Danny Huynh v. Nga Pham (mem. dec.)

FILED Apr 28 2016, 6:43 am MEMORANDUM DECISION CLERK Indiana Supreme Court Court of Appeals Pursuant to Ind. Appellate Rule 65(D), and Tax Court

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.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Thomas M. Barr Timothy E. Staggs Thomas M. Barr & Associates Arnholt & Staggs Law Office Nashville, Indiana Columbus, Indiana

IN THE COURT OF APPEALS OF INDIANA

Danny Huynh, April 28, 2016 Appellant-Respondent, Court of Appeals Case No. 03A04-1507-DR-964 V. Appeal from the Bartholomew Superior Court Nga Pham, The Honorable Kathleen Tighe Appellee-Petitioner. Coriden, Judge Trial Court Cause No. 03D02-1411-DR-5317

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016 Page 1 of 11

Statement of the Case [1] Danny Huynh (“Husband”) appeals the order dissolving his marriage to Nga

Pham (“Wife”). He argues that fundamental error occurred when the trial

court failed to appoint an interpreter for him and that the trial court abused its

discretion when it divided the marital estate. Because Husband told the trial

court that he would have no problem understanding the proceedings without an

interpreter, we find no fundamental error. In addition, because Husband failed

to introduce evidence as to the specific value of the marital property at the

dissolution hearing, he is estopped from appealing the distribution. [2] We affirm.

Issues 1. Whether fundamental error occurred when the trial court failed to appoint an interpreter for Husband.

2. Whether the trial court abused its discretion in dividing the marital estate.

Facts [3] Husband and Wife, who are Vietnamese-Americans, were married in 1987. In

November 2014, Wife filed a petition for dissolution.1 At the June 2015 hearing

1 There is no copy of the petition in the appendix.

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on the petition, Wife was represented by counsel and Husband proceeded pro se.

The hearing opened with the following colloquy:

Trial Court: I thought the record was on earlier sir. I’ll ask you again, for the record, um are you satisfied that we can proceed, that you understand English well enough that we can proceed without having the Vietnamese interpreter?

Husband: So no problem

Trial Court: Okay

Husband: Because some time if I don’t understand I can ask Miguel maybe he could2

Trial Court: Okay. Perfect. Alright we’ll proceed then. . . .

(Tr. 7). [4] Wife’s testimony and asset and debt summary, which was admitted into

evidence at the hearing, revealed that she and Husband owned two nail salons

in Indiana. Wife and the parties’ adult son operated Julie’s Nails (“Julie’s”) in

Columbus, which opened in 2000. Julie’s inventory included two televisions as

well as eight pedicure spas and five tables that were all approximately nine or

ten years old. In addition, Wife estimated there was approximately $7,000 in

Julie’s business account. Husband operated NBC Nails (“NBC”) in Nashville,

which opened in 2013. NBC’s inventory included four pedicure spas and three

tables, all of which were approximately two years old. Although Wife’s asset

2 Husband never mentioned Miguel again and apparently did not ask him any questions.

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summary stated that the businesses were “considered to be about equal in

value,” the summary did not include a monetary value for either salon.

(Petitioner’s Exhibit 1). [5] Wife also submitted tax forms, which revealed that in 2014, Julie’s Nails had an

$18,000 profit, and NBC had a $3,000 profit. Wife explained that Husband had

closed NBC for a few months that year to visit Vietnam. Wife also explained

that Husband had withdrawn $3,000 from Julie’s checking account in May

2015. Wife’s asset summary also included two vehicles. Wife drove a 2007

Lexus, which Kelly’s Blue Book valued at $15,491, and Husband drove a 2010

Toyota Tundra, which Kelly’s Blue Book valued at $35,440. [6] Wife submitted a proposed property and debt division wherein she asked the

trial court to award her Julie’s, including all business equipment and accounts,

as well as the 2007 Lexus and all personal property in her possession. She

asked the trial court to award Husband NBC, including all business equipment

and accounts, as well as the 2010 Toyota and all personal property in his

possession. [7] Husband testified that he “didn’t know she was going to divorce [him but he]

just want[ed] fair.” (Tr. 28). Husband also testified that the parties owned

additional property, including land in Vietnam and diamond jewelry. Husband

explained that Wife had rings, a bracelet, and earrings. Husband also explained

that he previously had owned a watch, a ring, and $6,000 in cash that he kept in

a locked box at Julie’s. According to Husband, he discovered that the items

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were missing when he returned from a trip to Vietnam. Husband further

testified that he did not know the value of either the land or the jewelry, but that

he just wanted “to split 50/50.” (Tr. 32). [8] Husband also asked the trial court to “split up” Julie’s. (Tr. 40). Specifically,

Husband explained, “[Wife] take nail or I take it. If she takes, she pay me back,

if I take, I pay her back.” (Tr. 40). However, when asked how much money he

believed he would be entitled to if the trial court awarded Julie’s to Wife,

Husband responded as follows: “I don’t know . . . you can ask her, because I

don’t want to take something over her.” (Tr. 40). When asked how much he

would give Wife if he took Julie’s, Husband responded, “you can ask her how

much she want me to give to her.” (Tr. 41). Lastly, Husband testified that he

had two cabinets, a dining room table, televisions, a karaoke system, and

sewing machines at his son’s house. [9] On re-direct, Wife testified that she had bought the property in Vietnam fifteen

years ago and had given it to her father in 2002 or 2003. She also testified that

she had one diamond ring that was worth $10,000 and that Husband had a

diamond ring that was worth $11,000. Wife explained that she did not believe

that Husband had left any property in the locked box at Julie’s. Rather, Wife

thought he had taken the items to Vietnam. [10] On June 25, 2015, the trial court issued an order dissolving the parties’ marriage

wherein it found that Husband “simply wanted an equal distribution of the

marital estate,” and Wife “was content to divide the marital estate simply by

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each party receiving the nail salon they currently operate and the vehicle they

have been driving.” (App. 7). The trial court further found that, based on the

testimony of the parties, the value of the two salons was essentially equal.

Thereafter, the trial court awarded the following property to Wife: (1) Julie’s;

(2) the 2007 Lexus; and (3) her $10,000 diamond ring. The trial court awarded

the following property to Husband: (1) NBC; (2) the 2010 Toyota; (3) his

$11,000 diamond ring; and (4) the dining room table and oldest television at his

son’s house. The trial court further explained that even if it believed that Wife

had significantly more jewelry than Husband, the difference in the value of the

jewelry still resulted in an unequal division of property in Husband’s favor. The

trial court also explained that “[n]o evidence of current ownership of the

Vietnam property was provided to suggest the property should be considered

part of the marital estate.” (App. 6). [11] Two weeks later, Husband, still acting pro se, filed a letter wherein he advised

the trial court that Julie’s was worth $90,000 and that NBC was worth nothing

because it had no customers and had closed. He requested that the party

receiving Julie’s pay the other party $45,000. He also placed values on the

televisions, cabinets, sewing machines, karaoke system, and dining room table

and proposed that the party keeping these items should pay the other party half

the value amount. Lastly, Husband advised the court that the Toyota should

have been valued at $29,230 rather than $35,440. Husband closed the letter with

a request that the trial court look at the case again.

Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016 Page 6 of 11 [12] A few days later, after reading Husband’s letter, the trial court stated that

Husband had had the opportunity to present his case and had failed to provide

this information at the hearing. The trial court explained that it did not

consider the letter to be a motion to correct error because it did not cite any

error. Rather, according to the trial court, it was simply a request that the trial

court consider new evidence, which the trial court could not do following the

close of evidence at the hearing. Husband appeals the dissolution order and

distribution of marital property.

Decision [13] At the outset, we note that although Husband is represented by counsel on

appeal, he appeared pro se at the hearing on Wife’s dissolution petition. A pro se

litigant without legal training is held to the same standard as trained counsel

and is required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344

(Ind. Ct. App. 2004), trans. denied. A trial court in not required to guide pro se

litigants through the judicial system. Id. We now turn to the issues in this case.

1. Interpreter

[14] Husband first argues that the trial court erred in failing to appoint an interpreter

for him. INDIANA CODE § 34-45-1-3 provides that every party or witness in a

civil proceeding who cannot speak or understand English is entitled to an

interpreter. This Court reviews a trial court’s decision whether to appoint an

interpreter for an abuse of discretion. Nur v. State, 869 N.E.2d 472, 480 (Ind.

Ct. App. 2007), reh’g denied, trans. denied. An abuse of discretion occurs if a

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decision is against the logic of the facts and circumstances before us. Id. The

abuse of discretion standard applies if the issue of appointing an interpreter is

raised at trial, either by the parties or by the court on its own motion. Id. [15] However, where, as here, the party alleges for the first time on appeal that a

trial court should have appointed an interpreter, we review the claim for

fundamental error. Id. The fundamental error exception is extremely narrow

and applies only when the error constitutes a blatant violation of basic

principles that renders the trial unfair, and the harm or the potential for harm is

substantial. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. [16] With respect to determining whether an error is fundamental, Mariscal v. State,

687 N.E.2d 378, 382 (Ind. Ct. App. 1997), reh’g denied, trans. denied, is

instructive. There, the trial court administered an oath to the interpreter but

failed to inquire into the interpreter’s qualifications. Mariscal did not object to

the procedure the trial court used to appoint the interpreter, and one of

Mariscal’s attorneys affirmatively consented to the interpreter. On appeal, we

held that where a defendant fails to object to the use of an interpreter and also

affirmatively consents to the interpreter, there is no fundamental error, and any

subsequent objections to the procedure used to appoint the interpreter are

waived. Id. [17] Here, as in Mariscal, Husband did not object to the trial court’s failure to

appoint an interpreter and affirmatively consented to proceeding without the

use of an interpreter. In such cases, there is no fundamental error, and any

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subsequent objections the trial court’s failure to appoint an interpreter are

waived. [18] Father nevertheless appears to argue that the trial court should have

“conduct[ed] a thorough voir dire to determine whether [he] had sufficient

English language proficiency” to consent to proceeding without an interpreter.

(Appellant’s Br. 15). If a trial court is put on notice that a party has a significant

language difficulty, the court shall make a determination of whether an

interpreter is needed to protect that party’s rights. Nur, 869 N.E.2d at 479. A

trial court is put on notice of a significant language barrier when a party

manifests a significant language difficulty or when an interpreter is specifically

requested. Id. The trial court’s decision as to whether an interpreter is needed

should be based on factors such as the party’s understanding of spoken and

written English, the complexity of the proceedings, issues, and testimony, and

whether, considering those factors, the party will be able to participate

effectively in the proceedings. Id. Absent such indications, however, the trial

court is under no obligation to inquire into a party’s need for an interpreter. Id. [19] Here, after reviewing the transcript in this case, we agree with Wife that the

“whole of the transcript demonstrates that [Husband’s] statements and

questions were consistently on-topic, that he was repeatedly able to assert his

opinions – where he had them – as to the differences in value of particular

pieces of marital property and his concerns that certain property was not listed .

. . .” (Appellee’s Br. 6). We find nothing in the transcript which indicates that

Husband was not able to participate effectively in the proceedings.

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Accordingly, the trial court was under no obligation to inquire into Husband’s

need for an interpreter, and we find no error. [20] 2. Division of Marital Estate [21] Husband also argues that the trial court abused its discretion in dividing the

marital estate. The division of marital assets lies within the sound discretion of

the trial court, and we will reverse only for an abuse of discretion. Galloway v.

Galloway, 855 N.E.2d 302, 304 (Ind. Ct. App. 2006). When a party challenges

the trial court’s division of marital property, he must overcome a strong

presumption that the court considered and complied with the applicable statute.

Id. This presumption is one of the strongest presumptions applicable to our

consideration on appeal. Id. We may not reweigh the evidence or assess the

credibility of witnesses, and we will consider only the evidence most favorable

to the trial court’s disposition of the marital property. Id. Although the facts

and reasonable inferences might allow for a different conclusion, we will not

substitute our judgment for that of the trial court. Id. [22] Here, the trial court had to divide a marital estate that included two businesses

for which Husband did not offer valuation evidence. This Court has previously

explained that “‘any party who fails to introduce evidence as to the specific

value of the marital property at the dissolution hearing is estopped from

appealing the distribution on the ground of trial court abuse of discretion based

on that absence of evidence.’” Perkins v. Harding, 836 N.E.2d 295, 301 (Ind. Ct.

App. 2005) (quoting In re Marriage of Church, 424 N.E.2d 1078, 1081 (Ind. Ct.

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App. 1981)). This rule places the burden of producing evidence as to the value

of the marital property on the parties rather than on the trial court. Church, 424

N.E.2d at 1081. In Church, we explained that it is more appropriate to require

the parties to bear the burden of gathering and presenting evidence as to the

value of the marital property than it is to place the upon the trial court the risk

of reversal if it distributes the marital property without specific evidence of

value. Id. The proper role of a court in dividing property pursuant to a

dissolution is to review carefully all the evidence and then to divide the property

based on a consideration of the factors listed in INDIANA CODE § 31-15-7-5. Id. [23] Because Husband failed to introduce evidence as to the specific value of the

marital property at the dissolution hearing, he is estopped from appealing the

distribution. See Galloway, 855 N.E.2d at 306 (holding that husband was

estopped from appealing the trial court’s distribution where he failed to present

any evidence regarding the value of wife’s pension). [24] Affirmed.

Kirsch, J., and Riley, J., concur.

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