Qazi v. Qazi

• Decision Date: 30 November 1989
• Docket Number: No. 29A02-8802-CV-00060,29A02-8802-CV-00060
• Citation: 546 N.E.2d 866
• Court: Indiana Appellate Court
• Parties: In re The Marriage of Haroon M. QAZI, Appellant (Petitioner Below), v. Sabina QAZI, Appellee (Respondent Below).

Page 866

546 N.E.2d 866

In re The Marriage of Haroon M. QAZI, Appellant (Petitioner Below), v. Sabina QAZI, Appellee (Respondent Below).

No. 29A02-8802-CV-00060.

Court of Appeals of Indiana Second District.

Nov. 30, 1989.

Michael A. Howard, Pearce & Howard, Noblesville, for appellant.

James R. Fisher, Ice Miller Donadio & Ryan, Indianapolis, for appellee.

SULLIVAN, Judge.

Haroon Qazi (Dr. Qazi) appeals a trial court determination, following remand, regarding the value of certain pension plans. Previously, on appeal of the dissolution decree, the reviewing court determined the plans to be part of the marital estate.

We affirm.

Dissolution was granted to Dr. Qazi and Connie Qazi on July 17, 1984. The trial court's order excluded three pension plans from the marital estate. Nevertheless, one of the plans, belonging to Mrs. Qazi, was awarded to her; the remaining two, of substantially greater value, belonged to Dr. Qazi and were awarded to him. Mrs. Qazi appealed that ruling. On appeal our Third District held that the pension plans were presently vested assets and therefore property which constituted a part of the marital estate. The Third District reversed and remanded, "for reconsideration of the marital estate and any redistribution occasioned thereby." Qazi v. Qazi (1986) 3d Dist.Ind App., 492 N.E.2d 692, 694, trans. denied (1987) Ind., 503 N.E.2d 894.

On remand, the trial court valued the three plans at $812,500. The court gave Dr. Qazi his two plans, valued at $762,500; Mrs. Qazi received her plan, valued at $50,000 and a case award of $525,000 to be paid over a ten year period. Following the remand hearing, Dr. Qazi instituted an appeal, asserting various errors which we rephrase as follows:

1. Whether the trial court on remand erred in failing to consider a federal income tax liability which was in dispute at the time of the original hearing but determined to be $150,000 on remand; ¹

2. Whether the trial court on remand abused its discretion in using differing valuation dates when valuing the three pension plans;

3. Whether the trial court on remand erred in failing to consider the potential tax consequences for pre-retirement liquidation of Dr. Qazi's pension plans;

4. Whether the trial court on remand abused its discretion in failing to distribute the pension plans "in kind," via a Qualified Domestic Relations Order;

5. Whether the trial court on remand abused its discretion in ordering Dr. Qazi to bear Mrs. Qazi's attorney's fees from the prior appeal; and

6. Whether the cumulative effect of the order of the trial court on remand constituted an abuse of discretion.

I

Dr. Qazi argues that the trial court on remand erred in failing to consider a federal income tax liability of $150,000. Dr. Qazi was in the process of disputing this tax liability with the Internal Revenue Service (I.R.S.) at the time of the original dissolution hearing and therefore the exact amount of the liability could not be determined. Dr. Qazi and his accountant both testified at the original hearing concerning those issues upon which Dr. Qazi and the I.R.S. had agreed and those which were still in dispute. The testimony at the original trial was that the tax liability was primarily the result of disallowance of a tax shelter (investment in a book), failure to report interest income, and disallowance of depreciation and investment tax credit from a limited partnership.

In paragraph 12 of the dissolution decree, the trial court ordered:

"Husband shall hold Wife harmless on all tax liabilities, on any of the transactions on the limited partnerships or corporation taxes heretofore filed severally or jointly, and the Husband shall receive all the interests in the limited partnerships as well as any liabilities thereon." Original Record at 14.

We interpret the court's order as casting the liability for taxes in general upon the Husband.

Subsequent to the entry of this order, Dr. Qazi filed a Motion to Correct Errors alleging that the court failed to consider the disputed income tax liability which, by that time, I.R.S. had determined to be $106,000. The trial court denied Dr. Qazi's motion with respect to his allegation concerning taxes. Mrs. Qazi then instituted her appeal of the trial court's ruling concerning the treatment of the parties' pension plans. See Qazi, supra, 492 N.E.2d 692. Dr. Qazi, however, did not cross-appeal on the denial of his Motion to Correct Errors concerning taxes. The only issue which Dr. Qazi presented in his brief on the first appeal was as follows:

"The Petitioner-Appellee [Dr. Qazi] respectfully submits that the only issue for review is whether or not the Respondent-Appellant [Mrs. Qazi] has demonstrated any abuse of discretion on the part of the trial court in the division of the assets in the dissolution proceeding." (Brief of Appellee at 1, Qazi v. Qazi, supra ).

Based on the foregoing facts, we hold that Dr. Qazi has waived his right to challenge the trial court's original allocation of taxes. The liability for taxes was cast to Dr. Qazi and the trial court denied Dr. Qazi's Motion to Correct Errors with respect to this issue. Dr. Qazi could have challenged the court's ruling at the time of the first appeal but chose not to do so. There is no issue before us to now modify the divorce decree with respect to this tax liability.

II

Dr. Qazi alleges error in the trial court's use of the remand hearing date for the valuation of his pension plans, while using the distribution date of September, 1985, in valuing Mrs. Qazi's plan.

The original trial court determined that the parties owned three pension plans. Two, a Defined Benefit Plan and a Money Purchase Plan, were in Dr. Qazi's name. The other belonged to Mrs. Qazi. The original decree listed the values as $415,277 for Dr. Qazi's two plans and $41,000 for Mrs. Qazi's. In response to a Motion to Correct Errors filed by Dr. Qazi, the original trial court deleted the plans and their values from the marital estate and entered a new paragraph simply awarding each party his or her own plan(s).

Mrs. Qazi appealed that decision. On appeal the plans were held to be part of the marital estate and the case was remanded for "reconsideration of the marital estate and any redistribution occasioned thereby." Qazi, supra, 492 N.E.2d at 694. The Third District further instructed that "in placing a value on the plans, the present value should be ascertained." Id.

Evidence presented on remand indicated fluctuations in value of the various plans between the dissolution hearing dates during March and April of 1984 and the remand hearing. In November of 1983, Dr. Qazi's Defined Benefit Plan had been valued at $253,825 and his Money Purchase Plan was valued at $244,722. Mrs. Qazi's Retirement Fund was valued at $50,804 on the date of distribution to her in September, 1985.

Testimony in August, 1987, by Warren Steinborn, Dr. Qazi's retirement plan consultant, put the value of the Defined Benefit Plan at $308,648. On cross-examination, Mr. Steinborn conceded that the value as of the end of July, 1987, could be placed at $312,500. With regard to the Money Purchase Plan, Mr. Steinborn testified that the value as of November 30, 1986, was $441,593. Norman Gurwitz, one of Dr. Qazi's financial advisors, testified on cross that "counting accrued but unpaid interest" from a loan to Dr. Qazi the value of the Money Purchase Plan would be approximately $450,000. Remand Record at 392. The Retirement Fund awarded to Mrs. Qazi had been depleted entirely as of the date of the remand hearing.

After considering the evidence, the trial court made the following determination regarding the value of the pensions:

"4. The present approximate value of the plans, exclusive of additions or contributions made to the plans since the filing of the dissolution petition are as follows:

'Money Purchase Plan' of Haroon Qazi--$450,000

'Deferred Benefit Plan' of Haroon Qazi--$312,500

'Money Purchase Plan' of Sabina Qazi--$50,000"

Remand Record at 84.

This order was entered on October 29, 1987. Dr. Qazi then filed a Motion to Correct Errors alleging that, although the last evidentiary hearing on remand had been held on October 5, 1987, the trial court erred in failing to consider the stock market crash of October 19, 1987, and in not changing the valuations in the order to reflect this. The trial court held a hearing to consider the motion on February 5, 1988. The court denied Dr. Qazi's Motion to Correct Errors.

Dr. Qazi now argues that the trial court's valuation of the respective pension plans was an abuse of discretion. He argues that the trial court should have picked either a date in 1984 at the time of the dissolution hearing and decree or a date after the October 5, 1987, remand hearing in order to reflect the drop in the stock market.

Dr. Qazi cites Eyler v. Eyler (1986) Ind., 492 N.E.2d 1071, for the proposition that the trial court has broad discretion in determining the date to value marital assets. In Eyler, our Supreme Court held that for purposes of determining the date to value marital property, "[t]he trial court has discretion in selecting any date between the date of filing of the dissolution petition and the hearing for purposes of valuation of a marital asset." Id. at 1074. Eyler indicates that the last date the trial court may choose for valuation of a marital asset is the final hearing. However, Eyler did not address a situation such as the present one in which the case has been remanded to the trial court for purposes of valuing and distributing a marital asset. It may be that Eyler could be read broadly to allow the trial court to choose a valuation date up to and including the date of the remand hearing, at least for purposes of the asset which the court has been instructed to consider.

However, the issue of how to interpret Eyler in a case involving a remand hearing has not been squarely presented by Dr. Qazi. Dr. Qazi does not argue that the trial...