Pursuant to Ind.Appellate Rule 65(D), this

                                                                    FILED
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                     Jan 18 2012, 9:25 am
the defense of res judicata, collateral
estoppel, or the law of the case.
                                                                         CLERK
                                                                       of the supreme court,
                                                                       court of appeals and
                                                                              tax court




APPELLANT PRO SE:                                  ATTORNEY FOR APPELLEE:

RAMEZAN HAJIZADEH                                  MARYLAND L. AUSTIN
Salem, Indiana                                     Corydon, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

RAMEZAN HAJIZADEH                                  )
                                                   )
       Appellant,                                  )
                                                   )
               vs.                                 )       No. 88A01-1012-DR-678
                                                   )
JO HAJIZADEH n/k/a JO OWENS                        )
                                                   )
       Appellee.                                   )
                                                   )


                   APPEAL FROM THE WASHINGTON SUPERIOR COURT
                          The Honorable Frank Newkirk, Jr., Judge
                              Cause No. 88D01-0607-DR-93


                                        January 18, 2012

                MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      The marriage of Ramezan HajiZadeh (“Husband”) and Jo HajiZadeh n/k/a Jo

Owens (“Wife”) was dissolved in Washington Superior Court.               Thereafter, the

dissolution court entered an amended order dividing the marital property and denying

Husband’s requests for maintenance, enforcement of a U.S. Citizenship and Immigration

Services Form I-864 Affidavit of Support, and attorney fees. Husband appeals and raises

several issues, which we restate and renumber as:

      I. Whether the dissolution court abused it discretion in admitting testimony
      and evidence concerning Husband’s misconduct during the marriage;

      II. Whether the dissolution court erred in concluding that Husband was not
      entitled to payment under the Affidavit of Support;

      III. Whether the dissolution court abused its discretion in denying
      Husband’s request for spousal maintenance;

      IV. Whether the dissolution court abused its discretion in dividing the
      marital assets; and

      V. Whether the dissolution court abused its discretion in denying
      Husband’s request for attorney fees.

      We affirm.

                            Facts and Procedural History

      Prior to the marriage, Husband lived in Iran and Wife lived in Salem, Indiana with

her two daughters from a previous marriage. After meeting in an internet chat room in

2001, Husband and Wife regularly chatted online and Wife made two trips to Turkey to

visit with Husband. On the second of these trips, in October 2002, Husband and Wife

were married. Thereafter, Wife returned to the United States and Husband began the

process of securing a visa to allow him to immigrate to the United States to live with

                                           2
Wife. As part of this process, Wife and Wife’s father, Dan Mattox (“Mattox”), executed

a U.S. Citizenship and Immigration Services Form I-864 Affidavit of Support (“Affidavit

of Support”), pursuant to which they “agree[d] to provide [Husband] whatever support is

necessary to maintain [Husband] at an income that is at least 125 percent of the Federal

poverty guidelines.” Appellant’s App. p. 38. Husband subsequently obtained a visa, and

he immigrated to the United States and moved in with Wife in April 2004.

      Shortly thereafter, the marriage began to deteriorate. Wife alleged that Husband

was violent toward her and that he visited Persian-language dating and pornography

websites. Husband alleged that Wife was having an affair with a neighbor. In December

2005, Husband left the marital residence and moved in with Mattox. Then, in March

2006, after being asked to leave Mattox’s residence, Husband left the United States and

returned to Iran without informing Wife or Mattox of his whereabouts.

      Wife filed a petition for dissolution of marriage on July 13, 2006. Although

Husband remained in Iran, an attorney entered an appearance on his behalf in the

dissolution action in August 2006 and filed petitions requesting spousal maintenance,

enforcement of the Affidavit of Support, and attorney fees. Upon his return to the United

States in March 2007, Husband lived out of state and continued to conceal his

whereabouts from Wife and Mattox.

      On January 15, 2009, the dissolution court entered an order dissolving the

marriage, but reserved all other issues for further hearing. After several hearings, the

dissolution court entered judgment on May 18, 2010. Husband filed a timely motion to


                                           3
correct error, and the dissolution court held a hearing on October 21, 2010. Thereafter,

on November 16, 2010, the dissolution court entered an amended order awarding Wife

“sole ownership of her residence, real estate, household furnishings, automobiles and

children’s trust fund, all of which were owned by her prior to her marriage to [Husband]

and prior to his arrival in the U.S.” Appellant’s App. p. 17. Husband was awarded “all

personal property, bank accounts and other assets in his possession or titled in his name.”

Id.   The order also denied Husband’s requests for enforcement of the Affidavit of

Support, spousal maintenance, and attorney fees. Husband now appeals. Additional facts

will be provided as necessary.

                                  Standard of Review

       In this case, the dissolution court entered written findings and conclusions

pursuant to Wife’s request under the provisions of Indiana Trial Rule 52(A). When

written findings and conclusions are entered by the trial court pursuant to the request of

any party to the action, we apply a two-tiered standard of review.          Maloblocki v.

Maloblocki, 646 N.E.2d 358, 361 (Ind. Ct. App. 1995).

       First, we determine whether the evidence supports the findings and second,
       whether the findings support the judgment. In deference to the trial court’s
       proximity to the issues, we disturb the judgment only where there is no
       evidence supporting the findings or the findings fail to support the
       judgment. We do not reweigh the evidence, but consider only the evidence
       favorable to the trial court’s judgment. Challengers must establish that the
       trial court’s findings are clearly erroneous. Findings are clearly erroneous
       when a review of the record leaves us firmly convinced a mistake has been
       made. However, while we defer substantially to findings of fact, we do not
       do so to conclusions of law. Additionally, a judgment is clearly erroneous
       under Indiana Trial Rule 52 if it relies on an incorrect legal standard. We


                                            4
      evaluate questions of law de novo and owe no deference to a trial court’s
      determination of such questions.

Balicki v. Balicki, 837 N.E.2d 532, 535-36 (Ind. Ct. App. 2005) (quoting Carmichael v.

Siegel, 754 N.E.2d 619, 625 (Ind. Ct. App. 2001)), trans. denied.

      Additionally, where a dissolution court has entered special findings at a party’s

request pursuant to Trial Rule 52(A), we may affirm the judgment on any legal theory

supported by the findings.    Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind. 1998).

Before affirming on a legal theory supported by the findings but not espoused by the

dissolution court, we should be confident that our conclusions are consistent with all of

the dissolution court’s findings of fact and the reasonable inferences flowing therefrom.

Id.

                               I. Evidence of Misconduct

      Husband first argues that the dissolution court abused its discretion in admitting

evidence of his misconduct during the marriage. We review decisions concerning the

admissibility of evidence for an abuse of discretion. Arlton v. Schraut, 936 N.E.2d 831,

836 (Ind. Ct. App. 2010), trans. denied. An abuse of discretion occurs where the trial

court’s decision is clearly erroneous and against the logic and effect of the facts and

circumstances before the court or if its decision is without reason or based upon

impermissible considerations. Id. However, “[e]rror may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is affected[.]”

Ind. Evidence Rule 103(a); see also Ind. Appellate Rule 66(A) (providing that no error is



                                            5
ground for reversal “where its probable impact, in light of all the evidence in the case, is

sufficiently minor so as not to affect the substantial rights of the parties”).

       As an initial matter, we note that the Indiana Dissolution of Marriage Act, which

was enacted in 1971, abolished the previously existing grounds for divorce, which

required a finding of fault on the part of one of the spouses. R.E.G. v. L.M.G., 571

N.E.2d 298, 301 (Ind. Ct. App. 1991). Under the Act, “the conduct of the parties during

the marriage—except as it relates to the disposition or dissipation of property—is

irrelevant to the trial court’s division of marital assets.” Id.; see also Ind. Code § 31-15-

7-5 (2008). Accordingly, this court “will not tolerate the injection of fault into modern

dissolution proceedings.” R.E.G., 571 N.E.2d at 301.

       Here, Wife presented extensive testimony and evidence that Husband had

committed acts of domestic violence against her, that he had visited Persian-language

pornography and dating websites, and that he abandoned her and concealed his

whereabouts. Husband argues that the dissolution court’s admission of this evidence

establishes that the court was biased against him. However, Husband’s argument is

disingenuous because it overlooks the fact that Husband was permitted to present

extensive testimony and evidence of Wife’s misconduct during the marriage.

Specifically, he testified at length that Wife had an affair with a neighbor, and he also

alleged that Wife had been violent toward him and threatened his life.

       Although the dissolution court made several findings concerning the parties’

alleged bad acts, it went on to make the following finding:


                                               6
         During the trial of this matter, each party introduced evidence and
         allegations of immorality and improper behavior on the part of the other
         spouse. The Indiana Dissolution of Marriage Act which was adopted in
         1971 expressly abolished the previously existing grounds for divorce which
         required a finding of fault. The conduct of the parties during the
         marriage—except as it relates to the disposition or dissipation of property
         or to the issue of marital fraud under 8 U.S.C.A. §1227 (G)—is irrelevant
         to the trial court’s division of marital assets.[1]

Appellant’s App. p. 13 (citation omitted).                     Thus, the dissolution court specifically

indicated that it considered the parties’ conduct only for these limited purposes.

Consequently, to the extent that the evidence presented did not relate to either of these

purposes, the dissolution court disregarded it and it was therefore harmless.

         A dissolution court is clearly permitted to consider the bad acts of the parties to

the extent that they relate to the disposition or dissipation of the property. R.E.G., 571

N.E.2d at 301; I.C. § 31-15-7-5. However, the trial court’s consideration of the issue of

“marital fraud” under 8 U.S.C. § 1227(G) is more problematic.2 The statute provides that

         An alien shall be considered to be deportable as having procured a visa or
         other documentation by fraud . . . and to be in the United States in violation
         of this chapter . . . if--
             (i) the alien obtains any admission into the United States with an
             immigrant visa or other documentation procured on the basis of a
             marriage entered into less than 2 years prior to such admission of the
             alien and which, within 2 years subsequent to any admission of the alien
             in the United States, shall be judicially annulled or terminated, unless

1
 The trial court also found that the parties’ conduct during the marriage was relevant to the extent that it related to
“whether [Husband] made performance of the Affidavit of Support Impossible by his conduct.” Appellant’s App. p.
17. Because an action to enforce an Affidavit of Support is essentially one for breach of contract, see Shumye v.
Felleke, 555 F. Supp. 2d 1020, 1023 (N.D. Cal. 2008), it was appropriate for the dissolution court to consider
Husband’s conduct for this purpose.

2
  Indiana law also recognizes the concept of marital fraud, but in a very different context. Under Indiana Code
section 31-11-9-3 (2008), marriages brought about through fraud are voidable. Accordingly, the alleged victim of
marital fraud may file an action to annul the marriage. Ind. Code § 31-11-10-2 (2008). Here, neither Husband nor
Wife sought an annulment of the marriage, so the issue of marital fraud under Indiana law is irrelevant here.

                                                          7
             the alien establishes to the satisfaction of the Attorney General that such
             marriage was not contracted for the purpose of evading any provisions
             of the immigration laws, or
             (ii) it appears to the satisfaction of the Attorney General that the alien
             has failed or refused to fulfill the alien’s marital agreement which in the
             opinion of the Attorney General was made for the purpose of procuring
             the alien’s admission as an immigrant.

8 U.S.C. § 1227(G). It is apparent from the plain language of the statute that marital

fraud as defined therein relates only to an alien’s immigration status and deportability.

Such considerations are wholly irrelevant in a dissolution proceeding, and it was

therefore improper for the dissolution court to consider the issue of marital fraud under 8

U.S.C. § 1227(G). 3 But the dissolution court made no finding that marital fraud actually

occurred in this case. Thus, to the extent that the trial court erred in considering the issue

of marital fraud under 8 U.S.C. § 1227(G), the error had no effect on its final ruling and

was therefore harmless. For all of these reasons, we conclude that any error in the

admission of evidence concerning Husband’s misconduct during the marriage was

harmless.4

                              II. Enforcement of Affidavit of Support

        Next, Husband argues that the dissolution court erred in denying Husband’s

petition to enforce the Affidavit of Support. Under federal immigration laws, immigrants


3
  It appears that the dissolution court may have actually considered the issue of marital fraud in the context of
determining whether Husband had fraudulently induced Wife to sign the Affidavit of Support. See Raymundo v.
Hammond Clinic Ass’n, 449 N.E.2d 276, 283 (Ind. 1983) (noting that contracts induced by fraud are voidable).
4
  Husband also takes issue with the dissolution court’s findings concerning the specific bad acts committed by
Husband and Wife. Husband essentially argues that the findings concerning his misconduct are clearly erroneous
because Wife’s evidence and testimony concerning Husband’s bad acts was not credible, and that the trial court
should have believed his evidence concerning Wife’s misconduct and entered more findings to that effect. These
are simply requests to reweigh the evidence and judge the credibility of witnesses, which we will not do on appeal.

                                                        8
who are likely to become public charges are deemed inadmissible.              8 U.S.C. §

1182(a)(4); Shumye v. Felleke, 555 F. Supp. 2d 1020, 1023 (N.D. Cal. 2008).

Accordingly, “[f]amily-sponsored immigrants seeking admission are admissible only if

the person petitioning for the immigrants’ admission signs an Affidavit of Support Form

I-864. A Form I-864 is a legally enforceable contract between the sponsor and both the

United States Government and the sponsored immigrant.”            Id.   Thus, a sponsored

immigrant may bring an action to enforce an Affidavit of Support against the sponsor in

any federal or state court. Moody v. Sorokina, 830 N.Y.S.2d 399, 401 (N.Y. App. Div.

2007).     Moreover, the sponsor’s obligation under an Affidavit of Support does not

terminate in the event of a divorce. Younis v. Farooqi, 597 F. Supp. 2d 552, 554 (D. Md.

2009); Shumye, 555 F. Supp. 2d at 1024.

         By executing an Affidavit of Support, the “sponsor agrees to provide support to

maintain the sponsored alien at an annual income that is not less than 125 percent of the

Federal poverty line during the period in which the affidavit is enforceable[.]” 8 U.S.C. §

1183a(a)(1)(A); see also Appellant’s App. p. 38. In concluding that Husband was not

entitled to payment under the Affidavit of Support, the dissolution court made the

following findings:

         34. [Husband] acknowledged that he has, from March 2006 to the present,
         kept his address and whereabouts a secret from his co-sponsors. Although
         he claims that [Wife] told him he could become a “cold case” she denied
         the statement and there is no objective proof that the statement was made.
                                             ***
         37. [Husband] lived in the homes of his co-sponsors from the time of his
         arrival in the U.S. in April 2004 until he flew back to Iran in March 2006,
         where he remained until March 2007.

                                             9
        38. During the time he lived in the homes of his co-sponsors, they provided
        in-kind support as required by the Affidavit of Support and owed no
        additional cash payment to [Husband] for the years 2004, 2005, and the
        first two months of 2006.
        39. [Husband] acknowledged that in the years 2007, 2008, and 2009 his
        income exceeded 125% of federal poverty level, eliminating any
        requirement of contribution by the sponsors under the Affidavit of Support
        for those years.
        40. [Husband] testified that he has applied for U.S. citizenship and that he
        should receive U.S. citizenship during the year 2010, which would
        permanently terminate any support duty owed under the Affidavit of
        Support.
        41. The only time period for which the co-sponsors owed and failed to
        provide support under the Affidavit of Support is the period of March
        through December, 2006, after [Husband] left Daniel Mattox’s residence
        and returned to Iran. He was asked to leave the residence based upon his
        conduct and breakdown of the relationship.
        42. [Husband] himself rendered impossible the performance of the co-
        sponsors’ obligation under the Affidavit of Support during the period in
        which he returned to Iran and kept his whereabouts concealed from his co-
        sponsors, and he should not now he entitled to specific enforcement of that
        obligation for the period of March through December, 2006.

Appellant’s App. pp. 14-15.

        On appeal, Husband does not dispute that 2006 is the only year for which he might

be entitled to support.5 Rather, he argues that the dissolution court erred in concluding

that he rendered performance of the contract impossible by concealing his whereabouts

from his sponsors. Husband does not deny that he concealed his whereabouts, but

contends that he was forced to do so out of fear for his life because Wife had threatened

him.6 However, Wife denied threatening Husband, and it is apparent from the dissolution


5
 Husband argues that his income for that year was $5,231 and that 125% of the federal poverty guideline for that
year was $12,250, leaving a deficit of $7,019. Appellant’s Br. at 27.
6
 Husband also contends that although his sponsors were not aware of his physical location, they were aware that he
had executed a power of attorney in favor of Keith Groth, and that they should have sent support to Groth’s address.
The record supports Husband’s assertion that Wife was aware that he had executed a power of attorney in Groth’s
                                                        10
court’s findings that it did not find Husband’s testimony concerning the alleged threats

credible. Thus, Husband’s argument in this regard is simply a request to reweigh the

evidence and judge the credibility of witnesses, which we will not do on appeal.

        Where performance of a contract becomes impossible, nonperformance is

excused, and no damages can be recovered. Dove v. Rose Acre Farms, Inc., 434 N.E.2d

931, 935 (Ind. Ct. App. 1982); see also Bernel v. Bernel, 930 N.E.2d 673, 683 (Ind. Ct.

App. 2010) (noting that impossibility of performance excuses breach of an executory

contract), trans. denied; Rogier v. Am. Testing & Eng’g Corp., 734 N.E.2d 606, 620 (Ind.

Ct. App. 2000) (noting that “the common law of contracts excuses performance of one

party where the other party wrongfully prevents that performance”), trans. denied.

Evidence was presented at trial that Husband was provided with support as required

under the Affidavit of Support until March 2006, when he left Mattox’s home and

returned to Iran without informing his sponsors. Husband’s conduct in deliberately

concealing his whereabouts made it impossible for his sponsors to continue to provide

support. Accordingly, we cannot conclude that the trial court erred in concluding that

Husband was not entitled to recover damages under the Affidavit of Support.

                                        III. Spousal Maintenance




favor. However, Husband did not argue that Wife should have sent support to Groth in his pretrial briefings or in his
motion to correct error, and he has not directed our attention to any portion of the record indicating that he raised
this argument at any hearing. Because Husband raises this argument for the first time on appeal, we will not
consider it. See Babinchak v. Town of Chesterton, 598 N.E.2d 1099, 1103 (Ind. Ct. App. 1992) (noting that we will
not consider arguments raised for the first time on appeal).



                                                        11
       Next, Husband argues that the dissolution court abused its discretion in denying

his request for spousal maintenance. An award of spousal maintenance is within the

dissolution court’s sound 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, 508 (Ind. Ct. App. 2004).            In determining whether the

dissolution court has abused its discretion in making its spousal maintenance

determination, we presume that the dissolution court properly considered the applicable

statutory factors in reaching its decision. Bizik v. Bizik, 753 N.E.2d 763, 769 (Ind. Ct.

App. 2001), trans. denied. Our task is limited to determining whether there is sufficient

evidence to support the dissolution court’s judgment. Moore v. Moore, 695 N.E.2d 1004,

1008 (Ind. Ct. App. 1998).

       Under Indiana Code section 31-15-7-2 (2008), a court may order spousal

maintenance in three circumstances: (1) where a spouse is physically or mentally

incapacitated to the extent that the ability of the incapacitated spouse to support himself

or herself is materially affected; (2) where the spouse is the custodian of a child whose

physical incapacity requires the custodian to forego employment; and (3) where the

dissolution court finds that a spouse needs support while acquiring sufficient education or

training to get an appropriate job. Cannon v. Cannon, 758 N.E.2d 524, 525-26 (Ind.

2001) (citing Voigt v. Voigt, 670 N.E.2d 1271, 1276-77 (Ind. 1996)).

       Here, Husband makes no argument that he is incapacitated or that he is the

custodian of an incapacitated child. Therefore, the only type of maintenance he could


                                            12
receive is rehabilitative maintenance under Indiana Code section 31-15-7-2(3).                                   But

Husband does not argue in his Appellant’s brief that he needs or intends to seek

additional education or training in order to obtain an appropriate job.7 Rather, he simply

argues that he is entitled to maintenance because Wife has more income and assets than

him. Husband’s assertion that Wife’s income exceeds his is dubious, but even assuming

that it is true, a disparity between the spouse’s incomes, standing alone, will not support

an award of spousal maintenance. See I.C. § 35-17-7-2. We therefore conclude that the

dissolution court did not abuse its discretion in denying Husband’s request for

maintenance.

                                          IV. Division of Property

         Next, Husband argues that the dissolution court abused its discretion in dividing

the marital assets. The disposition of marital assets is within the dissolution court’s

sound discretion, and we will reverse only for an abuse of that discretion. Eye v. Eye,

849 N.E.2d 698, 701 (Ind. Ct. App. 2006). In so doing, we consider only the evidence

most favorable to the dissolution court’s decision, without reweighing the evidence or

assessing the credibility of witnesses. Id. A dissolution court abuses its discretion if its

decision is clearly against the logic and effect of the facts and circumstances before the

court, or if it has misinterpreted the law or disregards evidence of factors listed in the

controlling statute. Id.

7
  Husband raises an argument concerning his alleged need for further education for the first time in his reply brief.
However, parties are not permitted to present new arguments in their reply briefs, and an argument an appellant fails
to raise in his initial brief is waived for appeal. Kelly v. Levandoski, 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005),
trans. denied; see also Indiana App. R. 46(C). It also appears that Husband failed to raise any such argument before
the trial court. Accordingly, Husband has waived appellate consideration of this argument.

                                                         13
       Husband first contends that the dissolution court abused its discretion by allowing

Wife to retain specific items of Husband’s personal property. As an initial matter, we

note that our supreme court has held that a dissolution court’s disposition of marital

property is to be considered as a whole, not item by item. Fobar v. Vonderahe, 771

N.E.2d 57, 59 (Ind. 2002). And even assuming that the property belonged to Husband

before or during the marriage and that Wife was allowed to retain the property, it is well

established that all of the spouses’ property goes into the marital pot for division, whether

it was owned by either spouse prior to the marriage, acquired by either spouse after the

marriage and prior to the parties’ final separation, or acquired by their joint efforts. Hill

v. Hill, 863 N.E.2d 456, 460 (Ind. Ct. App. 2007); see also Indiana Code § 31-15-7-4(a)

(2008). This “one-pot” theory ensures that all of the parties’ assets are subject to the

dissolution court’s power to divide and award. Hill, 863 N.E.2d at 460. “While the trial

court may ultimately determine that a particular asset should be awarded solely to one

spouse, it must first include the asset in its consideration of the marital estate to be

divided.” Id. Thus, the dissolution court was required to include the property in the

marital estate, and the fact that the property was allegedly owned by Husband before or

during the marriage, without more, does not make the dissolution court’s decision to

award such property to Wife an abuse of discretion.

       Pursuant to Indiana Code section 31-15-7-5 (2008), the dissolution court is

required to divide the marital estate in a just and reasonable manner. An equal division is

presumed just and reasonable, but a party may rebut this presumption by presenting


                                             14
evidence that an equitable division would not be just and reasonable, including evidence

concerning the following factors:

       (1) The contribution of each spouse to the acquisition of property,
       regardless of whether the contribution was income producing.
       (2) The extent to which the property was acquired by each spouse:
              (A) before the marriage; or
              (B) through inheritance or gift.
       (3) The economic circumstances of each spouse at the time the disposition
       of the property is to become effective, including the desirability of
       awarding the family residence or the right to dwell in the family residence
       for such periods as the court considers just to the spouse having custody of
       any children.
       (4) The conduct of the parties during the marriage as related to the
       disposition or dissipation of their property.
       (5) The earnings or earning ability of the parties as related to:
              (A) a final division of property; and
              (B) a final determination of the property rights of the parties.

Id.   A party challenging the dissolution court’s division of marital property must

overcome a strong presumption that the dissolution court “‘considered and complied with

the applicable statute, and that presumption is one of the strongest presumptions

applicable to our consideration on appeal.’” McCord v. McCord, 852 N.E.2d 35, 43 (Ind.

Ct. App. 2006), trans. denied (quoting DeSalle v. Gentry, 818 N.E.2d 40, 44 (Ind. Ct.

App. 2004)). Accordingly, we will reverse a property distribution only if there is no

rational basis for the award, and although the circumstances may have justified a different

property distribution, we may not substitute our judgment for that the trial court.

Augspurger, 802 N.E.2d at 512.

       The dissolution court made the following relevant findings and conclusions with

regard to its division of the marital assets in this case:


                                               15
                            FINDINGS OF FACT
                                      ***
8. [Wife] hired an immigration attorney and paid approximately $2,000.00
in legal fees to obtain a Visa for [Husband] to enter the United States.
                                      ***
11. On June 11, 2004, at [Husband’s] request, [Wife] sent a wire transfer
of $12,800.00 to a United Arab Emirates account for [Husband].
                                      ***
17. On January 17, 2006, the parties’ joint National City Bank account
statement shows that a deposit of $1,056.49 was made and an NWA airline
ticket was purchased for $1,241.28.
                                      ***
21. [Husband] testified that he flew back to Iran on March 17, 2006, and
remained there until March 1, 2007.
                                      ***
44. [Husband] acknowledged that he did not contribute in any way to the
acquisition of [Wife’s] residence, real estate, household furnishings,
automobiles or children’s trust fund, all of which were owned by [Wife]
prior to her marriage to [Husband] and prior to his arrival in the U.S..
45. Although [Husband] participated in making improvements to the real
estate, [Wife] purchased all tools and materials and [Husband’s]
contribution of labor was in lieu of any outside earnings while he was fully
supported by [Wife].
46. [Husband] acknowledged that the parties did not acquire any residence,
real estate, vehicles or furniture during the marriage.
47. [Wife’s] premarital property has never been commingled nor placed in
[Husband’s] name either individually or jointly with [Wife] and her
children.
48. [Wife’s] residence is home to her two children, for whom she is sole
custodian, and her elderly parents, for whom she is primary caregiver.
Substantial cash assets are in a trust fund for her children.
49. All property owned by the parties at the time of the filing of the
petition for dissolution is marital property, regardless of how titled or
acquired.
50. The presumption of an equal division of the marital property between
the parties is just and reasonable is rebutted by [Wife’s] relevant evidence
that an equal division would not be just and reasonable in consideration of
                                    16
      the fact that the marital property was acquired by her prior to the marriage,
      that [Husband] made no contribution toward the acquisition of the property
      or the accumulation of the property, and the property was never
      commingled with joint marital assets.
      51. [Wife] paid [Husband’s] travel expenses and immigration attorneys
      and enabled him to immigrate to the United States and seek U.S.
      citizenships, and sent a wire transfer of $12,800 to a United Arab Emirates
      account for [Husband] in 2004; these amounts are deemed adequate
      compensation for any interest [Husband] may have acquired in any
      property retained by [Wife].
                                           ***
      54. Although [Husband] claims to have incurred $40,000.00 in credit card
      debt, he has engaged in International travel and incurred such debt
      primarily after the separation of the parties for his sole benefit.

                     CONCLUSIONS OF LAW AND JUDGMENT
                                            ***
      6. All property owned by the parties at the time of the filing of the petition
      for dissolution is marital property, regardless of how titled or acquired.
      7. The presumption that an equal division of the marital property between
      the parties is just and reasonable has been rebutted by relevant evidence.
                                            ***
      9. [Wife] shall retain sole ownership of her residence, real estate,
      household furnishings, automobiles and children’s trust fund, all of which
      were owned by her prior to her marriage to [Husband] and prior to his
      arrival in the U.S.
      10. [Husband] is awarded as his sole and separate property all personal
      property, bank accounts and other assets in his possession or titled in his
      name.
                                            ***
      12. Each party shall be solely responsible for any debts incurred in their
      sole name.

Appellant’s App. pp. 11-17.




                                           17
         Based on the findings concerning Wife’s acquisition of the bulk of the marital

property prior to the marriage, we cannot conclude that the dissolution court abused its

discretion in determining that Wife rebutted the presumption in favor of an equal division

of marital property. Husband does not appear to suggest that this presumption was not

rebutted or that he should have been awarded half of the marital assets; rather, he appears

to assert that the trial court’s ultimate division of marital assets was not just and

reasonable. Specifically, he argues that in light of various contributions he made to the

household during the marriage and his post-separation living expenses, he should have

been awarded a greater percentage of the marital assets.8

         The evidence favorable to the dissolution court’s judgment reveals that Husband

and Wife lived together for only twenty months, and the only significant assets in the

marital estate are those acquired by Wife prior to the marriage without any contribution

from Husband.9 Moreover, Wife is unemployed and has only completed one year of


8
  Husband also seems to take issue with dissolution court’s finding that Husband “made no contribution toward the
acquisition of the property or the accumulation of the property[.]” Appellant’s App. p. 15. Specifically, he asserts
that he made various contributions to the household during the marriage, some income-producing and some not.
However, the dissolution court’s finding that Husband made no contribution to the acquisition of the property was
clearly referring only to the property Wife acquired prior to the marriage. It is undisputed that Husband made no
contribution to the acquisition of Wife’s premarital property; accordingly, the dissolution court’s finding was not
clearly erroneous.
9
  Husband alleges that Wife purchased a modular home valued at $60,000 during the marriage. However, the trial
court found that Wife owned all real estate prior to the marriage, and Husband testified at trial that no real estate,
automobiles, or furniture were purchased between April 2004, when he arrived in the United States, and March 1,
2007, well after the date of the parties’ final separation. Appellant’s App. p. 244. Aside from his own self-serving
statement made in a pretrial briefing, which the dissolution court was in no way bound to find credible, Husband has
not directed our attention to any evidence of record supporting his assertion that Wife purchased the modular home
during the marriage. Husband also alleges that during the marriage, he and Wife purchased jewelry from Turkey
valued at $20,000. However, Wife testified that “shipments of gold and silver jewelry would come to her home and
that she didn’t know where it came from or what happened to it after it arrived.” Appellant’s App. p. 185.
Accordingly, Husband’s arguments in this regard are requests to reweigh the evidence and judge the credibility of
witnesses, which we will not do on appeal.

                                                         18
post-secondary study. Husband, on the other hand, has a Bachelor of Science degree, and

at the time of the final hearing in this case, he was employed as a salesman. His income

exceeded $30,000 in 2009. Additionally, although Wife does not receive social security

disability benefits, she suffers from significant health problems including fibromyalgia

and three herniated discs, and she is the primary caregiver for her two daughters and her

elderly parents.10 Husband is apparently in good health, and at the time of the final

hearing, he had no dependents.

        Additionally, under the dissolution court’s judgment, Wife was made responsible

for significant marital debt, including a $42,000 mortgage. We also note that during the

marriage, Wife paid Husband’s travel expenses, $2,000 in legal fees in order to help

Husband obtain a visa, and she made $12,800 wire transfer to Husband while he still

lived in Iran in order to help him pay off a mortgage and a car. Appellant’s App. pp. 184-

85. The dissolution court concluded that these payments were sufficient to compensate

Husband for any property interest he acquired in the property retained by Wife. Under

these facts and circumstances, we cannot conclude that there was no rational basis for the

dissolution court’s award. Husband’s arguments to the contrary are simply requests to


10
   Husband argues that Wife’s income greatly exceeds his, but in calculating Wife’s income and assets, Husband
includes social security benefits that he alleges are received by several members of Wife’s household, including
Wife’s daughters, Wife’s mother and father, and Wife’s ex-husband’s father. Husband cites no authority and makes
no argument supporting a conclusion that social security income received by other members of Wife’s household
should be attributable to Wife for the purposes of property division. Accordingly, this argument is waived for
failure to make a cogent argument. See Romine v. Gagle, 782 N.E.2d 369, 386 (Ind. Ct. App. 2003), trans. denied;
Ind. Appellate Rule 46(A)(8)(a). Similarly, Husband lists among Wife’s assets a trust fund belonging to Wife’s
daughters, which was apparently funded with settlement proceeds originally paid to the girls’ now deceased father,
but again, he cites no authority and makes no argument supporting the conclusion that property not belonging to
Wife should be included in the marital estate. This argument is likewise waived for failure to make a cogent
argument. Moreover, it is undisputed that the trust fund was acquired prior to the parties’ marriage.

                                                       19
reweigh the evidence and judge the credibility of witnesses, which we will not do on

appeal. The dissolution court did not abuse its discretion in dividing the marital estate.

                                     V. Attorney Fees

       Finally, Husband argues that the dissolution court abused its discretion by denying

his request for attorney fees. Indiana Code section 31-15-10-1 (2008) provides that the

dissolution court may order a party to pay a reasonable attorney fee for the opposing

party. We review a dissolution court’s decision to award attorney fees for an abuse of

discretion. Thompson v. Thompson, 811 N.E.2d 888, 927 (Ind. Ct. App. 2004), trans.

denied. However, Indiana Code section 31-15-10-1 does not affirmatively require the

dissolution court to award attorney fees and “[t]here is no abuse of discretion for the trial

court not to do that which it is not required to do.” Russell v. Russell, 693 N.E.2d 980,

984 (Ind. Ct. App. 1998) (citing Maloblocki v. Maloblocki, 646 N.E.2d 358, 364 (Ind. Ct.

App. 1995)), trans. denied.

       Husband argues that he is entitled to attorney fees because Wife’s income greatly

exceeds his. As we have previously noted, Husband’s contention that Wife’s income

exceeds his is dubious, but even assuming that it is true, “a trial court is not required to

award fees based on disparity of income alone.” Id. Because the dissolution court was

not affirmatively required to award attorney fees under Indiana Code 3-15-10-1, it did not

abuse its discretion by denying Husband’s request.

       Husband also asserts that he is entitled to recover attorney fees and costs of

collection relating to his petition to enforce the Affidavit of Support. See 8 U.S.C. §


                                             20
1183a(c) (providing that the remedies available to enforce an Affidavit of Support

include “payment of legal fees and other costs of collection”).       However, we have

affirmed the dissolution court’s conclusion that Husband is not entitled to damages under

the Affidavit of Support. Because Husband was unsuccessful in his attempt to seek

damages under the Affidavit of Support, we must conclude that he is not entitled to

recover attorney fees under 8 U.S.C. § 1183a(c). See Iannuzzelli v. Lovett, 981 So.2d

557, 560-61 (Fla. Dist. Ct. App. 2008) (holding that “[i]n order to recover attorney’s fees

and costs under 8 U.S.C. § 1183a(c), the claimant must obtain a judgment for actual

damages based upon the opposing party’s liability under the Affidavit.”).

                                       Conclusion

       Any error in the admission of evidence concerning Husband’s misconduct during

the marriage was harmless. The dissolution court did not err in denying Husband’s

petition to enforce the Affidavit of Support, nor did it abuse its discretion in denying

Husband’s request for maintenance, in dividing the marital property, or in denying

Husband’s request for attorney fees.

       Affirmed.

BAILEY, J., and CRONE, J., concur.




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