Mikhail v. Mikhail

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MARYAM SOBHI (SORYANA) MIKHAIL v. GEORGE AZIZ MIKHAIL

No. M2021-00500-COA-R3-CV

Court of Appeals of Tennessee, Nashville

June 7, 2023

Assigned on Briefs September 1, 2022

Appeal from the Circuit Court for Wilson County No. 2019-DV-123 Clara W. Byrd, Judge

A wife sought a divorce after a long-term marriage. The trial court granted the wife a default judgment for divorce as a sanction for the husband's discovery abuses. After a trial, the court also valued and divided the marital estate and awarded the wife alimony in futuro. On appeal, the husband challenges the court's decisions on multiple grounds. Discerning no reversible error, we affirm.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

George Aziz Mikhail, Nashville, Tennessee, pro se appellant. ^[1]

Angelique P. Kane and Kayla M. Costley, Lebanon, Tennessee for the appellee, Maryam Sobhi Mikhail.

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and THOMAS R. FRIERSON II, J., joined.

OPINION

W. NEAL MCBRAYER, JUDGE

I.

A.

On March 1, 2019, Maryam Sobhi Mikhail ("Wife") filed a complaint for a divorce from George Aziz Mikhail ("Husband"), after 21 years of marriage. As grounds, she alleged adultery, inappropriate marital conduct, and irreconcilable differences. See Tenn. Code Ann. §§ 36-4-101(3), (11), (14) (2021). She also asked the court for exclusive possession of the marital residence, an equitable division of the marital estate, temporary and permanent alimony, and an award of attorney's fees.

Husband filed his own countercomplaint for divorce. Like Wife, he claimed that he was entitled to a divorce on the grounds of adultery, inappropriate marital conduct, and irreconcilable differences.

Early on, Wife filed a motion for pendente lite support and other immediate relief. The parties resolved Wife's issues by agreement. And on March 22, 2019, the court entered an agreed order reflecting that agreement. Wife was granted exclusive possession of the marital residence. Husband agreed to continue to pay the parties' normal monthly household expenses, necessary home maintenance costs, car payments, and car insurance. He also agreed to pay Wife $350 per week as pendente lite support.

The agreed order also addressed Wife's access to the family business and financial information under Husband's exclusive control. The order left Husband in charge of day-to-day business operations, but mandated that Wife "be given complete access to all bank accounts and daily business records of said business." It also required Husband to allow Wife or her designated agent access to the premises to perform an inventory. Husband was also directed to give Wife "immediate complete access" to other bank accounts in Husband's name so that Wife could monitor the use of marital assets.

Husband did not comply with the agreed order. At Wife's request, the court issued another order directing Husband to provide Wife with the passwords to all of his financial accounts. It also ruled that Wife would be in charge of the business when Husband was out of the country. Husband disobeyed this order as well. He took affirmative steps to prevent Wife from gaining access to the business and its records. Wife again turned to the court for relief. The court issued another order. But Wife was never able to monitor the business operations or to view the business records.

Husband displayed similar intransigence during discovery. All told, Wife filed four motions to compel discovery responses against Husband. The court set multiple deadlines for Husband to either respond to Wife's discovery requests or supplement his previous responses. Husband missed some deadlines and attempted to comply with others. Still, his responses remained deficient.

Trial was scheduled for mid-November 2020. At the hearing on Wife's fourth motion to compel, the court ordered Husband to provide complete responses by September 28, 2020 or face discovery sanctions. The court also set September 30, 2020 as the final date for the exchange of any discovery between the parties. Wife provided Husband with a list of all outstanding discovery items as well as a copy of her supplemental discovery responses at the court hearing. Because Husband had failed to appear at his scheduled deposition, the court ordered both parties to attend depositions on October 14 and 15, 2020.

A month later, and two days before the scheduled depositions, Husband notified Wife that her supplementary discovery responses were insufficient. So he would not be attending the depositions. Wife, her counsel, and an interpreter appeared for the depositions ready to go forward. But Husband did not allow his counsel to participate.

Less than a month before trial, Husband filed a motion to compel Wife to supplement her discovery responses and renewed his previous motion to continue the trial. The court denied both motions.

At the outset of trial, the court considered Wife's pending motion for sanctions against Husband for his failure to abide by the court's orders. The court noted that Husband had twice failed to appear at his scheduled deposition. And he had repeatedly failed to comply with court orders to answer discovery, provide documentation, and provide access to his business records and accounts. He also failed to appear at court-ordered mediation. The court had previously warned Husband that he was subject to sanctions for his failure to cooperate in discovery.

Based on Tennessee Rules of Civil Procedure 37 and 41, the court precluded Husband from "put[ting] on any testimony or enter[ing] exhibits that supported his allegations." But the court allowed Husband's counsel to cross-examine Wife and her witnesses.

B.

Husband and Wife married in Egypt. Wife explained that, before her marriage, she had a job in billing or accounting in Egypt. But Husband did not want her to continue. So, after she married, she mostly helped Husband with his Egyptian business ventures. And she was the primary caregiver for their two children, Mena and Maryam.

In 2006, the family moved to the United States. Initially, Husband and Wife took jobs in the hospitality industry. Wife left her hospitality position after she injured her knee. Then she and Husband started Pyramids Wholesale &Distribution, LLC. Pyramids Wholesale sold cigarettes, vapes, hookahs, toilet paper, and similar items to tobacco stores and convenience stores in the area.

When not occupied with childcare duties, Wife worked alongside Husband in the business. She mostly dealt with the Egyptian customers as she was not proficient in English. According to Wife, the business had a lot of cash clients. And Husband did not report all the cash transactions on their income taxes.

Mena and Maryam, now adults, explained that they had also worked at Pyramids Wholesale. They were aware that many customers paid in cash. Mena reported that Husband regularly gave him $30,000 to $40,000 in cash to deposit in the bank. And Husband kept extra cash and gold in a safe on site. As for Maryam, she related that Husband often sent her to multiple cash-advance stores to purchase thousands of dollars in blank money orders for Husband's use.

According to Wife, Husband controlled the family finances. All bank accounts were solely in Husband's name. He paid Wife $250 per week for her contributions to the business. He also gave her an allowance for household expenses. In 2018, Husband became violently angry with Wife over an incident at work and told her she could no longer work there. She never returned. She tried working as a substitute teacher. But without sufficient English, the job was too difficult. So she quit.

Wife and the children told the court that Husband's controlling behavior at work was mirrored in their home life. He was verbally and, sometimes, physically abusive toward Wife. In 2019, Wife filed for divorce.

Wife explained that Husband's abusive treatment led to her current diagnoses of anxiety and depression. She cried a lot and developed stomach issues, which often kept her in bed. She was seeing a therapist. But her mental state was still poor.

Wife claimed that her mental health problems, physical ailments, and poor English skills made it impossible for her to work. She had been unable to find another job working primarily with Egyptian customers. Her only potential option-her brother's tobacco business-was too far away.

Mena and Maryam agreed that Wife seemed depressed and anxious. They believed that she had been deeply affected by Husband's behavior during the marriage. Neither witness believed Wife could work outside the home given her mental health issues and lack of English skills.

As for the parties' assets, Wife claimed that Husband's obstructive behavior during discovery prevented her from completing a business appraisal. From her previous experience in the business, she knew that it brought in about $10,000 to $15,000 in cash every day. And she was able to obtain an unofficial valuation of the inventory on hand in early 2019. At that time, the business inventory was worth about $293,000. Wife valued the business at $514,659 based on the inventory value reported on Husband's 2018 tax return. Wife believed that this was a fair method of valuation given that Husband never provided a copy of his 2019 tax return.

Wife hoped to remain in the marital residence. She offered a recent tax appraisal as evidence that the home was worth $234,800. She explained that it needed extensive repairs. Many appliances no longer worked. And she had recently learned that the HVAC system needed to be replaced. One shower had plumbing issues. There was also physical damage to both the interior and the exterior of the home.

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