Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jun 19 2012, 9:05 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: TODD WOODMANSEE Indianapolis, Indiana

ATTORNEY FOR APPELLEE: STACY L. KELLEY Glaser & Ebbs Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JENNIFER ALAO-HAMED, Appellant-Respondent, vs. ADENIRAN ALAO-HAMED, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 49A02-1110-DR-1017

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patrick L. McCarty, Judge Cause No. 49D03-0911-DR-53149

June 19, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

The trial court entered a Decree of Dissolution (the Decree) on June 22, 2011 dissolving the marriage between Jennifer Alao-Hamed (Jennifer) and Adeniran Alao-Hamed (Adeniran). Pursuant to the Decree, Jennifer was awarded 60% of the marital estate and "spousal maintenance in a reasonable amount to be determined by the Court for a period of twenty-four (24) months." Appellant's Appendix at 18. Thereafter, Adeniran filed a motion to correct error, which the trial court granted in part on September 20, 2011. In that order, the trial court granted Adeniran's motion with respect to the issue of spousal maintenance and the division of certain marital assets. Jennifer appeals the granting of the motion to correct error, presenting the following restated issues for review: 1. Did the trial court err in granting the motion to correct error with respect to the division of marital assets and the provision of spousal maintenance? Did the trial court fail to address Jennifer's verified petition for spousal maintenance?

2.

We affirm. The facts are that in November 2009, Adeniran filed a petition for dissolution. A final hearing in the matter was conducted on May 10, 2011. Adeniran testified that there was no equity in the marital residence. Jennifer did not controvert this testimony. He asked the trial court to order the presumptive 50/50 split of the marital assets. On June 22, 2011, the trial court entered the Decree, which provided, in relevant part, as follows: (1) Adeniran was ordered to refinance the marital home so that Jennifer's name was no longer on the title or loan documents; (2) in the event Adeniran was unable to refinance as directed and defaulted on the payment, he was ordered to sell the home and split the proceeds evenly with Jennifer;
2

(3) Adeniran was ordered to pay Jennifer an amount equal to one-half of the equity in the home as of the date of the filing of the petition for dissolution; (4) Adeniran was ordered to pay all of the marital debt, including approximately $18,400 in credit card debt and $30,000 in student loan debt; (5) Jennifer was awarded all of Adeniran's PERF retirement account, valued at $2200; (6) Adeniran was ordered to pay spousal maintenance to Jennifer for 24 months; (7) Jennifer was awarded the couple's Toyota 4-Runner vehicle, although Adeniran was ordered to "assume sole responsibility for any maintenance, insurance, and further liability arising from that vehicle."1 Appellant's Appendix at 19. Finally, the court awarded the parties the personal assets then in their possession. On July 20, 2011, Adeniran filed a motion to correct error. Relevant to the issues presented in this appeal, Adeniran alleged that the court's dissolution decree was erroneous in the following respects: (1) Ordering Adeniran to pay spousal maintenance when Jennifer had not requested it, and in any event the criteria for an award of spousal maintenance were not present; (2) ordering Adeniran to remove Jennifer's name from the mortgage and title, because the evidence demonstrated that the mortgage and title were in Adeniran's name only; (3) awarding half of the equity in the marital home to Jennifer, because the undisputed evidence showed that there was no equity in the home; (4) awarding all of the marital assets to Jennifer, consisting primarily of the Toyota vehicle and the PERF; (5) ordering Adeniran to assume all of the marital debt; and (6) failing to mention a 1993 Honda vehicle that Jennifer purchased during the marriage.

1

An exhibit in the record reflects that the Toyota was valued at $7825, but $6779 was still owed on the

3

On August 4, 2011, in response to Adeniran's motion to correct error, Jennifer filed a response in opposition to the motion to correct error, as well as "Respondent's Verified Petition for Spousal Maintenance and/or Respondent's Request for Leave of Court to Reopen Evidence." Id. at 31. On September 20, 2011, the trial court issued an amended decree of dissolution, modifying the original decree in the following relevant respects: (1) The Toyota vehicle was awarded to Adeniran; (2) the Honda was awarded to Jennifer; (3) Adeniran was not ordered to pay spousal maintenance; (4) Adeniran was not ordered to remove Jennifer from the marital home's mortgage or title; (5) no portion of the marital home's equity was awarded to Jennifer; the PERF was split evenly between the parties; and (6) the parties were ordered to pay debts on the credit cards they held in their own name, which for Adeniran constituted six credit cards totaling approximately $6070 in outstanding debt, and for Jennifer two credit cards totaling $12,335 in outstanding debt. Jennifer contends the trial court erred in granting Adeniran's motion to correct error. 1. Jennifer presents the following issue: "Whether the trial court erred in granting the Petitioner's Motion to Correct Error, effectively reversing the entire original Dissolution of Marriage without a proper analysis of the division of assets and debts and reversing the original finding granting Appellant spousal maintenance." Appellant's Brief at 1. It would appear by this that Jennifer separates the order granting Adeniran's motion to correct error into two broad categories of error. One concerns the distribution of assets and liabilities, and
vehicle.

4

the other concerns the award of spousal maintenance. We will begin with the allegation that the trial court erred in distributing the marital assets. Jennifer frames the issue regarding distribution of assets as reproduced above. She also addressed the issue in the "Summary of the Argument" section of her brief as follows: Further, the trial court originally ordered that both parties retain all property in their possession, but then ordered a return of all property requested by [Adeniran] without a legal finding of an equitable split of assets by granting the Motion to Correct Errors. The court similarly erred in its analysis of and division of debt. Id. at 4. She mentions the issue in passing one last time in the "Conclusion" of her argument, viz., "the Appellant respectfully prays that ... the Court's original Dissolution of Marriage be reinstated or, in the alternative, that this cause be remanded for further proceedings to address issues of spousal maintenance and division of assets and debts[.]" The "Argument" section of her brief, however, is devoted exclusively to her claim of error relative to the failure to award spousal maintenance in the amended dissolution order. Ind. Appellate Rule 46 (A)(8)(a) provides that the argument section of an appellate brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22." Jennifer has presented no argument with respect to the division of marital assets. Instead, she has merely complained than an error was made in that respect. Jennifer has waived this issue because she failed to provide cogent argument supported by citations to authority. See App. R. 46(A)(8)(a); Smith v. Smith, 854 N.E.2d 1 (Ind. Ct. App. 2006).

5

2. What remains is Jennifer's claim that the trial court erred in failing to order Adeniran to pay spousal maintenance. This was a result of the granting of Adeniran's motion to correct error, which overturned a provision of the Decree granting spousal maintenance. Therefore, Jennifer's allegation of error can be viewed as arising in two ways: (1) the failure to award spousal maintenance, or (2) the granting of Adeniran's motion to correct error. As it happens, the standard of review is the same for both. A trial court's ruling on a motion to correct error under T.R. 59 is reviewed for an abuse of discretion. Newland Res., LLC v. Branham Corp., 918 N.E.2d 763 (Ind. Ct. App. 2009). An abuse of discretion will be found only when the trial court's action is against the logic and effect of the facts and circumstances before it and the inferences that may be drawn therefrom. Id. The decision whether to award spousal maintenance is also committed to the trial court's 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 (Ind. Ct. App. 2004). "The presumption that the trial court correctly applied the law in making an award of spousal maintenance is one of the strongest presumptions applicable to the consideration of a case on appeal." Id. at 508 (quoting Fuehrer v. Fuehrer, 651 N.E.2d 1171, 1174 (Ind. Ct. App. 1995), trans. denied). There are two ways in which a divorcing spouse may be obligated to make spousal maintenance payments: (1) under certain, limited circumstances, by court order, and (2) under all other circumstances, by agreement of the parties. See Ind. Code Ann.

Download Jennifer Alao-Hamed v. Adeniran Alao-Hamed.pdf

Indiana Law