Mousa v. Saad , 95 N.E.3d 941 ( 2017 )

[Cite as Mousa v. Saad, 2017-Ohio-7116.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
EMAD YOUHANNA MOUSA,
PLAINTIFF-APPELLANT/
CROSS-APPELLEE, CASE NO. 9-16-43
v.
ARLET MOUNIR ISHAK SAAD,
OPINION
DEFENDANT-APPELLEE/
CROSS-APPELLANT.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 14-DR-33
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: August 7, 2017
APPEARANCES:
Paul Giorgianni and Karen L. Poling for Appellant
J.C. Ratliff and Todd Anderson for Appellee
Case No. 9-16-43
ZIMMERMAN, J.,
{¶1} Plaintiff-Appellant/Cross-Appellee, Emad Youhanna Mousa (“Emad”),
appeals the judgment of the Court of Common Pleas of Marion County, Family
Division, granting him a divorce from the Defendant-Appellee/Cross Appellant
Arlet Mounir Ishak Saad (“Arlet”). On appeal, Emad contends that the trial court
erred in its determinations regarding whether certain assets were marital or
nonmarital. Emad also argues that: the trial court issued a Decree insufficient to
reconcile the division of the marital estate; the trial court issued an erroneous
$400,000 distributive award to Arlet; and the trial court unconstitutionally placed
restrictions on Emad’s ability to distribute money and assets out of the country. In
her cross-appeal, Arlet contends that the trial court erred by failing to equitably
divide the parties’ 2014 joint tax return. For the reasons that follow, the trial court’s
judgment is affirmed in part, reversed in part, and remanded to the trial court for
further proceedings consistent with this opinion.
Facts and Procedural History
{¶2} Emad and Arlet, both of whom were born and raised in Egypt, were
married in Queens, New York on January 30, 2005. Two children were born as
issue of their marriage. On February 19, 2014, Emad initiated the instant matter by
filing a Complaint for Divorce versus Arlet. Arlet filed her Answer and a Counter-
Claim for Divorce on March 6, 2014 and temporary orders of custody, child support,
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and spousal support were issued to Arlet by the trial court on March 31, 2014 and
May 1, 2014. (Doc. Nos. 21, 33).
{¶3} On July 22, 2014, Arlet filed a motion to compel discovery, which the
trial court granted on July 24, 2014. Additionally, the trial court ordered Emad to
comply with discovery and provide discovery (to Arlet) by August 21, 2014.
{¶4} On August 22, 2014, Arlet filed a motion for contempt, asserting that
Emad: (1) refused to pay spousal support; (2) refused to pay the cost of the
childrens’ tuition; and (3) refused to pay for the lawn care expenses of the marital
home, all of which were previously ordered by the trial court. On October 7, 2014,
an Agreed Judgment Entry was filed with the trial court resolving the contempt
action. However, Arlet filed a second Motion for Contempt on November 12, 2014,
for Emad’s failure to pay spousal support, and a Motion to Impose Sanctions for
Emad’s discovery non-compliance. On December 24, 2014 the trial court granted
Arlet’s motions, finding that Emad had not complied with discovery, had not paid
his spousal support obligations, had not paid his children’s tuition obligations, and
had failed to pay certain bills related to the marital residence. (Doc. No. 62).
{¶5} On May 1, 2015, Arlet filed another Motion to Impose Sanctions versus
Emad. The motion also requested that the trial court rule on Emad’s failure to purge
his previous contempt citation. On May 12, 2015 the trial court issued its Judgment
Entry finding Emad in contempt and that he had failed to purge his prior contempt
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findings. The trial court ordered Emad to serve twenty (20) days in jail, which was
suspended on the condition that he pay Arlet’s trial counsel two thousand dollars
($2,000) prior to May 15, 2015.
{¶6} On May 22, 2015, Arlet filed a motion to join a third party defendant in
this case, Mousa Investments, LLC, which the trial court granted on May 27, 2016.
Arlet filed an additional request to join a third-party defendant, Michael Mousa,
Emad’s brother, which the trial court granted on June 1, 2015. Ultimately, Arlet
filed cross-claims against Mousa Investments, LLC and Michael Mousa.
{¶7} On June 9, 2015, Arlet filed a motion to compel Emad to permit her
expert to value his business, OB/GYN Women’s Health Center, LLC. Thereafter,
on August 6, 2015, Arlet filed a motion to join OB/GYN Women’s Health Center,
LLC, as a party, which was granted by the trial court. Arlet then filed a cross-claim
against OB/GYN Women’s Health Center, LLC in the trial court and another
contempt action (versus Emad) on August 12, 2015.
{¶8} On August 25, 2015, the trial court ordered Emad to: (1) provide
discovery to defense counsel; (2) be physically present at OB/GYN Women’s
Health Center, LLC, on August 27, 2015 (to permit Arlet’s expert to evaluate the
business); and (3) pay the children’s tuition each month in a timely manner.
{¶9} Nevertheless, Arlet filed her fifth motion for contempt (versus Emad)
in the trial court on September 23, 2015.
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{¶10} The parties divorce case proceeded to a contested hearing on October
20, 21, 22, 29, and 30, 2015, followed by written summations and closing arguments
that were submitted to the trial court after the conclusion of the hearing.
{¶11} On November 18, 2015, Arlet filed her sixth motion for contempt
versus Emad.
{¶12} On May 12, 2016, the trial court issued a Decree of Divorce, granting
Emad and Arlet a divorce on the grounds of incompatibility. The trial court also
awarded Arlet judgments against third party defendants, Mousa Investments, LLC,
Michael Mousa, and OB/GYN Women’s Health Center, LLC. However, the trial
court issued an Amended Judgment Entry – Decree of Divorce on August 19, 2016,
followed by a Second Amended Judgment Entry Decree of Divorce (“Decree”),
which was filed on August 31, 2016. (Doc. Nos. 237, 238).
{¶13} From the trial court’s Second Amended Decree Emad filed his appeal,
asserting the following assignments of error:
EMAD’S ASSIGNMENT OF ERROR NO. I
THE DECREE DOES NOT EXPLAIN THE DIVISION OF
MARITAL PROPERTY WITH SPECIFICITY SUFFICIENT
TO ALLOW APPELLATE REVIEW.
EMAD’S ASSIGNMENT OF ERROR NO. II
THE DECREE DOES NOT DIVIDE ALL OF THE MARITAL
ASSETS AND DOES NOT DECLARE WHETHER SOME
ASSETS ARE MARITAL OR NONMARITAL.
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EMAD’S ASSIGNMENT OF ERROR NO. III
THE $400,000 AWARD UNDER R.C. 3105.171(E)(4)/(5) IS
ILLEGITIMATE, BECAUSE THE DECREE FULLY
“COMPENSATES” ARLET THROUGH THE PROPERTY
DIVISION AND AWARD OF 100 PERCENT OF HER
ATTORNEY FEES AND OTHER LITIGATION EXPENSES.
{¶14} In addition to the aforementioned assignments of error, Emad presents
the following alternative assignments of error under assignment of error three for
review:
EMAD’S ALTERNATIVE ASSIGNMENT OF ERROR NO. IV
THE DECREE FINDS THAT EMAD FAILED TO DISCLOSE
ASSETS THAT HE DID DISCLOSE
EMAD’S ALTERNATIVE ASSIGNMENT OF ERROR NO. V
THE EVIDENCE DOES NOT SUPPORT THE TRIAL
COURT’S DETERMINATION THAT CASH DEPOSITED
INTO THE JPMORGAN [SIC] CHASE BANK ACCOUNTS OF
EMAD’S PARENTS CONSTITUTED MARITAL PROPERTY
THEREBY DISSIPATED.
EMAD’S ALTERNATIVE ASSIGNMENT OF ERROR NO. VI
THE TRIAL COURT RULED THAT EMAD DISSIPATED
MARITAL ASSETS BY PURCHASING A MARITAL ASSET
(3000 GOODING ROAD).
EMAD’S ALTERNATIVE ASSIGNMENT OF ERROR NO. VII
THE TRIAL COURT DOUBLE COUNTED TRANSACTIONS
THAT THE COURT FOUND VIOLATED R.C.
3105.171(E)(4)/(5).
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EMAD’S ALTERNATIVE ASSIGNMENT
OF ERROR NO. VIII
IF 3000 GOODING ROAD IS A MARITAL ASSET, THEN
EXPENDITURES MAINTAINING IT DO NOT CONSTITUTE
FINANCIAL MISCONDUCT.
EMAD’S ALTERNATIVE ASSIGNMENT OF ERROR NO. IX
THE DECREE DOES NOT EXPLAIN THE R.C.
3105.171(E)(4)/(5) AWARD WITH SPECIFICITY SUFFICIENT
TO ALLOW APPELLATE REVIEW.
Lastly, Emad concludes his appeal with the following four assignments of error:
EMAD’S ASSIGNMENT OF ERROR NO. X
THE TRIAL COURT ERRED TO THE EXTENT THE COURT
VALUED OB/GYN WOMEN’S HEALTH CENTER LLC AS A
FUNCTION OF THE COMPANY’S FUTURE EARNINGS AND
ALSO INCLUDED THOSE EARNINGS AS EMAD’S INCOME
FOR PURPOSES OF DETERMINING SPOUSAL SUPPORT.
EMAD’S ASSIGNMENT OF ERROR NO. XI
THE DECREE DOUBLE COUNTS THE VALUE OF THE
BANK ACCOUNTS OF OB/GYN WOMEN’S HEALTH
CENTER LLC.
EMAD’S ASSIGNMENT OF ERROR NO. XII
THE DECREE MIS-VALUES CHASE CHECKING ACCOUNT
#-780.
EMAD’S ASSIGNMENT OF ERROR NO. XIII
THE DECREE FOREVER FORBIDS EMAD FROM
“DISTRIBUT[ING] MONEY AND OTHER ASSETS OUT OF
THE COUNTRY OR TO FRIENDS AND RELATIVES.
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{¶15} Arlet, Appellee and Cross-Appellant herein, filed the following
assignment of error for our review:
ARLET’S CROSS-ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT FAILED TO DIVIDE
THE PARTIES’ 2014 JOINT TAX RETURN EQUITABLY
BEFORE THE REFUND WAS AWARDED TO APPELLEE
FOR CHILD AND SPOUSAL SUPPORT ARREARS.
{¶16} For ease of analysis, we address some assignments together and out of
order.
Emad’s Assignment of Error No. I
{¶17} In his first assignment of error, Emad asserts that the Decree does not
explain the division of marital property with sufficient specificity for appellate
review. For the reasons set forth below, we agree.
Standard of Review
{¶18} In a divorce action, the trial court has broad discretion in the allocation
of marital assets. Neville v. Neville, 99 Ohio St. 3d 275, 2003-Ohio-3624, 791
N.E.2d 434, ¶ 5. Because the trial court has broad discretion in the allocation of
marital assets, its judgment will not be disturbed absent an abuse of discretion. Id.
The term ‘abuse of discretion’ “implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983). “A trial court will be found to have abused its discretion when
its decision is contrary to law, unreasonable, not supported by the evidence, or is
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grossly unsound.” Mackenbach v. Mackenbach, 3rd Dist. Hardin No. 6-11-03,
2012-Ohio-311, ¶ 7.
Analysis
{¶19} “In any order for the division or disbursement of property or a
distributive award made pursuant to this section, the court shall make written
findings of fact that support the determination that the marital property has been
equitably divided and shall specify the dates it used in determining the meaning of
‘during the marriage.’” R.C. 3105.171(G). “Pursuant to R.C. 3105.171(G), a trial
court must indicate the basis for its division of marital property in sufficient detail
to enable a reviewing court to determine whether the award is fair, equitable, and in
accordance with the law.” Williams v. Williams, 2013-Ohio-3318, 996 N.E.2d 533,
¶ 55 (12th Dist.), citing Kaechele v. Kaechele, 35 Ohio St. 3d 93, 97, 518 N.E.2d
1197 (1988). “‘This requirement is especially important where the division results
in an unequal distribution of property.’” Id., quoting Brown v. Brown, 12th Dist.
Madison No. CA2008-08-021, 2009-Ohio-2204, ¶ 32. “The requirements of the
statute are satisfied when the reviewing court is able to ascertain the requisite
information from the various portions of the record, including the trial court’s
decision.” Id.
{¶20} In our review of the record, exhibits, and the Decree issued by the trial
court, we cannot ascertain whether or not the trial court abused its discretion in its
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division of marital assets.1 In our review of the marital estate as set forth in the
Decree, we are unable to reconcile the trial court’s $58,092 equalization award. (See
Doc. No. 238 at 29). Further, we are also unable to reconcile the trial court’s
calculation that Emad failed to disclose (to Arlet) and diverted $590,270 in marital
assets. (See id. at 23). Lastly, upon our calculation and review of the marital estate,
we are unable to match the trial court’s calculation that the parties’ marital estate
netted $1,272,588. (See id.).
{¶21} We are cognizant that this divorce case was not typical, however, in
order for us to address the merits of the appeal and cross appeal, we must analyze
the trial court’s process in reaching its totals. “The only time a trial court need not
make the written findings of fact required by R.C. 3105.171(G) is if it distributed
the property according to the terms of a separation agreement entered into by the
parties.” Franklin v. Franklin, 10th Dist. Franklin No. 11AP-713, 2012-Ohio-1814,
¶ 4. “Furthermore, a trial court’s failure to clearly indicate in its decision that the
factors enumerated in R.C. 3105.171(F) were considered in making a division of
marital property constitutes an abuse of discretion. Id., citing Casper v.
DeFrancisco, 10th Dist. Franklin No. 01AP-604, 2002-Ohio-623, *4.
1
Unfortunately, our appellate review is also made more difficult by the fact that the trial court transposes
Plaintiff and Defendant throughout the Decree numerous times, and cites incorrect code sections as its
statutory authority.
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{¶22} Because the final divorce Decree does not sufficiently detail the trial
court’s process in calculating and dividing the marital estate pursuant to R.C.
3105.171(G), we must sustain Emad’s Assignment of Error No. I and remand it for
a clarifying entry.
Emad’s Assignment of Error No. II
{¶23} In his second assignment of error Emad asserts that the Decree does
not divide all of the marital assets and fails to identify whether certain assets are
marital or nonmarital. Specifically, Emad asserts that: (1) the trial court failed to
divide all of the parties’ bank accounts; (2) the trial court failed to distribute the gold
and silver to one spouse or the other; and (3) the trial court did not determine
whether the transactions between Emad and his parents involved marital assets or
separate property. However, Emad concedes (in his reply brief) that the trial court
did divide the parties’ bank accounts, and accordingly withdrew this portion of his
second assignment of error.
Standard of Review
{¶24} “In divorce proceedings, the trial court must determine which property
is marital and then divide that property in an equitable manner.” Dabis v. Dabis,
3rd Dist. Mercer No. 10-97-17, 1998 WL 391938, *2; R.C. 3105.171(B). “The trial
court must also divide the marital debt in a like manner.” Id. An appellate court
reviews the trial court’s classification of property as marital or separate property
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under a manifest weight of the evidence standard. Brandon v. Brandon, 3rd Dist.
Mercer No. 10-08-13, 2009-Ohio-3818, ¶ 11 citing Gibson v. Gibson, 3rd Dist.
Marion No. 9-07-06, 2007-Ohio-6965, ¶ 26 quoting Eggeman v. Eggeman, 3rd Dist.
Auglaize No. 2-04-06, 2004-Ohio-6050, ¶ 14. “Accordingly, the trial court’s
judgment will not be reversed if the decision is supported by some competent,
credible evidence.” Gibson, supra. “In determining whether competent, credible
evidence exists, ‘[a] reviewing court should be guided by a presumption that the
findings of the trial court are correct, since the trial judge is best able to view the
witnesses and observe their demeanor, gestures, voice inflection, and use those
observations in weighting the credibility of the testimony.’ ” Id.
{¶25} In regards to the division of property in a divorce, the trial court is
granted broad discretion in determining how to award an equitable division
according to the circumstances of each case before it, and therefore the division of
property in a divorce action shall be reviewed under an abuse of discretion standard.
DeWitt v. DeWitt, 3rd Dist. Marion No. 9-02-42, 2003-Ohio-851, ¶ 10. In
determining whether the trial court’s decision amounts to an abuse of discretion, it
must be found that the court’s attitude was unreasonable, arbitrary, or
unconscionable. Id.
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Gold and Silver Argument
{¶26} Emad contends that the trial court did not distribute the gold and silver
in its Decree. (See Doc. No. 238 at 20). In response, Arlet contends that the trial
court did divide the gold and silver, directing us to page 11 of the Decree which
states as follows:
The parties waived their right to have the household goods and
furnishings appraised. The evidence indicates that the parties have, in
their respective possession, the household goods and personal
property they desire. The Court finds that each party shall keep the
household furnishings and personal property in their possession free
and clear of any claim by the other.
(Id. at 11).
{¶27} Arlet contends that since the trial court did not believe Emad’s
testimony that $25,104.30 of the gold and silver was in Arlet’s possession at the
marital residence, the trial court found such was in Emad’s personal possession.
And, by ordering that each party keep the “personal property” in their respective
possession, the trial court awarded the gold and silver to Emad and divided the
property accordingly. In other words, Arlet does not dispute that Emad should
receive the gold and silver in the amount of $35,693.32. (Id. at 20).
{¶28} We agree with Arlet and find that the trial court awarded the gold and
silver to Emad in its final decree by ordering that each party keep the “personal
property” in their respective possession. Since Emad never disclosed the existence
of the gold and silver (to Arlet) and because he purchased it during the marriage,
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such gold and silver was in his “possession” for purposes of this argument. Thus,
we find that the trial court awarded the gold and silver to Emad, free and clear of
Arlet’s claims in the “personal property” division of assets. Accordingly, we
overrule Emad’s gold and silver argument in his second assignment of error.
Marital/Nonmarital Property Argument
{¶29} Under this assignment, Emad further contends that the Decree fails to
identify whether some assets are marital or nonmarital, and directs us to pages 17-
19 of the Decree that details various financial transactions between Emad and his
parents. After listing the transactions, (between Emad and his parents) the trial court
determined that such amounted to financial misconduct pursuant to R.C.
3105.171(E). Emad argues that the trial court’s finding (of misconduct) fails to
identify whether these assets are marital or nonmarital property.
{¶30} In our review of the record, we cannot determine whether the trial
court classified these transactional assets as marital or separate property. As such,
we are unable to conduct the two-step analysis required when reviewing the
classification and division of marital property under 3105.171(B) and (D). “It is
axiomatic that a court speaks only through its journal entries.” State v. Maisch, 173
Ohio App. 3d 724, 2007-Ohio-6230, 880 N.E.2d 153, ¶ 33 (3rd Dist.). Furthermore,
“a judgment entry too vague to be understood is unenforceable.” Geiss v. Geiss, 5th
Dist. Delaware No. 96CAFO5023, 1997 WL 34735640, *1.
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{¶31} Accordingly, we are not able to determine the trial court’s
classification and division of these transactions and we sustain this portion of
Emad’s second assignment of error and remand this matter back to the trial court
for the trial court to detail its classification of these transactions and their place in
the property division.
Emad’s Assignment of Error No. III and Alternative
Assignments of Error IV - IX
{¶32} In his third assignment of error, Emad contends that the trial court’s
$400,000 distributive award under R.C. 3105.171(E)(4)/(5) was illegitimate.
Specifically, Emad argues that the trial court “penalized” him by issuing Arlet a
financial award that was in addition to the division of property award and legal fees.
Furthermore, Emad asserts that if the $400,000 award is found to be legitimate, the
six “alternative” assignments of error must be addressed by this court. For the
reasons that follow, we sustain this assignment for the limited purpose of clarifying
the net marital estate calculation and moot those assignments of error identified as
“alternative” assignments of error (Assignments IV – IX).
Standard of Review
{¶33} “A trial court’s decision to compensate a spouse for the financial
misconduct of the other spouse is reviewed under an abuse of discretion standard.”
Eggeman, 3rd Dist. Auglaize No. 2-04-06, 2004-Ohio-6050, ¶ 23. “‘An abuse of
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discretion implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable.’” Id. quoting Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
Relevant Statute
{¶34} At the heart of Emad’s third assignment of error is R.C.
3105.171(E)(4) and (E)(5), which states:
(E)(4) If a spouse has engaged in financial misconduct, including, but
not limited to, the dissipation, destruction, concealment,
nondisclosure, or fraudulent disposition of assets, the court may
compensate the offended spouse with a distributive award or with a
greater award of marital property.
(E)(5) If a spouse has substantially and willfully failed to disclose
marital property, separate property, or other assets, debts, income, or
expenses as required under division (E)(3) of this section, the court
may compensate the offended spouse with a distributive award or with
a greater award of marital property not to exceed three times the value
of the marital property, separate property, or other assets, debts,
income, or expenses that are not disclosed by the other spouse.
R.C. 3105.171(E)(4)/(5).
Analysis
{¶35} In its Decree, the trial court awarded Arlet $400,000, pursuant to R.C.
3105.171(E)(5) after finding that Emad committed multiple instances of financial
misconduct. (Doc. No. 238 at 23). Further, the trial court determined that it
considered Emad and Arlet’s marital and separate property, including any other
assets, debts, income and expenses, and determined that the net marital estate was
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$1,272,588. (Id.). With such determination, the trial court found that one-third of
the net estate was $419,954.00. (Id.). However, as we have determined in Emad’s
first assignment of error, we cannot reconcile the trial court’s determination of the
net marital estate from the information set forth in the Decree. Per R.C.
3105.171(E)(5), the trial court needs to determine the net marital estate and the total
undisclosed and diverted assets before issuing a financial misconduct award.
Because we are, on review, unable to determine how the trial court calculated the
net marital estate and the total undisclosed and diverted assets, we are unable to
review this assignment of error. Thus, as we have done above, we sustain this
assignment for the limited purpose of remanding this to the trial court to re-issue its
decree and clarify its distributive award. Accordingly, with our remand, Emad’s
fourth, fifth, sixth, seventh, eighth, and ninth alternative assignments of error are
rendered moot.
Enad’s Assignments of Error Nos. XI & XII
{¶36} Since Emad’s eleventh and twelfth assignments of error also involve
the valuation of potential marital assets set forth in the final Decree, we moot those
assignments of error as well. Specifically, as we are not able to ascertain how the
trial court calculated the net marital estate, we cannot address whether the trial court
double counted the value of OB/GYN Women’s Health Center, LLC or mis-valued
the chase checking account ending in #780.
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Arlet’s Cross-Assignment of Error No. I
{¶37} Finally, as we have sustained Emad’s prior assignments of error
relating to the classification and division of property, we also sustain Arlet’s Cross
Assignment of Error No. I, for the limited purpose of determining the classification
and division of the parties’ 2014 joint tax return.
Emad’s Assignment of Error No. X
{¶38} In his tenth assignment of error, Emad asserts that the trial court erred
to the extent that it valued OB/GYN Women’s Health Center, LLC as a function of
the company’s future earnings and also included those earnings as Emad’s income
for purposes of spousal support. Specifically, Emad asserts that the trial court
“double dipped” in its treatment of OB/GYN Women’s Health Center, LLC for
purposes of determining spousal support.
Standard of Review
{¶39} “‘Spousal support’ means any payment or payments to be made to a
spouse or former spouse, or to a third party for the benefit of a spouse or former
spouse, that is both for sustenance and for support.” Heller v. Heller, 195 Ohio
App.3d 541, 2011-Ohio-5364, 960 N.E.2d 1055, ¶ 19 (10th Dist.) quoting R.C.
3105.18(A). “A trial court has broad discretion to determine the proper amount of
spousal support based on the particular facts and circumstances of each case. Id.
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citing Kunkle v. Kunkle, 51 Ohio St. 3d 64, 67, 554 N.E.2d 83 (1990). “A reviewing
court cannot substitute its judgment for that of the trial court absent an abuse of
discretion.” Id.
Relevant Statute
{¶40} R.C. 3105.18 governs spousal support in Ohio. It states, in pertinent
part:
(A) As used in this section, “spousal support” means any payment or
payments to be made to a spouse or former spouse, or to a third party
for the benefit of a spouse or a former spouse, that is both for
sustenance and for support of the spouse or former spouse. “Spousal
support” does not include any payment made to a spouse or former
spouse, or to a third party for the benefit of a spouse or former spouse,
that is made as part of a division or distribution of property or a
distributive award under section 3105.171 of the Revised Code.
(B) In divorce and legal separation proceedings, upon the request of
either party and after the court determines the division or
disbursement of property under section 3105.171 of the Revised
Code, the court of common pleas may award reasonable spousal
support to either party. During the pendency of any divorce, or legal
separation proceeding, the court may award reasonable temporary
spousal support to either party. An award of spousal support may be
allowed in real or personal property, or both, or by decreeing a sum
of money, payable either in gross or by installments, from future
income or otherwise, as the court considers equitable. Any award of
spousal support made under this section shall terminate upon the death
of either party, unless the order containing the award expressly
provides otherwise.
(C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of
payment, and duration of spousal support, which is payable either in
gross or in installments, the court shall consider all of the following
factors:
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(a) The income of the parties, from all sources,
including, but not limited to, income derived from
property divided, disbursed, or distributed under section
3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional
conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for
a party, because that party will be custodian of a minor
child of the marriage, to seek employment outside the
home;
(g) The standard of living of the parties established
during the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties,
including but not limited to any court-ordered payments
by the parties;
(j) The contribution of each party to the education,
training, or earning ability of the other party, including,
but not limited to, any party's contribution to the
acquisition of a professional degree of the other party;
(k) The time and expense necessary for the spouse
who is seeking spousal support to acquire education,
training, or job experience so that the spouse will be
qualified to obtain appropriate employment, provided
the education, training, or job experience, and
employment is, in fact, sought;
(l) The tax consequences, for each party, of an award
of spousal support;
(m) The lost income production capacity of either
party that resulted from that party's marital
responsibilities;
(n) Any other factor that the court expressly finds to
be relevant and equitable.
(2) In determining whether spousal support is reasonable and in
determining the amount and terms of payment of spousal support,
each party shall be considered to have contributed equally to the
production of marital income.
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R.C. 3105.18(A)-(C).
Analysis
{¶41} In our review of the record, we cannot determine whether the trial
court’s spousal support was “appropriate and reasonable” because we are not able
to reconcile the trial court’s valuation of the marital estate. R.C. 3105.18(B). See
Honingford v. Honingford, 3rd Dist. Allen No. 1-86-53, 1988 WL 81366, *3 (“In
allocating property between the parties to a divorce and making an award of
sustenance alimony [spousal support], the trial court must indicate the basis for its
award in sufficient detail to enable a reviewing court to determine that the award is
fair, equitable, and in accordance with the law”). In its Decree, even though the trial
court reviews the spousal support factors under R.C. 3105.18(B), we cannot
determine if the spousal support award is reasonable without greater detail regarding
the assets, debts, income, and relative earning abilities of the parties. (See Doc. No.
238 at 7-10).
{¶42} Despite the fact that Arlet introduced expert testimony of the value of
OB/GYN Women’s Health Center, LLC business, the final Decree is silent as to the
business’s value. (See 10/22/2015 Tr., Vol. III, at 878-79; Def. Ex. ZZ. Arlet’s
expert witness, Bryan C. Daulton, valued Emad’s OB/GYN Women’s Health
Center, LLC at $145,000 and submitted his valuation report to the trial court
indicating the same.) Further, the Decree is also silent as to whether the trial court
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chose a different valuation of the business despite the lack of expert testimony to
the contrary. Thus, we cannot address this assignment of error without clearer
information from the trial court.
{¶43} Accordingly, we sustain Emad’s tenth assignment of error but take no
position on Emad’s argument related to “double dipping” and/or whether the award
was appropriate and reasonable. Consistent with our decision in the above
assignments of error, our remand of this matter is solely for the trial court to clarify
its decree in a manner for us to conduct our appellate review.
Emad’s Assignment of Error No. XIII
{¶44} In his thirteenth assignment of error, Emad asserts that the Decree bans
him from “distribut[ing] money and other assets out of the Country or to friends and
relatives” forever. Specifically, Emad asserts that the trial court effectively placed
a lifetime ban on his ability to distribute his assets, in violation of his federal and
state constitutional guarantees. We disagree.
{¶45} As an initial matter, we find that Emad, in presenting this assignment
of error to the Court, misinterprets the trial court’s final decree on this issue.
Specifically, the trial court order at issue states as follows: “It is further ORDERED
that Plaintiff shall not distribute money and other assets out of the Country or to
friends and relatives except as Ordered herein.” Emphasis added. (Doc. No. 238
at 30). Emad’s presentation of this assignment of error does not comply with the
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Ohio Rules of Appellate Procedure. App.R. 16(A)(7) states: “(A) Brief of the
Appellant. The appellant shall include in its brief, under the headings and in the
order indicated, all of the following: [a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies. The argument may be preceded by a
summary.” Emphasis added. App.R. 16(A)(7).
{¶46} While Emad directs this Court to constitutional provisions and the
portion of the Decree containing the alleged error, Emad directs this Court to
absolutely no legal authority to support his argument. “The law is clear that ‘[a]n
appellant must demonstrate each assigned error through an argument supported by
citations to legal authority and facts in the record.’” Home S. & L. Co. of
Youngstown v. Avery Place, L.L.C., 10th Dist. Franklin Nos. 11AP-1152, 11AP-
1153, 2012-Ohio-6255, ¶ 12 quoting Ford Motor Credit Co. v. Ryan, 189 Ohio
App.3d 560, 2010-Ohio-4601, 939 N.E.2d 891, ¶ 23 (10th Dist.), citing App.R.
16(A)(7). Furthermore, “‘[i]f an appellant neglects to advance such an argument, a
court of appeals may disregard the assignment of error.’” Id., quoting Ford Motor
at ¶ 23, citing App.R. 12(A)(2). Because Emad directs this court to no legal
authority to support this assignment, we accordingly overrule this assignment of
error.
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{¶47} Having reviewed the arguments, the briefs, and the record in this case,
we find error prejudicial to Appellant in the particulars assigned and argued. We
sustain Emad’s first, second, third, and tenth assignments of error, only to the extent
for this matter to be remanded to the trial court for it to clarify its Decree with a
better understanding of the classification of assets, division of property, distributive
award, and award of spousal support. Further, we overrule Emad’s thirteenth
assignment of error, and moot Emad’s third, fourth, fifth, sixth, seventh, eighth,
ninth, eleventh, and twelfth assignments of error. We also sustain Arlet’s cross-
assignment of error for the limited purpose of determining the classification and
division of the parties’ 2014 joint tax return, contingent upon our stated instructions.
{¶48} The judgment of the Court of Common Pleas of Marion County,
Family Division is therefore affirmed in part, reversed in part, and remanded to the
trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part, and
Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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