Salameh v. Doumet , 2019 Ohio 5391 ( 2019 )

[Cite as Salameh v. Doumet, 2019-Ohio-5391.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LINA YOSSEF SALAMEH : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Third-Party Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 19 CAF 01 0009;
Consolidated with 19 CAF 01 0008
:
BOUCHRA DOUMET :
:
:
Third-Party Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Domestic Relations
Division, Case No. 16 DR A 06 0316
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 27, 2019
APPEARANCES:
For Third-Party Plaintiff-Appellee: For Third-Party Defendant-Appellant:
ROBERT BRACCO OMAR TARAZI
1170 Old Henderson Road 5635 Sandbrook Lane
Suite 109 Hilliard, OH 43026
Columbus, OH 43220
Delaware County, Case No. 19 CAF 01 0009 2
Delaney, P.J.
{¶1} Third-Party Defendant-Appellant Bouchra Doumet appeals the December
27, 2018 Judgment Entry on the Amended Third-Party Complaint and Counterclaim and
other judgment entries of the Delaware County Court of Common Pleas, Domestic
Relations Division. Third-Party Plaintiff-Appellee is Lina Yossef Salameh.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellant Anmar Salameh (“Husband”) and Defendant/Third-Party
Plaintiff-Appellee Lina Salameh (“Wife”) were married in Syria on August 7, 2009 and in
the United States on November 16, 2009.
Marital Home
{¶3} Husband has a brother, Bachar, and two sisters, Bouchra and Ritta. At the
time of the trial, Husband’s parents were living in Syria. Sister and her husband reside in
Toledo, Ohio. Bachar lives in Paris, France. Ritta lives with her parents in Syria. The
siblings testified at the trial and spoke of a close and supportive relationship, both
emotionally and financially. The evidence presented at trial showed numerous transfers
of money between Husband and his family before and during Husband and Wife’s
marriage in relation to property purchases.
{¶4} Husband and Wife resided together at 10350 Widdington Close (“marital
home”) until December 27, 2016, when trial court issued a civil protection order against
Husband requiring Husband to vacate the marital home. The marital home, however, was
titled in the name of Sister.
{¶5} On February 28, 2014, Husband and Wife closed on a property located at
10350 Widdington Close (“marital home”). The marital home was a foreclosure and listed
Delaware County, Case No. 19 CAF 01 0009 3
on a short sale for $650,000. At the time of the purchase, Husband stated he could not
obtain financing because he had lost his job with Beaver Excavating as a civil engineer.
Husband claimed that he and Sister, with advice from his real estate broker, agreed that
Sister would purchase the marital home as an investment property. Sister wanted to
purchase the house outright, but because of the short sale, the real estate broker
recommended the marital home be purchased in the name of Husband and Wife.
Husband and Wife could then transfer the marital home to Sister. Husband testified that
he, Wife, and Sister reached an oral agreement regarding the transfer to Sister. Wife
denied agreeing with the transfer to Sister. On February 20, 2014, Husband, Wife, and
Sister signed a “Terms of Transfer” document, which stated as follows:
Anmar Salameh and Lina Yossef (the “Transferers”), a married couple,
agree to transfer the sole title & ownership of the property located in
Delaware County at 10350 Widdington Close, Powell, Ohio 43065 * * * to
Bouchra S Doumet (the “Transferee”), a married woman, for the purchase
price of $0 (zero dollars) immediately following the closing & settlement at
Peak Title Agency, LLC. For the Transferers’ purchase of said property &
parcels on February 28th, 2014.
By signing below, the aforementioned parties agree to the terms set forth in
the “Terms of Transfer”:
{¶6} On February 28, 2014, Wife signed a HUD-1 Settlement Statement
regarding the sale of the marital home from the original sellers to Husband and Wife. The
contract price of the marital home was $350,000, which was then reduced by a real estate
tax credit from sellers for the purchase amount of $346,557.95. Husband paid $46,558 at
Delaware County, Case No. 19 CAF 01 0009 4
closing. He stated $37,279 were his separate funds from the sale of his pre-marital home
and $7,279 was marital funds. Sister paid $300,000. The account from which Sister
withdrew the $300,000 to pay for the marital home was also the account that she
deposited $130,000 from Husband. In 2013, Husband gave Sister $130,000 that she was
to give to Bachar for the construction of an apartment building in Syria.
{¶7} On February 21, 2014, Wife signed a HUD-1 Settlement Statement
regarding the transfer of the marital home from Husband and Wife to Sister. After closing,
Husband and Wife transferred title and ownership of the marital home to Sister for no
consideration. Sister transferred her ownership of the marital home to a limited liability
company, BDMD, LLC, the sole member of which is a trust managed by Sister and her
husband.
Divorce Action
{¶1} On June 30, 2016, Husband filed a Complaint for Divorce with Children in
the Delaware County Court of Common Pleas, Domestic Relations Division. Wife filed an
Answer, Counterclaim, and Third-Party Complaint against Third-Party Defendant Valcon
Consulting Group, LLC.
{¶2} The following summarizes the numerous filings by Wife and Sister in
relation to the issue of the marital home. Our summary does not include the equally
numerous filings between Wife and Husband; those can be found in our decision on
Husband’s separate appeal of the divorce proceedings.
{¶3} On January 4, 2017, Wife filed a Motion to Add Third-Party Defendant
Instanter. Wife moved to add Husband’s sister, Third-Party Defendant-Appellant Bouchra
Doumet (“Sister”) as a third-party defendant due to Sister’s possession of an alleged
Delaware County, Case No. 19 CAF 01 0009 5
marital asset, the marital home. Wife argued Sister was a necessary party to adjudicate
all property claims in the divorce proceeding.
{¶4} Sister and Husband both opposed Wife’s motion to join Sister as a third-
party defendant. On January 27, 2017, Wife filed an amended motion to add Sister as a
third-party defendant. In her amended motion, Wife argued that Sister should be joined
to the divorce action pursuant to Civ.R. 75(B)(1). Wife also filed a reply to her motion to
add Sister as a third-party defendant.
{¶5} Sister moved to evict Wife from the marital home on January 27, 2017.
{¶6} On February 1, 2017, the magistrate assigned to the divorce proceeding
issued his order granting Wife’s motion to join Sister as a party to the action. The
magistrate found that pursuant to Civ.R. 15, Civ.R. 75, and R.C. 3105.171, the trial court
had jurisdiction to determine whether the residence was a marital asset and whether
Husband engaged in a fraudulent conveyance of said asset to Sister. It granted the motion
to add Sister as a third-party defendant. The trial court further granted Wife leave to file
an Amended Answer and Counterclaim. On February 9, 2017, the magistrate issued a
nunc pro tunc order to correct a typographical error.
{¶7} On February 10, 2017, Sister filed a motion to set aside the magistrate’s
order granting Wife’s motion to join Sister as a third-party defendant. Sister contended
the Domestic Relations Division was without subject matter jurisdiction to consider Wife’s
arguments as to the ownership of the marital home. Sister filed a supplemental motion on
February 13, 2017.
{¶8} On February 14, 2017, Wife filed a motion for a temporary restraining order
against Sister. Wife requested the trial court restrain Sister from evicting Wife from the
Delaware County, Case No. 19 CAF 01 0009 6
marital home during the divorce proceedings. On that same day, Wife filed an amended
answer, counterclaim, and third-party complaint. Sister responded to the motion for
temporary restraining order on February 14, 2017.
{¶9} On March 9, 2017, Sister filed a motion for temporary orders that Wife pay
Sister rent while Wife resided in the marital home during the divorce proceedings.
{¶10} Sister filed a complaint for eviction, declaratory judgment, and ejectment
against Wife in the Delaware County Court of Common Pleas, General Division on April
6, 2017. The matter was stayed pending the resolution of the divorce proceedings.
{¶11} On April 11, 2017, the trial court ordered Husband to pay rent to Sister on
the marital home in the amount of $4,000 per month. The trial court further restrained
Sister from evicting Wife from the marital home. Finally, the trial court denied Sister’s
motion to set aside the February 1, 2019 magistrate’s order.
{¶12} On September 29, 2017, Sister filed a motion to compel discovery regarding
Sister’s entry into the marital home for inspection purposes.
{¶13} On October 2, 2017, Sister filed a motion to dismiss Wife’s third-party
complaint for failure to state a claim upon which could be granted. Wife filed a motion for
leave to amend and clarify the third-party complaint.
{¶14} On October 5, 2017, Sister filed a counterclaim for declaratory judgment
arguing she was the record title owner of the marital home. She brought claims for
ejectment, trespass, and unjust enrichment. Sister stated that Husband and Wife
transferred the marital home to Sister by General Warranty Deed. The marital home was
then transferred from Sister to a limited liability company, BDMD, LLC, the sole member
of which was a trust managed by Sister and her husband.
Delaware County, Case No. 19 CAF 01 0009 7
{¶15} On October 13, 2017, Sister filed a motion for leave to file a motion for
summary judgment on Wife’s claims against Sister. Wife responded and Sister replied.
On December 7, 2017, the trial court denied Sister’s motion for leave without explanation.
{¶16} On November 29, 2017, Sister filed a motion to compel discovery from Wife
regarding entry and inspection of the marital home. Wife responded to the motion on
December 1, 2017. On December 7, 2017, the trial court denied Sister’s motion to enter
the home because Wife had arranged for a real estate appraiser to enter the property for
an appraisal, including appropriate photographs. The trial court noted that Wife’s real
estate appraiser was the same person as suggested by Sister.
{¶17} On December 19, 2017, the trial court issued a “Judgment Entry En Banc”
resolving the multiple motions from Wife, Sister, and Husband pending before the trial
court. The trial court summarized as follows:
The underlying facts in the Record, and as alleged to the Court are actually
quite simple – Plaintiff-Husband and Defendant-Wife are seeking to
terminate their marriage, and each element in the action remains contested.
As the marital realty (where the parties lived during the coverture of the
marriage) is titled to Third-Party Defendant-Husband’s sister, and the
Defendant is asserting a claim in full or part in the same, the realty may be
subject to a determination/valuation under R.C. §3105.171, and is before
the Court. Thus, Husband’s sister has been named a party to the action.
This Court will not address the various tort claims of the parties, and as a
Court of Equity, will not conduct a Jury Trial. Nor will the Court continue to
address or consider further pleading issues.
Delaware County, Case No. 19 CAF 01 0009 8
The undersigned finds that the Court has a sufficient understanding and
notice of the issues and claims for adjudication, and the parties, by any
stretch of legal analysis, should also possess a sufficient understanding.
The Court Denies and Overrules the various Pleadings, Requests for
Dismissal/Summary Judgment, Leave to File, Jury Trial Request, etc. – En
Banc.
(Dec. 19, 2017 Judgment Entry).
{¶18} On December 26, 2017, Sister filed a motion for clarification of the trial
court’s December 19, 2017 judgment entry.
{¶19} Wife filed a second amended answer, counterclaim, and third-party
complaint on December 27, 2017. As to Sister, Wife brought a claim of fraud and unjust
enrichment as to the transfer of the marital home.
{¶20} The parties filed multiple motions for the trial court’s consideration before
the matter went to trial on January 17, 2018. The trial was held over a span of 18 days.
Six attorneys and two certified court interpreters were present at the trial. The trial court
heard the testimony of the parties, two economic experts, one vocational expert, various
witnesses regarding the real estate, and witnesses regarding the Valcon Consulting
Group, LLC. The parties submitted numerous binders filled with exhibits.
{¶21} On January 30, 2018, the trial court filed a judgment entry regarding
stipulations of fact entered into by the parties. The stipulations included documents
related to the purchase and transfer of the marital home.
{¶22} On December 27, 2018, the trial court issued its Final Judgment for Divorce
with Children and its judgment entry on the Amended Third-Party Complaint and
Delaware County, Case No. 19 CAF 01 0009 9
Counterclaim. The trial court determined the evidence demonstrated the marital home
was marital property and Sister was unjustly enriched when Husband engaged in financial
misconduct by transferring the home to Sister. The trial court voided the transfer of the
marital home to Sister and ordered the marital home sold by a receiver. Upon the sale of
the home, Husband was to pay Wife $80,000 for expense money as a portion of Wife’s
attorney and expert fees due to Husband’s financial misconduct. Sister was to be paid
$30,000 from the gross proceeds of the sale for her balance of her loan and an amount
equal to real estate taxes actually paid to her to the Delaware County Treasurer.
{¶23} On January 3, 2019, Sister filed a request for findings of fact and
conclusions of law. The trial court denied the request by judgment entry filed on January
17, 2019.
{¶24} Sister filed her notice of appeal of the trial court’s judgments on January 25,
2019. No stay was granted during the appeal of the trial court’s judgment entries and the
record shows the receiver has moved forward with the sale of the marital home
{¶25} The pertinent parts of the decision and any additional facts will be
addressed under each of the corresponding Assignments of Error.
ASSIGNMENTS OF ERROR
{¶26} Sister raises seven Assignments of Error:
{¶27} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND EXCEEDED
ITS SUBJECT MATTER JURISDICTION IN VOIDING THE TITLE TRANSFER OF THE
10350 WIDDINGTON CLOSE PROPERTY TO BOUCHRA, IMPOSING A
CONSTRUCTIVE TRUST, AND RULING ON ALL CLAIMS AGAINST BOUCHRA AS
THESE DETERMINE COLLATERAL CLAIMS AND THE RIGHTS OF A THIRD PARTY.
Delaware County, Case No. 19 CAF 01 0009 10
{¶28} “II. [SIC] TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW WHEN IT DENIED APPELLANT’S MOTION FOR LEAVE TO FILE
SUMMARY JUDGMENT WHICH RAISED THE ISSUE OF SUBJECT MATTER
JURISDICTION OF THE COURT TO HEAR AND DETERMINE A COLLATERAL CLAIM
AND THIRD PARTY RIGHTS.
{¶29} “III. THE TRIAL COURT ERRED AS A MATER OF LAW, ABUSED ITS
DISCRETION, ITS FINDINGS OF THE ELEMENTS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE THAT BOUCHRA WAS UNJUSTLY ENRICHED AND IN
GRANTING JUDGMENT TO LINA ON HER UNJUST ENRICHMENT CLAIM AND IN
DETERMINING THE REMEDY.
{¶30} “IV. THE TRIAL COURT ERRED IN DENYING BOUCHRA’S
COUNTERCLAIMS AGAINST LINA ‘UNDER THE TOTALITY OF THE
CIRCUMSTANCES’ AND BASED ON THE FINDING OF ‘UNJUST ENRICHMENT.’
{¶31} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW, VIOLATED THE
PAROL EVIDENCE RULE, AND ITS FINDINGS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE WHEN IT FOUND THAT THERE WAS NOT A SALE TO
BOUCHRA, THE SALE TO BOUCHRA WAS A FICTION AND IN THE NATURE OF A
LOAN OR FINANCING FOR PART OF THE PURCHASE PRICE.
{¶32} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION WHEN IT DENIED APPELLANT’S RIGHT TO A JURY TRIAL.
{¶33} “VII. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
DENIED APPELLANT’S MOTIONS TO ACCESS THE PROPERTY PURSUANT TO
CIVIL RULE 34 FOR THE PURPOSE OF INSPECTION.”
Delaware County, Case No. 19 CAF 01 0009 11
ANALYSIS
I.
{¶34} Sister contends in her first Assignment of Error that the trial court went
beyond its subject matter jurisdiction in the December 27, 2018 judgment entry when it
declared the deed transferring the marital home from Husband and Wife to Sister was
void ab initio, set aside, and held for naught. We disagree.
{¶35} The appellate court reviews “issues relating to subject matter jurisdiction de
novo, as such a determination is a matter of law.” T.A. v. R.A., 8th Dist. Cuyahoga No.
107166, 2019-Ohio-3179, 2019 WL 3764607, ¶ 17 citing In re E.G., 8th Dist. Cuyahoga
No. 98652, 2013-Ohio-495, ¶ 9, citing In re K.R.J., 12th Dist. Clermont No. CA2010-01-
012, 2010-Ohio-3953, ¶ 16.
{¶36} R.C. 3105.171(B) requires the trial court to determine what constitutes
marital property and what constitutes separate property. There is no dispute the trial court
had jurisdiction to determine which of Husband’s and Wife’s assets were marital or
separate property. In this case, the trial court determined the marital home was marital
property, purchased in part with marital funds. Sister contends Wife’s claims against
Sister were collateral matters to the divorce proceeding, such that the trial court lacked
jurisdiction to enter judgment against her. We note that Husband and Wife have not
objected to the sale of the marital home.
{¶37} R.C. 3105.011 provides:
The court of common pleas including the divisions of courts of domestic
relations, has full equitable powers and jurisdiction appropriate to the
determination of all domestic relations matters. This section is not a
Delaware County, Case No. 19 CAF 01 0009 12
determination by the general assembly that such equitable powers and
jurisdiction do not exist with respect to any such matter.
{¶38} The Eighth District Court of Appeals held, in relevant part, that R.C.
3105.011, “limits the jurisdiction of the domestic relations [court] to the determination of
domestic relations matters. Any collateral claims must be brought in a separate action in
the appropriate court or division when the claim involves the determination of the rights
of a third-party.” Lisboa v. Karner, 167 Ohio App. 3d 359, 2006–Ohio–3024, 855 N.E.2d
136 (8th Dist.). The Eleventh District Court of Appeals, relying upon Lisboa, held in
Mitchell v. Mitchell, 11th Dist. Portage No.2007–P–0023, 2008–Ohio–833, ¶ 63:
Although the term “domestic relations matter” is not specifically defined in
any of the relevant statutes, Tanagho [v. Tanagho, 10 Dist. Franklin No.
92AP–1190, 1993 WL 50950 (Feb. 23, 1993) ], upon which the court in
Lisboa relied, held that the determination of “whether [a] property is a * * *
marital asset” [is] “within the jurisdiction of the domestic relations court,”
despite the fact that a third party also was claiming an interest in the
property. 1993 Ohio App. LEXIS 1201, at *7, 2003 WL 509501993 Ohio
App. LEXIS 1201, at *7, 2003 WL 50950.
{¶39} In Wife’s second amended answer, counterclaim, and third-party complaint,
Wife argued the marital home was marital property of which she had a marital interest.
She argued Sister engaged in fraud and was unjustly enriched when the marital home
was transferred to Sister in 2014. Sister does not appeal her joinder in the divorce
proceeding. Titled owners of real property, or persons with some purported interest in real
property, are necessary and indispensable parties to litigation seeking to divest those
Delaware County, Case No. 19 CAF 01 0009 13
owners of their interest therein. Young v. Wells, 4th Dist. Gallia No. 06CA6, 2007-Ohio-
4568, 2007 WL 2482626, ¶ 20 citing Huener v. Huener (1996), 110 Ohio App. 3d 322,
327; see, also, Congress Lake Club v. Witte, Stark App. No.2005CA0037, 2006-Ohio-59,
¶¶ 29, 34.
{¶40} In the December 27, 2018 judgment entry, the trial court found that when
the marital home was initially deeded into the joint ownership of Husband and Wife, it was
marital property. The trial court found it could not establish a value for the marital home
based on the evidence presented at trial. It stated:
The real property at issue has a gross appraised value of $720,000.00, less
an unspecified amount to make repairs certainly necessary for sale * * *.
The only evidence of value of the property * * * was the $720,000.00. Again,
this did not (emphasis added) include the cost of repairs obviously required
to sell at this price, nor did it include cost to sell. These two unknown
deductions (repairs and cost to sell) preclude the undersigned from being
able to establish a value to Plaintiff, Defendant, and Third-Party Defendant
and to leave “record-title” with Third-Party Defendant, and to provide for a
monetary division. The only solution to this inability to determine value is to
order the property sold * * *.
(Dec. 27, 2018 Judgment Entry).
{¶41} The trial court further stated:
The undersigned does also find by clear and convincing evidence that the
Third-Party Defendant has been unjustly enriched by virtue of the execution
and delivery of the Deed from Plaintiff and Defendant to her without
Delaware County, Case No. 19 CAF 01 0009 14
adequate consideration. The Court also finds that the foregoing unjust
enrichment is directly a result of Plaintiff’s financial misconduct in the marital
relationship. He took advantage of the Defendant’s English language
shortcomings, her lack of familiarity with legal real estate issues, her near
exclusion from ongoing involvement in the transaction as evidenced by all
emails with the Realtor being with Plaintiff, and transfer of $170,000
($130,000.00 plus $40,000.00) to Third-Party Defendant prior to the closing
and the transfer of $100,000.00 in two $50,000.00 payments subsequent to
the closing.
(Dec. 27, 2018 Judgment Entry). The trial court found the evidence presented did not
support Wife’s claim of fraud against Sister in relation to the transfer of the marital home.
{¶42} In Husband’s appeal of the December 27, 2018 Final Judgment for Divorce
with Children and Judgment Entry, we found the trial court did not abuse its discretion
when it found the marital home was marital property and Husband engaged in financial
misconduct when he orchestrated the transfer of the marital home to Sister. (Salameh v.
Salameh, Case No. 19 CAF 01 0008).
{¶43} Sister contends the trial court was without subject matter jurisdiction to
vacate the transfer of the marital home. In support of her argument in this regard, Sister
directs this court's attention to our decision in Shalash v. Shalash, 5th Dist. Delaware No.
12-CAF-110079, 2013-Ohio-5064. In Shalash, the wife filed for divorce against the
husband on March 16, 2010. The husband owned a drive-thru beverage business and
the wife named the business corporation as a defendant in the divorce complaint. The
Delaware County, Case No. 19 CAF 01 0009 15
wife also served a restraining order upon the husband, restraining him from selling,
encumbering, disposing, or in any manner secreting assets of the marriage.
{¶44} On March 23, 2010, the husband sold the corporation to his mother. The
husband's mother then created a separate corporation to run the business. On October
8, 2011, the wife filed an amended complaint and named the mother's corporation as a
defendant. The trial court found the transaction from the husband to his mother to be a
“sham transaction” and the trial court vacated the transaction as part of the divorce
decree. The trial court also found the mother's corporation to be a marital asset and
ordered mother to transfer the corporation to the wife.
{¶45} On appeal, we found “the trial court had jurisdiction to determine which
assets comprised the marital estate because that determination is primarily a domestic
relations matter.” Id. at ¶ 21. Once the trial court found evidence that the husband
engaged in financial misconduct by disposing of the business via a sale to his mother, we
found the trial court should have either awarded a distributive award or a greater award
of marital property pursuant to R.C. 3105.171(E)(4). Id. at ¶ 29. We held that ordering the
mother to transfer ownership of the business to the wife was an inappropriate extension
of the trial court’s authority because alternative remedies were available. Id.
{¶46} We understand Sister’s reliance on Shalash; however, under the specific
factual and financial circumstances of this case, we find the authority of the Eighth District
Court of Appeal’s decision in T.A. v. R.A., 8th Dist. Cuyahoga No. 107166, 2019-Ohio-
3179, to be on point. In T.A. v. R.A., the husband filed a complaint for divorce and the
wife answered, also filing a claim against the husband’s brother. Part of the marital estate
consisted of two gas stations and the marital home. During the marriage, the husband
Delaware County, Case No. 19 CAF 01 0009 16
granted mortgages on the marital home and one of the gas stations to his brother. The
trial court found the husband engaged in financial misconduct based on the mortgages
and ordered the brother to release the mortgages on the marital home and gas station.
Id. at ¶ 19. The brother appealed, arguing the trial court was without jurisdiction to order
him to release the mortgages because they were a collateral matter to the divorce. In so
arguing, the brother relied upon our decision in Shalash.
{¶47} The Eighth District Court of Appeals distinguished the matter from Shalash,
finding that the trial court did not rescind the transaction. Id. at ¶ 25. The husband and
the wife had a marital interest in the properties and by releasing the mortgages, the trial
court correctly granted the wife a greater award of the marital property under R.C.
3105.171(E)(4). Id. at ¶ 33, 34.
{¶48} In this case, the trial court found the marital home was marital property that
was purchased with separate funds, marital funds, and funds from Sister. Specifically, the
Sister paid $300,000 for the purchase of the marital home, but the trial court traced
$130,000 of the $300,000 to Husband. R.C. 3105.171(B) states in pertinent part: “ * * *
For purposes of this section, the court has jurisdiction over all property, excluding the
social security benefits of a spouse other than as set forth in division (F)(9) of this section,
in which one or both spouses have an interest.”
{¶49} The trial court declared the deed void, but it imposed a constructive trust on
the property and ordered the property to be sold by an appointed receiver. Sister has not
pointed to this Court to the record to show which party is the owner of the marital home
at this time. The trial court ordered that Sister receive $30,000 from the sale of the marital
home, based on her investment. We cannot say the trial court abused its discretion in its
Delaware County, Case No. 19 CAF 01 0009 17
decision based on the complicated financial maneuverings between Husband and Sister,
the purchase of the marital home being just one example. Sister did not charge Husband
rent while he lived in the home. Husband was permitted to keep the real estate tax
rebates. It was not until the divorce proceedings that Sister moved to evict Wife from the
marital home while she was living in the home with G.S. “A domestic relations court has
the power to ‘grant complete relief in a matter which is primarily a domestic relations
matter.’ ” Kell v. Verderber, 1st Dist. Hamilton No. C-120665, 2013-Ohio-4223, ¶ 20,
quoting In re Dunn, 101 Ohio App. 3d 1, 5, 654 N.E.2d 1303 (12th Dist.1995).
{¶50} Sister’s first Assignment of Error is overruled.
II.
{¶51} In her second Assignment of Error, Sister contends the trial court abused
its discretion when it denied Sister’s motion for leave to file summary judgment.
{¶52} On October 13, 2017, Sister filed a motion for leave to move for summary
judgment. In her proposed motion for summary judgment, Sister argued she was entitled
to judgment as a matter of law because the trial court did not have subject matter
jurisdiction over Wife’s third-party complaint against Sister. Sister argued in the
alternative, if the trial court did have jurisdiction, Wife’s claims against Sister were without
merit. On December 7, 2017, the trial court denied Sister’s motion for leave without
explanation.
{¶53} In her argument, Sister does not cite to any law to support her position. It is
not the duty of an Ohio appellate court to create arguments for the parties and search the
record for evidence to support them. Colvin v. Colvin, 5th Dist. Guernsey No. 18 CA 27,
2019-Ohio-2209, 2019 WL 2375394, ¶ 40 citing Washek v. Washek, 5th Dist. Fairfield
No. 18 CA 22, 2019-Ohio-1504, 2019 WL 1785411, ¶ 21 citing Sisson v. Ohio Department
Delaware County, Case No. 19 CAF 01 0009 18
of Human Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396. However, Civ.R.
56(A) and (B) provide that if an action has been set for pretrial or trial, parties may move
for summary judgment only with leave of court. Absent an abuse of discretion, an
appellate court will not reverse a trial court's decision to deny a motion for leave to file
summary judgment. Baker v. Manchi, 7th Dist. No. 15 MA 0091, 2017-Ohio-730, 86
N.E.3d 118, 2017 WL 823767, ¶ 13 citing Blatnik v. Avery Dennison Corp., 148 Ohio
App.3d 494, 774 N.E.2d 282, ¶ 45 (11th Dist.2002) An abuse of discretion means the trial
court's decision is unreasonable based upon the record; that the appellate court may have
reached a different result is not enough to warrant reversal. Downie v. Montgomery, 7th
Dist. No. 12 CO 43, 2013-Ohio-5552, 2013 WL 6687239, ¶ 50; Blatnik, ¶ 45.
{¶54} Based on the breadth of these acrimonious proceedings, we cannot say the
trial court abused its discretion in denying Sister’s motion for leave to file summary
judgment. There were arguably genuine issues of material fact before the trial court as to
the parties’ finances and whether the marital home was marital or separate property.
{¶55} Sister’s second Assignment of Error is overruled.
III. and V.
{¶56} Sister contends in her third Assignment of Error that the trial court erred
when it found Sister was unjustly enriched when she took possession of the marital home.
We also consider Sister’s fifth Assignment of Error that states the trial court violated the
parol evidence rule in making its decision that the transaction between the parties was
not a sale but a loan.
{¶57} In the December 27, 2018 Judgment Entry, the trial court stated:
Delaware County, Case No. 19 CAF 01 0009 19
The undersigned does not find that Third-Party Defendant committed fraud,
however, she would be unjustly enriched if her claim to one-hundred
percent (100%) ownership of the marital home was sustained. There was
not a sale to Third-Party by Plaintiff and Defendant under the terms of the
transfer, but rather the “sale” was a fiction. It was in the nature of a loan or
financing for part of the purchase price.
***
The property was deeded initially into the joint ownership of the Plaintiff and
Defendant and the undersigned finds at that point it was marital property.
The undersigned does also find by clear and convincing evidence that the
Third-Party Defendant has been unjustly enriched by virtue of the execution
and delivery of the Deed from Plaintiff and Defendant to her without
adequate consideration. The Court also finds that the foregoing unjust
enrichment is directly a result of Plaintiff’s financial misconduct in the marital
relationship.
{¶58} To establish an unjust enrichment claim, the plaintiff must demonstrate: (1)
a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the
benefit; and (3) retention of the benefit by the defendant under circumstances where it
would be unjust to do so without payment. Mun. Services Corp. v. Hall Community Dev.
LLC, 5th Dist. Tuscarawas No. 2018 AP 12 0042, 2019-Ohio-3079, 2019 WL 3458731, ¶
25 citing Robinette v. PNC Bank, 5th Dist. Licking No. 15-CA-47, 2016-Ohio-767, 2016
WL 771319, ¶ 23 citing Hambleton v. R.G. Barry Corp., 12 Ohio St. 3d 179, 183, 465
N.E.2d 1298 (1984). Under Ohio law, unjust enrichment is a claim under quasi-contract
Delaware County, Case No. 19 CAF 01 0009 20
law that arises out of the obligation cast by law upon a person in receipt of benefits that
he is not justly entitled to retain. FedEx Corp. Services, Inc. v. Heat Surge, LLC, 5th Dist.
Stark No. 2018CA00026, 2019-Ohio-217, ¶ 1 citing Beatley v. Beatley, 160 Ohio App. 3d
600, 2005-Ohio-1846, 828 N.E.2d 180.
{¶59} Sister argues there was an express contract between Husband, Wife, and
Sister for the transfer of the marital home to Sister. Initially, Husband, Wife, and Sister
made an oral agreement that the original sellers would transfer the marital home to
Husband and Wife and then Husband and Wife would transfer the marital home to Sister.
To effectuate the first transfer, Sister paid $300,000 and Husband paid approximately
$50,000 to the original sellers. On February 20, 2014, Husband, Wife, and Sister signed
a “Terms of Transfer” document, which stated as follows:
Anmar Salameh and Lina Yossef (the “Transferers”), a married couple,
agree to transfer the sole title & ownership of the property located in
Delaware County at 10350 Widdington Close, Powell, Ohio 43065 * * * to
Bouchra S Doumet (the “Transferee”), a married woman, for the purchase
price of $0 (zero dollars) immediately following the closing & settlement at
Peak Title Agency, LLC. For the Transferers’ purchase of said property &
parcels on February 28th, 2014.
By signing below, the aforementioned parties agree to the terms set forth in
the “Terms of Transfer”:
By the terms of the oral agreement and as evidenced by the Terms of Transfer document,
Sister paid no additional funds to Husband and Wife for the second transfer.
Delaware County, Case No. 19 CAF 01 0009 21
{¶60} The essential elements of a contract include an offer, acceptance,
contractual capacity, consideration (the bargained-for legal benefit and/or detriment), a
manifestation of mutual assent, and legality of object and of consideration. Spectrum
Benefit Options, Inc. v. Med. Mut. of Ohio, 4th Dist. No. 06CA19, 174 Ohio App. 3d 29,
2007-Ohio-5562, 880 N.E.2d 926, ¶ 28. “A meeting of the minds as to the essential terms
of the contract is a requirement to enforcing the contract.” Id. citing Episcopal Retirement
Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St. 3d 366, 369, 575 N.E.2d
134. Thus, to declare the existence of a contract, the parties must consent to its terms,
there must be a meeting of the minds of the parties, and the contract must be definite and
certain. Episcopal Retirement Homes, 61 Ohio St. 3d at 369, 575 N.E.2d 134.
{¶61} The trial court found there was no consideration exchanged between
Husband, Wife, and Sister when the marital home was transferred to Sister.
“Consideration may consist of either a detriment to the promisee or a benefit to the
promisor.” Capital City Financial Group, Inc. v. Mac Const. Inc., 5th Dist. No. 02CA-E-01-
006, 2002-Ohio-4543, 2002 WL 2016332, ¶ 24 quoting Brads v. First Baptist Church
(1993), 89 Ohio App. 3d 328, 336, 624 N.E.2d 737. “A benefit may consist of some right,
interest, or profit accruing to the promisor, while a detriment may consist of some
forbearance, loss or responsibility given, suffered or undertaken by the promisee.” Id.
“The benefit or detriment must be something intended by the parties as such; it cannot
be something merely incidental to the contract.” Id.
{¶62} Upon this record, we find there was competent and credible evidence
before the trial court to find there was no bargained legal benefit and/or detriment
exchanged between Husband, Wife, and Sister for the transfer of the marital home to
Delaware County, Case No. 19 CAF 01 0009 22
Sister. Consideration is a necessary element of an express contract. We find no error for
the trial court to examine Wife’s claim for unjust enrichment. We further find the evidence
supports the trial court’s determination that Sister was unjustly enriched by the transfer of
the marital home to her name. Wife conferred a benefit upon Sister (and Husband) and
Sister (and Husband) retained the benefit without payment to Wife.
{¶63} Wife’s third Assignment of Error is overruled.
{¶64} Sister contends in her fifth Assignment of Error that the trial court erred
when it determined the sale of the marital home to Sister was a fiction and the nature of
a loan. Pursuant to our decision on Sister’s first and third Assignments of Error, we find
Sister’s fifth Assignment of Error to be moot. It is overruled.
IV.
{¶65} In her fourth Assignment of Error, Sister argues the trial court erred in
denying her claims against Wife. On October 5, 2017, Sister filed a counterclaim for
declaratory judgment arguing she was the record title owner of the marital home. She
brought claims for ejectment, trespass, and unjust enrichment. Sister stated that Husband
and Wife transferred the marital home to Sister by General Warranty Deed. The marital
home was then transferred from Sister to a limited liability company, BDMD, LLC, the sole
member of which was a trust managed by Sister and her husband.
{¶66} This Court again cites to App.R. 16(A)(7) in reference to Sister’s appellate
argument. In this Assignment of Error, Sister does not refer this Court to the record or cite
any case law or statute to support her claims that the trial court erred in denying her claims
of declaratory judgment, ejectment, trespass, and unjust enrichment. It is not the duty of
an Ohio appellate court to create arguments for the parties and search the record for
Delaware County, Case No. 19 CAF 01 0009 23
evidence to support them. Colvin v. Colvin, 5th Dist. Guernsey No. 18 CA 27, 2019-Ohio-
2209, 2019 WL 2375394, ¶ 40 citing Washek v. Washek, 5th Dist. Fairfield No. 18 CA 22,
2019-Ohio-1504, 2019 WL 1785411, ¶ 21 citing Sisson v. Ohio Department of Human
Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396.
{¶67} Sister’s fourth Assignment of Error is overruled.
VI.
{¶68} Sister argues in her sixth Assignment of Error the trial court erred as a
matter of law and abused its discretion when it denied Sister’s request for a jury trial. She
contends that the Ohio Constitution guarantees the right for a trial by jury in civil cases
know to common law. This is a correct statement of law; however, the claims that Sister
brought against Wife are more nuanced than her broad statement that she is entitled to
a jury trial on her claims. Sister filed a counterclaim for declaratory judgment arguing she
was the record title owner of the marital home. She brought claims for ejectment,
trespass, and unjust enrichment.
{¶69} If Sister’s action is simply one to quiet title, the action is equitable in nature.
McCarley v. O.O. McIntyre Park Dist., 4th Dist. Gallia No. 99 CA 07, 2000 WL 203997, *8
(Feb. 11, 2000), citing McBride v. Murphy (1924), 111 Ohio St. 443, 447. Equitable actions
are traditionally tried by the court, without a jury. Hiener v. Kelley, Washington App. No.
98CA7, 1999 WL 595363 (July 23, 1999) citing Pierce v. Stewart (1899), 61 Ohio St. 422,
paragraph one of the syllabus.
{¶70} The trial court in this case found that Sister’s claims were equitable and it
was a court of equity; therefore, it denied Sister’s demand for a jury trial. Sister has not
developed her argument pursuant to App.R. 16(A)(7) that her claims of declaratory
Delaware County, Case No. 19 CAF 01 0009 24
judgment, ejectment, trespass, and unjust enrichment were claims triable by a jury. It is
not the duty of an Ohio appellate court to create arguments for the parties and search the
record for evidence to support them. Colvin v. Colvin, 5th Dist. Guernsey No. 18 CA 27,
2019-Ohio-2209, 2019 WL 2375394, ¶ 40 citing Washek v. Washek, 5th Dist. Fairfield
No. 18 CA 22, 2019-Ohio-1504, 2019 WL 1785411, ¶ 21 citing Sisson v. Ohio Department
of Human Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396.
{¶71} Sister’s sixth Assignment of Error is overruled.
VII.
{¶72} In her final Assignment of Error, Sister argues the trial court abused its
discretion when it denied her discovery motion to permit her and her real estate appraiser
access to the marital home. We disagree.
{¶73} Sister filed multiple motions to compel discovery from Wife regarding entry
and inspection of the marital home. Wife responded to the motions. On December 7,
2017, the trial court denied Sister’s motion to enter the home because Wife had arranged
for a real estate appraiser to enter the property for an appraisal, including appropriate
photographs. The trial court noted that Wife’s real estate appraiser was the same person
as suggested by Sister.
{¶74} In the regulation of discovery, the trial court has discretionary power and its
decisions will not be overturned absent an abuse of that discretion. Cooley v. Hartland,
5th Dist. Licking No. 14-CA-51, 2014-Ohio-5452, 2014 WL 7004760, ¶ 13 citing Mauzy v.
Kelly Servs., Inc., 75 Ohio St. 3d 578, 592, 664 N.E.2d 1272 (1996); State ex rel. Daggett
v. Gessaman, 34 Ohio St. 2d 55, 57, 295 N.E.2d 659 (1973). An appellate court reviews
a claimed error relating to a discovery matter under an abuse-of-discretion standard.
Delaware County, Case No. 19 CAF 01 0009 25
Lightbody v. Rust, 137 Ohio App. 3d 658, 663, 739 N.E.2d 840 (8th Dist.2000); Trangle v.
Rojas, 150 Ohio App. 3d 549, 782 N.E.2d 617, 2002–Ohio–6510 (8th Dist.). Under this
standard, reversal is warranted only where the trial court's attitude was arbitrary,
unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983).
{¶75} We find no abuse of discretion for the trial court to deny Sister’s motion to
enter the marital home for discovery purposes. It appeared from the record that Wife had
also arranged for a real estate appraiser to inspect the marital home.
{¶76} Sister’s seventh Assignment of Error is overruled.
CONCLUSION
{¶77} The judgment of the Delaware County Court of Common Pleas, Domestic
Relations Division is affirmed.
By: Delaney, P.J.,
Baldwin, J. and
Wise, Earle, J., concur.