Ibrahim v. Ibrahim
| Decision Date | 04 March 1992 |
| Docket Number | No. 17395,17395 |
| Citation | 825 S.W.2d 391 |
| Parties | Ali Naji IBRAHIM, Appellant, v. Sharon Louise IBRAHIM, Respondent. |
| Court | Missouri Court of Appeals |
Lee Ann Miller, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for appellant.
Rick Jackson, Jayne, Steele and Jackson, Kirksville, for respondent.
Ali Naji Ibrahim (husband) appeals the custody award and the visitation award, the division of marital property, and the award of attorney fees made by the trial court in this dissolution of marriage case. The trial court entered its judgment and decree January 10, 1991, dissolving the marriage. The trial court awarded Sharon Louise Ibrahim (wife) legal and physical custody of the child of the parties, Naji Ali Ibrahim (Naji), who was six years old at the time the decree was entered. Husband was allowed "reasonable visitation rights with the Child." Husband was ordered to pay child support in the amount of $200 per month, payable in $100 installments on the 1st and 15th of each month, retroactive to the 1st of September, 1990. The trial court ordered husband to pay attorney fees and suit money for wife in the amount of $2,000. It set over certain nonmarital property to wife and awarded items of marital property that were in each party's possession to that party. Judgment in the amount of $5,000 was entered for wife, against husband "to cause the distribution of Marital Property to be fair and just." This court affirms.
Being court-tried, this case is reviewable in the manner prescribed by Rule 73.01(c). "As that rule is interpreted, the judgment is to be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or erroneously applies the law." Four Seasons Lakesites Property Owners Ass'n, Inc. v. Dungan, 803 S.W.2d 173, 174 (Mo.App.1991). As explained in Buchheit v. Buchheit, 768 S.W.2d 641 (Mo.App.1989), at l. c. 642:
When there is a conflict in the evidence, the trial court determines the credibility of the witnesses. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). The judgment of the trial court is to be affirmed under any reasonable theory supported by the evidence. Id. Deference is accorded the trial judge even if there is evidence which might support a different conclusion. Id.
The burden of demonstrating error belongs to the party challenging the trial court's decree. Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981); Naeger v. Naeger, 542 S.W.2d 344, 346 (Mo.App.1976). Findings of fact were not requested nor made. All fact issues are, therefore, considered as having been found by the trial court in accordance with the result it reached. Rule 73.01(a)(2); Nelson v. Baker, 776 S.W.2d 52, 53 (Mo.App.1989).
The parties were married March 18, 1982. Naji was born on June 24, 1984. There were tumultuous periods during the more than eight years when the parties were married. The parties had at least two prior separations--on one occasion, in 1988, a petition for dissolution of marriage had been filed. At times, husband had been violent and abusive. He hit wife. On one occasion, he blackened both of her eyes. He cursed her and forced her to do things against her will. He locked her out of their house. Several times he threatened to kill her if she did not cooperate with him and obey him. He cursed Naji. He would tell Naji to call wife vile names. On an occasion in 1989, while the parties were separated, husband traveled from Springfield, Missouri, where he resided, to Kirksville, Missouri, where wife resided with Naji, and took Naji away from her without her knowledge or consent. Husband took Naji to Springfield. Wife testified that she "was on the phone just about every other day or every day" to try to keep in touch. She was asked what Naji said to her on an occasion shortly after he was taken from her. She testified, without objection:
Naji told me: Mommy, get down here quick and get me, I'm at Max's mom's and daddy said he's got a gun and he's going to kill you. And then Ali took the phone away from him and Naji begged Ali to let me talk. And Naji was scared, I could tell he was scared by the way his voice quivered.
There was testimony that husband had made sexual advances toward a friend of wife's on an occasion when the friend stayed at an apartment the parties occupied. The friend, Carol Wangler, worked with wife at a restaurant. She resided for a short time, "pretty close to a month," with the parties at their apartment. She was there in January 1990, when the parties separated--when wife left. Ms. Wangler testified about what occurred when husband returned to the apartment and learned that wife was gone. She testified:
A. ... So Max left, and Ali came and he was mad. He was in the van because he was working at Howard Johnson's then, and he was in the work van. And I was sitting on the couch, and he come in. And I was going to go to sleep, and he told me to go get in the bed, and I did. And he walked in and put his hand on my leg, and I got up and walked out of the bedroom.
Q. As he put his hand on your leg, though, did he say anything to you?
A. Yeah, he said, you know you want to. And then I said no and pushed his hand and got up and walked out of the room. And then he got mad, he said he had to take the van back to work and that he would be back. And then within the time that he was gone I got my stuff, the stuff that I could get, and left, had Terry come and get me.
Q. Terry is a friend of yours?
A. Terry is my boyfriend, now.
Q. And that's the last time you had stayed in the Ibrahim apartment?
A. Yes.
Husband abused wife's eight-year old niece. The niece testified at trial, as follows:
Q. And Dawn, have you ever had any sexual contact whatsoever with Ali Ibrahim?
A. Yes.
Q. And first of all, would you tell the Judge your approximate age when that incident occurred?
A. I was eight years old.
Q. And you are now seventeen?
A. Yes.
. . . . .
Q. Okay. And what happened after Sandy, your mother, had left the house?
A. He asked us if we wanted to--we were just all playing, he asked us if we wanted to play a game, he called this a game of hospital. At first all three of us were playing around.
Q. Where were you playing the game at first?
A. In the bedroom.
Q. In Ali's bedroom?
A. Yes, all in one floor. It was like a kitchen, and then they had a bedroom separated from the kitchen.
. . . . .
Q. Okay. And your brother and Amanda went upstairs with the roommates?
A. (Nods head)
Q. And was that at Ali's direction?
A. Yes.
Q. Then what happened?
A. It was just me and him downstairs and he went and he locked the door.
Q. Are you talking about the bedroom door or the front door?
A. The front door to the house. And the bedroom there was sort of, it was blocked off from the rest of the house. And he somehow, I don't remember, but he took off my pants and he took off his pants, and--
Q. --Let me stop you for a minute, Dawn. When you say he took off your pants, are you talking about like bluejeans or are you talking about underpants?
A. Everything. My pants and my underwear.
Q. And did you have any sort of a top on?
A. Yes.
Q. Okay. Was that ever taken off?
A. No.
Q. Okay. He took off--you were nude from the waist down, is that correct?
A. Um-hum.
Q. You indicated he took off his pants, are you talking about again his--
A. --He didn't take them all the way off, he just pulled them down.
Q. His trousers as well as his underpants?
A. Um-hum.
Q. You have to speak out loud.
A. Yes.
. . . . .
Q. And what happened as he took his pants and underwear down?
A. It just went on with this game, he called it. He kept on saying that everything was okay because earlier we were just all playing like we were sick. And he told us that he would make us feel better. So, when I was down there, he started rubbing his penis around my vagina and saying that he could make me feel good, and he didn't go in, he just like laid it on top of my stomach. And he made me touch it.
The witness continued to describe the incident. She explained that husband grabbed her hands and would not let go of them. She tried to fight him. He told her "to be quiet or [she] would just make it worse"; that she would get in trouble. She testified that husband The witness testified that she started doing as he directed but she "didn't want to and ... started screaming." The witness explained that at the conclusion of the acts she described, the following occurred:
I was just fighting him and he kept on telling me that I was bad, and that he'd tell my mom, and he told me that he'd get me taken away from my mom. And so I just--I was just screaming and fighting him and sooner or later Sharon came to the door. And the door was locked so she was trying to get in and he jumped up and zipped up his pants, and I was still laying on the bed, and I was crying. And Sharon came in and she asked me what was wrong and I tried to tell her and Ali got all mad and he went to go talk to her and told her that everything that I was going to say was a lie. And that I was just going to try to get him in trouble with Sharon because I didn't like him. So later, Sharon came up to me and she took me into the bathroom, and she asked me what had happened, and I tried to tell her. And she didn't believe me at first. And then Ali and Sharon started talking. And, again, they told me that if it really happened, if I really saw it, then I'd get--to draw a picture of it.
The witness was asked if she meant that she was asked to "[d]raw a picture of his penis." She answered that she was; that "while [she] was drawing it, [she] was telling [wife] everything that happened, and Ali got mad and he ripped up the paper."
Another witness, Patti Handley, testified that she lived at Springfield, Missouri; that she "babys[a]t...
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