Millatmal v. Millatmal

• Decision Date: 27 October 2006
• Docket Number: No. S-05-237.,S-05-237.
• Citation: 272 Neb. 452,723 N.W.2d 79
• Parties: Tajuddin MILLATMAL, appellant v. Parveen MILLATMAL, appellee.
• Court: Nebraska Supreme Court

723 N.W.2d 79

272 Neb. 452

Tajuddin MILLATMAL, appellant v. Parveen MILLATMAL, appellee.

No. S-05-237.

Supreme Court of Nebraska.

October 27, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kelly T. Shattuck, of Cohen, Vacanti, Higgins & Shattuck, Omaha, for appellant.

Brian Zdan, Omaha, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

I. INTRODUCTION

On January 24, 2005, the district court for Douglas County entered a decree dissolving the marriage of Tajuddin Millatmal (Taj) and Parveen Millatmal. Taj appealed. We moved this case to our docket pursuant to our authority to regulate the dockets of this court and the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

II. BACKGROUND

Taj and Parveen were married in Pakistan in 1984 and have lived in the U.S. for 13 years. Taj and Parveen, as well as their two daughters, Nelam and Naheed, are U.S. citizens. Nelam was born June 25, 1985, and was married via an arranged marriage in Pakistan in late 2002. She currently resides in Omaha, Nebraska, with her husband. Naheed was born November 18, 1986, and in the summer of 2002 was also married via an arranged marriage in Pakistan. Naheed resides in Omaha with Parveen and attends school. Naheed's husband still lives in Pakistan. According to the record, there are currently no divorce actions pending in either the United States or Pakistan with respect to these marriages.

Parveen has been employed as a seamstress for almost 13 years and, at the time of trial, earned $8.25 per hour. Parveen also rents out rooms in the family home, earning approximately $550 per month. In addition, it is apparently customary in Pakistan that working children living at home give part or all of their salaries to their parents. Accordingly, Parveen also receives between $600 and $1,000 per month from Naheed, who, in addition to be being a student, has several part-time jobs.

Taj is employed as a telephone interpreter and as a cabdriver. According to Taj, he earns $700 per month as a cabdriver and another $300 per month as an interpreter, for a total income of $1,000 per month. Taj also testified that he volunteers at a nonprofit organization about 20 hours per week.

The parties own a home in Omaha valued by the Douglas County assessor at $159,000. Parveen testified that she believed the property to be worth no more than $180,000, while Taj testified that he believed the property to be worth $220,000. The record indicated that between $101,000 and $109,000 remained unpaid on the mortgage.

There was evidence presented as to certain debts owed by the parties. Parveen testified that at Taj's direction, while in Pakistan preparing for her daughters' weddings, she borrowed $25,000 from her family in order to pay living and wedding expenses. According to Parveen, taking such a loan was necessary because while traveling, Taj had misplaced a briefcase containing cash that was to be used by Parveen to cover those expenses. Parveen testified that there was no contract for repayment because the loan was from family. Taj testified that he did not direct Parveen to borrow the money. He also acknowledged that he had lost a briefcase containing $10,000, but that such event occurred subsequently to the time period referred to by Parveen, and that in any event, he had been acting as a courier, so not all of that money belonged to him and Parveen. In addition, Taj testified that he borrowed a total of $18,907 from friends in order to cover various household expenses.

The couple also owned several vehicles and various personal effects. According to Parveen, the couple owned a 1995 Ford Windstar minivan and a 1990 Toyota Corolla. In addition, since the couple separated, Taj had purchased a 2004 Honda Civic. Both parties testified, however that the minivan had been sold, though it is not clear from the record when that sale took place. Taj testified that the Toyota was paid for.

At trial, there appeared to be little dispute over the division of personal effects, with the exception of certain items which Parveen testified were part of her dowry, including jewelry, valued at $30,000, and seven rugs, valued at $2,000 to $3,000 each. Parveen alleged that Taj had taken those items, as well as all household items except the furniture, while she was still in Pakistan following the weddings. Taj denied this and testified that when he left the marital home, he took only his clothes, a bed, and a computer desk.

The district court entered its decree on January 24, 2005. In relevant part, that decree concluded that Naheed was not emancipated and accordingly awarded custody of Naheed to Parveen. Taj was ordered to pay $60 per month in child support. The district court's decree placed an equity value of $72,000 on the parties' home and awarded that home to Parveen. In addition, the district court found that the debts owed by Taj were not marital debts, but that the $25,000 which Parveen testified was owed to her family was a joint marital debt. The court ordered Parveen to pay to Taj a total of $23,500, which was Taj's 50-percent interest in the home equity less his 50-percent liability in the marital debt. This amount was to be paid upon the sale of the property or in 5 years, whichever occurred first. The parties were awarded the personal property in their possession. In addition, Taj was awarded several other items if those items could be recovered from the parties' marital home. Parveen was additionally awarded, as nonmarital property, the rugs and jewelry that were part of her dowry, should those items be recovered. Taj was awarded the Honda, and Parveen was awarded the Ford, if the latter vehicle was still in the possession of either party. There was no explicit disposition made by the district court of the Toyota. Finally, Taj was ordered to pay spousal support to Parveen in the amount of $300 per month for 48 months or until Parveen's death or remarriage.

III. ASSIGNMENTS OF ERROR

On appeal, Taj assigns that the district court erred in (1) awarding child support for a child who was married at the time of the entry of the order, (2) awarding alimony, and (3) its division of the marital estate.

IV. STANDARD OF REVIEW

An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). This standard of review applies to the trial court's determinations regarding custody, child support, division of property, alimony, and attorney fees. Id.

V. ANALYSIS

1. CHILD SUPPORT

In his first assignment of error, Taj argues that the district court erred in its award of child support. Taj contends that the record is undisputed Naheed was married at the time of the entry of the decree and that pursuant to Neb.Rev.Stat. § 42-371.01(1)(b) (Reissue 2004), he had no obligation to pay child support. That section provides in relevant part that "[a]n obligor's duty to pay child support for a child terminates when . . . the child marries. . . ."

In support of his argument, Taj directs us to Neb.Rev.Stat. § 42-117 (Reissue 2004), which provides that "[a]ll marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state." See, also, Randall v. Randall, 216 Neb. 541, 545, 345 N.W.2d 319, 321 (1984) ("validity of a marriage is generally determined by the law of the place where it was contracted"). There is no indication from the record that the marriage was invalid under Pakistani law. Thus, under the plain language of § 42-117, we must deem Naheed's marriage valid in Nebraska.

Although Parveen's brief claims that in a marriage where consent was obtained by force or fraud, the marriage is voidable, the record does not reflect that either Naheed or Parveen have taken any steps to void this marriage. Thus, the marriage is not, for purposes of our analysis, void.

Given that Naheed's Pakistani marriage is considered valid in Nebraska, we conclude that Naheed is emancipated. As a result of her emancipation, the district court abused its discretion in ordering Taj to pay child support to Parveen. Accordingly, we vacate the district court's award of child support.

2. ALIMONY

In his second assignment of error, Taj argues that the district court erred in awarding alimony that was excessive in both amount and duration. Taj argues that he simply cannot afford to pay an alimony award and, further, that the record indicates that Parveen's financial situation is such that she does not require spousal support. Parveen asserts that the amount and duration were reasonable, as the payments would allow her to obtain further education.

In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. Hosack v. Hosack, 267 Neb. 934, 678 N.W.2d 746 (2004). In determining whether alimony should be awarded, in what amount, and over what period of time, the ultimate criterion is one of reasonableness. Id. The purpose of alimony is to provide for the continued maintenance or support of one party by the other when the relative economic circumstances make it appropriate. Id.

In dividing property and considering alimony upon a dissolution of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party. Id.; Neb.Rev. Stat. § 42-365 (Reissue 2004). In addition to the specific criteria...