Ahmad M. Qasem v. Tina A. Qasem

• Court: Court of Appeals of Kentucky
• Decided: October 8, 2020
• Docket: 2018 CA 000427
• Status: Unknown

Opinion

RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2018-CA-0427-ME AND NO. 2018-CA-0776-ME

AHMAD M. QASEM APPELLANT

APPEAL FROM PULASKI CIRCUIT COURT FAMILY COURT DIVISION v. HONORABLE MARCUS L. VANOVER, JUDGE ACTION NO. 14-CI-01043

TINA A. QASEM APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Ahmad M. Qasem brings Appeal No. 2018-CA-0427-ME

from a February 12, 2018, Findings of Fact, Conclusions of Law, and Decree of

Dissolution and brings Appeal No. 2018-CA-0776-ME from an April 25, 2018, Order on Remaining Issues from Bifurcated Divorce entered in the Pulaski Circuit

Court, Family Court Division (family court). We affirm.

I. BACKGROUND

Ahmad M. Qasem and Tina A. Qasem were married on July 25, 1994,

in Amman, Hashemite Kingdom of Jordan (Jordan). Five daughters were born of

the parties’ marriage.1 Ahmad initiated this action in the family court on

November 4, 2014, by filing a Petition to Recognize Foreign Divorce and Establish

Custody of Minor Children or in the Alternative for Dissolution of Marriage.

During the parties’ approximate twenty-year marriage, they owned

and operated several businesses, including a convenience store, used car lots, rental

property, and a hair salon. The parties also owned several pieces of real property

both in Jordan and in Kentucky. The parties had accumulated a marital estate of

approximately four million dollars.

Following Ahmad’s filing of the November 4, 2014, petition,

protracted litigation ensued. For the next three and one-half years, Ahmad

engaged in a pattern of recalcitrant conduct intended to conceal income and assets

so as to deprive Tina of her portion of the marital estate. Ahmad repeatedly

refused to produce discovery pursuant to Tina’s requests and in violation of the

family court’s order.

1 Before entry of the decree of dissolution of marriage, Ahmad M. Qasem and Tina A. Qasem’s two oldest daughters were emancipated.

-2- On March 17, 2017, the family court entered Findings and Order in

regard to various discovery issues that were then pending before the court. The

family court conducted a final hearing in the case on July 11, 13, and 18, 2017.

By Findings of Fact, Conclusions of Law, and Decree of Dissolution

entered on February 12, 2018, the family court refused to recognize the Jordanian

divorce. Instead, the family court entered a bifurcated decree that dissolved the

parties’ marriage and awarded Tina sole custody of the parties’ minor children.

The family court reserved ruling on issues of child support and division of marital

property.

On April 25, 2018, the family court rendered an Order on Remaining

Issues from Bifurcated Divorce that directed Ahmad to pay child support of

$2,786.98 per month and to pay $1,198,736 to Tina as her share of the parties’

marital estate. These appeals follow.2

Ahmad’s first argument on appeal asserts that the family court erred

by imposing sanctions upon him pursuant to Kentucky Rules of Civil Procedure

(CR) 37.02 for failure to comply with the court’s January 27, 2017, order to

produce discovery. Ahmad claims the sanctions imposed by the family court led to

an erroneous distribution of marital assets.

2 On March 7, 2018, Ahmad filed a notice of appeal (Appeal No. 2018-CA-0427-ME) from the February 12, 2018, decree. And, on May 15, 2018, Ahmad filed a notice of appeal (Appeal No. 2018-CA-0776-ME) from the April 25, 2018, order. Appeal Nos. 2018-CA-0427-ME and 2018- CA-0776-ME were consolidated in this Court by order entered October 29, 2018.

-3- The procedural facts relevant to the discovery issues are as follows.

Two years after Ahmad initiated the action, Tina served discovery requests on

November 2, 2016. In response, Ahmad filed a motion for a protective order.

Then, on November 30, 2016, the parties appeared before the family court, and

Ahmad requested an extension of the December 2, 2016, discovery deadline. The

parties verbally agreed to extend the deadline until January 2, 2017. On January 6,

2017, Ahmad filed a second motion to extend the discovery deadline. Then, on

January 13, 2017, without producing the requested discovery, Ahmad’s counsel

withdrew his motion to extend the discovery deadline.

On January 17, 2017, Tina filed a motion to compel Ahmad’s

compliance with her outstanding discovery requests. On January 26, 2017, Ahmad

filed yet another motion to extend the discovery deadline and a motion for

contempt against Tina. On January 27, 2017, Tina’s motion to compel was heard

by the family court. Counsel was present for Ahmad.3 By order entered January

27, 2017, the family court ordered that sanctions would be imposed if Ahmad did

not complete discovery by March 1, 2017. The family court set a review of the

discovery matter for March 1, 2017. Then, on February 10, 2017, in open court,

3 Counsel for Ahmad filed a motion to withdraw on January 25, 2017. At the hearing on January 27, 2017, counsel appeared and asked that the motion to withdraw be passed. Counsel then participated in argument on pending motions, including the discovery motion filed by Tina. Ahmad’s counsel then appeared at a hearing on February 10, 2017, requesting again to withdraw as counsel for Ahmad, which was granted. The court noted that all pending hearing dates would remain in effect.

-4- counsel for Ahmad withdrew his pending motions, including a request for an

extension of the discovery deadline and motion for contempt against Tina.

Ahmad’s counsel was also permitted to withdraw at this hearing.4 As of that date,

Ahmad’s three motions to extend the discovery deadlines were withdrawn, and

Ahmad never filed an objection to any specific discovery requests.

On March 1, 2017, Ahmad appeared pro se before the family court

with some documents that had not been sorted or categorized in any manner and

were effectively nonresponsive to the discovery requests. Ahmad also failed to

produce any responses to Tina’s written interrogatories. By order entered March

17, 2017, the family court found that Ahmad’s “jumble of unorganized documents,

. . . was not sufficient to comply with [Tina’s] discovery request.” March 17,

2017, order at 17. The March 17, 2017, order also granted Tina’s request for CR

37 sanctions. As a sanction for Ahmad’s noncompliance,5 the family court held

that certain facts alleged by Tina “shall be designated as facts for purposes of

future proceedings.” March 17, 2017, order at 5. The designated facts included,

4 During the period of November 16, 2016, through the conclusion of the final hearing on July 18, 2017, Ahmad utilized the services of three different attorneys. 5 Ahmad’s refusal to cooperate with the Pulaski Circuit Court, Family Court Division, (family court) was not limited to discovery issues. One example of Ahmad’s behavior involved the sale of a rental property. Ahmad presented a motion for sale of a rental property, and the family court so ordered. Thereafter, Ahmad refused to sign the contract with the realtor, so the issue had to be brought before the court again. The family court entered a second order for sale of the property. Ultimately, Tina had to file a motion requesting that the master commissioner sign the contract with the realtor because Ahmad still refused to sign it. This is just one of many examples of Ahmad’s recalcitrant behavior during the dissolution proceedings.

-5- among other things, the value of various parcels of real property owned by the

parties, the value of the marital residence, income produced by the parties’ various

businesses, Ahmad’s yearly income, and the value of certain personal property.

The order also precluded Ahmad from presenting evidence to dispute the

designated facts.

II. ANALYSIS

In Kentucky, it is well-established that a trial court has broad

discretion in addressing the violation of a discovery order. Turner v. Andrew, 413

S.W.3d 272, 279 (Ky. 2013). This Court reviews a trial court’s imposition of

sanctions for an abuse of discretion. Id. at 279. An abuse of discretion occurs

where the trial court’s decision is “arbitrary, unreasonable, unfair, or unsupported

by sound legal principles.” Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App.

2007) (citation omitted).

Permissible sanctions for violation of a trial court’s discovery order

are set forth in CR 37.02, which is entitled “Failure to comply with order.” CR

37.02(2) provides, in relevant part, as follows:

(2) Sanctions by court in which action is pending.

If a party . . . fails to obey an order to provide or permit discovery, including an order made under Rule 37.01 [Motion for order compelling discovery] or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

-6- (a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]

When a party does not obey a court’s order to produce discovery, CR

37.02(2) provides that the court may accept designated facts as established for the

party obtaining the order, prohibit the disobedient party from supporting or

opposing designated claims or defenses, and strike pleadings of the disobedient

party. CR 37.02(2); see also R.T. Vanderbilt Co., Inc. v. Franklin, 290 S.W.3d

654, 661 (Ky. App. 2009). In determining whether the sanction is appropriate, the

court may consider the following factors: (1) whether the noncompliance was

willful or in bad faith; (2) whether the other party was prejudiced by the

noncompliance; (3) whether the disobedient party was warned that failing to

cooperate could lead to dismissal; (4) whether less drastic sanctions were imposed

or considered; and (5) whether the sanctions imposed bear a reasonable

-7- relationship to the seriousness of the noncompliance. Id. at 662. We will address

the above Franklin factors seriatim. Id.

Relevant to the first Franklin factor, Ahmad’s recalcitrant conduct in

refusing to respond to the discovery requests was certainly by design and willful.

After three extensions of the discovery deadline over a four-month period, Ahmad

appeared pro se before the court on March 1, 2017, with numerous unorganized

documents and without any written responses to Tina’s request for answer to

interrogatories. Ahmad blamed his noncompliance on the fact that his counsel had

withdrawn on February 10, 2017. However, Ahmad had been given four months

to comply with the discovery requests. And, Ahmad demonstrated this same

willful noncompliance in other aspects of the proceedings including with custody

and visitation issues, as well as dealings with his various attorneys.6 The family

court’s findings reflect Ahmad’s repeated failure to comply with the court’s

discovery order. Also, we must emphasize that at no time did Ahmad or his

counsel object to the requested discovery or seek a protective order. Therefore, we

6 For example, at the hearing on February 10, 2017, attorney Kirk Correll, in support of his motion to withdraw as Ahmad’s counsel, stated the following:

We find communication with our client to be impossible. He will not respond to our correspondence or phone calls. We are in process of completing discovery and cannot get cooperation.

Similarly, on June 5, 2017, attorney Alison Hunley, who succeeded Correll, stated in her motion to withdraw that “she and [Ahmad] are unable to reach a common ground in regard to the matter pending.”

-8- believe the record reflects that Ahmad’s conduct in refusing to turn over discovery

was willful and in bad faith.

Regarding the second Franklin factor, Tina was certainly prejudiced

by Ahmad’s refusal to comply with the court’s discovery order. Considering that

the marital estate had a value of approximately four million dollars and that Ahmad

had possession or control of most of the documents relevant to the marital

property, Tina was clearly prejudiced by Ahmad’s refusal to comply with court

orders directing him to produce same to Tina’s counsel.

Relevant to the third Franklin factor, the family court clearly warned

Ahmad at the January 27, 2017, hearing that his failure to comply with the

discovery deadline would result in sanctions. Tina’s counsel even specifically

enumerated at the hearing the sanctions that were being requested if Ahmad again

failed or refused to comply with the discovery requests.

As to the fourth Franklin factor, less drastic sanctions were not only

considered but were actually employed. Ahmad’s failure to comply was initially

met with verbal warnings from the court and extensions of the discovery deadlines.

Then, on January 27, 2017, the family court warned Ahmed in open court that

continued noncompliance would lead to sanctions. So, less drastic sanctions were

attempted but to no avail; Ahmad still refused to comply.

-9- Finally, as to the fifth Franklin factor, the sanctions imposed by the

family court do bear a reasonable relationship to the seriousness of Ahmad’s

noncompliance. Ahmad was proceeding with a sizeable advantage over Tina by

possessing the documents and other information relevant to the value of the marital

estate and his numerous sources of income. By refusing to comply with Tina’s

discovery requests, Ahmad attempted to prevent Tina from proving the value of the

marital estate and ultimately hinder her in receiving her share of the marital

property, as well as the appropriate amount for child support. Thus, the sanction

imposed did bear a reasonable relationship to the seriousness of the

noncompliance.

After reviewing the record, the events as outlined above, and the five

factors set forth in Franklin, 290 S.W.3d at 662, we cannot conclude that the

family court abused its discretion by imposing CR 37 sanctions upon Ahmad.

Ahmad blatantly disregarded the discovery requests and the family court’s

discovery order and employed various tactics to conceal assets and income thereby

precluding Tina from obtaining relevant evidence concerning the value of the

marital estate. Application of the Franklin factors clearly demonstrates that the

sanctions imposed were commensurate with Ahmad’s recalcitrant conduct. See

Franklin, 290 S.W.3d at 662. As such, we view Ahmad’s contention that the

family court erred by imposing sanctions pursuant to CR 37 to be without merit.

-10- Ahmad also asserts that he was entitled to an evidentiary hearing on

the CR 37 sanctions which he argues resulted in the court’s findings not being

supported by substantial evidence in the record. He further argues that the failure

to conduct an evidentiary hearing violated his due process rights. Based on our

review of the record on appeal, this argument is without merit.

A hearing on the pending discovery motion was heard on January 27,

2017. Ahmad was represented by counsel. At that hearing, the family court

emphatically ordered that all discovery must be completed by March 1, where a

status conference would be held or sanctions would be imposed. Ahmad’s counsel

was granted leave to withdraw at the hearing on February 10, 2017. At the hearing

on March 1, 2017, Ahmad appeared without counsel, and failed to provide the

requested discovery. The court noted again that at no time since November 2,

2016, had Ahmad or his counsel filed an objection to the requested discovery.

Likewise, Ahmad had not sought a protective order as provided by CR 26.03. See

CR 37.04(2).

The family court then entered its Findings and Order on the discovery

issues on March 17, 2017. On March 24, 2017, Alison Hunley entered her

appearance as counsel for Ahmad. On the same date, she filed a motion to alter,

amend, or vacate the March 17, 2017, order. That motion was considered by the

family court at a hearing on March 31, 2017, where a lengthy argument was heard

-11- by the court regarding the discovery sanctions. The family court emphasized the

court’s careful and methodical review of the entire record in granting sanctions.

By order entered May 31, 2017, the court denied Ahmad’s motion to alter, amend,

or vacate in part and granted the motion as concerned a finding regarding certain

criminal charges against Ahmad that had been dismissed. Finally, the court

conducted a trial on all pending divorce issues on July 11, 13, and 18, 2017, where

many of the discovery rulings were addressed again by the family court during this

hearing.

Based on our review of CR 37 and applicable case law, we find no

requirement that a court conduct a full blown evidentiary hearing to award

sanctions against a party. The issues raised under CR 37 look to discovery or

procedural problems in the case rather than issues of proof that address the merits

of the case. For purposes of appellate review, at minimum, the court below must

articulate on the record the court’s resolution of the discovery dispute and any

discretionary issues associated therewith. Greathouse v. Am. Nat’l Bank & Trust

Co., 796 S.W.2d 868, 870 (Ky. App. 1990). Our review of the record reflects that

the family court addressed the discovery problem in open court on at least three

occasions, if not more. And, more importantly, the family court articulated almost

seventeen pages of findings to support discovery sanctions. The record clearly

reflects that Ahmad willfully failed to cooperate in the discovery process which

-12- warrants more severe sanctions under CR 37. See Nowicke v. Cent. Bank & Trust

Co., 551 S.W.2d 809, 810 (Ky. App. 1977).

The record also reflects that the family court carefully reviewed the

entire record and Ahmad’s willful conduct in failing to respond to the discovery

requests. As previously discussed, the family court has broad discretion in

addressing a violation of its discovery order and an appellate court will not

overturn such an order absent an abuse of discretion. Turner, 413 S.W.3d at 279.

We find no such abuse of discretion nor do we find that Ahmad’s due process

protections have been violated, given his willful disregard of discovery rules in this

case. See Nowicke, 551 S.W.2d 809. We must also emphasize that the civil rules

set out a pattern of conduct for the litigants and their proper application is left to

sound discretion of a trial judge, which this Court must respect. Naive v. Jones,

353 S.W.2d 365, 367 (Ky. 1961).

Ahmad’s final argument on appeal alleges the family court erred in

the calculation of Ahmad’s child support. The gist of Ahmad’s argument is not the

actual calculation of the support amount. Rather, he argues that due to the

sanctions imposed by the family court, his income for child support purposes was

based upon the information Tina supplied regarding his income, which he disputes.

As we have concluded that the sanctions imposed upon Ahmad under CR 37 were

proper, we also must conclude that the family court’s award of child support based

-13- upon facts regarding Ahmad’s income presented by Tina was not an abuse of

discretion. Thus, Ahmad’s argument regarding the determination of his income for

child support purposes is without merit.

For the foregoing reasons, the final orders of the Pulaski Circuit

Court, Family Court Division, on appeal to this Court are affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Patrick F. Barsotti Jennifer Thomas Danville, Kentucky Somerset, Kentucky

-14-