr. Onunkwo with all court costs and
$1,000.00 in attorney’s fees. For the reasons that follow, we affirm the trial court’s
judgment awarding domiciliary status and court costs to Ms. Obi; however, we
reverse the portion of the judgment that awards $1,000.00 in attorney’s fees to Ms.
Obi.
FACTS AND PROCEDURAL HISTORY
Obianuju T. Obi and Maduabuchi O. Onunkwo were married on February
18, 2012 in Nigeria. Their triplet daughters were born on November 12, 2015, and
their son was born on August 11, 2017.
On October 4, 2019, Ms. Obi filed a petition and order for protection from
abuse under La. R.S. 46:2131, et seq., alleging that Mr. Onunkwo punched her in
the eye and arms in their home at 111 Derek Lane in Laplace, Louisiana, on May
15, 2019. The trial court granted Ms. Obi a temporary restraining order and
temporary custody of the children. Following a hearing on December 6, 2019, a
consent judgment was signed on January 3, 2020, dismissing the temporary
restraining order, granting a civil injunction restraining Mr. Onunkwo from
abusing and contacting Ms. Obi, granting Ms. Obi exclusive use of the property
located in Laplace, granting Mr. Onunkwo physical custody of the minor children
every other weekend, and ordering Mr. Onunkwo to attend counseling.
On May 28, 2020, Ms. Obi filed a petition for divorce. In response, Mr.
Onunkwo filed an answer and reconventional demand. The divorce was granted
on October 7, 2020.
On October 12, 2020, the trial court signed an “Interim Judgment and
Consent Judgment” regarding custody. In the consent judgment, the parties agreed
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to joint custody of the children. In the interim judgment, the court ordered that Mr.
Onunkwo be granted physical custody of the children every Tuesday at 3:00 p.m.
until Thursday at 9:00 a.m., as well as every other weekend. In response, Ms. Obi
filed a motion for a new trial, arguing that she never consented either on or off the
record to the terms of the consent judgment. The motion for a new trial was
granted, and the parties were directed to continue to operate in accordance with the
interim judgment of October 12, 2020 regarding Mr. Onunkwo’s physical custody
schedule. Mr. Onunkwo sought this Court’s supervisory review of the trial court’s
judgment granting the motion for a new trial, and this Court denied the writ
application. See Obi v. Onunkwo, 21-11 (La. App. 5 Cir. 2/23/21) (unpublished
writ disposition).
On April 15, 2021, Ms. Obi filed a motion for final periodic spousal support
and for sole custody of the children and other incidental relief. Ms. Obi argued
that she should be granted sole custody of the children pursuant to La. R.S. 9:341
and the Post-Separation Family Violence Relief Act, La. R.S. 9:361-367. She
asserted that Mr. Onunkwo perpetrated numerous acts of domestic abuse and
violence against her, often in the children’s presence. She argued that because of
his history of domestic violence, under the Post-Separation Family Violence Relief
Act, Mr. Onunkwo is liable for her attorney’s fees, court costs, and all costs of
therapy and treatment necessitated by his domestic violence.
On April 29, 2022, Mr. Onunkwo filed a motion to set joint custody,
domiciliary status, and joint custody implementation pursuant to La. R.S. 9:335.
Mr. Onunkwo argued that it was in the best of interest of the children that the
parties have joint custody. Further, he sought to be designated as domiciliary
parent due to Ms. Obi’s refusal to coparent, constant efforts to alienate the children
from their father, and her unwillingness to facilitate and encourage a close and
continuing relationship between Mr. Onunkwo and the children.
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On August 2, 2022, Mr. Onunkwo also filed a petition for preliminary
injunction and request for temporary restraining order, seeking to prohibit Ms. Obi
from removing and un-enrolling the children from their school, Harold Keller
Elementary School. Mr. Onunkwo alleged that Ms. Obi informed him on July 12,
2022 that she intended to send their son to private school in Laplace, rather than
Harold Keller Elementary School where the triplets attended school, and she
intended to move the triplets as well. Mr. Onunkwo told Ms. Obi he was not
agreeable to the children changing schools. On July 21, 2022, Ms. Obi told Mr.
Onunkwo that she had un-enrolled the triplets from Harold Keller Elementary
School and enrolled them at Lake Pontchartrain Elementary in Laplace.
On August 23 and 24, 2022, a trial on the merits was held regarding Ms.
Obi’s motion for final periodic spousal support1 and for sole custody of the
children and other incidental relief, Mr. Onunkwo’s petition for preliminary
injunction and request for temporary restraining order, and Mr. Onunkwo’s motion
to set joint custody, domiciliary status, and joint custody implementation order
pursuant to La. R.S. 9:335. In a written judgment signed on October 27, 2022, the
trial court denied Ms. Obi’s request for sole custody and granted the parties joint
custody of the children. The trial court designated Ms. Obi as primary domiciliary
parent. The trial court set out a schedule for physical custody of the children,
which allowed Mr. Onunkwo physical custody of the children every other weekend
during the school year and every other week during the summer. The parties were
ordered to communicate with each other as to the health, education, and welfare of
the children and visitation exchanges. Mr. Onunkwo was cast with “all court
costs” and ordered to pay $1,000.00 towards Ms. Obi’s attorney’s fees. The trial
court denied Mr. Onunkwo’s request for a preliminary and permanent injunction.
1
The issue of spousal support was ultimately not addressed at trial.
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In its written reasons for judgment, the trial court stated that sole custody
was not warranted under the Post-Separation Family Violence Relief Act, and
custody would be awarded in accordance with the best interest of the children. The
trial court noted that the children reside in Laplace with Ms. Obi where they attend
school. The trial court stated that the children living and going to school in
Laplace necessitates a schedule which is prudent for the advancement of their
education, and the schedule it set forth is practical and reasonable. Regarding
costs, the trial court stated that because it did not find a history of domestic
violence under the Post-Separation Family Violence Relief Act, costs for therapy
and any treatment necessitated by any domestic violence committed by Mr.
Onunkwo was inapplicable. However, the trial court found that it was equitable to
assess all court costs and $1,000.00 in attorney’s fees to Mr. Onunkwo. This
appeal followed.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, Mr. Onunkwo challenges the trial court’s
ruling designating Ms. Obi as the primary domiciliary parent. He contends that
Ms. Obi failed to prove under La. C.C. art. 134 that it was in the children’s best
interest that she be named domiciliary parent. Mr. Onunkwo argues that the trial
court erred in naming Ms. Obi domiciliary parent when she unilaterally moved the
children to a different school in a different city. He argues that she did not consult
him, and the new schools she chose are not superior to where the children
previously attended.
It is well settled that the paramount consideration in any determination of
child custody is the best interest of the child. See Tracie F. v. Francisco D., 15-
1812 (La. 3/15/16), 188 So.3d 231, 238-39; E. R. v. T. S., 18-286 (La. App. 5 Cir.
10/11/18), 256 So.3d 551, 557, writ denied, 18-1843 (La. 2/18/19), 264 So.3d 451.
23-CA-116 4
La. C.C. art. 134 sets out the following non-exclusive factors for the court to
consider in awarding custody:
(1) The potential for the child to be abused, as defined by Children’s
Code Article 603, which shall be the primary consideration.
(2) The love, affection, and other emotional ties between each party
and the child.
(3) The capacity and disposition of each party to give the child love,
affection, and spiritual guidance and to continue the education
and rearing of the child.
(4) The capacity and disposition of each party to provide the child
with food, clothing, medical care, and other material needs.
(5) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of
that environment.
(6) The permanence, as a family unit, of the existing or proposed
custodial home or homes.
(7) The moral fitness of each party, insofar as it affects the welfare
of the child.
(8) The history of substance abuse, violence, or criminal activity of
any party.
(9) The mental and physical health of each party. Evidence that an
abused parent suffers from the effects of past abuse by the other
parent shall not be grounds for denying that parent custody.
(10) The home, school, and community history of the child.
(11) The reasonable preference of the child, if the court deems the
child to be of sufficient age to express a preference.
(12) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child
and the other party, except when objectively substantial evidence
of specific abusive, reckless, or illegal conduct has caused one
party to have reasonable concerns for the child’s safety or well-
being while in the care of the other party.
(13) The distance between the respective residences of the parties.
(14) The responsibility for the care and rearing of the child previously
exercised by each party.
The trial court is not bound to make a mechanical evaluation of all of the
statutory factors listed in La. C.C. art. 134, but should decide each case on its own
facts in light of those factors. Robertson v. Robertson, 10-926 (La. App. 5 Cir.
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4/26/11), 64 So.3d 354, 363. The trial court is not required to provide a literal
articulation of each of the factors of La. C.C. art. 134 in reaching its conclusion
regarding the best interest of the children, nor is the trial court required to
specifically explain its weighing and balancing of the Article 134 factors. Manno
v. Manno, 49,533 (La. App. 2 Cir. 11/19/14), 154 So.3d 655, 663. Every child
custody case must be viewed based on its own particular facts and relationships
involved, with the goal of determining what is in the best interest of the child.
Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118 So.3d 357, 367.
A trial court’s determination in a child custody case will not be disturbed
unless there is a clear abuse of discretion. Randazza v. Giacona, 20-439 (La. App.
5 Cir. 3/24/21), 316 So.3d 564, 568; Schmidt v. Schmidt, 02-885 (La. App. 5 Cir.
1/14/03), 839 So.2d 150, 152. Additionally, it is well-settled that an appellate
court cannot set aside the family court’s findings of fact in the absence of manifest
error or unless those findings are clearly wrong. See Rosell v. ESCO, 549 So.2d
840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed
in its entirety, an appellate court may not reverse those findings even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. Id.When joint custody is decreed, the court shall designate a domiciliary parent,
defined as “the parent with whom the child shall primarily reside,” and who has
“authority to make all decisions affecting the child unless an implementation order
provides otherwise.” La. R.S. 9:335(B)(2)-(3); McCaffery v. McCaffery, 13-692
(La. App. 5 Cir. 4/9/14), 140 So.3d 105, 115, writ denied, 14-0981 (La. 6/13/14),
141 So.3d 273. All major decisions made by the domiciliary parent concerning the
child shall be subject to review by the court upon motion of the other parent. La.
R.S. 9:335(B)(3).
23-CA-116 6
At trial, Ms. Obi testified that she met Mr. Onunkwo in Nigeria, and they
moved to the United Stated in 2012. They have four children together. From the
time the children were born until the parties separated, Ms. Obi did “most of the
things” as it related to the children, including feeding them, handling their
activities, medical and dental appointments, schooling, summer camps, and piano
lessons. She stated that Mr. Onunkwo worked a lot during this time. After the
triplets were born, he worked from home, so he helped with their bathing and
feeding. Her family would also help. After the separation, Ms. Obi continued in
the same role regarding her care of the children. She testified that they pray
together, do story time, exercise, cook, bake, paint, play, read, and swim. While
with her, the children completed a summer reading program at the library. She
stated that the children communicate freely with her and talk to her about how they
feel and about things going on around them. When it is time for the children to go
to their dad’s, they often hide because they do not want to go. She admitted that
Mr. Onunkwo has been diligent about keeping his schedule with the children.
Ms. Obi testified that she currently resides in Laplace. The triplets go to
school at Lake Pontchartrain Elementary in Laplace, and their son goes to St. Joan
of Arc in Laplace through the Louisiana Department of Education voucher
program. The triplets had previously been enrolled at Lake Pontchartrain
Elementary before Hurricane Ida hit. In July 2022, she pulled the children out of
their school in Jefferson Parish and moved them to school in Laplace. She let
defendant know, but she did not ask him. She said she tried to get the children into
St. Joan of Arc in previous years and told Mr. Onunkwo she would keep trying.
She always tried to “carry him along” with decisions; however, he often would not
cooperate, and it was difficult to communicate with him. Ms. Obi also testified to
different acts of violence she alleges Mr. Onunkwo committed against her.
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Mukosolu Florence Obi, Ms. Obi’s sister, testified that she often came and
stayed with the parties during her school breaks. Since the separation, Florence
has visited her sister. She said Ms. Obi is exceptional with the children’s care and
believed that the children feel safer, more comfortable, and relaxed with Ms. Obi.
Ms. Obi has them involved in multiple activities including reading at the library,
playing sports, and swimming.
Mr. Onunkwo is a database management specialist with the U.S. Navy who
works from home. He currently lives in Metairie. He testified that he started
working full time from home once the triplets were born, and this allowed him to
help around the house, feed and bath the children, and change their diapers. He
was involved in picking the children’s pediatrician and went to their appointments.
In 2018, Ms. Obi worked overnight at University Medical Center and also attended
classes at Southern University at New Orleans. While she was out of the house, he
cared for the children.
Mr. Onunkwo testified that the triplets started kindergarten at Lake
Pontchartrain Elementary in 2021. However, soon after they started there,
Hurricane Ida hit and damaged the home in Laplace where Ms. Obi and the
children resided. The triplets then attended Harold Keller Elementary School in
Metairie. Mr. Onunkwo testified that he messaged Ms. Obi about their son’s
schooling, and she responded that he received a scholarship to St. Joan of Arc. He
did not know she applied for the scholarship. He thought it was better for their son
to join the triplets at Harold Keller Elementary School. Ms. Obi subsequently sent
him a message to tell him that she had withdrawn the triplets from Harold Keller
Elementary School. Mr. Onunkwo was not asked what he thought about the
children moving schools, and Ms. Obi never told him she was moving back to
Laplace. He stated that he wanted the children to stay where they were because it
23-CA-116 8
was a better school district and because they were familiar with the teachers and
had friends at the school.
Mr. Onunkwo testified that he has been consistent with his schedule when
having the children and never missed time with them. When he has the children,
they celebrate their birthdays, go to the park, play soccer, go to the playground,
sing, do karaoke in the house, dance, and study. He takes them to the doctor and
dentist. He provides financially. He said he has an awesome relationship with the
children, and they never want to leave his house when it’s time for them to go with
Ms. Obi. He disciplines them by redirecting them. He testified that the children
would benefit more from him being named the domiciliary parent since he is a
registered nurse, communicates with Ms. Obi about the children, is more interested
in their education, and is always there for the children.
Mr. Onunkwo testified that he has never hit any of his children, and he has
never been physical with Ms. Obi.
Upon review, we find that the evidence supports the trial court’s decision to
name Ms. Obi as domiciliary parent. Though Mr. Onunkwo asserts on appeal that
Ms. Obi did not present any evidence in support of the factors set out in La. C.C.
art. 134, we disagree. Ms. Obi testified at trial that she has done “most of the
things” regarding caring for the children since their birth. She described that she
manages the children’s activities, their medical and dental appointments,
schooling, summer camps, and piano lessons. She testified that they pray together,
do story time, exercise, cook, play, read, swim, and participate in summer reading
programs. She explained that the children communicate freely with her. Since the
initial separation in 2019, the children have lived with her except for Tuesday and
Wednesday nights and every other weekend. The testimony at trial revealed that
Ms. Obi and the children were living in Laplace until their home was damaged by
Hurricane Ida. The triplets originally attended Lake Pontchartrain Elementary, but
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due to Hurricane Ida, moved schools. Ms. Obi now lives in Laplace where all the
children are currently enrolled in school. Based on the evidence presented, we
cannot say that the trial court was manifestly erroneous or clearly wrong in its
factual determination that it is in the best interest of the children to designate Ms.
Obi as domiciliary parent. This assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, Mr. Onunkwo argues that the trial court
erred in assessing him with all court costs and $1,000.00 in attorney’s fees. He
argues that because the trial court failed to designate the court costs and because
the positive law does not allow him to be cast with costs, the trial court erred in
casting him with all court costs. Additionally, he asserts that attorney’s fees are
only recoverable where specifically authorized by statute or contract. Because the
trial court did not find a history of domestic abuse, he argues that he cannot be cast
with the payment of Ms. Obi’s attorney’s fees pursuant to La. R.S. 9:367.2
In her motion for final periodic spousal support and for sole custody of the
children and other incidental relief, Ms. Obi asserted that pursuant to the Post-
Separation Family Violence Relief Act and Mr. Onunkwo’s history of domestic
violence and abuse committed against Ms. Obi, Mr. Onunkwo is liable for all of
Ms. Obi’s attorney’s fees, court costs, and all costs of therapy and treatment
necessitated by his domestic violence. In its written judgment, the trial court cast
Mr. Onunkwo with all court costs and $1,000.00 in attorney’s fees. In its written
reasons for judgment, the trial court stated:
“Courts may render judgment for costs ... against any party, as it may
consider equitable.” La. C.C.P. art. 1920. Plaintiff requests that
2
La. R.S. 9:367 provides:
In any family violence case, all court costs, attorney fees, costs of enforcement
and modification proceedings, costs of appeal, evaluation fees, and expert witness
fees incurred in furtherance of this Part shall be paid by the perpetrator of the
family violence, including all costs of medical and psychological care for the
abused spouse, or for any of the children, necessitated by the family violence.
23-CA-116 10
Defendant be casts [sic] with all of her Attorney’s fees, court costs,
and all costs of therapy and treatment necessitated by domestic
violence committed by him. This Court has not found a history of
domestic violence under the Post-Separation Family Violence Relief
Act. La. R.S. 9:346, et seq. Therefore, costs under certain provisions
of said act are inapplicable. However, this Court finds it equitable to
assess all court costs and $1000 in attorneys [sic] feed [sic] to Mr.
Onunkwo.
Under Louisiana law, attorney’s fees are recoverable only where specifically
authorized by statute or contract. LaRocca v. Louisiana Motor Vehicle Comm’n,
22-197 (La. App. 5 Cir. 5/10/23), 364 So.3d 1246, 1269; Hoffman v. 21st Century
North America Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702, 707. Because the
trial court did not find that there was a history of domestic violence under the Post-
Separation Family Violence Relief Act, La. R.S. 9:346, et seq., there was no
statutory basis for Ms. Obi to recover attorney’s fees. Accordingly, we find that
the trial court erred in ordering that Mr. Onunkwo pay $1,000.00 toward Ms. Obi’s
attorney’s fees.3
Louisiana Code of Civil Procedure article 1920 provides:
Unless the judgment provides otherwise, costs shall be paid by the
party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment
for costs, or any part thereof, against any party, as it may consider
equitable.
Louisiana Code of Civil Procedure article 1920 affords the trial court broad
discretion in assessing court costs and allows the trial court to render judgment for
costs against any party as it may consider equitable. Riley v. Hollander, 19-520
(La. App. 5 Cir. 5/28/20), 296 So.3d 1248, 1259, writ denied, 20-833 (La.
10/14/20), 302 So.3d 1123. A trial court’s assessment of costs can be reversed by
an appellate court only upon a showing of abuse of discretion. Id. Upon review of
3
In her appellate brief, Ms. Obi acknowledges that “the $1000 attorney’s fee award likely
lacked statutory or jurisprudential authority.”
23-CA-116 11
the record, on the showing made, we cannot conclude that the trial court abused its
broad discretion in ordering that Mr. Onunkwo pay all court costs.
DECREE
For the foregoing reasons, the trial court’s October 27, 2022 judgment
naming Ms. Obi as domiciliary parent and awarding court costs to Ms. Obi is
affirmed; however, the portion of the judgment that ordered Mr. Onunkwo to pay
$1,000.00 in attorney’s fees to Ms. Obi is reversed.
AFFIRMED IN PART, REVERSED IN PART
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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)
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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 6, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-116
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE J. STERLING SNOWDY (DISTRICT JUDGE)
RICHARD L. DUCOTE (APPELLEE) VICTORA MCINTYRE (APPELLEE) MARK D. PLAISANCE (APPELLANT)
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