Aydin Turk Mardan v. Ingie Mardan ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2295 Cir. Ct. No. 2017FA771
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN RE THE MARRIAGE OF:
AYDIN TURK MARDAN,
PETITIONER-APPELLANT,
V.
INGIE MARDAN,
RESPONDENT-RESPONDENT.
APPEAL from a judgment of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2295
¶1 PER CURIAM. Aydin Mardan appeals a judgment of divorce
resolving all contested issues, including property division.1 Aydin argues the
circuit court erred by allowing his attorney to withdraw from representation at the
beginning of the contested hearing, by ordering him to make a $64,006.50
equalization payment to his former wife, Ingie Mardan, and by ordering him to
pay $2,880 of her attorney fees. We conclude all of Aydin’s arguments either
were forfeited, are undeveloped, or lack merit, and we affirm.
BACKGROUND
¶2 The parties were married in Minnesota in 2008 and have one minor
child. In 2011, the parties moved into a duplex in De Pere, Wisconsin, that was
owned by Aydin’s parents. At the inception of the final divorce hearing held on
August 31, 2018, the circuit court provided the parties with approximately three
hours to complete negotiations on a marital settlement agreement that would have
resolved the parties’ remaining disputes. Aydin refused to participate in those
negotiations, and his attorney notified the court when the hearing resumed that
Aydin wished for her to withdraw from the representation. After considerable
discussion, the court permitted Aydin to proceed pro se, with his former attorney
acting as standby counsel.
1
Because the parties in this divorce action share a surname, we will refer to them by
their given names for the remainder of this opinion.
We further note Aydin’s brief-in-chief improperly refers to the parties by their party
designations throughout the argument section. WISCONSIN STAT. RULE 809.19(1)(i) (2017-18)
requires that such references be to the party’s name.
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP2295
¶3 Much of the hearing was devoted to custody and placement disputes
that are not at issue on appeal, but the parties also litigated certain property
division issues. As relevant here, Ingie proposed that Aydin be required to make
an equalization payment of $64,006.50, representing one-half of the amounts the
parties had spent improving the real property or had paid directly to Aydin’s
parents.2 Ingie also requested that Aydin be required to contribute to her attorney
fees, given Aydin’s conduct prior to and during the hearing and the fact that
Aydin’s firing of his attorney meant that Ingie would be responsible for preparing
the judgment despite Aydin being the petitioner.
¶4 At the conclusion of the hearing, the circuit court agreed with Ingie
on the equalization payment and attorney fee issues. It concluded the payments
Aydin had made directly to his parents, as well as the money the parties had spent
improving the property, were “made in such a way as to be toward that house, and
if they weren’t toward[] the house then … it was money that would have been
wasted from the marital estate.” The court also ordered Aydin to reimburse Ingie
$2,880, representing 14.4 hours of her attorney’s time, based upon the delay at the
beginning of the hearing, the “unreasonable position” Aydin had taken in the
proceedings regarding his fears about Ingie removing their child from the country,
and “prep fees” Ingie had incurred the day prior to the final hearing. Aydin now
appeals.
2
That amount was calculated by dividing in half the sum of the various semi-regular
payments the parties had made to Aydin’s parents ($23,009), a $30,005 lump-sum payment, a
$60,000 lump-sum payment, $10,000 to install a fence at the residence, and $5,000 to install a
new floor. There appears to be a $1 discrepancy between the sum of these amounts and the
amount Ingie proposed as representing one-half of the sum, but this is a de minimis discrepancy
that does not warrant modification or reversal.
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No. 2018AP2295
DISCUSSION
¶5 Aydin raises three issues on appeal. First, he seeks a new trial,
arguing the circuit court should have denied his attorney’s request to withdraw
from his representation. Second, Aydin argues there was insufficient evidence to
support the court’s decision to award the $64,006.50 equalization payment to
Ingie. Third, he challenges the court’s decision to require him to contribute to
Ingie’s attorney fees. We reject Aydin’s arguments on each issue.
I. Attorney Withdrawal
¶6 Aydin asserts the circuit court should not have permitted his attorney
to withdraw at the start of the divorce trial. He bases this assertion upon his belief
that the court did not conduct an adequate colloquy with him explaining the
advantages of representation and the consequences of his attorney’s withdrawal.
He also argues there were insufficient grounds for withdrawal. Aydin observes
that he commented upon his own lack of legal acumen at the hearing, and he
points out several instances in which the court commented upon the deficiencies in
his pro se arguments.3
¶7 None of these assertions are of any moment, because the withdrawal
request was not made on the attorney’s own initiative.4 Rather, it was Aydin’s
idea for his attorney to withdraw, as Aydin’s attorney acknowledged when making
3
Based upon the transcript, it appears that at certain times Aydin did consult with
standby counsel.
4
In addition, to the extent Aydin argues he was entitled to a criminal-type waiver
colloquy before his attorney was allowed to withdraw, we reject such an argument because there
is no constitutional right to counsel in a civil matter. See State v. Kraus, 2006 WI App 43, ¶12,
289 Wis. 2d 573, 712 N.W.2d 67.
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No. 2018AP2295
the withdrawal request. Aydin told the circuit court that he and his attorney
disagreed on the objectives of the representation, with Aydin’s primary objective
being to obtain sole legal custody and placement of the parties’ minor child so as
to prevent Ingie from taking him out of the country. Aydin’s attorney stated she
had “multiple discussions when Mr. Mardan does not feel that we’re on the same
page and not proceeded in the same direction.” The attorney stated Aydin had
asked her “now multiple times to withdraw from the matter and allow him to
handle the case on his own.”
¶8 The circuit court was initially reluctant to allow withdrawal, opining
that Aydin’s self-representation would be a “disaster.” After Aydin’s attorney
stated that there would likely be an Office of Lawyer Regulation complaint given
Aydin’s belief that she was not sufficiently advocating for his position, the court
changed course and permitted Aydin to represent himself with his attorney as
standby counsel. Thereafter, the court provided Aydin with repeated opportunities
to change his mind and allow his attorney to represent him, including by taking a
brief recess to allow Aydin to contemplate how he wished to proceed. Despite
Aydin stating that he did not have the proper mindset or training to proceed pro se,
he repeatedly confirmed that he wished to represent himself. Indeed, at one point
in the hearing Aydin stated he was “not willing to take [his attorney’s] counsel
from the beginning.”
¶9 Based upon Aydin’s own statements, as well as his attorney’s
representation that the request to withdraw was Aydin’s idea, we conclude the
doctrine of invited error applies here. In other words, even assuming the circuit
court erred in some way, Aydin is not entitled to relief under these circumstances.
“Generally, where a party ‘invites error’ on a given issue, we will not review the
issue on appeal.” State v. Freymiller, 2007 WI App 6, ¶15, 298 Wis. 2d 333, 727
5
No. 2018AP2295
N.W.2d 334 (2006). The concept of “invited error” is closely related to the
doctrine of judicial estoppel, which generally prohibits a party from taking
inconsistent positions in the same judicial proceeding. Id. Accordingly, we have
no basis to conclude Aydin is entitled to any relief based on the court permitting
Aydin’s attorney to withdraw at Aydin’s request.5
II. Sufficiency of the Evidence Regarding the Equalization Payment
¶10 Aydin next argues the circuit court erred by ordering him to make
the $64,006.50 equalization payment. The amount of that payment was calculated
by dividing in half the sum of money Aydin either had directly paid to his parents
or had spent improving his parents’ real property, which sum the court found had
either gone “toward that house” or was “wasted from the marital estate.” Aydin
challenges the court’s reasoning on both grounds, asserting the real property was
not subject to division, the court had no authority to divide assets owned by
nonparties, the payments to Aydin’s parents extended beyond the one-year-
look-back period established by the marital waste statute (WIS. STAT. § 767.63),
and there was no evidence the money was “wasted” in any event.
¶11 A circuit court’s determination as to how marital property is divided
is reviewed for an erroneous exercise of discretion. Derr v. Derr, 2005 WI App
63, ¶9, 280 Wis. 2d 681, 696 N.W.2d 170. Under that standard, we will affirm the
5
Aydin briefly suggests that the circuit court judge was biased against him and that the
court impermissibly inserted itself into settlement negotiations. Although it appears Aydin views
these issues as components of his argument regarding the appropriateness of allowing his attorney
to withdraw, these arguments are developed for the first time in his reply brief. We do not
consider arguments that are raised for the first time in an appellant’s reply brief.
Commerce Bluff One Condo. Ass’n, Inc. v. Dixon, 2011 WI App 46, ¶2 n.2, 332 Wis. 2d 357,
798 N.W.2d 264.
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No. 2018AP2295
determination unless the court made an error of law or failed to base its decision
on the facts of record. Steinmann v. Steinmann, 2008 WI 43, ¶20, 309 Wis. 2d
29, 749 N.W.2d 145. The question of whether property is divisible in the first
instance is a question of statutory interpretation, and, therefore, one of law. See
Derr, 280 Wis. 2d 681, ¶9. Additionally, we will not reverse the circuit court’s
findings of fact unless they are clearly erroneous. Covelli v. Covelli, 2006 WI App
121, ¶13, 293 Wis. 2d 707, 718 N.W.2d 260.
¶12 The circuit court plainly found that Aydin had enriched his parents at
the expense of the marital estate, funneling approximately $128,000 to his parents
“that would have otherwise been available to the parties for the purchase of a
house, or whatever asset they would have wanted to [buy].” Aydin offers no basis
to conclude the amount of those payments was not divisible. Contrary to Aydin’s
assertions, the court did not conclude the parties had an ownership interest in the
residence, so Aydin’s arguments regarding the statute of frauds and of the
propriety of “divid[ing] the property of third parties” go nowhere.6
¶13 Aydin also contends the ordered equalization payment was contrary
to WIS. STAT. § 767.63, which creates a rebuttable presumption that the property
division is to include property that was “transferred for inadequate consideration,
wasted, given away, or otherwise unaccounted for by one of the parties within one
year prior to the filing of the petition or the length of the marriage, whichever is
shorter.” Aydin objects that there was no evidence any of the payments to his
6
These arguments appear to be based on the circuit court’s statement that the payments
“were made in such a way as to be toward that house.” This reference was likely to the
improvements the parties had made to the property (i.e., adding a fence and flooring), as well as
Aydin’s testimony that he was making rental payments pursuant to an unwritten (and ill-defined)
family agreement, and was not a conclusion that the parties “owned” any part of the real property.
7
No. 2018AP2295
parents were made within the one-year-look-back period. But the transfer of
assets outside the one-year period merely affects the existence of the presumption.
Under the statute, the circuit court “has the authority to treat [the relevant
property] as if it still existed for purposes of property division, regardless of
whether the waste occurred within one year of the filing of the divorce petition.”
Derr, 280 Wis. 2d 681, ¶65. Thus, the court did not run afoul of the statute by
dividing payments Aydin had made to his parents outside the one-year time frame.
¶14 Aydin lastly argues there was no evidence “clearly establish[ing]
that … [he] intentionally squandered” marital assets, or that the expenditures
produced no value to the marital estate. He points to his testimony that some of
the payments were to be treated as rent under an unwritten family agreement and
that he paid $60,000 to his parents to reimburse them for educational loans. In
Aydin’s view, the payments to his parents benefitted the marriage by enhancing
his earning capacity and by “having a roof over their head[s] during their
marriage.”
¶15 There was sufficient evidence to support the circuit court’s
determination that Aydin had wasted marital assets by making payments to his
parents for which the parties ultimately received no benefit and by improving real
property that did not belong to the couple. There was evidence that semi-regular
payments were made to Aydin’s parents in varying amounts. Although Aydin
claimed these were rent payments, Ingie testified these payments were made with
the “plan [to] … eventually buy this property from [Aydin’s] parents,” with the
purchase price of the property being reduced by the total amount of the payments.
Additionally, there was evidence the parties paid the property taxes and
homeowners insurance on the property.
8
No. 2018AP2295
¶16 There was also evidence that Aydin made two substantial payments
to his parents from marital assets. Aydin withdrew approximately $30,000 from
the parties’ bank account on October 21, 2010. Four days later, Aydin’s parents
took out a mortgage to purchase the residence, raising the inference that the
$30,000 payment was associated with the purchase of the property. On June 2,
2015, Aydin withdrew $60,000 from his money market account and paid it to his
parents, which he testified was a payment “to cover education and various other …
debts that I had accrued.” Ingie presented evidence that the $60,000 was in fact
applied by Aydin’s parents to pay off the mortgage on the duplex in August 2015,
after which she believed the parties would have an ownership interest in the
property that undisputedly never materialized.
¶17 In all, the circuit court’s findings of fact that Aydin had diverted
money to his parents and reduced the marital estate are not clearly erroneous. See
WIS. STAT. § 805.17(2). The court was not required to accept Aydin’s self-serving
testimony that some of the payments to his parents were valid expenditures for
rent and educational expenses. See Covelli, 293 Wis. 2d 707, ¶14 (“The weight
and credibility to be given to testimony is uniquely within the province of the trial
court.”).
III. Ingie’s Attorney Fees
¶18 Aydin contends the circuit court was without authority to order him
to pay a portion of Ingie’s attorney fees. He argues the request for attorney fees
was unsubstantiated, there was no evidence regarding the reasonableness of the
fees, and the court’s findings on this issue were inadequate. Aydin failed to object
to the attorney fee award at any point during the court proceedings, including at
9
No. 2018AP2295
the time the request was made at the final hearing or after the court signed the
divorce judgment.
¶19 The general rule is that issues not presented to the circuit court will
not be considered for the first time on appeal. State v. Caban, 210 Wis. 2d 597,
604, 563 N.W.2d 501 (1997). Aydin concedes this rule of forfeiture may be
appropriately applied here, but he contends we should nonetheless reach the merits
of his argument for a variety of reasons—including because he did not have the
assistance of the attorney he had fired during the hearing. We decline to exercise
our discretionary authority to review the forfeited error in this instance.7
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
7
Additionally, we note that when the parties were discussing the terms of repayment,
Aydin remarked that the circuit court’s proposal regarding attorney fees was “reasonable and
fair.” Thus, the invited error doctrine could be equally applied to this appellate argument.
10