Passyalia v. Moneir , 95 N.E.3d 723 ( 2017 )

[Cite as Passyalia v. Moneir, 2017-Ohio-7033.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DOAA ALDO PASSYALIA JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2016 CA 00182
TAREK M. MONEIR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2015 DR 00693
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: July 31, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LORRIE E. FUCHS JOHN E. MYERS
3974 Wales Avenue, NW 101 Central Plaza South
Massillon, Ohio 44646 200 Chase Tower
Canton, Ohio 44702
CHRISTOPHER S. COLERIDGE
101 Central Plaza South
500 Chase Tower
Canton, Ohio 44702
Stark County, Case No. 2016 CA 00182 2
Wise, John, J.
{¶1} Appellant (former husband) Tarek M. Moneir appeals from his divorce in the
Stark County Stark County Court of Common Pleas, Domestic Relations Division.
Appellee (former wife) is Doaa Aldo Passyalia. The relevant facts leading to this appeal
are as follows.
{¶2} The parties were married in Egypt in April 1986. Two children were born as
issue of the marriage, both of whom are now emancipated adults. In 2006, appellant
obtained employment in county government in Virginia, and the parties separated.
Appellee remained with the parties’ children in North Canton, Ohio. During the ten-year
separation, appellant paid the mortgage, taxes, insurance, and utilities for the North
Canton residence occupied by appellee and the children.
{¶3} On July 15, 2015, Appellee Doaa filed a complaint for divorce. Appellant
Tarek filed an answer and a counterclaim for divorce on September 12, 2015. The case
proceeded to a trial to the court on August 9, 2016 and September 2, 2016.
{¶4} On September 12, 2016, the trial court issued a final decree of divorce,
including orders regarding property division and spousal support, as further detailed
infra.1
{¶5} On October 6, 2016, appellant filed a notice of appeal. He herein raises the
following two Assignments of Error:
1 We note the trial court found the termination date of the marriage to be the last day of
the trial. See Decree at 7.
Stark County, Case No. 2016 CA 00182 3
{¶6} “I. THE TRIAL COURT'S DIVISION OF PROPERTY WAS INEQUITABLE,
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND AN ABUSE OF
DISCRETION.
{¶7} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
SPOUSAL SUPPORT BEFORE FIRST MAKING AN EQUITABLE DIVISION OF
PROPERTY.”
I.
{¶8} In his First Assignment of Error, appellant contends the trial court abused
its discretion in characterizing or awarding certain marital assets and debts, resulting in
an inequitable division of property. We agree in part and disagree in part.
Standards of Review
{¶9} As an appellate court, we generally review the overall appropriateness of
the trial court's property division in divorce proceedings under an abuse of discretion
standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to find
an abuse of discretion, we must determine that the trial court's decision was
unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Furthermore, as an
appellate court, we are not the trier of fact. Our role is to determine whether there is
relevant, competent, and credible evidence upon which the fact-finder could base his or
her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, ¶ 16,
citing Cross Truck Equip. Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA–5758, 1982
WL 2911.
Stark County, Case No. 2016 CA 00182 4
{¶10} In order to make an equitable division of property, the trial court should first
determine the value of the marital assets. Eisler v. Eisler (1985), 24 Ohio App.3d 151,
152, 493 N.E.2d 975. In performing this function, the trial court has broad discretion to
develop some measure of value. Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d
183. Thus, “[t]he valuation of marital assets is typically a factual issue that is left to the
discretion of the trial court.” Roberts v. Roberts, 10th Dist. Franklin No. 08AP–27, 2008–
Ohio–6121, ¶ 18, citing Berish, supra.
2010 Toyota 4-Runner Automobile
{¶11} Appellant first challenges the trial court’s determination of the value of the
parties’ 2010 Toyota 4-Runner. The court found that said vehicle, titled to appellant, had
a fair market value of $17,306.00, with a lien balance of $7,628.00. Decree at 4. However,
in its property distribution chart, instead of listing the net value at the mathematically
expected figure of $9,678.00, the trial court set forth a value of $11,442.00. Appellant
challenges this result as a math error in the amount of $1,764.00, although appellee
responds that the $11,442.00 net value on the chart came about because of a fair market
value of $19,070.00 culled from one of appellee’s trial exhibits (i.e., $19,070.00 minus the
$7,628.00 lien). Appellee also urges in response that appellant’s proper remedy is to seek
a nunc pro tunc order.
{¶12} Upon review, we find the discrepancy between the Toyota’s valuation in the
findings of fact and the figure used on the property distribution chart constitutes reversible
error.
Stark County, Case No. 2016 CA 00182 5
Canton Student Loan Foundation Loan
{¶13} Appellant next challenges the trial court’s valuation of a loan balance owed
on behalf of the parties’ adult daughter, A. M. It appears undisputed that said loan from
the Canton Student Loan Foundation was incurred by both appellant and appellee in
2005. The trial court, on its distribution chart, set forth a balance of $1,290.00 for the loan
as a marital debt, which was then “awarded” to appellant.
{¶14} A review of the record, however, indicates that exhibits from the trial showed
the Canton Student balance to be $9,530.17. Furthermore, on cross-examination,
appellee estimated that the balance was “in the nine thousands.” Tr. II at 10. We also
note that trial testimony from both parties indicated A.M. herself had taken over making
the payments on the loan, and documentation produced at trial showed that the loan
statements were being addressed to and mailed directly to her. Thus, it is unclear to this
Court how the trial court arrived at the $1,290.00 figure.
{¶15} Although an appellate court generally reviews a decision on property
division in its entirety, rather than examining individual awards in a piece-meal fashion
(see Espenschied v. Espenschied, 5th Dist. Tuscarawas No. 2002AP030021, 2002-Ohio-
5119, ¶ 19), we find the trial court’s assignment of the uncertain calculation of $1,290.00
as a marital debt to appellant for the adult daughter’s 2005 student loan, originally taken
out in both parents’ names, also constitutes reversible error.
Stark County, Case No. 2016 CA 00182 6
U.S. Department of Education Student Loan
{¶16} Appellant lastly challenges the trial court’s classification as his separate
debt a United States Department of Education Student Loan, with a balance of
$134,689.00, that he took out on behalf of the parties’ adult daughter, A. M.2
{¶17} The trial court found in pertinent part on this issue: “The husband took out
a loan on behalf of his daughter through the Federal Government, guaranteed student
loan program. This obligation was incurred after the child's emancipation and while
incurred with the knowledge of the wife, she is not a co-signor of the loan. As such, this
obligation is deemed to be not a marital obligation but an obligation solely incurred by the
husband. ***.” Decree at 5.
{¶18} R.C. 3105.171(B) states in pertinent part that “[i]n divorce proceedings, the
court shall *** determine what constitutes marital property and what constitutes separate
property. ***.” The characterization of property as marital or separate must be supported
by sufficient, credible evidence. See Chase–Carey v. Carey, 5th Dist. Coshocton No.
99CA1, 1999 WL 770172. The party to a divorce action seeking to establish that an asset
or portion of an asset is separate property, rather than marital property, has the burden
of proof by a preponderance of the evidence. Cooper v. Cooper, 5th Dist. Licking No. 14
CA 100, 2015–Ohio–4048, ¶ 45, citing Zeefe v. Zeefe (1998), 125 Ohio App.3d 600, 614,
709 N.E.2d 208.
2 The execution date of this loan is unclear in the transcript. Appellant testified that he
signed for the loan in 2008 (Tr. II at 97), although he later indicated it was in 2010 (Tr. II
at 160). Exhibit “J”, attached to appellant’s brief, is a July 2016 loan invoice showing a
“date disbursed” of November 17, 2014.
Stark County, Case No. 2016 CA 00182 7
{¶19} Although Ohio's divorce statutes do not generally articulate debt as an
element of marital and separate property, the rules concerning marital assets are usually
applied to marital and separate debt as well. See Vergitz v. Vergitz, 7th Dist. Jefferson No.
05 JE 52, 2007–Ohio–1395, ¶ 12. Accordingly, appellant herein correctly recites that
debts incurred during the marriage are rebuttably presumed to be marital debts. Thus,
“[t]he burden is on the party seeking to have a debt classified as a separate liability to
demonstrate, by a preponderance of the evidence, that such debt was the separate
obligation of the other spouse.” Brady v. Brady, 11th Dist. Portage No. 2007-P-0059, 2008-
Ohio-1657, ¶ 38. Also, "[t]he mere fact that a debt is in the name of one spouse alone is
not enough to establish that the debt was the spouse's separate debt." Jenkins v. Jenkins,
4th Dist. Lawrence No. 14CA30, 2015-Ohio-5484, ¶ 47 (additional citations omitted).
{¶20} Appellant cites Altier v. Altier, 5th Dist. Stark No. 2014CA00124, 2015-Ohio-
1526, for the proposition that marital debt is any debt incurred during the marriage (1) for
the joint benefit of the parties or (2) for a valid marital purpose. See id. at ¶ 20, citing
Ketchum v. Ketchum, 7th Dist. Columbiana No. 2001 CO 60, 2003–Ohio–2559. However,
this Court, subsequently to Altier, called into question this reading of Ketchum, noting that
the Seventh District Court had therein stated that “[i]n most states, a marital debt is any
debt incurred during the marriage for the joint benefit of the parties or for a valid marital
purpose.” See Compton v. Compton, 5th Dist. Stark No. 2015 CA 00199, 2016-Ohio-4626,
¶ 12, citing Ketchum at ¶ 47 (emphasis added). In turn, “[t]he Ketchum court
correspondingly recognized that ‘[n]o accepted definition of marital debt has arisen from
Ohio caselaw.’ ” Compton at ¶ 12, quoting Ketchum at ¶ 47. Accord Elliott v. Elliott, 4th
Dist. Ross No. 03CA2737, 2004-Ohio-3625, ¶ 16.
Stark County, Case No. 2016 CA 00182 8
{¶21} Appellant also directs us to one of the few Ohio cases in the present context
dealing with student loan debt incurred during the marriage for the benefit of a couple’s
children, Cooper v Cooper, 12th Dist. Clermont No. CA2013–02–017, 2013-Ohio-4433.
While indeed the Twelfth District Court of Appeals therein stated that “the mere fact that
the debt was in Husband's name alone is not enough to establish that the debt was
Husband's separate debt[,]” (id. at ¶ 21), the Court likewise relied upon a questionable
reading of the Ketchum holding as to the definition of marital debt. See id. at ¶ 18, citing
Nichols–Ross v. Ross, 12th Dist. Butler No. CA2008–03–090, 2009–Ohio–1723, ¶ 26.
Furthermore, rather than taking out a large single loan, as appellant apparently did herein,
the husband in Cooper had “initiated” annual student loans for the parties’ son over the
course of several years, starting in 2006 and ending in 2010. Cooper at ¶ 21. Unlike what
occurred at trial in the present case, the wife in Cooper provided no testimony on the
subject of student loans, and two of the parties' children took the stand and “testified that
both Husband and Wife agreed to pay for their college education.” Id.
{¶22} In her trial testimony in the case sub judice, appellee conceded that she and
appellant had jointly applied for A. M.’s aforementioned 2005 “Canton Student” loan, but
she recalled that “after that [A. M.] and her father were doing everything together.” Tr. II
at 82. She continued, in regard to the U.S. Department of Education loan: “I heard that
she got something from the government. I don't really know what, which is which, what is
what." Id. In sum, according to appellee, the latter loan “was between [A. M.] and her
father.” Id. at 11. Appellant countered in his testimony that appellee was involved in the
process and was aware that he signed the loan. Tr. II at 96-97.
Stark County, Case No. 2016 CA 00182 9
{¶23} It is generally recognized that the trier of fact is in a far better position to
observe the witnesses' demeanor and weigh their credibility. See, e.g., Taralla v. Taralla,
5th Dist. Tuscarawas No. 2005 AP 02 0018, 2005–Ohio–6767, ¶ 31. Upon review, we find
the trial court’s reliance on the evidence that appellee was not a co-signer on the U.S.
Department of Education loan as a means of overcoming the marital debt presumption
was not against the manifest weight of the evidence nor did it constitute an abuse of
discretion, particularly where the parties had maintained a lengthy separation prior to the
divorce.
{¶24} Appellant's First Assignment of Error is sustained in part and overruled in
part.
II.
{¶25} In his Second Assignment of Error, appellant contends the trial court erred
in making its award of spousal support.
{¶26} R.C. 3105.171(C)(3) mandates in pertinent part that “[t]he court shall
provide for an equitable division of marital property under this section prior to making any
award of spousal support to either spouse under section 3105.18 of the Revised Code
***.” See, also, Jendrusik v. Jendrusik, 7th Dist. Belmont No. 00BA54, 2001–Ohio–3377;
R.C. 3105.18(B).
{¶27} Appellant’s argument is solely premised on the proposition from his first
assigned error that the trial court failed to properly identify and equitably divide the parties’
marital property. As such, he maintains that the issues of property division and spousal
support should be simultaneously remanded for further proceedings. See Day v. Day, 5th
Dist. Ashland No. 04 COA 74, 2005-Ohio-4343, ¶ 24.
Stark County, Case No. 2016 CA 00182 10
{¶28} To the extent that our previous conclusions herein as to property division
might affect spousal support, we remand the latter issue for discretionary review by the
trial court. See R.C. 3105.18(C)(1)(i).
{¶29} Appellant's Second Assignment of Error is therefore sustained on these
grounds.
{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas,
Domestic Relations Division, Stark County, Ohio, is hereby affirmed in part, reversed in
part, and remanded.
By: Wise, John, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/d 0706