Osman v. Hassoun ( 2023 )


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  •                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    In re the Matter of:
    IBRAHIM MOHAMED OSMAN, Petitioner/Appellant,
    v.
    RASHA HASSOUN, Respondent/Appellee.
    No. 1 CA-CV 22-0245 FC
    FILED 1-24-2023
    Appeal from the Superior Court in Yuma County
    No. S1400DO201901005
    The Honorable Mark W. Reeves, Judge
    AFFIRMED IN PART; VACATED AND REMANDED IN PART
    COUNSEL
    Schneider & Onofry, PC, Yuma
    By Jon D. Schneider, Dee R. Giles
    Counsel for Petitioner/Appellant
    Mary Katherine Boyte, PC, Yuma
    By Mary K. Boyte Henderson
    Counsel for Respondent/Appellee
    OSMAN v. HASSOUN
    Decision of the Court
    MEMORANDUM DECISION
    Judge Michael J. Brown delivered the decision of the Court, in which Acting
    Presiding Judge James B. Morse Jr. and Chief Judge Kent E. Cattani joined.
    B R O W N, Judge:
    ¶1             Ibrahim Mohamed Osman (“Father”) appeals the superior
    court’s decree dissolving his marriage to Rasha Hassoun (“Mother”) and
    the denial of his motion to alter or amend (“Motion To Amend”) the decree.
    For reasons that follow, we vacate the court’s spousal maintenance award
    and remand for reconsideration of the award. We also remand for
    reconsideration of Father’s request for reimbursement of post-petition
    community expenses. We affirm the rest of the decree.
    BACKGROUND
    ¶2             Father and Mother married in 1998 and have three sons. The
    youngest son was born in 2006. The middle son was born in 2003 and is
    cognitively challenged; Mother has been appointed his guardian. The
    oldest child, born in 2001, attends college. Father is a civil engineer and is
    self-employed as the owner of Osman Engineering, PLLC. Mother has been
    out of the workforce since 2011 and is the primary caregiver for the parties’
    sons.
    ¶3            In 2019, Father petitioned the court for dissolution, which led
    to the superior court’s issuance of temporary orders granting Mother sole
    legal decision-making authority but advising her to keep Father informed
    of medical, educational, and religious issues involving the children. The
    court ordered Father to “have consistent, meaningful parenting time with
    the children each Friday from 6:00 p.m. to 9:00 p.m.,” but otherwise they
    were to reside with Mother. The court also ordered Father to pay child
    support, spousal maintenance, and various household expenses.
    ¶4            Following an August 2021 trial, the superior court entered its
    decree of dissolution that (1) awarded Mother sole legal decision-making
    authority over the youngest son; (2) awarded her spousal maintenance of
    $5,000 per month for 10 years; (3) ordered Father to pay $1,688.00 per month
    in child support for the two younger sons; (4) assigned two Small Business
    Administration (“SBA”) loans to Father as business debts; (5) ordered that
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    OSMAN v. HASSOUN
    Decision of the Court
    the parties’ 2018 Buick be allocated to Mother to be held in trust for Y.O.,
    the oldest son; (6) allocated the parties’ bank accounts, assets, and
    outstanding debts, and (7) awarded Mother $17,500 in attorneys’ fees.
    Father then filed his Motion To Amend. After further briefing, the court
    issued additional findings addressing legal decision-making but denied the
    remaining issues he had raised. Father timely appealed, and we have
    jurisdiction under A.R.S. § 12-2101(A)(1).
    DISCUSSION
    I.     Legal Decision-Making
    ¶5            Father argues the superior court abused its discretion in
    failing to order joint legal decision-making and thus deprived him of his
    fundamental right to parent. We review determinations of legal decision-
    making for an abuse of discretion. DeLuna v. Petitto, 
    247 Ariz. 420
    , 423, ¶ 9
    (App. 2019). We view the evidence in the light most favorable to upholding
    the court’s decision and we will affirm unless the record lacks competent
    evidence. Hurd v. Hurd, 
    223 Ariz. 48
    , 52, ¶ 19 (App. 2009).
    ¶6            When legal decision-making is contested, the court must
    consider the child’s best interests under the factors set forth in A.R.S. § 25-
    403(A) and make findings on those factors. DeLuna, 247 Ariz. at 423, ¶¶ 9,
    11. Absent evidence to the contrary, it is in a child’s best interests to have
    both parents participate in decision-making. A.R.S. § 25-103(B)(2).
    ¶7             Here, the court made § 25-403(A) findings, based on the
    evidence presented at the temporary orders hearing and at trial, and
    concluded that sole legal decision-making is in the youngest son’s best
    interests. Father has not challenged any of those findings. Instead, he
    contends the “court did not hear any evidence about this [issue] other than
    [Mother’s] self-serving statements as to the children’s needs and desires.”
    But Father does not suggest he was precluded from presenting his own
    evidence, and he cites no authority suggesting that Mother’s testimony,
    even if self-serving, could not be relied on in determining legal decision-
    making. Thus, Father has not established that the court “simply adopted
    [Mother]’s proposed Findings” without evidentiary support.
    ¶8           Moreover, the court’s decision to award sole legal decision-
    making to Mother must be considered in context. Mother filed a pretrial
    statement requesting continuation of sole legal decision-making and
    submitted a corresponding parenting plan. Father did not file a pretrial
    statement or a parenting plan. At trial, his counsel requested joint legal
    decision-making, with Mother having final say so he could “stay in the
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    OSMAN v. HASSOUN
    Decision of the Court
    loop,” but “ultimately speaking, the decisions . . . would fall on the mother.”
    Father spent very little time addressing decision-making and testified
    generally that he thought she would keep him in the loop if he were to ask
    her to do so.
    ¶9            Finally, Father’s suggestion that the court erred under A.R.S.
    § 25-411(J) because there was no evidence he “would endanger seriously
    the children’s physical, mental, moral or emotional health” is unavailing.
    That statute relates only to parenting time, which he has not challenged.
    The court acted within its discretion in awarding Mother sole legal
    decision-making.
    II.    Spousal Maintenance
    ¶10           The superior court has substantial discretion in setting the
    amount and duration of spousal maintenance. Rainwater v. Rainwater, 
    177 Ariz. 500
    , 502 (App. 1993). A court must weigh the factors listed under
    A.R.S. § 25-319(B). Id. Because spousal maintenance requires a “case-by-
    case inquiry,” a court need not apply every factor listed, but only those that
    are relevant and applicable to the facts of the case before it. See id. On
    appeal, we do not reweigh the evidence. Hurd, 223 Ariz. at 52, ¶ 16.
    ¶11           Father argues, without citation to authority, that the court was
    “required to make findings on all factors” relevant to the case. Section 25-
    319, however, does not require any specific findings, Wineinger v. Wineinger,
    
    137 Ariz. 194
    , 197 (App. 1983), and neither party requested findings under
    Arizona Rule of Family Law Procedure 82. Thus, we may infer from the
    court’s ruling all findings necessary to sustain it if they are reasonably
    supported by the evidence and do not conflict with any express findings.
    Thomas v. Thomas, 
    142 Ariz. 386
    , 390 (App. 1984).
    ¶12            Applying A.R.S. § 25-319(A), the court found Mother was
    eligible for spousal maintenance because she lacks sufficient property,
    including assets awarded under the decree, to provide for her reasonable
    needs. The court also found Mother had made significant contributions to
    Father’s career and earning ability, and she had forgone career
    opportunities for his benefit. The court then explained it had considered
    the § 25-319(B) factors as to amount and duration of the award. While
    findings on those factors would have been helpful, particularly in this case,
    their absence does not mean the court erred. See Higgins v. Higgins, 
    154 Ariz. 87
    , 88 (App. 1987).
    ¶13           Father asserts the award is unreasonable, pointing to several
    of the § 25-319(B) factors. He contends that no testimony was offered about
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    OSMAN v. HASSOUN
    Decision of the Court
    the marital standard of living, but the record shows otherwise. In her
    pretrial statement, Mother asserted that the parties enjoyed an ”upper-
    middle class standard of living,” which included ownership of a large home
    and a rental property, multiple vehicles, and the ability to enjoy household
    goods “without serious considerations of costs.” The trial evidence reflects
    that standard. For example, the parties each testified to spending over
    $50,000 to construct a pool at the marital home. They also purchased a
    residential rental property and bought a new car for the oldest son as a gift.
    ¶14           Father contends the $5,000 award, together with the child
    support order, requires him to contribute over 85 percent of his monthly
    salary to Mother. During the divorce proceeding, many issues arose
    relating to Father’s annual income and the valuation of his business. A
    business evaluation was ordered, in part, because Father admitted to
    mixing business and personal expenses and to using a single, undisclosed
    excel spreadsheet to calculate his tax returns. Unlike Mother, he did not
    provide an updated affidavit of financial information (“AFI”) before trial.
    In any event, the court received other evidence about Father’s annual
    income and the value of his engineering business. And he has not
    challenged the monthly income amount of $17,500 attributed to him in the
    child support worksheet. The court acted within its discretion in implicitly
    concluding that Father has the ability to pay the award.
    ¶15           Father argues that Mother’s estimation of her monthly
    expenses ($12,614.90) lacked any evidentiary support, or at a minimum was
    based on “faulty assumptions.” He first claims that Mother’s AFI includes
    extravagant spending, but we will not reweigh the evidence on that point.
    See Hurd, 223 Ariz. at 52, ¶ 16. He also argues that Mother improperly
    included a mortgage payment of $3,314.62 and a car payment of $459.28 in
    her AFI because the court ultimately ordered him to make those payments.
    Father raised this argument in his Motion To Amend, but the superior court
    did not address it.
    ¶16          Mother does not dispute that those two recurring payments
    should not have been included in her AFI. Instead, she defends the spousal
    maintenance award in part because it was lower than what she requested
    and her listed monthly expenses were “$1,428.24” less than Father’s
    estimated expenses. Because the record does not reflect that the court
    properly accounted for Mother’s erroneous inclusion of the mortgage and
    car expenses in her AFI, we vacate the award and remand for
    reconsideration of the spousal maintenance award without those expenses.
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    OSMAN v. HASSOUN
    Decision of the Court
    III.        Allocation of Assets and Debts
    ¶17           Father contends the superior court erred as a matter of law
    when it failed to treat the Buick car as a community asset. He also argues
    the court abused its discretion by treating the two SBA loans as business
    debts, improperly allocating other debts, and denying his request for
    reimbursement for community expenses he paid for after filing for
    dissolution.
    ¶18            When apportioning community property and debts, the
    superior court has broad discretion to achieve an equitable result. Boncoskey
    v. Boncoskey, 
    216 Ariz. 448
    , 451, ¶ 13 (App. 2007). All marital joint property
    should generally be divided substantially equally unless sound reasons
    exist to divide the property otherwise. Toth v. Toth, 
    190 Ariz. 218
    , 221 (1997).
    Thus, while in most cases, dividing jointly held property equally will most
    often be equitable, the court retains broad discretion in the division and
    allocation of specific assets and liabilities. In re Marriage of Flower, 
    223 Ariz. 531
    , 535, ¶¶ 13–14 (App. 2010). We view the evidence in the light most
    favorable to upholding the court’s order. Boncoskey, 216 Ariz. at 451, ¶ 13.
    A.      2018 Buick
    ¶19           Father argues the court improperly awarded the 2018 Buick
    to Mother “without considering its value in the equitable distribution of
    community assets.” The parties agreed the Buick was purchased as a gift
    for Y.O., and that Y.O. used the car until leaving to attend college in New
    York. Mother began using it instead of her 2008 Mercedes, which often
    needed repairs. Mother asked the court to allow continued use until the
    Buick is paid off and title transferred to Y.O., or in the alternative, that the
    court increase spousal maintenance to facilitate obtaining a reliable vehicle.
    Father claimed his 2013 Ford Focus was unreliable, and he also sought use
    of the Buick. Ultimately, the court ordered Father to pay the remaining
    balance owed on the Buick loan, while awarding the vehicle as property to
    Mother to hold in trust for Y.O.
    ¶20           Father fails to support his claim that the Buick was not treated
    as a community asset. The court did not state that the Buick was the
    separate property of either spouse, and Father cites no authority suggesting
    the court could not allocate the asset (which the parties agreed will
    ultimately be given to Y.O.) in the manner it did as an equitable solution.
    The court’s ruling is supported by Mother’s testimony, who explained that
    she needed a reliable vehicle to transport herself and her two younger sons.
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    OSMAN v. HASSOUN
    Decision of the Court
    ¶21           Father contends the court erred by failing to consider any
    evidence on the Buick’s value. But from the outset of the case, Father failed
    to timely disclose many records, including information relating to the
    outstanding lien on the car. At trial he tried to offer a value based on an
    unnamed internet source that was not disclosed before trial, but the court
    acted within its discretion in sustaining Mother’s evidentiary objection. In
    any event, she only received the value of being able to use the vehicle for a
    relatively brief time period. Father has not shown the court erred in
    ordering that Mother be awarded use of the Buick, while holding it in trust
    for Y.O.
    B.     Allocation of Debts
    1.     SBA Loans
    ¶22           Father argues the superior court erred in allocating
    responsibility for several debts. He first challenges the court’s decision to
    classify the two SBA Loans as debts of Osman Engineering, asserting the
    “only evidence” in the record shows the loans were used to pay for
    community obligations. The record shows otherwise. After Father learned
    he should no longer handle all of his business and personal expenses from
    the same account, he filed an amended 2019 tax return. According to
    Mother, the amended return included SBA Loan interest as a business
    expense, which Father does not dispute. And though Father testified he
    used the loans to make purchases for the marital community, such as
    Mother’s Mercedes and the construction of their swimming pool, he also
    said he and Mother each took out individual lines of credit to finance the
    pool. Mother similarly testified that they each opened a line of credit with
    BBVA Compass to pay for the pool, and she believed the Mercedes was
    financed with a loan from the AEA Credit Union.
    ¶23           Moreover, we reject Father’s assertion that a “business
    valuation” report prepared before trial proves that the SBA loans were
    community debts because they were not listed in the report. The report is
    labeled a “Calculation of Value” and states that it “does not include all of
    the procedures required in a valuation engagement[.]” The report also
    clarified that it “did not comprise an examination in accordance with
    generally accepted auditing standards.” At trial, both parties presented
    testimony and arguments on whether the report accounted for the SBA
    loans. And because the evaluator was not called to testify, the court
    cautioned the parties about attempting to determine the methodology the
    evaluator used in preparing the report. At best, Father showed there were
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    OSMAN v. HASSOUN
    Decision of the Court
    disputed facts as to how the loans should be treated, and therefore the court
    acted within its discretion in resolving the dispute in favor of Mother.
    2.      Mortgage Payments and Credit Cards
    ¶24         Father contends the allocation and division of several
    community debts led to an unequal division of property in favor of Mother.
    He seeks reimbursement for mortgage payments made on behalf of the
    marital community to Mother as well as Ford, Best Buy, and Dillard’s credit
    cards, each with outstanding debts that “were undisputedly incurred
    during the marriage.”
    ¶25          In asserting he paid “more than $54,000” toward the
    mortgage on the home awarded to Mother, Father fails to acknowledge that
    such payments were made under the court’s temporary orders. Had he not
    been ordered to remain current on the mortgage, the court presumably
    would have awarded Mother additional temporary spousal maintenance
    so she could make the payments.
    ¶26           As to the credit cards, the decree did not specifically assign
    them to either party. Instead, they were allocated by the general
    assignment provision directing that each party, respectively, pay “all debts
    and obligations not otherwise listed herein which were incurred by
    [Father/Mother] without [Father/Mother]’s express consent and co-
    signature.” Father argues the court abused its discretion because there was
    “no evidence to establish which party incurred” the respective debts.
    However, as the court explained in its order denying the Motion To Amend,
    equity justified excluding debts incurred by Father from equalization
    because Father can repay them and it would be inequitable to impose that
    obligation on Mother. The court also relied on Father’s “lack of proper
    disclosure regarding these debts.”
    ¶27          The only documents Father offered on the Ford credit card
    balance were two pages of online account statements, dated December 2019
    and October 2020. At trial, Father testified he continued to make payments
    on the account since filing for dissolution. Mother testified she was
    unaware of the Ford credit card and had “no idea” what it was used for.
    Her testimony aligns with her joint property schedule, where she attributed
    the account balance to Father because the credit card was linked to the
    business.
    ¶28           Similarly, the only documents Father provided for the
    Dillard’s credit card were two single-page account summaries for October
    2019 and February 2021. And as to the Best Buy credit card, no evidence
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    OSMAN v. HASSOUN
    Decision of the Court
    was presented by either party on the remaining balance or who controlled
    the card. Father’s only testimony, as with the others, was his blanket
    assertion that he had continued to make the necessary monthly payments.
    Had Father provided accurate disclosure of information relating to these
    credit cards, the court could have better determined what debts were
    incurred and by whom. Without that information, we cannot say the court
    abused its broad discretion in equitably allocating the parties’ debts.
    3.     Voluntary Payments
    ¶29           Finally, Father argues the court abused its discretion in failing
    “to reimburse him or take into consideration” voluntary payments he made
    per month ($2,587.94) toward community obligations that were in addition
    to his payments made under the temporary orders. Post-petition
    expenditures toward community debt paid by one spouse with separate
    property are not presumptively gifts to the community, and the paying
    spouse is generally entitled to reimbursement. Bobrow v. Bobrow, 
    241 Ariz. 592
    , 596–97, ¶¶ 1920 (App. 2017). A spouse who disputes the request for
    reimbursement has the burden to prove by clear and convincing evidence
    that such payments were intended to be a gift. Id. at 595, ¶ 10. If that burden
    is not met, the court must account for the payments but may do so in
    various ways to achieve an equitable property division. Huey v. Huey, 
    253 Ariz. 560
    , 567, ¶ 18 (App. 2022); Berg v. Berg, No. 1 CA-CV 21-0320 FC, 
    2022 WL 1498136
    , at * 4, ¶ 20 (Ariz. App. May 12, 2022) (mem. decision). Because
    nothing in the record shows the court accounted for Father’s post-petition
    voluntary payments for community debts, on remand the court must
    consider such payments in the context of achieving an overall equitable
    division of property.
    CONCLUSION
    ¶30         We vacate the superior court’s award of spousal maintenance
    to Mother and remand for reconsideration of the award. The court shall
    also account for Father’s post-petition voluntary payments toward
    community obligations. In all other respects, we affirm. After considering
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    OSMAN v. HASSOUN
    Decision of the Court
    the financial resources and the reasonableness of the parties’ positions, in
    our discretion we deny Mother’s request for attorneys’ fees incurred on
    appeal under A.R.S. § 25-324. We decline to award taxable costs to either
    party.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    10
    

Document Info

Docket Number: 1 CA-CV 22-0245-FC

Filed Date: 1/24/2023

Precedential Status: Non-Precedential

Modified Date: 1/24/2023