Mousa v. Saad , 2019 Ohio 4406 ( 2019 )

[Cite as Mousa v. Saad, 2019-Ohio-4406.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
EMAD YOUHANNA MOUSA,
PLAINTIFF-APPELLANT, CASE NO. 9-19-33
v.
ARLET MOUNIR ISHAK SAAD, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 14-DR-0033
Judgment Affirmed
Date of Decision: October 28, 2019
APPEARANCES:
Paul Giorgianni for Appellant
Todd A. Anderson and Jeff Ratliff for Appellee
Case No. 9-19-33
SHAW, J.
{¶1} Plaintiff-appellant, Emad Youhanna Mousa (“Emad”), appeals the
April 29, 2019 Judgment Entry-Divorce Decree issued by the Marion County Court
of Common Pleas, Family Division. On appeal, Emad challenges the trial court’s
award of $400,000 pursuant to R.C. 3105.171(E)(5) to defendant-appellee, Arlet
Mounir Ishak Saad (“Arlet”), for Emad’s substantial and willful failure to disclose
assets during the divorce proceedings.
{¶2} This case has previously been remanded twice to the trial court for
correction and clarification of multiple issues related to the parties’ property
distribution pertaining to the divorce. See Mousa v. Saad, 3d Dist. Marion No. 9-
16-43, 2017-Ohio-7116 (“Mousa I”); Mousa v. Saad, 3d Dist. Marion No. 9-18-12,
2019-Ohio-742 (“Mousa II”).1 In Mousa II, we concluded that the trial court
erroneously included funds Emad had dissipated prior to and in anticipation of filing
the divorce complaint when it calculated the total funds resulting from Emad’s non-
disclosure under R.C. 3105.171(E)(3),(5). As a result, we specifically remanded the
case to the trial court to “determine the value of the funds that [Emad] willfully
failed to disclose in violation of R.C. 3105.171(E)(3) and the value of the funds that
[Emad] dissipated in violation of R.C. 3105.171(E)(4)” before calculating an award
under R.C. 3105.171(E)(5). Mousa II, supra, at ¶ 33.
1
Due to the limited nature of the issue raised in this appeal, we find it unnecessary to recount the entire case
history which is set forth in detail in Mousa I and Mousa II.
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Case No. 9-19-33
{¶3} Upon the second remand, the trial court issued a Divorce Decree
thoroughly setting forth its rationale to support its findings that Emad willfully and
deliberately failed to disclose $523,096.80 in marital assets in violation R.C.
3105.171(E)(3) and that he also engaged in financial misconduct when he
fraudulently disposed of $268,551.98 under R.C. 3105.171(E)(4). (Doc. No. 321 at
37-47). The trial court again awarded Arlet $400,000 for Emad’s substantial and
willful failure to disclose the $523,096.80 in marital assets. See R.C. 3105.171
(E)(3), (E)(5).
{¶4} Emad appealed the trial court’s Divorce Decree, raising the following
assignment of error for our review.
THE TRIAL COURT ORDERED EMAD TO PAY AN AWARD
PURSUANT TO R.C. 3105.171(E)(4)/(5) THAT IS SOLELY
PUNITIVE. (JUDGMENT ENTRY—DECREE OF DIVORCE
47 (APRIL 29, 2019).)
{¶5} Initially, it is important to note that Emad does appear to not dispute the
trial court’s findings that he committed financial misconduct by dissipating
$268,551.98 prior to the filing of the divorce complaint or that he willfully and
substantially failed to disclose $523,096.80 during the divorce proceedings.2
Rather, the gravamen of Emad’s appeal focuses on his assertion that the trial court’s
2
Even assuming arguendo that Emad did explicitly challenge these findings, we find they are supported by
the evidence before the trial court based upon our review of the record.
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Case No. 9-19-33
award of $400,000 to Arlet pursuant to R.C. 3105.171(E)(5) is solely punitive rather
than compensatory in nature, which Emad contends is not permitted by the statute.
Legal Standard
{¶6} R.C. 3105.171 governs the trial court’s authority to divide property
subject to a divorce proceeding. Specifically at issue in this case are the provisions
of R.C. 3105.171(E) which permit the trial court to make a distributive award in a
divorce proceeding.
(E)(1) The court may make a distributive award to facilitate,
effectuate, or supplement a division of marital property. The
court may require any distributive award to be secured by a lien
on the payor’s specific marital property or separate property.
(2) The court may make a distributive award in lieu of a division
of marital property in order to achieve equity between the spouses,
if the court determines that a division of the marital property in
kind or in money would be impractical or burdensome.
(3) The court shall require each spouse to disclose in a full and
complete manner all marital property, separate property, and
other assets, debts, income, and expenses of the spouse.
(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.
(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
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Case No. 9-19-33
property, or other assets, debts, income, or expenses that are not
disclosed by the other spouse.
(Emphasis added).
{¶7} R.C. 3105.171(E)(3) imposes a duty upon the parties to a divorce “to
disclose in a full and complete manner all marital property, separate property, and
other assets, debts, income, and expenses of the spouse.” R.C. 3105.171(E)(4)
authorizes a trial court to make a distributive or greater award of marital property to
one spouse upon a finding that the other spouse “has engaged in financial
misconduct, including but not limited to, the dissipation, destruction, concealment,
or fraudulent disposition of assets.” Similarly, R.C. 3105.171(E)(5) provides for
compensation if a spouse has substantially and willfully failed to disclose marital
property, separate property, assets, expenses, income, or debt.
{¶8} Despite Emad’s characterization on appeal, the trial court clearly
articulated in the decree that the $400,000 was distributed to Arlet to compensate
her for Emad’s willful non-disclosure of $523,096.80 of marital assets during the
divorce proceedings pursuant to R.C. 3105.171(E)(5). The trial court identified the
seven assets comprising the $523,096.80 in its judgment entry.
{¶9} As previously discussed, R.C. 3105.171(E)(5) permits the trial court to
“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
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Case No. 9-19-33
by the other spouse,” which in this case would be $1,596,290.40 ($523,096.80 x 3).
Clearly, the trial court’s distributive award of $400,000 is well within the parameters
of the authority conferred to it by R.C. 3105.171(E)(5).
{¶10} Emad attempts to confuse the issue on appeal by asserting that the trial
court’s award in this case is “punitive” rather than “compensatory” as provided by
the statute. In particular, Emad appears to argue that a distributive award under R.C.
3105.171(E)(5) is intrinsically punitive if it exceeds the amount of expenses, i.e.,
attorney and investigative fees, incurred by the offended spouse in unearthing the
hidden assets.3 However, we are not persuaded by Emad’s proposition as his
interpretation of the statute is wholly inconsistent the plain language of R.C.
3105.171(E)(5). Rather, it is clear from the specific terms used by the General
Assembly in drafting the statute that it intended to accord broad discretion to a court
in formulating an equitable, compensatory award based on the facts and
circumstances of the case to a spouse who has been aggrieved by the willful and
substantial non-disclosure and dereliction of the other spouse’s statutory duty under
R.C. 3105.171(E)(3) so long as that compensation does not exceed three times the
value of the undisclosed assets.
3
In this instance, the trial court granted Arlet’s motion requesting Emad to pay her partial attorney fees of
$32,000. The trial court also ordered Emad to pay Arlet half of the fees for the expert witness who traced
the undisclosed assets and the litigation expenses for the subpoenas in the amount of $6,691.66.
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Case No. 9-19-33
{¶11} Moreover, the case authority cited by Emad in his brief does not
endorse his stance on appeal. Emad heavily relies on two cases from this Court to
bolster his position. In Walker v. Walker, this Court reversed a trial court’s
distributive award premised upon the husband’s dissipation of assets prior to the
initiation of the divorce which constituted financial misconduct under R.C.
3105.171(E)(4) because the trial court had erroneously applied the remedy in R.C.
3105.171(E)(5) by ordering a distributive award to the wife in the amount of three
times the value of the dissipated assets. Walker v. Walker, 3d Dist. Marion No. 9-
12-15, 2013-Ohio-1496, ¶ 32. We concluded that because the assets were no longer
owned by either party, there was no duty to disclose them under R.C.
3105.171(E)(3) and therefore the trial court could not apply the remedy under R.C.
3105.171(E)(5). Id. Nevertheless, we also concluded that the husband’s disposal
of the assets constituted financial misconduct under R.C. 3105.171(E)(4), which
provides for a separate remedy and we “remanded the matter to the trial court to
determine an appropriate award pursuant to R.C. 3105.171(E)(4).” Id. at ¶ 34.
{¶12} Here, the trial court made a clear distinction between the assets
dissipated as the result of Emad’s financial misconduct under R.C. 3105.171(E)(4)
and the assets Emad substantially and willfully failed to disclose under R.C.
3105.171(E)(3),(5). Moreover, the record demonstrates that the trial court
appropriately applied these statutes when fashioning its distributive awards.
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{¶13} Emad also relies upon Eggeman v. Eggeman for the proposition that
R.C. 3105.171(E)(4) “may only compensate the aggrieved spouse and may not
punish the offending spouse.” (Appt. Brief at 6, citing Eggeman v. Eggeman, 3d
Dist. Auglaize No. 2-04-06, 2004-Ohio-6050, ¶ 4, 22). Notwithstanding the fact
that Eggeman was decided prior to the enactment of R.C. 3105.171(E)(5) and is
therefore not instructive on the trial court’s authority under that subsection, we do
not disagree with the general premise put forth by Emad regarding R.C.
3105.171(E)(4). However, we do not find it dispositive of the issue at hand.
{¶14} In sum, we find no error in the trial court’s decision to order a
distributive award of $400,000 to compensate Arlet for Emad’s substantial and
willful failure to disclose $523,096.80 of marital assets during the divorce
proceedings. The trial court’s award is clearly permissible under the authority
conferred to it under R.C. 3105.171(E)(5), and there is nothing in the record to
indicate that the trial court’s decision in this regard was otherwise inequitable.
Accordingly, we overrule the assignment of error.
{¶15} Based on the foregoing, we overrule the assignment of error and affirm
the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN, P.J. and PRESTON, J., concur.
/jlr
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