Marriage of Ghahari & Hirad

Majority Laurie McKinnon

02/04/2025 DA 24-0063 Case Number: DA 24-0063 IN THE SUPREME COURT OF THE STATE OF MONTANA 2025 MT 26N IN RE THE MARRIAGE OF: JOSEPH GHAHARI, Petitioner and Appellee, and HIRSA HIRAD, Respondent and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDR-21-392 Honorable Elizabeth A. Best, Presiding Judge COUNSEL OF RECORD: For Appellant: Miva VanEngen, VanEngen Law Office, P.C., Missoula, Montana For Appellee: Meghan Lulf Sutton, Law Office of Meghan Lulf Sutton, Great Falls, Montana Submitted on Briefs: January 8, 2025 Decided: February 4, 2025 Filed: __________________________________________ Clerk  Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Hirsa Hirad (Hirad) appeals an order of the Eighth Judicial District Court, Cascade County, denying her Motion to Enforce MPSA, Motion for Entry of Judgment, Request for Interest and Attorney’s Fees. The District Court is affirmed. ¶3 Hirad and Joseph Ghahari (Ghahari) were married in 2011 and divorced in 2023. They participated in mediation on March 25, 2023, and came to a stipulated Marital Property Settlement Agreement (MPSA) which was filed with the District Court on April 4. The relevant provision of the MPSA states: On or before July 24, 2023, [Ghahari] shall pay to [Hirad] the sum of $456,000. Such funds shall be payable to “The Trust Account of VanEngen Law Office, PC for the benefit of Hirsa Hirad” and delivered to VanEngen Law Office, PC. In the alternative, [Hirad] may elect to have [Ghahari] pay off the remainder of the mortgage on the Kingwood Drive property and remit the remainder made payable to her via a check for the remainder to VanEngen Law in the manner described above. [Ghahari] shall supply to [Hirad] a payoff statement for the mortgage and a signed Quit Claim Deed, and if applicable proof that he has paid off that mortgage, at the time he provides [Hirad] with the funds described herein. Upon receipt of the $456,000 or, in the alternative, when the mortgage on the home is paid in full and the remainder of the funds paid to [Hirad], [Hirad] shall cooperate with [Ghahari] and [Ghahari] shall cooperate with [Hirad] to execute a quitclaim deed to remove his name from the Title and/or remove his name from the mortgage. Removal of [Ghahari]’s name from the mortgage/deed must be done within 60 days of the receipt of funds from [Ghahari] as described 2  herein. [Ghahari] shall make timely monthly mortgage payments on the home until such time as he a) remits the entire sum, or b) remits payment for the payoff of the mortgage. Ghahari asserts, and Hirad does not dispute, the mediator represented to him that Hirad was electing the mortgage payoff option as opposed to the lump sum payment. Sometime thereafter, Ghahari also learned that the lump sum option was impossible, as he could neither obtain a loan for the full amount nor quitclaim the property or remove his name from the title until the mortgage was paid in full. He proceeded with the mortgage payoff option and sought a loan for that amount. ¶4 On June 1, Hirad’s counsel indicated that she expected to receive the lump sum option. Despite several rounds of edits to the MPSA and months of intervening communication, this was Hirad’s first suggestion that she expected the lump sum option as opposed to the mortgage payoff option. The payoff date of July 24 passed without payment. On July 31, Ghahari’s counsel indicated that he was waiting for his loan to close and understood he was past due on payment. On August 4, Ghahari paid off the mortgage with a final payment of $219,049.15. On August 4, he paid Hirad the equalization payment of $232,040.54—the $456,000 value of the home minus the “loan payoff amount” calculated based on the amount still owed at the time of mediation. ¶5 Hirad filed her Motion to Enforce MPSA, Motion for Entry of Judgment, Request for Interest and Attorney’s Fees on October 17. Her requested sum and calculations have varied throughout litigation and this appeal. In her initial motion, she argued that she was owed $223,959.46, having not yet been provided proof of the mortgage payments. Ghahari 3  provided the requested documentation the next day. Hirad then requested $7,781.97 in alleged deficient payment plus interest and attorney’s fees. The District Court denied the motion in total on January 3, 2024, stating: As with all other issues in this dissolution, this dispute was escalated unnecessarily. [Hirad] acknowledges that the disputed MPSA payment was made as of the time of the filing of her Reply but insists that she is owed additional equalization funds, interest and fees. The Court is not persuaded. It is clear to the Court that unforeseen circumstances and misunderstandings resulted in delays. However, better communication would have likely resolved most of these problems without the necessity of Court involvement. ¶6 On appeal, Hirad argues that the District Court erred by not enforcing the MPSA to the precise amount of $456,000 and entering a judgment in Hirad’s favor, denying interest accounting to Ghahari’s delay and the alleged unremitted amount, and denying attorney’s fees. ¶7 The construction and interpretation of property settlement agreements in marital dissolutions are questions of law reviewed for correctness. In re Marriage of Simpson, 2018 MT 281, ¶ 10, 393 Mont. 340, 430 P.3d 999 (citations omitted). Likewise, an award of pre-judgment interest is a question of law reviewed for correctness. In re Marriage of DeBuff, 2002 MT 159, ¶ 15, 310 Mont. 382, 50 P.3d 1070. Entitlement to post-judgment interest is reviewed de novo. In re Marriage of DeBuff, ¶ 15. ¶8 A district court’s conclusion regarding the existence of legal authority to award attorney’s fees is reviewed for correctness; if authority exists, we review the district court’s grant or denial of attorney’s fees for an abuse of discretion. Jorgensen v. Trademark Woodworks, LLC, 2018 MT 291, ¶ 14, 393 Mont. 381, 431 P.3d 29 (citing City of Helena 4  v. Svee, 2014 MT 311, ¶ 7, 377 Mont. 158, 339 P.3d 32). ¶9 In her Reply Brief, Hirad argues that Ghahari owes her $4,910.31: the difference between $236,950.85 ($456,000.00 less the actual mortgage payoff amount of $219,049.15) and Ghahari’s equalization payment of $232,040.54.1 Ghahari argues that he not only paid a sufficient amount but in fact overpaid considering tax payments. Both parties assert that the plain language of the MPSA supports their calculations. Essentially, the question is whether the equalization payment should account for Ghahari’s mortgage payments made between April and August. Based on the MPSA’s terms and purpose, we conclude that Hirad received the equivalent value of the home by receiving title free of debt plus the remainder of the $456,000 Ghahari had not paid towards the mortgage. Ghahari’s equalization payment was properly calculated and Hirad is not owed any additional payment. ¶10 “Property settlement agreements in marital dissolutions are governed by contract law.” In re Harms, 2022 MT 41, ¶ 12, 408 Mont. 15, 504 P.3d 1108 (citations omitted). When the language of a contract is clear and unambiguous, the language controls because there is nothing for the court to interpret. Hanson v. Water Ski Mania Ests., 2005 MT 47, ¶ 15, 326 Mont. 154, 108 P.3d 481. When there is ambiguity, the court must determine as a matter of fact the parties’ intent in entering into the contract. AWIN Real Estate, LLC v. Whitehead Homes, Inc., 2020 MT 225, ¶ 13, 401 Mont. 218, 472 P.3d 165 (citation 1 In her Opening Brief, Hirad maintained that she was owed $7,781.97; in her Reply, she concedes that this was based on a faulty conflation of money paid towards the August mortgage payment and the final mortgage payoff. 5  omitted). “A phrase or term in a contract is ambiguous if it is subject to more than one reasonable interpretation.” Creative Games Studio LLC v. Alves, 2024 MT 100, ¶ 12, 416 Mont. 381, 548 P.3d 408. ¶11 There is an ambiguity here based on the parties’ respective interpretations of “remainder” and how it should be calculated. Contrary to both parties’ arguments, it is not clear whether “remainder” is the difference between the value of the home and the mortgage at the time of mediation (Ghahari’s argument) or the difference between the value of the home and the mortgage and the time of its final payoff, whenever that might occur (Hirad’s argument). ¶12 Looking then to the parties’ intent, the purpose of the MPSA’s property provisions was for Hirad to “retain the property . . . and the associated debt (mortgage) on that property, subject to paragraph d.” MPSA § 6(c). Either way—by paying off the mortgage and remitting the remainder or by providing $456,000—Hirad would receive the value of the home, whether in lump sum or in title. And that is exactly what resulted; Hirad received the home and its associated value, free of debt. Because the parties’ intent was clearly served by Ghahari’s equalization payment as remitted, we hold that he does not owe Hirad any additional payment. ¶13 Hirad argues next that she is owed pre- and post-judgment interest. Section 27-1-211, MCA, provides that a person may recover interest on damages “vested in the person upon a particular day” if the damages are “certain or capable of being made certain.” Thus, Hirad must first show that she is entitled to damages. Because this dispute is 6  governed by contract law, Hirad is only entitled to damages if she can show a breach. See Bradley v. Crow Tribe of Indians, 2005 MT 309, ¶ 29, 329 Mont. 448, 124 P.3d 1143. Hirad concedes that Ghahari did not breach by carrying out the mortgage payoff option as opposed to the lump sum option, so the only possible remaining breach that could result in damages is Ghahari’s delay in payment. ¶14 Returning to basic contract principles, “[t]ime is never considered as of the essence of a contract unless by its terms expressly so provided.” Section 28-3-602, MCA. We have held that a contract without an express time-is-of-the-essence clause may nevertheless be breached by delay in performance where the parties are aware that delay would thwart the purpose of the contract. See Carriger v. Ballenger, 192 Mont. 479, 484, 628 P.2d 1106, 1109 (1981). Here, the MPSA contains no time-is-of-the-essence clause, and Ghahari undoubtedly fulfilled the purpose of the contract by paying off the balance of the mortgage and delivering Hirad a clean title. Thus, having concluded that Ghahari did not owe any additional equalization payment and that his delay did not constitute a breach because time was not of the essence, there is no legal basis for granting interest—there is no judgment or damages to collect interest against. ¶15 Finally, the District Court did not abuse its discretion in denying attorney’s fees. Hirad’s request for attorney’s fees is based in part on precedent that assumes she prevails. See Erker v. Kester, 1999 MT 231, ¶ 44, 296 Mont. 123, 988 P.2d 1221 (applying an exception to the American Rule, which defaults against awarding fees in the absence of statutory guidance except “where the action into which the prevailing party has been forced 7  is utterly without merit or frivolous[]”). This argument is a nonstarter because she has not prevailed. Alternatively, she points to § 40-4-110, MCA, which allows a court to order fees for “maintaining or defending any proceeding under [marriage or dissolution statutes] and for professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.” But § 40-4-110(2), MCA, provides critical context: “The purpose of this section is to ensure that both parties have timely and equitable access to marital financial resources for costs incurred before, during, and after a proceeding under [marriage or dissolution statutes].” Nothing in the record supports that Hirad sought fees consistent with this purpose. We therefore conclude that the District Court did not abuse its discretion in denying attorney’s fees. ¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. /S/ LAURIE McKINNON We Concur: /S/ CORY J. SWANSON /S/ KATHERINE M BIDEGARAY /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER 8