Colquitt v. Muhammad, ED 79514.

• Decision Date: 01 October 2002
• Docket Number: No. ED 79514.,ED 79514.
• Citation: 86 S.W.3d 144
• Parties: Debra COLQUITT, Respondent, v. Aziz MUHAMMAD, Appellant.
• Court: Missouri Court of Appeals

86 S.W.3d 144

Debra COLQUITT, Respondent, v. Aziz MUHAMMAD, Appellant.

No. ED 79514.

Missouri Court of Appeals, Eastern District, Division Two.

October 1, 2002.

COPYRIGHT MATERIAL OMITTED

Lawrence G. Gillespie, Gillespie, Hetlage & Coughlin, L.L.C., Clayton, MO, for Appellant.

Mary Arm Weems, Law Office of Mary Ann Weems, St. Louis, MO, for Respondent.

GARY M. GAERTNER, Sr., Judge.

Appellant, Aziz Muhammad ("husband"), appeals from the judgment of dissolution of the Circuit Court of St. Louis County awarding retroactive maintenance in the amount of $3,300, retroactive child support in the amount of $6,400, and maintenance in the amount of $500 per month to respondent, Debra Colquitt ("wife"). We affirm as modified.

Husband and wife were married on August 20, 1988. One child, a son, was born of the marriage on July 6, 1996. Husband and wife separated in July of 1999.

On March 8, 2000, wife filed a motion and affidavit for temporary child custody, child support, maintenance, attorney's fees and costs pendente lite ("PDL motion"). Specifically, wife alleged that the "reasonable and necessary sum" to be paid by husband in child support would be $900 per month and the "reasonable and necessary sum" to be paid by husband for maintenance would be $1,500 per month. Wife prayed for these sums to be paid "as long as [the] suit shall be pending, retroactive to the filing hereof."

On June 5, 2000, a judgment pending dissolution proceeding ("PDL order") was issued, without a hearing, by the trial court. Husband and wife were given joint physical and legal custody of child. Husband, pursuant to the PDL order, was to pay $800 per month in child support. Additionally, pursuant to the PDL order, "[a]ll issues of maintenance, retroactive maintenance [and] retroactive child support [were] reserved for trial."

On September 28, 2000, a trial was held and both husband and wife testified. During various pre-trial conferences the trial court discussed time constraints with both husband and wife. At trial, the trial court imposed an hour-and-a-half time limit for each side to present their case.

Wife testified she was employed by the American Red Cross earning $25,500 annually, and that she planned to return to Webster University to attend classes part-time. Wife expected to receive a bachelor's degree in psychology in January of 2002 and then planned to pursue a master's degree. Tuition at Webster University was $2,200 per semester and the American Red Cross would provide wife with a seventy-five percent tuition remission. At the time of the trial, wife was temporarily living with her mother, but planned to "get stable" and find her own place. Wife testified she paid between $150 and $300 per month in rent to her mother. Wife listed her monthly child support expenses at $550 including day care. Wife also made vehicle payments of $312 per month on a 1998 Saturn.

Husband testified he was employed at Sankyo Parke Davis. Husband earned in excess of $88,500 annually as a district manager. Husband resided in the marital home at the time of trial. Husband made vehicle payments of $610 per month on a 1998 Mercedes.

During the direct examination of husband, the trial court stated the following to husband's counsel:

Folks, I'm afraid maybe I didn't make myself clear at some point earlier today. We're at 5:35. If [wife's counsel] is going to have the appropriate amount of time to cross-examine, I think you have just about exhausted your time in examination with [husband] talking primarily about topics that are, you know, at least for the last 10 minutes, that are part of the mediated result that will be obtained, hopefully, at Domestic Relations Service.

If you have some further questions to ask [husband] that are most directly pertinent to today's proceeding, I'm going to give you about an other (sic) five minutes to do. I'm sorry to say that to you, but I mean, we're wandering and we didn't have the luxury of wandering on the schedule that we were provided.

Husband's counsel agreed to "try to wrap [direct examination] up." However, husband's counsel objected to the time constraints enforced by the court.

After further direct examination of husband, which encompassed approximately four pages of the transcript, the following exchange occurred:

[Husband's Counsel]: And you are stating to the Court that you would pay $479.90 per month in child support?

[Husband]: Yes.

[Husband's Counsel]: Okay. Now we've, in essence, put a qualifier on that, correct?

[Husband]: Everyday needs —

[Trial Court]: [Husband's counsel], is he attempting to show some evidence other than the parenting plan? I mean, other than — pardon me — the visitation credit?

[Husband's Counsel]: Yes. We've asked that the child — [h]e's willing to pay it, Your Honor, but he wants you to know that if you use [wife's] form he still wants it to be declared unjust and inappropriate for the reasons he's going to be giving now.

[Trial Court]: Okay. Well, in summary, sir, do you expend considerable amounts of money beyond the money stated there for the day-to-day support and care of your son?

[Husband]: Do I spend in addition to the money that I have to give to his mother?

[Trial Court]: Right.

[Husband]: Yes, I do.

[Trial Court]: Okay. I'll take that as his testimony in that regard. Is there something further and specific? I believe —

No objection was raised regarding the trial court's questioning of husband or to the specific questions asked. After further direct examination of husband, which encompassed approximately one page of the transcript, the trial court interjected and reminded husband's counsel of the time limit imposed. Husband's counsel concluded direct examination and wife's counsel began cross-examination of husband.

On January 2, 2001, the trial court issued a judgment of dissolution. Husband and wife were awarded joint physical and legal custody of child. The trial court found that husband's monthly gross income was $7,467 per month and ordered him to pay $856 per month in child support to be paid prospectively. Additionally, husband was ordered to pay $800 per month, retroactive to October 1, 1999, the approximate date of service on husband. The amount of retroactive child support was to be offset by payments that husband made pursuant to the PDL order, "but not by the miscellaneous amounts that [husband] claim[ed] to have expended for support of the child while in his custody because the evidence did not establish the amount of these expenditures or that the parties agreed that they would be considered as child support." The trial court found husband owed wife retroactive child support in the amount of $6,400.

Additionally, the trial court found that wife was fully employed but not able to provide for her reasonable needs. The trial court found that husband was able to contribute $500 per month in modifiable maintenance to wife. Also, the trial court found that wife had "sought and [was] entitled to receive retroactive maintenance from October 1999 which should be offset by the $3000 that [husband] gave [wife] since separation for her educational expenses and the $1200 that [husband] gave to [wife] for the down payment on her car." The trial court found husband owed wife retroactive maintenance in the amount of $3,300. Husband appeals.

We will affirm the trial court's judgment of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Woolsey v. Woolsey, 904 S.W.2d 95, 98 (Mo.App. E.D. 1995). This court views the evidence in the light most favorable to the judgment of dissolution and disregards contrary evidence. Grubb v. Lehn, 841 S.W.2d 768. 769 (Mo.App. E.D.1992). Moreover, this court defers to the trial court's determinations regarding credibility of witnesses. McGowan v. McGowan, 43 S.W.3d 857., 861 (Mo.App. E.D.2001). The trial court can accept or reject all, part or none of the testimony of any witness. Id.

In his first point, husband argues that the trial court erred in entering an order for retroactive maintenance because section 452.335 RSMo 2000,¹ does not authorize retroactive orders. In the alternative, husband contends that even if retroactive maintenance was authorized, wife had no need for maintenance during the proceedings and she waived her claim by not pursuing her PDL remedies.

Section 452.335 speaks prospectively, not retrospectively; therefore, a maintenance award ordered in the judgment of dissolution cannot be made retroactive. Woolsey, 904 S.W.2d at 98. However, section 452.315, which governs awards of temporary maintenance, has been interpreted to allow a retroactive award of temporary maintenance, unless waived, to the date the motion for temporary maintenance was filed. Browning v. Browning, 947 S.W.2d 106, 111 (Mo.App. W.D.1997); Roedel v. Roedel, 788 S.W.2d 788, 790 (Mo.App. E.D. 1990). This court in C.M.D. v. J.R.D., 710 S.W.2d 474, 478-79 (Mo.App. E.D.1986), found that the trial court erred in awarding a wife retroactive maintenance and child support as part of the dissolution judgment. We found that if the wife was dissatisfied with the amount of the voluntary payments her husband provided during their separation, her remedy was to seek a ruling on her PDL motion, and her failure to do so waived any claim she may have had for increased payments during separation. Id. In contrast, the Western District in In re Marriage of Davis, 821 S.W.2d 123, 124 (Mo.App. W.D.1991), found that a wife did not forfeit or waive her award of retroactive maintenance because she failed to demand and have an evidentiary hearing on her PDL motion for temporary maintenance. In support of the decision, the Western District stated that "[e]conomy is served by a single trial disposing of all issues, so a party should not be penalized for his or her election to forego an additional hearing on [PDL] motions." Id.

In this case, we...