Al-Yusuf v. Al-Yusuf
| Decision Date | 26 May 1998 |
| Docket Number | A,R,AL-YUSU,No. WD,WD |
| Citation | 969 S.W.2d 778 |
| Parties | Jennifer Lynnespondent, v. Yusuf Mashoorppellant. 54352. |
| Court | Missouri Court of Appeals |
Luanne F. Kurth, Kansas City, for appellant.
Robert H. Dunsford, Kansas City, for respondent.
Before HANNA, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.
Yusuf Mashoor Al-Yusuf appeals the trial court's entry of judgment in the dissolution of his marriage to Jennifer L. Al-Yusuf. He claims the court erred in entering a decree which ordered the parties to share joint legal custody but which failed to provide a joint legal custody plan. We agree. Section 452.375.8 mandates the entry of a joint legal custody plan when joint custody is ordered. As Mr. Al-Yusuf claims, and Ms. Al-Yusuf concedes, the order signed by the court also improperly failed to include a full legal description of the marital home. We remand for correction of both errors.
Mr. Al-Yusuf further claims the trial court erred in dividing the marital property without listing the specific value of that property as required by local rule. In light of the fact that we are remanding on other grounds, this issue can be resolved on remand.
For the first time on appeal, Mr. Al-Yusuf also claims that the court erred in awarding the parties' still pending personal injury claims to Ms. Al-Yusuf, claiming that they would not become marital property capable of division until the settlement was finalized. Prior cases have recognized, however, that a pending claim can be characterized as marital property if the injury occurred during the marriage. However, on remand, the court may consider evidence as to whether these claims have now been finally settled and as to whether all or only part of them are properly characterized as marital, and may adjust its award if appropriate.
Mr. Al-Yusuf further claims that the court erred in awarding him all of the marital debt as lump sum maintenance, without a determination that he was able to make such payments. The court made sufficient findings in this regard. Because the majority of the debt awarded was a mortgage on a house awarded to Mr. Al-Yusuf, it cannot be considered "maintenance," however, for the purpose of maintenance is to provide for a spouse unable to meet her needs. Requiring Mr. Al-Yusuf to pay the debt owed on property awarded to Mr. Al-Yusuf is not maintenance to Ms. Al-Yusuf. The court on remand should revise its order to indicate that the award of debt to Mr. Al-Yusuf is a part of the division of property.
Mr. Al-Yusuf's final three claims of error concern the award of child support. He first claims that the court erred in rejecting the parties' Form 14 calculations and calculating its own without finding that the Form 14 amount was unjust and inappropriate. We disagree. The judge rejected, rather than rebutted, the parties' Form 14s, made his own Form 14 calculation, and ordered child support in that amount. Mr. Al-Yusuf also claims that the court erred in its calculation of child support, because it overestimated, by about $10.00 per month, the amount of Ms. Al-Yusuf's child care costs. Finally, Mr. Al-Yusuf claims that the court erred in making the child support award retroactive, as the court failed to give him credit for amounts he had previously paid. The trial court can consider both of these issues on remand.
Jennifer L. Al-Yusuf and Yusuf Mashoor Al-Yusuf, were married on August 23, 1991. At the time, Ms. Al-Yusuf was eighteen and Mr. Al-Yusuf was twenty-three years old. On April 9, 1992 the couple had a son, Ryan Youssif Al-Yusuf. On May 9, 1996, the parties separated. During the separation the child lived with Ms. Al-Yusuf. She filed a Petition for Dissolution on August 9, 1996. Mr. Al-Yusuf filed his Answer and Cross-Petition on September 6, 1996. Both parties requested sole custody of their son, and Mr. Al-Yusuf requested maintenance. Before trial, the parties filed stipulations concerning the custody, visitation, and support of their child. The court entered an order based on these stipulations, pendente lite, effective January 1, 1997, awarding temporary custody of Ryan to his mother, granting visitation to Mr. Al-Yusuf, and ordering Mr. Al-Yusuf to pay $280.00 per month in child support.
A trial was held on February 25, 1997, in Clay County. At trial, both Ms. Al-Yusuf and Mr. Al-Yusuf testified that they were not requesting maintenance, and both agreed that physical custody should remain with Ms. Al-Yusuf, with reasonable visitation to Mr. Al-Yusuf. Mr. Al-Yusuf testified that he was current in paying the court-ordered child support of $280.00 per month. Ms. Al-Yusuf testified that her husband had paid her $280.00 per month in child support from June 1996 through December 1996 and $260.00 for February 1997. Thus, if Ms. Al-Yusuf's testimony were believed, Mr. Al-Yusuf was delinquent in his court-ordered child support as to the $280.00 due in January 1997 and was $20 in arrears for February 1997; if his testimony were believed, he was current in his payments. Ms. Al-Yusuf testified to having received threats from her husband to remove the child from the country, to kill her, and to burn down the house. She also testified that Mr. Al-Yusuf had been physically abusive to her during the marriage. Mr. Al-Yusuf denied threatening to remove the child from the country. He admitted to hitting Ms. Al-Yusuf one time.
Ms. Al-Yusuf testified that she earned $1,463.00 per month. Her income and expense statement indicated that she earned $675.29 bi-weekly. Ms. Al-Yusuf testified that Mr. Al-Yusuf earned $3,333.00 per month during their marriage. Mr. Al-Yusuf testified that he grossed $70.00 per night and that he worked six days a week, which comes to somewhat more than $1,800.00 per month. His income and expense statement listed his average monthly income as $1,100.00. Mr. Al-Yusuf's 1994 W-2 form and statement of income indicated Mr. Al-Yusuf's income that year was $37,707.00 per year, or $3,142.25 per month. Information submitted at trial indicated that Mr. Al-Yusuf's 1996 gross receipts from his business were $23,040.00, or $1,920.00 per month, for that year. 1
Mr. and Ms. Al-Yusuf both submitted property statements which indicated the following values for their marital property and debts: 2
While Mr. Al-Yusuf did not list the pending lawsuit arising out of the car accident in his property statement, the parties both agreed at trial that the value of the insurance settlement offer for injuries they sustained in a car accident totaled approximately $10,000.00. Of this amount, $7,950.00 was for Mr. Al-Yusuf's injuries and $2,761.00 was for Ms. Al-Yusuf's injuries. The basis of this agreement was apparently a "settlement letter" from the parties' personal injury attorney which stated:
[T]he insurance carrier has offered the respective sums of $2,761.00 for [Ms. Al-Yusuf's] claim and $7,950 for [Mr. Al-Yusuf's] claim. They have indicated that this is the most that they will pay. They also indicated that both parties would need to sign releases which would finalize any and all claims that they would have, including any loss of services claim, etc.
In that regard, due to dispute in your domestic case, it appears that the domestic judge will need to rule on the [apportionment] of these settlements. In that regard, I will wait until I have heard from your respective attorneys.
The parties disagreed as to what portion of potential settlement proceeds arising out of the accident each party should receive and, on appeal, disagree as to whether it was proper to treat these proceeds as marital.
On April 4, 1997, the court entered its Judgment of Decree of Dissolution of Marriage. The court ordered Mr. Al-Yusuf to pay $440.00 per month child support, retroactive to August 9, 1996. The court awarded joint legal custody of Ryan to both parents, with actual physical custody awarded to Ms. Al-Yusuf and reasonable visitation awarded to Mr. Al-Yusuf. The court stated that if the parties could not agree as to reasonable visitation, then the court's outlined schedule would apply.
The court awarded the settlement proceeds expected from the parties' car accident to Ms. Al-Yusuf, and found such proceeds had a value of $10,711.00. The remaining property the court awarded without stating the property's value. In addition to the settlement proceeds, Ms. Al-Yusuf was awarded the Ford Taurus, the Members America Credit Union account, all personal property in her possession, and the BPI Communications, Inc. Retirement/Savings Plan. Under the parties' valuations of the property in their submissions below, the value of the property awarded to Ms. Al-Yusuf was between $16,993.98 and $18,118.98 (the only disputed value given concerned the value of the Ford Taurus) plus personal property in her possession.
Mr. Al-Yusuf was awarded the Chevrolet, all personal property in his possession, and the family home located at 4400 N. Olive. The value of this home, based on the parties' submissions below, was between $69,000 and $72,000. The total value of the property awarded to Mr. Al-Yusuf was thus between $70,200 and $75,100 (the disputed value given concerned the equity in the house and the value of the Chevrolet). The court also ordered Mr. Al-Yusuf to pay the parties' debt on the following items:
as support and maintenance to [Ms. Al-Yusuf], or to the creditor directly on behalf of [Ms. Al-Yusuf] and [Mr. Al-Yusuf] shall indemnify and hold [Ms. Al-Yusuf] harmless from the following debts:
a. MBNA America Gold Mastercard Acct # 5401-2622-3614-5835 (plus costs and accruing interest)
b. North Kansas City Hospital 612
c. Dorothy L. Balke
1,000
d. Abdelnaby Mahmoud
3,500
e. Mohamad Kassir
2,200
f. Bancoklahoma [mortgage]
[Ms. Al-Yusuf] shall have a judgment against [Mr. Al-Yusuf] for support and maintenance as a lump sum maintenance award for these debts,...
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