                                                               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.


      Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 2 of 11
      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.


      Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016     Page 3 of 11
      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


      Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 4 of 11
       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


       Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 5 of 11
       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

       Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 7 of 11
       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


       Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 8 of 11
       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.

       Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 9 of 11
       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.


       Court of Appeals of Indiana | Memorandum Decision 03A04-1507-DR-964 | April 28, 2016   Page 10 of 11
       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.




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