Maher Abuelreish v. Hind M. Abuelreish (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 05 2020, 8:45 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Maher Abuelreish James J. Ammeen Jr.
Carmel, Indiana Mark J. Liechty
Ammeen Valenzuela
Associates LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Maher Abuelreish, November 5, 2020
Appellant-Respondent, Court of Appeals Case No.
19A-DC-2899
v. Appeal from the
Hamilton Superior Court
Hind M. Abuelreish, The Honorable
Appellee-Petitioner Jonathan M. Brown, Judge
The Honorable
Jack A. Tandy, Senior Judge
Trial Court Cause No.
29D02-1702-DC-1097
Vaidik, Judge.
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Case Summary
[1] Following the divorce of Maher Abuelreish (“Husband”) and Hind M.
Abuelreish (“Wife”), each party filed petitions alleging that the other party was
in contempt of their settlement agreement. The trial court largely found for
Wife, and Husband now appeals. We reverse the trial court’s order that
Husband must pay $15,000 of Wife’s attorney’s fees but affirm in all other
respects.
Facts and Procedural History
[2] In February 2017, Wife filed a petition to dissolve her marriage to Husband.
The parties entered into a settlement agreement, which the trial court
incorporated into its August 23, 2017 decree of dissolution. Relevant here, the
settlement agreement addresses several pieces of real estate and the parties’
business:
Marital Residence. The parties own a parcel of real estate
located at 11711 Rolling Spring[s] Drive, Carmel, Indiana 46033
(“Marital Residence”). Husband and Wife agree to list the
Marital Residence for sale within thirty (30) days of the date of
entry of the Decree of Dissolution and agree to divide the net
proceeds from the sale equally between them. Husband and Wife
acknowledge there is a mortgage on the Marital Residence in
favor of GSF Mortgage Corporation and Husband shall make the
mortgage payments on the Marital Residence until it is sold and
the mortgage balance shall be satisfied at the closing on the sale
of the Marital Residence. Husband shall pay all expenses and
obligations of the Marital Residence, including but not limited to
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the remaining mortgage, home equity line of credit, insurance,
taxes, and Utilities as of the Effective Date of this Agreement.
Fishers Residence. Wife shall retain ownership of the real estate
located at 8829 Moll Drive, Fishers, Indiana 46038. Wife shall be
responsible for the mortgage indebtedness on the Fishers
Residence to Nationstar Mortgage.
Oak Lawn Properties. Husband owns two (2) properties in Oak
Lawn, Illinois, commonly known as 9739 Oak Park Avenue,
Oak Lawn, Illinois 60453 and 9650 Merton Avenue, Oak Lawn,
Illinois 60453.
Husband agrees to list the 9650 Merton Avenue property for sale
within thirty (30) days of the date of entry of the Decree of
Dissolution, with the proceeds from the sale going first to satisfy
the mortgage indebtedness to Nationstar Mortgage and the
remaining net proceeds to be divided equally between Husband
and Wife. Husband and Wife are to be responsible for mortgage
payments to Nationstar Mortgage and expenses of maintaining
the property pending the sale.
Husband shall retain ownership of the 9739 Oak Park Avenue
[property] and shall be solely responsible for the mortgage
indebtedness thereon to Bank of America.
Abby’s Market, Indianapolis. Husband and Wife agree to share
equally in the net profits of their operation of Abby’s Market,
located at the City Market on East Market Street, Indianapolis,
Indiana.
Appellant’s App. Vol. II pp. 22-24 (formatting altered). In addition, the
settlement agreement addresses attorney’s fees in the event of a “default”:
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If either Husband or Wife defaults in the performance of any of
the terms, provisions or obligations herein set forth, and it
becomes necessary to institute legal proceedings to effectuate the
performance of any provisions of this Agreement, then the party
found to be in default shall pay all expenses, including reasonable
attorney’s fees, incurred in connection with such enforcement
proceedings.
Id. at 28-29.
[3] On December 5, 2018, Husband, representing himself, filed a petition alleging
that Wife was in contempt for “refus[ing] to cooperate in listing the [Marital
Residence]” and asked the court for permission to list it. Appellant’s App. Vol.
II p. 32. The next day, Husband filed a Petition to Modify Respondent’s
Obligation to Pay the Mortgage and Expenses of the Marital Residence. He
asked the court to order Wife to pay the mortgage on the Marital Residence
(although the settlement agreement required him to pay it) since Wife was
living in the house and not trying to sell it. Wife then filed a petition alleging
that Husband was in contempt for selling Abby’s Market without her
permission or giving her any of the proceeds and for not selling the Merton
Avenue property in Illinois. The trial court set a hearing for January 3, 2019.
Wife requested a continuance, and the court reset the hearing for March 21. In
response to the resetting, Husband requested an emergency hearing.
Specifically, Husband alleged that Wife “had the police remove [him] from” the
Marital Residence and “moved into that home to the exclusion of [him],”
leaving him “homeless.” Appellant’s App. Vol. III pp. 24-25. The court set a
hearing on Husband’s emergency motion for January 31.
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[4] Following this hearing, the trial court entered an order noting that the
settlement agreement was “silent” as to who was to live in the Marital
Residence until it was sold. Id. at 18. Finding that neither party had made a
“meaningful effort to cooperate on the sale of the home,” the court ordered the
Marital Residence to “be placed for sale” “no later than March 22, 2019.” Id. at
18-19. In addition, the court ordered the parties to “select a Realtor, sign the
appropriate listing agreement, decide upon a listing price and work together to
get the home sold.” Id. at 19. The court cautioned the parties:
9. If the home is not on the market (listing agreement signed) by
midnight on March 22, 2019, the Court will appoint a
Commissioner to sell the home. If a listing contract is signed after
midnight on March 22, 2019, it shall be held for naught as the
parties no longer have the authority to sell the home.
*****
11. If the commissioner finds that Mother’s presence in the home
is hindering the sale in any manner, he/she may petition [the]
Court to remove Mother from the home forthwith.
Id. at 19-20.
[5] On March 18, Mother filed a notice of compliance, alleging that she had listed
the Marital Residence with a realtor for $575,000. Husband filed a response,
alleging that Wife did not consult him about a realtor or the listing price. The
trial court set a status hearing for March 27. Following the hearing, the court
ordered:
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The Court has reset the hearing on all pending matters [to]
September 5, 2019 at 1:30 p.m. Further, the Court has directed
[Wife] to sell the [Marital Residence] and she may choose the
realtor for the sale of this property. Further, [Husband] shall sell
the property located at 9650 Merton Avenue, Oak Lawn, IL and
he may choose a realtor for this sale. Both parties shall provide
each other with copies of the respective listing agreements and
notify each other with regards to closing dates/times. All closing
documents shall be available to both parties.
Appellant’s App. Vol. II p. 11.
[6] At the September 5 hearing, the trial court asked Father, who was still
representing himself, if he wanted to present his case first, as he filed his
contempt petition first. Tr. p. 5. When Father had difficulty with the motions he
wanted to address, the court asked Father to “cut to the chase.” Id. at 8. The
court told Father it had reviewed the motions and that it appeared the issues
concerned the parties’ real estate and business. Husband agreed those were the
issues, and the court directed him to “focus on those things.” Id. When
Husband continued to struggle, the court said:
Okay. Okay. Here’s what I'm going to do. We’re going to shift
gears here a little bit. So, just so -- And, Mr. Abuelreish, you’re
not represented by an attorney, which is fine. That’s your ——
that’s your decision, your business. But so I can kind of make
heads or tails of what’s going on here, I’m going to have [Wife]
go forward with their contempt action first, even though it was
filed second in time, and I think that will help me kind of
understand the issues. And then I’ll be glad to give you full
opportunity to make your case after they’re done. Okay?
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Id. at 11-12. When Husband asked if he could finish talking about Abby’s
Market, the court said:
Do you understand what I’m going to do? I’m going to let them
go forward with . . . their evidence on their contempt motion,
and then I’ll come back to you and you can present your
evidence on yours. Okay? All right. Mr. [Abuelreish]?
Id. at 12. Husband responded, “Thank you, Your Honor.” Id.
[7] After Wife presented her evidence, her attorney argued that “both parties are in
contempt of the Court's August 23, 2017, order.” Id. at 48. When Husband
finished presenting his evidence, the court told the parties what it was thinking
about ordering. Specifically, the court suggested that the parties reduce the price
of the Marital Residence to get it sold, pay off that mortgage, and put the net
proceeds in Wife’s attorney’s trust account. Then, the court suggested that the
parties sell the Merton Avenue property in Illinois and use the proceeds from
the sale of the Marital Residence to make up any deficit. Finally, the court
suggested that Wife would receive $10,000 from the remaining Marital
Residence proceeds for the sale of Abby's Market and that the parties would
split whatever was left. When the court asked the parties if its suggestion was
acceptable, Wife’s attorney responded that his attorney’s fees needed to be
addressed. Id. at 58. Wife’s attorney said Wife’s fees “are about $27,000 right
now, net of what she’s paid,” and asked Husband to pay half. Id. at 59.
Although Wife’s attorney said he had copies of his bills, he never introduced
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them into evidence. Husband disagreed with having to pay any of Mother’s
attorney’s fees but agreed with everything else.
[8] Following the hearing, the trial court issued the following order:
1. Both Parties have failed to perform obligations required of
them under the Decree of Dissolution of Marriage and Mediated
Property Settlement Agreement dated August 23, 2017. In
particular, the defaults include:
a. The former marital residence, located at 11711 Rolling
Springs Drive, Carmel, IN 46033, which is titled in the
name of [Wife], has not been sold;
b. The rental property located at 9650 S. Merton Avenue,
Oak Lawn, IL 60453, which is titled in [Husband’s] name,
has not been sold;
c. The business, Abby’s Market, which was to provide,
and which has provided income to both parties was sold
by [Husband] for $20[,]000.00, without consent of or
accounting to [Wife]; and
d. [Husband] has not paid any part of the $20,000.00
proceeds of the Abby’s Market sale to [Wife].
2. [Wife], by her attorney, James Ammeen, shall sell the [Marital
Residence]. The proceeds from this sale will be held in escrow in
the trust account of [Wife’s] counsel, James Ammeen. Mr.
Ammeen is hereby empowered to engage the services of a real
estate broker of his choosing and to pay expenses reasonably
necessary to market the asset for its highest and best use.
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3. [Husband] shall sell the property located at 9650 S. Merton
Avenue, Oak Lawn, IL 60453. [Husband] is hereby empowered
to engage the services of a real estate broker of his choosing and
to pay expenses reasonably necessary to market the asset for its
highest and best use. The proceeds from this sale will be held in
escrow in the trust account of [Wife’s] counsel, James Ammeen.
If there is a deficiency with regard to a mortgage balance in
connection with the sale of the property, the deficiency balance
will be paid from the escrowed funds.
4. The Court received evidence that a reasonable attorney’s fee in
this matter would be between $15,000.00 and $30,000.00 and
that [Wife] has incurred approximately $30,000.00 in attorney’s
fees. In equity, the court concludes that [Wife] should recover
half of her attorney’s fees. From the escrowed funds, $15,000.00
will be first distributed to [Wife’s] counsel for partial payment of
[Wife’s] attorney’s fees.
*****
6. Once the accounting has been accepted, after notice and an
opportunity for the parties to be heard, $10,000.00 shall be
deducted from [Husband’s] share and distributed to [Wife] as her
half of the proceeds from the sale of Abby’s Market.
Appellant’s App. Vol. II pp. 15-17. On November 4, Husband filed a combined
Motion to Correct Error and Verified Motion for Contempt Regarding
Delisting of the Marital Property, which the trial court denied on December 2.1
1
Husband contends that the trial court erred in denying the contempt portion of his motion (which alleged
that Wife was in contempt for “delisting” the Marital Residence) because it did not hold a hearing. In support
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[9] Husband now appeals.2 On August 14, 2020, while this appeal was still in the
briefing process, Mother filed a notice in the trial court that the Marital
Residence sold on August 10 for $290,000 and that the proceeds were being
held in her attorney’s trust account.
Discussion and Decision
I. Order of Presentation
[10] Husband first contends that the trial court erred by allowing Wife to present her
case first at the September 2019 hearing. Indiana Trial Rule 43(D) provides that
trial courts have discretion in determining the order of the proceedings:
The trial shall proceed in the following order, unless the court
within its discretion, otherwise directs: First, the party upon
whom rests the burden of the issues may briefly state his case and
the evidence by which he expects to sustain it. Second, the
adverse party may then briefly state his defense and the evidence
he expects to offer in support of it. Third, the party on whom
rests the burden of the issues must first produce his evidence
of his argument that a hearing was required, Husband cites Indiana Code section 35-47-3-5, which provides
that a person charged with contempt must be served with a rule to show cause, which must specify the time
and place at which the defendant is required to show cause. The “rule to show cause” provision of Section
35-47-3-5 “fulfills the due process requirement that a [contemnor] be provided with adequate notice and an
opportunity to be heard.” Akiwumi v. Akiwumi, 23 N.E.3d 734, 738 (Ind. Ct. App. 2014) (quotation omitted).
This is protection for the person charged with contempt, not for the person filing the contempt. In any event,
as explained below, the Marital Residence has since sold.
2
Husband filed his notice of appeal on December 11. On December 23, he filed a motion for change of judge
in the trial court. The trial court denied that motion on January 8, noting that Husband’s “appeal is currently
pending under cause 19A-DC-02899 at the Indiana Court of Appeals.” Appellant’s App. Vol. II p. 19.
Husband asks us to review the trial court’s order, but he did not file a notice of appeal with respect to that
order. As such, it is not properly before us.
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thereon; the adverse party will then produce his evidence which
may then be rebutted.
(Emphasis added). Similarly, Indiana Evidence Rule 611(a) provides that trial
courts should exercise reasonable control over the order of the proceedings:
The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the
truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue
embarrassment.
See also Isaacs v. State, 659 N.E.2d 1036, 1042 (Ind. 1995) (stating that trial
courts are provided wide latitude to control the flow of the trial proceedings,
including the discretion to determine the order of proof and the presentation of
evidence), reh’g denied.
[11] The trial court did not abuse its discretion in allowing Wife to present her case
first. Husband, who was representing himself, and Wife, who was represented
by counsel, each filed a contempt petition, with Husband filing his first. At the
hearing, the court initially allowed Husband to present his case first. However,
when Husband had difficulty doing so, the court had Wife present her case. The
court tried the customary order of presentation, assessed that it was confusing
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and inefficient, and then exercised its discretion by allowing Wife to present her
case. This is exactly the process envisioned by the above rules.
II. Receiver
[12] Husband next contends that the trial court erred in appointing Mother’s
attorney as a “receiver” over the Marital Residence. Appellant’s Br. p. 19. In
support of his argument, Husband relies on Indiana Code section 32-30-5-2,
which provides that a court may not appoint an attorney representing a party as
a receiver. But the court did not appoint a receiver. Instead, it ordered that
“[Wife], by her attorney, James Ammeen, shall sell the [Marital Residence].”
Appellant’s App. Vol. II p. 16. Accordingly, there is no violation of Section 32-
30-5-2.3
III. Ruling on Motion to Modify Agreement
[13] Husband contends that the trial court erred by failing to rule on his December
6, 2018 Petition to Modify Respondent’s Obligation to Pay the Mortgage and
Expenses of the Marital Residence, which asked the court to order Wife to pay
the mortgage on the Marital Residence even though the settlement agreement
required him to pay it. Wife responds there is no error on this issue because
Husband withdrew this petition on May 13, 2020. See Appellee’s App. Vol. II p.
75. Although Husband filed a motion to withdraw, it was a motion to withdraw
3
Husband also argues that he doesn’t “trust” Wife’s attorney to sell the Marital Residence. Appellant’s Br. p.
19. However, as noted above, the Marital Residence sold on August 10, 2020.
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his Motion to Modify the Dissolution Decree on the Basis of Fraud and
Grounds Set Forth in Trial Rule 60(B) filed on December 23, 2019, not his
December 6, 2018 petition.
[14] Even assuming the trial court did not formally rule on Husband’s December 6,
2018 petition, he is not entitled to any relief on this issue. Husband argued at
the September 2019 hearing that Wife should have to pay the mortgage on the
Marital Residence, but the court said Husband had to pay it until the house
sold. Tr. p. 64. The court was correct. A property-settlement agreement “may
only be modified according to the terms of the agreement, if the parties[]
consent, or if fraud or duress occurs.” Snow v. England, 862 N.E.2d 664, 668
(Ind. 2007) (citing Ind. Code §§ 31-15-2-17(c), 31-15-7-9.1). Here, the settlement
agreement provides that the parties must agree to any modification, and the
parties did not agree to one. See Appellant’s App. Vol. II p. 26. In addition,
Husband did not allege fraud or duress in his December 6, 2018 petition.
Accordingly, Husband—not Wife—was responsible for paying the mortgage on
the Marital Residence until it sold (which it did on August 10, 2020).
IV. Attorney’s Fees
[15] Finally, Husband contends that the trial court erred in ordering him to pay
$15,000 of Wife’s attorney’s fees. As set forth above, the decree addresses
attorney’s fees in the event of a “default”:
If either Husband or Wife defaults in the performance of any of
the terms, provisions or obligations herein set forth, and it
becomes necessary to institute legal proceedings to effectuate the
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performance of any provisions of this Agreement, then the party
found to be in default shall pay all expenses, including reasonable
attorney’s fees, incurred in connection with such enforcement
proceedings.
Id. at 28-29. The court found that both parties were in default and ordered
Husband, who was representing himself, to pay half of Wife’s attorney’s fees.
Husband challenges this award on multiple grounds, one of which we agree
with. Husband argues that Wife’s attorney presented no evidence to support
Wife’s attorney’s fees. Although Wife’s attorney said he had copies of his bills,
he never introduced them into evidence. In addition, Wife’s attorney didn’t
testify about his hourly fee or how many hours he spent “in connection with”
Husband’s default (as opposed to Wife’s default). Although he said Wife’s
attorney’s fees were “about $27,000 right now, net of what she’s paid,” he never
explained whether those fees were for post-dissolution matters or included any
pre-dissolution matters.4 We therefore reverse the trial court’s attorney’s fee
award and remand this case for the court to determine a reasonable attorney’s
fee.
[16] Affirmed in part and reversed and remanded in part.
Bailey, J., and Weissmann, J., concur.
4
Wife claims that Husband agreed that $30,000 was a reasonable amount for attorney’s fees. At the hearing,
Husband said he “saw three, four lawyers, and each one of them, he said, is going to be between 15- to
30,000, and I don’t have that money.” Tr. p. 62. Husband, however, did not say what this amount included.
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