Adnan A. Alattiyat v. Faiza A. Qasqas ( 2017 )

11/09/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 18, 2017 Session
ADNAN A. ALATTIYAT v. FAIZA A. QASQAS
Appeal from the Circuit Court for Shelby County
No. CT-004351-14 Robert Samual Weiss, Judge
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No. W2016-00855-COA-R3-CV
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This is a divorce case. Appellant/Husband appeals the trial court’s denial of his motion
for summary judgment, his motion to vacate the pendente lite award, the division of
marital property, and the award of alimony. Discerning no error, we affirm and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded.
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and BRANDON O. GIBSON, JJ., joined.
Adnan A. Alattiyat, pro se.
Michael D. Snell, Marion, Arkansas, for the appellee, Faiza A. Qasqas.
OPINION
I. Background
Appellee Faiza A. Qasqas (“Wife”) was born in Palestine in 1961. She grew up in
Jordan and the United Arab Emirates and graduated from college in 1989. Thereafter,
she was licensed as a lawyer in Jordan. In 1996, she met Appellant Adnan A. Alattiyat
(“Husband”). After they began dating, Wife had a new birth certificate issued in Jordan,
which indicated that she was born in 1965 rather than 1961. Wife testified that Husband
was aware of this new birth certificate and that she obtained it at his request to appease
his family as to their age disparity because Wife is 10 years older than Husband.
Husband denies that he was aware of the new birth certificate prior to the parties’
marriage. The parties were married in 1997 in Ammon, Jordan, and three children were
born to the marriage. Following their marriage, the parties moved to Memphis, where
they entered into a lease to operate a convenience store. This venture proved
unsuccessful, and, in February 2012, the parties sold their interest in the convenience
store. Due to their financial difficulties, the parties lost their home in Memphis and
moved to California to be near Wife’s family. The parties moved back to Memphis six
months later, and Husband took a job as a cashier at a convenience store. Husband
ultimately contracted for and opened an Exxon “Hop In” store in Memphis. At trial,
Husband testified that he borrowed the money for this endeavor from his brothers. When
the business closed in 2015, Husband testified that the proceeds from the sale of the
business were used to repay his brothers.
The parties separated in August 2014, following an altercation where police were
called. On August 21, 2014, Wife filed for an order of protection against Husband. On
October 15, 2014, Husband filed a complaint for divorce, wherein he alleged the grounds
of inappropriate marital conduct, irreconcilable differences, and abandonment. Wife
filed an answer and counter-complaint for divorce on November 6, 2014. A pendente lite
hearing was held on December 17, 2014, at which Wife testified that she was not
working and had no income. Husband obtained counsel after the pendente lite hearing
and appealed the divorce referee’s ruling to the circuit court. By order of February 27,
2015, temporary support based on Wife having no income and Husband having a
monthly income of $3,143.72 was set as follows: (1) Wife was awarded $500 per month
in transitional alimony; (2) Husband was ordered to pay child support in the amount of
$933 per month; (3) Husband was ordered to pay Wife’s attorney fees in the amount of
$3,447.00. The parties agreed to a temporary parenting plan, which was entered on
January 22, 2015.
On February 19, 2015, Husband’s attorney filed a motion to withdraw. On
February 26, 2015, Wife was arrested by the Shelby County Sheriff and charged with
aggravated perjury based on allegations made by Husband regarding Wife’s testimony at
the hearing before the divorce referee. These charges were later dismissed, nolle
prosequi, without costs. The day after Wife’s arrest, the trial court entered an order
allowing Husband’s attorney to withdraw. Although Husband’s motion appealing the
pendente lite order was pending, on March 15, 2015, Husband filed a motion to vacate
judgment, which he asserted was obtained by perjury. Husband subsequently filed two
motions for recusal, alleging bias on the part of Shelby County Circuit Court Judge James
Russell, who was originally assigned to the case. These motions were ultimately denied.
However, on April 27, 2015, Judge Russell transferred the case to another division of
circuit court.
On July 6, 2015, three days before trial, Husband filed a motion for summary
judgment, alleging that the marriage was obtained by fraud and requesting that the
marriage be annulled. Husband’s allegations were based on the fact that Wife’s
Jordanian birth certificate listed her year of birth as 1965 rather than 1961. The case
proceeded to trial on July 9, 2015. On April 15, 2016, the trial court entered a final
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decree of divorce. The trial court denied Husband’s motion for summary judgment and
declared the parties divorced pursuant to Tennessee Code Annotated section 36-1-129.
The trial court modified the pendente lite order, based on its finding that Wife’s
testimony, at the hearing before the divorce referee, was inconsistent with her testimony
at trial. Specifically, Wife testified during the hearing before the divorce referee that she
had no income; however, during the trial, Wife testified that she received financial
support from the Memphis Islamic Center and income from her current employer, All
Tennessee Care Givers, LLC. The trial court modified the child support worksheet to
reflect Wife’s gross monthly income of $1,690.26. At the time of trial, Husband testified
that he was unemployed; however, the trial court found that Husband was willfully
underemployed and imputed income of $2,940.00 per month. The trial court ordered that
each party would retain the personal property currently in his or her possession and that
each would be responsible for his or her debts. Husband was ordered to pay Wife
rehabilitative alimony of $500 per month for 12 months and alimony in solido of $3,000.
The trial court adopted the parties’ temporary parenting plan but reduced Husband’s child
support obligation to $589.00 per month.
On April 29, 2016, Husband filed a notice of appeal. On May 11, 2016, he filed a
motion to alter, amend, or vacate the judgment pursuant to Tennessee Rule of Civil
Procedure 59. The motion was heard on May 20, 2016, and was denied by order of May
26, 2016. Although the trial court denied Husband’s Rule 59 motion, the May 26, 2017
order included additional findings of fact. Husband appeals.
II. Issues
Appellant raises five issues for review, which we restate as follows:
1. Whether the trial court erred in entering a final judgment without
including written findings of fact and conclusions of law, as required
by Tennessee Rule of Civil Procedure 52.01?
2. Whether the trial court erred in denying Appellant’s motion for
summary judgment?
3. Whether the trial court erred in denying Appellant’s motion to
vacate judgment obtained by perjury, and instead granting
Appellant’s motion appealing the divorce referee’s ruling.
4. Whether the trial court erred in its division of marital property?
5. Whether the trial court erred in awarding alimony and attorney fees
to Appellee?
IV. Standard of Review
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Because this case was tried by the court, siting without a jury, we review the trial
court's findings of fact de novo on the record with a presumption that those findings are
correct, “unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d).
We review the trial court’s conclusions of law de novo with no presumption of
correctness. Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-106 (Tenn. 2011);
Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008).
Furthermore, we are cognizant that Husband is proceeding pro se in this appeal.
Courts should take into account that many pro se litigants have no legal training and little
familiarity with the judicial system. Garrard v. Tenn. Dep’t of Corr., No. M2013-01525-
COA-R3-CV, 2014 WL 1887298, at *3 (Tenn. Ct. App. May 8, 2014) (internal citations
omitted). While a party who chooses to represent himself or herself is entitled to the fair
and equal treatment of the courts, Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920
(Tenn. Ct. App. 2000), “[p]ro se litigants are not ... entitled to shift the burden of
litigating their case to the courts.” Whitaker v. Whirlpool Corp., 32 S.W.3d 222, 227
(Tenn. Ct. App. 2000). Instead, pro se litigants are held to the same procedural and
substantive standards to which lawyers must adhere. Diggs v. Lasalle Nat. Bank Assoc.,
et al., 387 S.W.3d 559, 563 (Tenn. Ct. App. 2012); Brown v. Christian Bros. University,
No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5,
2013), perm. app. denied (Tenn. Jan. 15, 2014).
V. Analysis
A. Written Findings of Fact and Conclusions of Law
Husband argues that the trial court erred because it made insufficient findings of
fact and conclusions of law. Tennessee Rule of Civil Procedure 52.01 requires that “the
court shall find the facts specially and shall state separately its conclusions of law” in all
non-jury cases. Tenn. R. Civ. P. 52.01. “There is no bright-line test by which to assess
the sufficiency of factual findings, but the findings of fact must include as much of the
subsidiary facts as is necessary to disclose to the reviewing court the steps by which the
trial court reached its ultimate conclusion on each factual issue.” Lovlace v. Copley, 418
S.W.3d 1, 35 (Tenn. 2013) (internal citations omitted). From our review of the final
decree of divorce and the order on motion to alter, amend, or vacate judgment, we
conclude that the trial court made several pages of findings. Although the final decree of
divorce does not contain a separate heading designating the conclusions of law, the
conclusions made by the trial court are properly delineated. Additionally, the order on
the motion to alter, amend, or vacate judgment contains several pages of additional
findings of fact and conclusions of law that support the determinations made by the trial
court in the final decree of divorce. Accordingly, we do not conclude that the trial court’s
orders fail to comply with the requirements of Rule 52.
B. Motion for Summary Judgment
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Rule 56 of the Tennessee Rules of Civil Procedure outlines the requirements for
proceedings on motions for summary judgment. As it is relevant to this appeal, Rule
56.04 mandates that “the motion shall be served at least thirty (30) days before the time
fixed for the hearing.” Tenn. R. Civ. P. 56.04. Additionally, Rule 56.03 requires that
[A]ny motion for summary judgment made pursuant to Rule 56 of the
Tennessee Rules of Civil Procedure shall be accompanied by a separate
concise statement of the material facts as to which the moving party
contends there is no genuine issue for trial. Each fact shall be set forth in a
separate, numbered paragraph. Each fact shall be supported by a specific
citation to the record.
Tenn. R. Civ. P. 56.03. The rule goes on to state that ‘[a]ny party opposing the motion
for summary judgment must, not later than five days before the hearing, serve and file a
response to each fact set forth by the movant. . . .” Appellant argues that the trial court
erred in denying his motion for summary judgment. However, Husband filed his motion
on July 6, 2015, only three days before the July 9, 2015 hearing rather than thirty days as
required by Rule 56.04. Furthermore, the statement of facts in the motion does not
provide any citation to the record as required by Rule 56.03. Because Appellant’s motion
for summary judgment fails to comply with the requirements of Rule 56, we cannot
conclude that the trial court erred in denying the motion. Additionally, “this Court is
precluded from entertaining, as alleged error, the trial court’s denial of a summary
judgment motion . . . when the case proceeds to a trial on the merits and a judgment is
subsequently rendered.” Cortez v. Alutech, Inc., 941 S.W.2d 891, 893 (Tenn. Ct. App.
1996).
C. Alimony and Attorney Fees
Husband argues that the trial court erred in awarding Wife alimony and attorneys’
fees without making specific findings of fact and conclusions of law. A trial court’s
decision regarding spousal support is factually driven and involves the careful balancing
of many factors. Kinard v. Kinard, 986 S.W.2d 220, 235 (Tenn. Ct. App. 1998); see also
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn.2001); Robertson v. Robertson, 76 S.W.3d
337, 340-41 (Tenn. 2002). There are numerous statutory factors to be considered when
deciding the type, duration, and amount of alimony to be awarded. See Tenn. Code Ann §
36-5-121(i) (Outlining factors to consider when “determining whether the granting of an
order for payment of support and maintenance to a party is appropriate ...”). “Appellate
courts are generally disinclined to second-guess a trial judge’s spousal support decision
unless it is not supported by the evidence....” Kinard, 986 S.W.2d at 234. Instead, “[t]he
role of an appellate court in reviewing an award of spousal support is to determine
whether the trial court applied the correct legal standard and reached a decision that is not
clearly unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). In
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other words, appellate courts decline to second-guess a trial court's spousal support
decision absent an abuse of discretion. Robertson 76 S.W.3d at 343. An abuse of
discretion occurs when the trial court causes an injustice by applying an incorrect legal
standard, reaches an illogical result, resolves the case on a clearly erroneous assessment
of the evidence, or relies on reasoning that causes an injustice. Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328,
335 (Tenn. 2010). This standard does not permit an appellate court to substitute its
judgment for that of the trial court but “reflects an awareness that the decision being
reviewed involved a choice among several acceptable alternatives, and thus envisions a
less rigorous review of the lower court's decision and a decreased likelihood that the
decision will be reversed on appeal.” Henderson, 318 S.W.3d at 335 (quoting Lee
Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)). Consequently, when
reviewing a discretionary decision by the trial court, such as an alimony determination,
the appellate court should presume that the decision is correct and should review the
evidence in the light most favorable to the decision. Gonsewski, 350 S.W.3d at 105-06.
Husband argues that the “the factual basis and the trial court’s reasoning on the
alimony award . . . is not readily ascertainable.” Thus, he contends that trial court erred
in awarding Wife $500 per month for two years as transitional alimony. The final decree
of divorce states that Husband is ordered to pay “rehabilitative alimony directly to Wife
in the amount of $500 per month for twelve (12) months beginning August 1, 2015”
(emphasis added). However, in its subsequent order on Husband’s motion to alter,
amend, or vacate judgment, the trial court considered Tennessee Code Annotated section
36-[5]-1211 factors in making the following additional findings concerning the award of
alimony:
1. The relative earning capacity favors Husband based upon his long
history of operating businesses with the aid of his family. Wife, although
well educated in Jordan has never worked outside the family businesses and
is working in the health care industry.
2. The parties both have law degrees from Jordan, however, neither are
licensed to practice in the United States. There was no proof of any interest
by Wife to pursue additional education.
3. The parties were married on June 6, 1997 and had been married for
eighteen years.
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The order refers to Tennessee Code Annotated section 36-4-121, which is the statute delineating
the factors to consider in making an equitable distribution of the marital property. The correct citation is
Tennessee Code Annotated 36-5-121(i), which delineates the factors to consider in determining the
nature, amount, and duration of alimony. The factors in both statutes are similar and given the specific
findings of the trial court, we conclude that its incorrect citation was simply a typographical error.
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4. Husband was born May 21, 1971 and is forty-five (45) years old.
Wife was born October 10, 1965 and was fifty (50) years old.
5. Both parties were in good health.
6. Wife is working outside of the home and Husband is paying child
support in the amount of $589.00 per month for three (3) minor children.
7. The parties provided no information at trial regarding any separate
assets, which would have been limited based upon the parties’ relatively
long marriage.
8. The parties provided no information regarding the value of the
property divided between them.
9. The parties had a modest standard of living raising three minor
children.
10. Through the marriage, both parties contributed to the marriage with
Husband primarily running a variety of businesses and Wife working for
those businesses.
11. The parties were declared divorced pursuant to Tenn. Code Ann.
§36-5-121 so fault was not a factor to be considered.
12. There were no other factors, including tax consequences, which were
a factor considered by the Court.
Based upon the previous findings, Husband’s history of running a variety of
businesses, the Court imputing income based upon his being willfully
underemployed and Wife being the economically disadvantaged party
based upon her age and work history, the court accordingly awarded
rehabilitative alimony in the amount of $500.00 per month for a period of
twelve months.
With regard to its award of attorneys’ fees as alimony in solido, the trial court’s order
also references the foregoing findings, which were made pursuant to Tennessee Code
Annotated section 36-5-121. It is clear from the trial court’s orders that it considered the
relevant statutory factors in determining the nature, amount, and duration of the alimony
award. From our review of the record, there is sufficient proof to support the trial court’s
findings. Accordingly, we conclude that the trial court did not err in awarding Wife
rehabilitative alimony and alimony in solido.
D. Whether the trial court erred in denying Appellant’s Motion to
Vacate Judgment Obtained by Perjury, and instead granting
Appellant’s Motion Appealing the Divorce Referee’s Ruling
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In his third issue, Husband argues that the trial court erred in denying his motion
to vacate judgment obtained by perjury. With regard to Husband’s motion to vacate, the
trial court held in pertinent part:
[Appellant] filed two motions to address his dissatisfaction with the
divorce referee’s ruling entered on February 27, 2015 following a hearing
on December 15, 2014; a Notice of Appeal filed on December 29, 2014 and
a motion to vacate judgment filed on March 13, 2015. The Court granted
relief pursuant to these motions by recalculating the child support award
based upon the correct figures for Wife’s income negating the incorrect
information she presented at the pendente lite hearing. The court did not
grant the motion to vacate in toto because to vacate the order would negate
the award of child support which was necessary based [on] the parenting
schedule and the parties’ income.
In his motion, Husband requested that the trial court “alter, amend, or vacate its previous
judgment.” Ultimately, the trial court reduced Husband’s child support obligation from
$933.00 to $589.00 per month. It appears that by modifying Wife’s income based on her
trial testimony and recalculating child support, the trial court did exactly what Husband
requested.
Furthermore, Tennessee Code Annotated section 34-1-102(b) (2001) obligates
parents to support their child until the child reaches eighteen years of age, or graduates
from high school, whichever occurs later. Tenn. Code Ann. §34-1-102(b); Lichtenwalter
v. Lichtenwalter, 229 S.W.3d 690, 692-93 (Tenn. 2007). Accordingly, it was incumbent
on the trial court to fashion a child support order based on the parties’ incomes.
Importantly, Husband does not specifically argue that the reduced amount of child
support set by the trial court was incorrect; rather, he appears to argue that he should have
been relieved of the obligation altogether because of Wife’s earlier testimony that she had
no income. Because Husband does not specifically raise an issue concerning the amount
of child support, we will not address it here. “It is not the role of the courts, trial or
appellate, to research or construct a litigant’s case or arguments for him or her, and where
a party fails to develop an argument in support of his or her contention or merely
constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l
Responsibility of Sup. Ct., 301 S.W.3d 603, 615 (Tenn. 2010). From our review, the trial
court did not err in refusing to vacate the entire child support award previously ordered.
E. Division of Marital Property
Concerning the trial court’s division of marital property, Husband argues that the
trial court’s division of marital property was not equitable. The final decree of divorce
states that the parties “will each retain the personal property in their possession.”
Although Husband contends that the trial court fails to make adequate findings on the
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division of marital property, in its subsequent order on Husband’s motion to alter, amend,
or vacate judgment, the trial made the following additional findings:
The motion with regards to marital property division is denied. Neither
party set forth any claim for personal property either in their Rule XIV(c)
affidavit or in their testimony at trial. The parties had been living separate
and apart for over one year at the time of trial and the record is void of any
petitions relating to the division of personal property. Accordingly the
court had no information so made the only decision that was available to
affirm the parties’ division of their assets.
Tennessee Rules for Circuit Court of the Thirtieth Judicial District require that “[a]t least
twenty-four (24) hours before trial of any contested divorce is scheduled, counsel shall
deliver to the Judge a memorandum that includes [among other things] specific items of
personalty sought, and its values.” TN R 30 Dist. Cir. Ct. Rule 14(D)(l). There is no
indication that Husband filed a Rule 14(D) affidavit. Wife did file a Rule 14(D) affidavit
stating that she “seeks award of the household furnishings that are currently in her
possession; along with an equitable division of any monies proven at trial. Each party
shall keep the automobile currently in their possession.”
This Court’s ability to review the specifics of the division of marital property is
further stymied by the fact that Husband’s brief fails to comply with Rule 7 of the Rules
of the Court of Appeals of Tennessee, which requires an appellate brief in a divorce case
to contain: (1) a table listing all of the parties’ property and debts; (2) a citation to the
record where each party’s evidence regarding the classification or valuation of the
property or debt can be found; and (3) a citation to the record where the trial court’s
decision regarding the classification, valuation, division, or allocation of the property or
debt can be found. Tenn. R App. Ct. 7. Here, Husband did not include the Rule 7 table,
nor does his brief include citations to the record as required by the rule. “[T]this Court is
not charged with the responsibility of scouring the appellate record for any reversible
error the trial court may have committed.” Owen v. Long Tire, LLC, No. W2011-01227-
COA-R3-CV, 2011 WL 6777014, at *4 (Tenn. Ct. App. Dec. 22, 2011). “[A]ppellate
courts may properly decline to consider issues that have not been raised and briefed in
accordance with the applicable rules.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn.
2009). Due to Husband’s failure to comply with the applicable rules, we are unable to
conduct a review of the trial court’s division of marital property. As such, this issue is
waived.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court. We remand the
case for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against Appellant, Adnan A. Alattiyat, and his
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surety, for all of which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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