MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                    Jan 12 2016, 9:35 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE
Essam Otefi
Angola, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Essam Otefi,                                             January 12, 2016
Appellant-Respondent,                                    Court of Appeals Cause No.
                                                         76A03-1506-DR-662
        v.                                               Appeal from the Steuben Circuit
                                                         Court
Doaa Ebrahim,                                            The Honorable Allen N. Wheat,
Appellee-Petitioner.                                     Judge
                                                         The Honorable Randy Coffey,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         76C01-1209-DR-320



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016     Page 1 of 12
                                             Case Summary
[1]   Essam Otefi appeals the trial court’s denial of his contempt petition against his

      ex-wife, Doaa Ebrahim, as well as the award of attorney fees to Ebrahim and

      modification of his child support obligation. We affirm in part and reverse in

      part.


                                                    Issues
[2]   The issues before us are:


              I.       whether the trial court properly refused to hold Ebrahim in
                       contempt for recovering personal property in Egypt not
                       specifically mentioned in the dissolution decree;


              II.      whether the trial court properly increased Otefi’s child
                       support obligation based on Ebrahim’s alleged increased
                       childcare costs; and


              III.     whether the trial court properly ordered Otefi to pay
                       attorney fees to Ebrahim.


                                                     Facts
[3]   Otefi and Ebrahim are immigrants who married in Egypt in 2006, then settled

      in Steuben County, and became American citizens. However, they retained

      property in Egypt and had relatives living there. The couple had two children

      while they were married.


[4]   Ebrahim petitioned for divorce in 2012. At the final hearing, the parties

      presented an agreement for division of their personal property and debts. The

      Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 2 of 12
      agreement listed thirty-one specific items of property and divided them between

      the parties; it also set aside Otefi’s pension solely to him. The parties owned no

      real estate in the United States. However, at the outset of the hearing, counsel

      for Otefi stated:


              The other issue, Your Honor, is that there is a question and
              perhaps some dispute as to real estate ownership in Alexandria,
              Egypt of the respective parties. Nonetheless it is my
              understanding that the parties have agreed to relinquish any and
              all interest that either party has against the real estate of the other
              in the nation of Egypt if it exists.


      App. p. 96. Counsel for Ebrahim agreed that this was an accurate stipulation.

      Counsel for Otefi then continued:

              And finally, Your Honor, uh, we just discussed this walking
              down the hallway, um, [Ebrahim] would agree that post-
              dissolution, she would bring no further claim in the nation of
              Egypt for financial benefit or associated with the property of the
              parties in the nation of Egypt. Having been otherwise satisfied
              by this Court’s decree.


      Id. Counsel for Ebrahim again agreed with this statement.


[5]   The trial court entered a final dissolution decree, reflecting the stipulation and

      agreement of the parties regarding division of their personal property and debts

      in America and Otefi’s pension. The decree further stated:

              9.     Mother and Father stipulated and agreed that neither will
              assert any claim against real estate which the other may own and
              which is located in Alexandria, Egypt in any court anywhere.
              Further, neither Mother nor Father shall bring any legal action in
      Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 3 of 12
              Egypt the purpose of which being to avoid and have nullified any
              provision of this Court’s Final Decree of Divorce.


              10. The Court adopts each and every stipulation set forth
              above by Mother and Father, and same shall become the Order
              of this Court.


      Id. at 79-80. The trial court further stated:


              12. All stipulations set forth on the record by the parties and
              identified by the Court above in this Court’s Findings of Fact are
              hereby adopted and made the order of this Court.


      Id. at 84. The dissolution decree also imposed a child support obligation of

      $360 per week upon Otefi, which subsequently was modified to $461 per week.


[6]   Ebrahim filed a motion for relief from judgment. Among other matters,

      Ebrahim contended she had limited command of English and was essentially

      pressured into accepting the stipulations regarding the parties’ property at the

      outset of the final hearing. The trial court denied Ebrahim’s motion. She then

      appealed, and this court affirmed the trial court’s ruling. Ebrahim v. Otefi, No.

      76A03-1309-DR-368 (Ind. Ct. App. June 30, 2014). We analyzed the record of

      the final hearing, along with evidence of Ebrahim’s English proficiency, and

      held that although it would have been preferable if the trial court had directly

      asked Ebrahim and not her attorney about the stipulations stated by Otefi’s

      counsel, “we conclude that [Ebrahim] waived her challenge to the division of

      marital assets and liabilities.” Id., slip op. at p. 9.



      Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 4 of 12
[7]   While the appeal was pending, Ebrahim filed an action with authorities in

      Egypt to obtain personal property located in an apartment leased or owned by

      Otefi.1 In this action, Ebrahim represented that she and Otefi were still married

      and that Otefi was squandering marital property. Apparently, Egyptian law

      does not recognize the validity of the parties’ divorce in America, and

      Ebrahim’s filing permitted the seizure of the items in the apartment. These

      items, which were not listed in the parties’ stipulated property settlement or in

      the dissolution decree, were worth about $6,000. An Egyptian court also

      imposed a sentence of four months in jail upon Otefi in absentia in relation to

      Ebrahim’s action, which Otefi became aware of when he went to Egypt to visit

      his parents and he had to hire a lawyer there to defend himself.


[8]   On January 21, 2015, Otefi filed a motion to modify child support, asserting

      that Ebrahim had obtained employment and her childcare costs had decreased.

      On January 28, 2015, Otefi filed a verified petition for a rule to show cause why

      Ebrahim should not be held in contempt for filing the action in Egypt to obtain

      the property in the apartment; Otefi alleged that this action violated the

      dissolution decree’s division of property and the parties’ property settlement

      agreement.


[9]   After conducting a hearing, the trial court refused to hold Ebrahim in contempt

      because the dissolution decree did not address the personal property she




      1
          There was conflicting evidence as to whether Otefi owned or leased the apartment.


      Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 5 of 12
       obtained in Egypt. Also, the trial court did modify Otefi’s child support

       obligation but increased, not decreased, it based upon Ebrahim’s child support

       worksheet. The trial court also ordered Otefi to pay $750 to Ebrahim’s

       attorney. Otefi filed a motion to correct error, which the trial court denied.

       Otefi now appeals.


                                                   Analysis
[10]   At the outset, we acknowledge that Ebrahim has not filed an appellee’s brief.

       In such a situation, we need not develop arguments for her and may reverse if

       Otefi is able to establish prima facie error. See Vandenburgh v. Vandenburgh, 916

       N.E.2d 723, 725 (Ind. Ct. App. 2009). Prima facie error “is error at first sight,

       on first appearance, or on the face of it.” Id. However, we are not relieved of

       our obligation to correctly apply the law to the facts in the record before

       determining whether reversal is required. Id.


                                                  I. Contempt

[11]   Otefi first contends the trial court erred in refusing to hold Ebrahim in

       contempt. A party who willfully disobeys a court’s order may be held in

       contempt of court. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012).

       It is within the trial court’s discretion to determine whether a party is in

       contempt, and we will review its judgment for an abuse of discretion. Id. The

       order alleged to have been violated “must have been so clear and certain that

       there could be no question as to what the party must do, or not do, and so there

       could be no question regarding whether the order is violated.” City of Gary v.


       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 6 of 12
       Major, 822 N.E.2d 165, 170 (Ind. 2005). Failure to comply with an ambiguous

       or indefinite order cannot support a contempt finding. Id.


[12]   Otefi argues Ebrahim violated the clear terms of the dissolution decree in

       seeking to obtain personal property in Egypt. We conclude, however, that the

       dissolution decree was ambiguous with respect to disposition of any personal

       property in Egypt. First, the dissolution decree only prohibits Ebrahim from

       asserting “any claim against real estate which the other may own and which is

       located in Alexandria, Egypt . . . .” App. p. 79 (emphasis added). It does not

       contain any prohibition related to making claims against personal property in

       Egypt. And, the personal property obtained by Ebrahim in Egypt was not

       divided or even mentioned in the dissolution decree or the parties’ settlement

       agreement. As such, Ebrahim’s action does not appear to have been filed to

       “avoid and have nullified” any part of the dissolution decree. Id. In other

       words, the dissolution decree did not clearly prohibit Ebrahim’s actions in

       Egypt, and the trial court properly refused to hold her in contempt for allegedly

       violating that order.


[13]   Otefi focuses upon the second purported stipulation at the final hearing, made

       by Ebrahim’s counsel’s agreement with the statement by Otefi’s counsel,

       “[Ebrahim] would agree that post-dissolution, she would bring no further claim

       in the nation of Egypt for financial benefit or associated with the property of the

       parties in the nation of Egypt.” Id. at 96. However, this language, which

       arguably would have prohibited attempts by Ebrahim to obtain personal

       property in Egypt, was not included in the final dissolution decree. The decree

       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 7 of 12
       stated that it included “each and every stipulation set forth above,” as well as

       “[a]ll stipulations set forth on the record by the parties and identified by the Court

       above . . . .” Id. at 79-80, 84 (emphases added). When parties to a dissolution

       enter in a property settlement agreement, the agreement must be submitted to

       the court for approval and incorporation into the dissolution decree if so

       approved, and only at such time does the agreement become enforceable.

       Spencer v. Spencer, 752 N.E.2d 661, 663 (Ind. Ct. App. 2001) (citing Ind. Code §

       31-15-2-17). Here, the trial court did not incorporate any provisions regarding

       personal property in Egypt into the final dissolution decree. Nor did we make

       any such holding in Ebrahim’s appeal from the denial of her motion for relief

       from judgment. Thus, the purported second stipulation at the final hearing

       regarding such property was not enforceable, by a contempt action or

       otherwise.


                                               II. Child Support

[14]   Next, Otefi contends the trial court erred in increasing his weekly child support

       obligation to $498 per week. This amount coincides with the child support

       worksheet submitted by Ebrahim at the hearing. We will reverse a trial court’s

       child support modification only if it is clearly erroneous. Bogner v. Bogner, 29

       N.E.3d 733, 738 (Ind. 2015). In reviewing a support modification, we will

       consider only the evidence and the reasonable inferences therefrom favorable to

       the judgment. Id.


[15]   First, Otefi argues that the trial court erred in accepting Ebrahim’s

       representation that her child care costs have increased from approximately $60
       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 8 of 12
       per week to $150 per week. Per Child Support Guideline 3(E), “[c]hild care

       costs incurred due to employment or job search of both parent(s) should be

       added to the basic obligation. It includes the separate cost of a sitter, day care,

       or like care of a child or children while the parent works or actively seeks

       employment.” At the hearing, Ebrahim introduced into evidence a receipt from

       a daycare provider that she paid $110 per week for the younger child, and a

       separate receipt for afterschool care for the older child showing a cost of $40 per

       week, for a total of $150 per week.


[16]   In his motion to correct error and on appeal, Otefi contends that the amount of

       $150 per week is clearly unreasonable and inconsistent with what Ebrahim

       claimed to have paid in child care expenses in 2014 according to her 2014

       income tax return. For us to accept Otefi’s argument, however, would require

       us to reweigh evidence. Ebrahim submitted documentation that her current

       weekly child care expenses total $150. The trial court was permitted to rely

       upon such documentation in setting Otefi’s child support obligation.


[17]   Otefi’s second argument regarding child support is that the trial court should

       have reduced the amount claimed by Ebrahim in weekly child care costs to

       account for the fact that she may be eligible to claim a child care tax credit on

       her federal income tax return. The possibility of such an adjustment is

       mentioned in the Official Commentary to Child Support Guideline 3(E). In

       reviewing the record, we discern that Otefi made no such argument regarding

       the tax credit in his initial filing with the trial court or during the hearing on the

       matter. The sole disputed points at the hearing were the amount of child care

       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 9 of 12
       expenses Ebrahim incurred and whether Otefi was entitled to a credit for

       overnight visits with his children. Otefi first raised the matter of the tax credit

       in his motion to correct error. However, a party cannot raise a previously-

       available issue for the first time in a motion to correct error. Yater v. Hancock

       Cty. Bd. of Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997). Failure to raise

       errors that existed at trial may not be remedied in a post-trial motion to correct

       error or on appeal. Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1103 (Ind.

       Ct. App. 1992). Thus, we decline to address whether the tax credit issue is a

       basis for reversing the child support modification.


                                                 III. Attorney Fees

[18]   The final issue Otefi raises is whether the trial court erred in ordering him to

       pay $750 to Ebrahim’s attorney. In its order, the trial court stated it was

       ordering Otefi to pay this amount as reimbursement for “defending this action.”

       App. p. 16. This would appear to refer to defending the contempt petition, as

       the trial court did not give any indication that it was ordering the payment of

       attorney fees in relation to the child support modification pursuant to Indiana

       Code Section 31-16-11-1. Cf. Whited v. Whited, 859 N.E.2d 657, 665 (Ind.

       2007). Given Ebrahim’s failure to file a brief and provide us with any argument

       as to why this statute should apply, we will not apply it. 2




       2
        We additionally note that the trial court did not order Otefi to pay any of Ebrahim’s attorney fees in the
       original dissolution decree. It is difficult to discern, especially without any argument from Ebrahim, why the
       dissolution attorney fees statute did not support any award of fees in the original decree but does so now.

       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016           Page 10 of 12
[19]   “Indiana adheres to the ‘American Rule’ with respect to the payment of

       attorneys’ fees, which requires each party to pay his or her own attorneys’ fees

       absent an agreement between the parties, statutory authority, or rule to the

       contrary.” Fackler v. Powell, 891 N.E.2d 1091, 1098 (Ind. Ct. App. 2008), trans.

       denied. As noted, it does not appear that the trial court was relying upon the

       statutory authority related to dissolution actions in ordering Otefi to pay

       attorney fees, and there was no agreement between the parties for him to do so.

       That leaves Indiana Code Section 34-52-1-1(b), which allows an award of

       attorney fees to a prevailing party when the other litigant has pursued a claim or

       defense that is frivolous, unreasonable, or groundless. Id.


[20]   On this point, we conclude Otefi has established prima facie error, in that we do

       not perceive his contempt petition to have been frivolous, unreasonable, or

       groundless. Although Otefi has not prevailed on his contempt claim, we

       acknowledge that there was an apparent inconsistency between the stipulations

       entered into at the final dissolution hearing and the language contained in the

       dissolution decree itself. Although Ebrahim did not technically violate the

       dissolution decree and thus cannot be held in contempt, we believe there was a

       reasonable basis for Otefi to believe that Ebrahim violated the spirit of the

       decree by pursuing an action in Egypt that resulted in her obtaining an

       additional $6,000 worth of personal property and in a four-month jail term for

       Otefi that he was forced to defend against. There were reasonable grounds for

       Otefi to seek to hold Ebrahim in contempt, and as such we reverse the trial

       court’s order that he pay a portion of Ebrahim’s attorney fees.


       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 11 of 12
                                                 Conclusion
[21]   Because Ebrahim did not violate the plain language of the dissolution decree,

       the trial court properly refused to hold her in contempt. There also is no basis

       to reverse the trial court’s increase of Otefi’s child support obligation.

       However, Otefi has established prima facie error in the award of attorney fees

       against him. We affirm the denial of the contempt petition and the

       modification of Otefi’s support obligation but reverse the attorney fees award.


[22]   Affirmed in part and reversed in part.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A03-1506-DR-662 | January 12, 2016   Page 12 of 12
