Ramezan Hajizadeh v. Jo Hajizadeh a/k/a Jo Owens ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Jan 18 2012, 9:25 am
the defense of res judicata, collateral
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
RAMEZAN HAJIZADEH MARYLAND L. AUSTIN
Salem, Indiana Corydon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RAMEZAN HAJIZADEH )
)
Appellant, )
)
vs. ) No. 88A01-1012-DR-678
)
JO HAJIZADEH n/k/a JO OWENS )
)
Appellee. )
)
APPEAL FROM THE WASHINGTON SUPERIOR COURT
The Honorable Frank Newkirk, Jr., Judge
Cause No. 88D01-0607-DR-93
January 18, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
The marriage of Ramezan HajiZadeh (“Husband”) and Jo HajiZadeh n/k/a Jo
Owens (“Wife”) was dissolved in Washington Superior Court. Thereafter, the
dissolution court entered an amended order dividing the marital property and denying
Husband’s requests for maintenance, enforcement of a U.S. Citizenship and Immigration
Services Form I-864 Affidavit of Support, and attorney fees. Husband appeals and raises
several issues, which we restate and renumber as:
I. Whether the dissolution court abused it discretion in admitting testimony
and evidence concerning Husband’s misconduct during the marriage;
II. Whether the dissolution court erred in concluding that Husband was not
entitled to payment under the Affidavit of Support;
III. Whether the dissolution court abused its discretion in denying
Husband’s request for spousal maintenance;
IV. Whether the dissolution court abused its discretion in dividing the
marital assets; and
V. Whether the dissolution court abused its discretion in denying
Husband’s request for attorney fees.
We affirm.
Facts and Procedural History
Prior to the marriage, Husband lived in Iran and Wife lived in Salem, Indiana with
her two daughters from a previous marriage. After meeting in an internet chat room in
2001, Husband and Wife regularly chatted online and Wife made two trips to Turkey to
visit with Husband. On the second of these trips, in October 2002, Husband and Wife
were married. Thereafter, Wife returned to the United States and Husband began the
process of securing a visa to allow him to immigrate to the United States to live with
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Wife. As part of this process, Wife and Wife’s father, Dan Mattox (“Mattox”), executed
a U.S. Citizenship and Immigration Services Form I-864 Affidavit of Support (“Affidavit
of Support”), pursuant to which they “agree[d] to provide [Husband] whatever support is
necessary to maintain [Husband] at an income that is at least 125 percent of the Federal
poverty guidelines.” Appellant’s App. p. 38. Husband subsequently obtained a visa, and
he immigrated to the United States and moved in with Wife in April 2004.
Shortly thereafter, the marriage began to deteriorate. Wife alleged that Husband
was violent toward her and that he visited Persian-language dating and pornography
websites. Husband alleged that Wife was having an affair with a neighbor. In December
2005, Husband left the marital residence and moved in with Mattox. Then, in March
2006, after being asked to leave Mattox’s residence, Husband left the United States and
returned to Iran without informing Wife or Mattox of his whereabouts.
Wife filed a petition for dissolution of marriage on July 13, 2006. Although
Husband remained in Iran, an attorney entered an appearance on his behalf in the
dissolution action in August 2006 and filed petitions requesting spousal maintenance,
enforcement of the Affidavit of Support, and attorney fees. Upon his return to the United
States in March 2007, Husband lived out of state and continued to conceal his
whereabouts from Wife and Mattox.
On January 15, 2009, the dissolution court entered an order dissolving the
marriage, but reserved all other issues for further hearing. After several hearings, the
dissolution court entered judgment on May 18, 2010. Husband filed a timely motion to
3
correct error, and the dissolution court held a hearing on October 21, 2010. Thereafter,
on November 16, 2010, the dissolution court entered an amended order awarding Wife
“sole ownership of her residence, real estate, household furnishings, automobiles and
children’s trust fund, all of which were owned by her prior to her marriage to [Husband]
and prior to his arrival in the U.S.” Appellant’s App. p. 17. Husband was awarded “all
personal property, bank accounts and other assets in his possession or titled in his name.”
Id. The order also denied Husband’s requests for enforcement of the Affidavit of
Support, spousal maintenance, and attorney fees. Husband now appeals. Additional facts
will be provided as necessary.
Standard of Review
In this case, the dissolution court entered written findings and conclusions
pursuant to Wife’s request under the provisions of Indiana Trial Rule 52(A). When
written findings and conclusions are entered by the trial court pursuant to the request of
any party to the action, we apply a two-tiered standard of review. Maloblocki v.
Maloblocki, 646 N.E.2d 358, 361 (Ind. Ct. App. 1995).
First, we determine whether the evidence supports the findings and second,
whether the findings support the judgment. In deference to the trial court’s
proximity to the issues, we disturb the judgment only where there is no
evidence supporting the findings or the findings fail to support the
judgment. We do not reweigh the evidence, but consider only the evidence
favorable to the trial court’s judgment. Challengers must establish that the
trial court’s findings are clearly erroneous. Findings are clearly erroneous
when a review of the record leaves us firmly convinced a mistake has been
made. However, while we defer substantially to findings of fact, we do not
do so to conclusions of law. Additionally, a judgment is clearly erroneous
under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We
4
evaluate questions of law de novo and owe no deference to a trial court’s
determination of such questions.
Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App. 2005) (quoting Carmichael v.
Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001)), trans. denied.
Additionally, where a dissolution court has entered special findings at a party’s
request pursuant to Trial Rule 52(A), we may affirm the judgment on any legal theory
supported by the findings. Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind. 1998).
Before affirming on a legal theory supported by the findings but not espoused by the
dissolution court, we should be confident that our conclusions are consistent with all of
the dissolution court’s findings of fact and the reasonable inferences flowing therefrom.
Id.I. Evidence of Misconduct
Husband first argues that the dissolution court abused its discretion in admitting
evidence of his misconduct during the marriage. We review decisions concerning the
admissibility of evidence for an abuse of discretion. Arlton v. Schraut, 936 N.E.2d 831,
836 (Ind. Ct. App. 2010), trans. denied. An abuse of discretion occurs where the trial
court’s decision is clearly erroneous and against the logic and effect of the facts and
circumstances before the court or if its decision is without reason or based upon
impermissible considerations. Id. However, “[e]rror may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is affected[.]”
Ind. Evidence Rule 103(a); see also Ind. Appellate Rule 66(A) (providing that no error is
5
ground for reversal “where its probable impact, in light of all the evidence in the case, is
sufficiently minor so as not to affect the substantial rights of the parties”).
As an initial matter, we note that the Indiana Dissolution of Marriage Act, which
was enacted in 1971, abolished the previously existing grounds for divorce, which
required a finding of fault on the part of one of the spouses. R.E.G. v. L.M.G., 571
N.E.2d 298, 301 (Ind. Ct. App. 1991). Under the Act, “the conduct of the parties during
the marriage—except as it relates to the disposition or dissipation of property—is
irrelevant to the trial court’s division of marital assets.” Id.; see also Ind. Code § 31-15-
7-5 (2008). Accordingly, this court “will not tolerate the injection of fault into modern
dissolution proceedings.” R.E.G., 571 N.E.2d at 301.
Here, Wife presented extensive testimony and evidence that Husband had
committed acts of domestic violence against her, that he had visited Persian-language
pornography and dating websites, and that he abandoned her and concealed his
whereabouts. Husband argues that the dissolution court’s admission of this evidence
establishes that the court was biased against him. However, Husband’s argument is
disingenuous because it overlooks the fact that Husband was permitted to present
extensive testimony and evidence of Wife’s misconduct during the marriage.
Specifically, he testified at length that Wife had an affair with a neighbor, and he also
alleged that Wife had been violent toward him and threatened his life.
Although the dissolution court made several findings concerning the parties’
alleged bad acts, it went on to make the following finding:
6
During the trial of this matter, each party introduced evidence and
allegations of immorality and improper behavior on the part of the other
spouse. The Indiana Dissolution of Marriage Act which was adopted in
1971 expressly abolished the previously existing grounds for divorce which
required a finding of fault. The conduct of the parties during the
marriage—except as it relates to the disposition or dissipation of property
or to the issue of marital fraud under 8 U.S.C.A. §1227 (G)—is irrelevant
to the trial court’s division of marital assets.[1]
Appellant’s App. p. 13 (citation omitted). Thus, the dissolution court specifically
indicated that it considered the parties’ conduct only for these limited purposes.
Consequently, to the extent that the evidence presented did not relate to either of these
purposes, the dissolution court disregarded it and it was therefore harmless.
A dissolution court is clearly permitted to consider the bad acts of the parties to
the extent that they relate to the disposition or dissipation of the property. R.E.G., 571
N.E.2d at 301; I.C. § 31-15-7-5. However, the trial court’s consideration of the issue of
“marital fraud” under 8 U.S.C. § 1227(G) is more problematic.2 The statute provides that
An alien shall be considered to be deportable as having procured a visa or
other documentation by fraud . . . and to be in the United States in violation
of this chapter . . . if--
(i) the alien obtains any admission into the United States with an
immigrant visa or other documentation procured on the basis of a
marriage entered into less than 2 years prior to such admission of the
alien and which, within 2 years subsequent to any admission of the alien
in the United States, shall be judicially annulled or terminated, unless
1
The trial court also found that the parties’ conduct during the marriage was relevant to the extent that it related to
“whether [Husband] made performance of the Affidavit of Support Impossible by his conduct.” Appellant’s App. p.
17. Because an action to enforce an Affidavit of Support is essentially one for breach of contract, see Shumye v.
Felleke, 555 F. Supp. 2d 1020, 1023 (N.D. Cal. 2008), it was appropriate for the dissolution court to consider
Husband’s conduct for this purpose.
2
Indiana law also recognizes the concept of marital fraud, but in a very different context. Under Indiana Code
section 31-11-9-3 (2008), marriages brought about through fraud are voidable. Accordingly, the alleged victim of
marital fraud may file an action to annul the marriage. Ind. Code § 31-11-10-2 (2008). Here, neither Husband nor
Wife sought an annulment of the marriage, so the issue of marital fraud under Indiana law is irrelevant here.
7
the alien establishes to the satisfaction of the Attorney General that such
marriage was not contracted for the purpose of evading any provisions
of the immigration laws, or
(ii) it appears to the satisfaction of the Attorney General that the alien
has failed or refused to fulfill the alien’s marital agreement which in the
opinion of the Attorney General was made for the purpose of procuring
the alien’s admission as an immigrant.
8 U.S.C. § 1227(G). It is apparent from the plain language of the statute that marital
fraud as defined therein relates only to an alien’s immigration status and deportability.
Such considerations are wholly irrelevant in a dissolution proceeding, and it was
therefore improper for the dissolution court to consider the issue of marital fraud under 8
U.S.C. § 1227(G). 3 But the dissolution court made no finding that marital fraud actually
occurred in this case. Thus, to the extent that the trial court erred in considering the issue
of marital fraud under 8 U.S.C. § 1227(G), the error had no effect on its final ruling and
was therefore harmless. For all of these reasons, we conclude that any error in the
admission of evidence concerning Husband’s misconduct during the marriage was
harmless.4
II. Enforcement of Affidavit of Support
Next, Husband argues that the dissolution court erred in denying Husband’s
petition to enforce the Affidavit of Support. Under federal immigration laws, immigrants
3
It appears that the dissolution court may have actually considered the issue of marital fraud in the context of
determining whether Husband had fraudulently induced Wife to sign the Affidavit of Support. See Raymundo v.
Hammond Clinic Ass’n, 449 N.E.2d 276, 283 (Ind. 1983) (noting that contracts induced by fraud are voidable).
4
Husband also takes issue with the dissolution court’s findings concerning the specific bad acts committed by
Husband and Wife. Husband essentially argues that the findings concerning his misconduct are clearly erroneous
because Wife’s evidence and testimony concerning Husband’s bad acts was not credible, and that the trial court
should have believed his evidence concerning Wife’s misconduct and entered more findings to that effect. These
are simply requests to reweigh the evidence and judge the credibility of witnesses, which we will not do on appeal.
8
who are likely to become public charges are deemed inadmissible. 8 U.S.C. §
1182(a)(4); Shumye v. Felleke, 555 F. Supp. 2d 1020, 1023 (N.D. Cal. 2008).
Accordingly, “[f]amily-sponsored immigrants seeking admission are admissible only if
the person petitioning for the immigrants’ admission signs an Affidavit of Support Form
I-864. A Form I-864 is a legally enforceable contract between the sponsor and both the
United States Government and the sponsored immigrant.” Id. Thus, a sponsored
immigrant may bring an action to enforce an Affidavit of Support against the sponsor in
any federal or state court. Moody v. Sorokina, 830 N.Y.S.2d 399, 401 (N.Y. App. Div.
2007). Moreover, the sponsor’s obligation under an Affidavit of Support does not
terminate in the event of a divorce. Younis v. Farooqi, 597 F. Supp. 2d 552, 554 (D. Md.
2009); Shumye, 555 F. Supp. 2d at 1024.
By executing an Affidavit of Support, the “sponsor agrees to provide support to
maintain the sponsored alien at an annual income that is not less than 125 percent of the
Federal poverty line during the period in which the affidavit is enforceable[.]” 8 U.S.C. §
1183a(a)(1)(A); see also Appellant’s App. p. 38. In concluding that Husband was not
entitled to payment under the Affidavit of Support, the dissolution court made the
following findings:
34. [Husband] acknowledged that he has, from March 2006 to the present,
kept his address and whereabouts a secret from his co-sponsors. Although
he claims that [Wife] told him he could become a “cold case” she denied
the statement and there is no objective proof that the statement was made.
***
37. [Husband] lived in the homes of his co-sponsors from the time of his
arrival in the U.S. in April 2004 until he flew back to Iran in March 2006,
where he remained until March 2007.
9
38. During the time he lived in the homes of his co-sponsors, they provided
in-kind support as required by the Affidavit of Support and owed no
additional cash payment to [Husband] for the years 2004, 2005, and the
first two months of 2006.
39. [Husband] acknowledged that in the years 2007, 2008, and 2009 his
income exceeded 125% of federal poverty level, eliminating any
requirement of contribution by the sponsors under the Affidavit of Support
for those years.
40. [Husband] testified that he has applied for U.S. citizenship and that he
should receive U.S. citizenship during the year 2010, which would
permanently terminate any support duty owed under the Affidavit of
Support.
41. The only time period for which the co-sponsors owed and failed to
provide support under the Affidavit of Support is the period of March
through December, 2006, after [Husband] left Daniel Mattox’s residence
and returned to Iran. He was asked to leave the residence based upon his
conduct and breakdown of the relationship.
42. [Husband] himself rendered impossible the performance of the co-
sponsors’ obligation under the Affidavit of Support during the period in
which he returned to Iran and kept his whereabouts concealed from his co-
sponsors, and he should not now he entitled to specific enforcement of that
obligation for the period of March through December, 2006.
Appellant’s App. pp. 14-15.
On appeal, Husband does not dispute that 2006 is the only year for which he might
be entitled to support.5 Rather, he argues that the dissolution court erred in concluding
that he rendered performance of the contract impossible by concealing his whereabouts
from his sponsors. Husband does not deny that he concealed his whereabouts, but
contends that he was forced to do so out of fear for his life because Wife had threatened
him.6 However, Wife denied threatening Husband, and it is apparent from the dissolution
5
Husband argues that his income for that year was $5,231 and that 125% of the federal poverty guideline for that
year was $12,250, leaving a deficit of $7,019. Appellant’s Br. at 27.
6
Husband also contends that although his sponsors were not aware of his physical location, they were aware that he
had executed a power of attorney in favor of Keith Groth, and that they should have sent support to Groth’s address.
The record supports Husband’s assertion that Wife was aware that he had executed a power of attorney in Groth’s
10
court’s findings that it did not find Husband’s testimony concerning the alleged threats
credible. Thus, Husband’s argument in this regard is simply a request to reweigh the
evidence and judge the credibility of witnesses, which we will not do on appeal.
Where performance of a contract becomes impossible, nonperformance is
excused, and no damages can be recovered. Dove v. Rose Acre Farms, Inc., 434 N.E.2d
931, 935 (Ind. Ct. App. 1982); see also Bernel v. Bernel, 930 N.E.2d 673, 683 (Ind. Ct.
App. 2010) (noting that impossibility of performance excuses breach of an executory
contract), trans. denied; Rogier v. Am. Testing & Eng’g Corp., 734 N.E.2d 606, 620 (Ind.
Ct. App. 2000) (noting that “the common law of contracts excuses performance of one
party where the other party wrongfully prevents that performance”), trans. denied.
Evidence was presented at trial that Husband was provided with support as required
under the Affidavit of Support until March 2006, when he left Mattox’s home and
returned to Iran without informing his sponsors. Husband’s conduct in deliberately
concealing his whereabouts made it impossible for his sponsors to continue to provide
support. Accordingly, we cannot conclude that the trial court erred in concluding that
Husband was not entitled to recover damages under the Affidavit of Support.
III. Spousal Maintenance
favor. However, Husband did not argue that Wife should have sent support to Groth in his pretrial briefings or in his
motion to correct error, and he has not directed our attention to any portion of the record indicating that he raised
this argument at any hearing. Because Husband raises this argument for the first time on appeal, we will not
consider it. See Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1103 (Ind. Ct. App. 1992) (noting that we will
not consider arguments raised for the first time on appeal).
11
Next, Husband argues that the dissolution court abused its discretion in denying
his request for spousal maintenance. An award of spousal maintenance is within the
dissolution court’s sound discretion, and we will reverse only when the decision is clearly
against the logic and effect of the facts and circumstances of the case. Augspurger v.
Hudson, 802 N.E.2d 503, 508 (Ind. Ct. App. 2004). In determining whether the
dissolution court has abused its discretion in making its spousal maintenance
determination, we presume that the dissolution court properly considered the applicable
statutory factors in reaching its decision. Bizik v. Bizik, 753 N.E.2d 763, 769 (Ind. Ct.
App. 2001), trans. denied. Our task is limited to determining whether there is sufficient
evidence to support the dissolution court’s judgment. Moore v. Moore, 695 N.E.2d 1004,
1008 (Ind. Ct. App. 1998).
Under Indiana Code section 31-15-7-2 (2008), a court may order spousal
maintenance in three circumstances: (1) where a spouse is physically or mentally
incapacitated to the extent that the ability of the incapacitated spouse to support himself
or herself is materially affected; (2) where the spouse is the custodian of a child whose
physical incapacity requires the custodian to forego employment; and (3) where the
dissolution court finds that a spouse needs support while acquiring sufficient education or
training to get an appropriate job. Cannon v. Cannon, 758 N.E.2d 524, 525-26 (Ind.
2001) (citing Voigt v. Voigt, 670 N.E.2d 1271, 1276-77 (Ind. 1996)).
Here, Husband makes no argument that he is incapacitated or that he is the
custodian of an incapacitated child. Therefore, the only type of maintenance he could
12
receive is rehabilitative maintenance under Indiana Code section 31-15-7-2(3). But
Husband does not argue in his Appellant’s brief that he needs or intends to seek
additional education or training in order to obtain an appropriate job.7 Rather, he simply
argues that he is entitled to maintenance because Wife has more income and assets than
him. Husband’s assertion that Wife’s income exceeds his is dubious, but even assuming
that it is true, a disparity between the spouse’s incomes, standing alone, will not support
an award of spousal maintenance. See I.C. § 35-17-7-2. We therefore conclude that the
dissolution court did not abuse its discretion in denying Husband’s request for
maintenance.
IV. Division of Property
Next, Husband argues that the dissolution court abused its discretion in dividing
the marital assets. The disposition of marital assets is within the dissolution court’s
sound discretion, and we will reverse only for an abuse of that discretion. Eye v. Eye,
849 N.E.2d 698, 701 (Ind. Ct. App. 2006). In so doing, we consider only the evidence
most favorable to the dissolution court’s decision, without reweighing the evidence or
assessing the credibility of witnesses. Id. A dissolution court abuses its discretion if its
decision is clearly against the logic and effect of the facts and circumstances before the
court, or if it has misinterpreted the law or disregards evidence of factors listed in the
controlling statute. Id.7
Husband raises an argument concerning his alleged need for further education for the first time in his reply brief.
However, parties are not permitted to present new arguments in their reply briefs, and an argument an appellant fails
to raise in his initial brief is waived for appeal. Kelly v. Levandoski, 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005),
trans. denied; see also Indiana App. R. 46(C). It also appears that Husband failed to raise any such argument before
the trial court. Accordingly, Husband has waived appellate consideration of this argument.
13
Husband first contends that the dissolution court abused its discretion by allowing
Wife to retain specific items of Husband’s personal property. As an initial matter, we
note that our supreme court has held that a dissolution court’s disposition of marital
property is to be considered as a whole, not item by item. Fobar v. Vonderahe, 771
N.E.2d 57, 59 (Ind. 2002). And even assuming that the property belonged to Husband
before or during the marriage and that Wife was allowed to retain the property, it is well
established that all of the spouses’ property goes into the marital pot for division, whether
it was owned by either spouse prior to the marriage, acquired by either spouse after the
marriage and prior to the parties’ final separation, or acquired by their joint efforts. Hill
v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App. 2007); see also Indiana Code § 31-15-7-4(a)
(2008). This “one-pot” theory ensures that all of the parties’ assets are subject to the
dissolution court’s power to divide and award. Hill, 863 N.E.2d at 460. “While the trial
court may ultimately determine that a particular asset should be awarded solely to one
spouse, it must first include the asset in its consideration of the marital estate to be
divided.” Id. Thus, the dissolution court was required to include the property in the
marital estate, and the fact that the property was allegedly owned by Husband before or
during the marriage, without more, does not make the dissolution court’s decision to
award such property to Wife an abuse of discretion.
Pursuant to Indiana Code section 31-15-7-5 (2008), the dissolution court is
required to divide the marital estate in a just and reasonable manner. An equal division is
presumed just and reasonable, but a party may rebut this presumption by presenting
14
evidence that an equitable division would not be just and reasonable, including evidence
concerning the following factors:
(1) The contribution of each spouse to the acquisition of property,
regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition
of the property is to become effective, including the desirability of
awarding the family residence or the right to dwell in the family residence
for such periods as the court considers just to the spouse having custody of
any children.
(4) The conduct of the parties during the marriage as related to the
disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
Id. A party challenging the dissolution court’s division of marital property must
overcome a strong presumption that the dissolution court “‘considered and complied with
the applicable statute, and that presumption is one of the strongest presumptions
applicable to our consideration on appeal.’” McCord v. McCord, 852 N.E.2d 35, 43 (Ind.
Ct. App. 2006), trans. denied (quoting DeSalle v. Gentry, 818 N.E.2d 40, 44 (Ind. Ct.
App. 2004)). Accordingly, we will reverse a property distribution only if there is no
rational basis for the award, and although the circumstances may have justified a different
property distribution, we may not substitute our judgment for that the trial court.
Augspurger, 802 N.E.2d at 512.
The dissolution court made the following relevant findings and conclusions with
regard to its division of the marital assets in this case:
15
FINDINGS OF FACT
***
8. [Wife] hired an immigration attorney and paid approximately $2,000.00
in legal fees to obtain a Visa for [Husband] to enter the United States.
***
11. On June 11, 2004, at [Husband’s] request, [Wife] sent a wire transfer
of $12,800.00 to a United Arab Emirates account for [Husband].
***
17. On January 17, 2006, the parties’ joint National City Bank account
statement shows that a deposit of $1,056.49 was made and an NWA airline
ticket was purchased for $1,241.28.
***
21. [Husband] testified that he flew back to Iran on March 17, 2006, and
remained there until March 1, 2007.
***
44. [Husband] acknowledged that he did not contribute in any way to the
acquisition of [Wife’s] residence, real estate, household furnishings,
automobiles or children’s trust fund, all of which were owned by [Wife]
prior to her marriage to [Husband] and prior to his arrival in the U.S..
45. Although [Husband] participated in making improvements to the real
estate, [Wife] purchased all tools and materials and [Husband’s]
contribution of labor was in lieu of any outside earnings while he was fully
supported by [Wife].
46. [Husband] acknowledged that the parties did not acquire any residence,
real estate, vehicles or furniture during the marriage.
47. [Wife’s] premarital property has never been commingled nor placed in
[Husband’s] name either individually or jointly with [Wife] and her
children.
48. [Wife’s] residence is home to her two children, for whom she is sole
custodian, and her elderly parents, for whom she is primary caregiver.
Substantial cash assets are in a trust fund for her children.
49. All property owned by the parties at the time of the filing of the
petition for dissolution is marital property, regardless of how titled or
acquired.
50. The presumption of an equal division of the marital property between
the parties is just and reasonable is rebutted by [Wife’s] relevant evidence
that an equal division would not be just and reasonable in consideration of
16
the fact that the marital property was acquired by her prior to the marriage,
that [Husband] made no contribution toward the acquisition of the property
or the accumulation of the property, and the property was never
commingled with joint marital assets.
51. [Wife] paid [Husband’s] travel expenses and immigration attorneys
and enabled him to immigrate to the United States and seek U.S.
citizenships, and sent a wire transfer of $12,800 to a United Arab Emirates
account for [Husband] in 2004; these amounts are deemed adequate
compensation for any interest [Husband] may have acquired in any
property retained by [Wife].
***
54. Although [Husband] claims to have incurred $40,000.00 in credit card
debt, he has engaged in International travel and incurred such debt
primarily after the separation of the parties for his sole benefit.
CONCLUSIONS OF LAW AND JUDGMENT
***
6. All property owned by the parties at the time of the filing of the petition
for dissolution is marital property, regardless of how titled or acquired.
7. The presumption that an equal division of the marital property between
the parties is just and reasonable has been rebutted by relevant evidence.
***
9. [Wife] shall retain sole ownership of her residence, real estate,
household furnishings, automobiles and children’s trust fund, all of which
were owned by her prior to her marriage to [Husband] and prior to his
arrival in the U.S.
10. [Husband] is awarded as his sole and separate property all personal
property, bank accounts and other assets in his possession or titled in his
name.
***
12. Each party shall be solely responsible for any debts incurred in their
sole name.
Appellant’s App. pp. 11-17.
17
Based on the findings concerning Wife’s acquisition of the bulk of the marital
property prior to the marriage, we cannot conclude that the dissolution court abused its
discretion in determining that Wife rebutted the presumption in favor of an equal division
of marital property. Husband does not appear to suggest that this presumption was not
rebutted or that he should have been awarded half of the marital assets; rather, he appears
to assert that the trial court’s ultimate division of marital assets was not just and
reasonable. Specifically, he argues that in light of various contributions he made to the
household during the marriage and his post-separation living expenses, he should have
been awarded a greater percentage of the marital assets.8
The evidence favorable to the dissolution court’s judgment reveals that Husband
and Wife lived together for only twenty months, and the only significant assets in the
marital estate are those acquired by Wife prior to the marriage without any contribution
from Husband.9 Moreover, Wife is unemployed and has only completed one year of
8
Husband also seems to take issue with dissolution court’s finding that Husband “made no contribution toward the
acquisition of the property or the accumulation of the property[.]” Appellant’s App. p. 15. Specifically, he asserts
that he made various contributions to the household during the marriage, some income-producing and some not.
However, the dissolution court’s finding that Husband made no contribution to the acquisition of the property was
clearly referring only to the property Wife acquired prior to the marriage. It is undisputed that Husband made no
contribution to the acquisition of Wife’s premarital property; accordingly, the dissolution court’s finding was not
clearly erroneous.
9
Husband alleges that Wife purchased a modular home valued at $60,000 during the marriage. However, the trial
court found that Wife owned all real estate prior to the marriage, and Husband testified at trial that no real estate,
automobiles, or furniture were purchased between April 2004, when he arrived in the United States, and March 1,
2007, well after the date of the parties’ final separation. Appellant’s App. p. 244. Aside from his own self-serving
statement made in a pretrial briefing, which the dissolution court was in no way bound to find credible, Husband has
not directed our attention to any evidence of record supporting his assertion that Wife purchased the modular home
during the marriage. Husband also alleges that during the marriage, he and Wife purchased jewelry from Turkey
valued at $20,000. However, Wife testified that “shipments of gold and silver jewelry would come to her home and
that she didn’t know where it came from or what happened to it after it arrived.” Appellant’s App. p. 185.
Accordingly, Husband’s arguments in this regard are requests to reweigh the evidence and judge the credibility of
witnesses, which we will not do on appeal.
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post-secondary study. Husband, on the other hand, has a Bachelor of Science degree, and
at the time of the final hearing in this case, he was employed as a salesman. His income
exceeded $30,000 in 2009. Additionally, although Wife does not receive social security
disability benefits, she suffers from significant health problems including fibromyalgia
and three herniated discs, and she is the primary caregiver for her two daughters and her
elderly parents.10 Husband is apparently in good health, and at the time of the final
hearing, he had no dependents.
Additionally, under the dissolution court’s judgment, Wife was made responsible
for significant marital debt, including a $42,000 mortgage. We also note that during the
marriage, Wife paid Husband’s travel expenses, $2,000 in legal fees in order to help
Husband obtain a visa, and she made $12,800 wire transfer to Husband while he still
lived in Iran in order to help him pay off a mortgage and a car. Appellant’s App. pp. 184-
85. The dissolution court concluded that these payments were sufficient to compensate
Husband for any property interest he acquired in the property retained by Wife. Under
these facts and circumstances, we cannot conclude that there was no rational basis for the
dissolution court’s award. Husband’s arguments to the contrary are simply requests to
10
Husband argues that Wife’s income greatly exceeds his, but in calculating Wife’s income and assets, Husband
includes social security benefits that he alleges are received by several members of Wife’s household, including
Wife’s daughters, Wife’s mother and father, and Wife’s ex-husband’s father. Husband cites no authority and makes
no argument supporting a conclusion that social security income received by other members of Wife’s household
should be attributable to Wife for the purposes of property division. Accordingly, this argument is waived for
failure to make a cogent argument. See Romine v. Gagle, 782 N.E.2d 369, 386 (Ind. Ct. App. 2003), trans. denied;
Ind. Appellate Rule 46(A)(8)(a). Similarly, Husband lists among Wife’s assets a trust fund belonging to Wife’s
daughters, which was apparently funded with settlement proceeds originally paid to the girls’ now deceased father,
but again, he cites no authority and makes no argument supporting the conclusion that property not belonging to
Wife should be included in the marital estate. This argument is likewise waived for failure to make a cogent
argument. Moreover, it is undisputed that the trust fund was acquired prior to the parties’ marriage.
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reweigh the evidence and judge the credibility of witnesses, which we will not do on
appeal. The dissolution court did not abuse its discretion in dividing the marital estate.
V. Attorney Fees
Finally, Husband argues that the dissolution court abused its discretion by denying
his request for attorney fees. Indiana Code section 31-15-10-1 (2008) provides that the
dissolution court may order a party to pay a reasonable attorney fee for the opposing
party. We review a dissolution court’s decision to award attorney fees for an abuse of
discretion. Thompson v. Thompson, 811 N.E.2d 888, 927 (Ind. Ct. App. 2004), trans.
denied. However, Indiana Code section 31-15-10-1 does not affirmatively require the
dissolution court to award attorney fees and “[t]here is no abuse of discretion for the trial
court not to do that which it is not required to do.” Russell v. Russell, 693 N.E.2d 980,
984 (Ind. Ct. App. 1998) (citing Maloblocki v. Maloblocki, 646 N.E.2d 358, 364 (Ind. Ct.
App. 1995)), trans. denied.
Husband argues that he is entitled to attorney fees because Wife’s income greatly
exceeds his. As we have previously noted, Husband’s contention that Wife’s income
exceeds his is dubious, but even assuming that it is true, “a trial court is not required to
award fees based on disparity of income alone.” Id. Because the dissolution court was
not affirmatively required to award attorney fees under Indiana Code 3-15-10-1, it did not
abuse its discretion by denying Husband’s request.
Husband also asserts that he is entitled to recover attorney fees and costs of
collection relating to his petition to enforce the Affidavit of Support. See 8 U.S.C. §
201183a(c) (providing that the remedies available to enforce an Affidavit of Support
include “payment of legal fees and other costs of collection”). However, we have
affirmed the dissolution court’s conclusion that Husband is not entitled to damages under
the Affidavit of Support. Because Husband was unsuccessful in his attempt to seek
damages under the Affidavit of Support, we must conclude that he is not entitled to
recover attorney fees under 8 U.S.C. § 1183a(c). See Iannuzzelli v. Lovett, 981 So.2d
557, 560-61 (Fla. Dist. Ct. App. 2008) (holding that “[i]n order to recover attorney’s fees
and costs under 8 U.S.C. § 1183a(c), the claimant must obtain a judgment for actual
damages based upon the opposing party’s liability under the Affidavit.”).
Conclusion
Any error in the admission of evidence concerning Husband’s misconduct during
the marriage was harmless. The dissolution court did not err in denying Husband’s
petition to enforce the Affidavit of Support, nor did it abuse its discretion in denying
Husband’s request for maintenance, in dividing the marital property, or in denying
Husband’s request for attorney fees.
Affirmed.
BAILEY, J., and CRONE, J., concur.
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