Zeitoun v. Zeitoun , 2013 Ohio 5586 ( 2013 )

[Cite as Zeitoun v. Zeitoun, 2013-Ohio-5586.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99776
SAMIRA ZEITOUN
PLAINTIFF-APPELLANT
vs.
RAGHIB ABRAHAM ZEITOUN
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. CP D-336410
BEFORE: Keough, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 19, 2013
ATTORNEYS FOR APPELLANT
Joyce E. Barrett
James P. Reddy, Jr.
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Robert E. Somogyi
1660 W. Second Street
Skylight Office Tower
Suite 410
Cleveland, Ohio 44113
GUARDIAN AD LITEM
Becky Blair
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant Samira Zeitoun appeals from the judgment entry of
divorce entered by the Cuyahoga County Common Pleas Court, Domestic Relations
Division, which named her as the residential parent and legal custodian of the parties’
minor child, granted defendant-appellee Raghib Abraham Zeitoun parenting time, ordered
him to pay child support, and awarded the income tax dependency exemption to Raghib.
{¶2} The parties were married on September 9, 2007. One child, A.Z. (DOB
5/2/10), was born as issue of the marriage. Samira filed a complaint for divorce in April
2011. Prior to trial, the parties entered into a separation agreement that resolved the
issues of division of property and spousal support. The issues remaining for trial were
the allocation of parental rights and responsibilities, parenting time, child support, and the
allocation of the income tax dependency exemption.
{¶3} The magistrate heard testimony from a number of witnesses, including
Samira and Raghib; Becky Blair, the child’s guardian ad litem; Dr. Frank Ezzo, the court
psychologist; Elevani Fletcher, a court custody evaluator; and Noa Margolin, A.Z.’s
therapist. The findings and recommendations of these individuals varied.
{¶4} After hearing the evidence, the magistrate issued a 51-page decision in
which she presented and evaluated the testimony of each witness and weighed the quality
of the evidence presented. The magistrate concluded that both parties had mental health
and anger management issues that affected the allocation of parental rights and
responsibilities and visitation, but she ultimately recommended that Samira be designated
the residential parent and custodian of A.Z. She further recommended that upon proof of
engagement in an anger management program, Raghib’s parenting time with A.Z. could
change from the current parenting order (one week per month from Wednesday at 9:00
a.m. until Sunday at 5:00 p.m. to be exercised in Ohio) to visits that could take place
outside the state of Ohio (Raghib now lives in Mississippi) and could be supervised by
Raghib’s girlfriend or his parents.1 The magistrate also recommended that Raghib be
awarded the child income tax dependency exemption. The trial court subsequently
adopted and incorporated the magistrate’s decision; this appeal followed.
{¶5} In her first and second assignments of error, Samira contends that the trial
court abused its discretion in ordering that, after proof he was engaged in an anger
management program, Raghib’s visits with A.Z. could occur outside the state of Ohio and
could be supervised by his girlfriend or his parents. Samira contends that this order is
contrary to the report and recommendation of Dr. Ezzo, who testified that Raghib’s visits
with A.Z. should be supervised by a neutral party and continue in Ohio until the neutral
observer concluded that there had been “progress” regarding Raghib’s interaction with
A.Z. Reiterating Dr. Ezzo’s extensive qualifications, Samira contends that the trial court
should have deferred to Dr. Ezzo on this issue.
{¶6} Samira’s argument, however, ignores the other evidence that was presented
at trial. Dr. Ezzo testified that his recommendation of supervised visits was based on
Although the magistrate’s decision and the trial court’s judgment entry refer to Raghib’s
1
grandparents, it is apparent that the court meant to reference Raghib’s parents, both of whom testified
at the trial.
Raghib’s conviction for negligent assault related to an incident involving Samira, as well
as A.Z.’s anxiety when she was around Raghib, as reported to him by A.Z.’s counselor
Noa Margolin and Samira. But the evidence demonstrated that Margolin had never
observed A.Z. with Raghib and had based her report to Dr. Ezzo solely on information
from Samira. Likewise, Dr. Ezzo testified that he had never observed A.Z. with either of
her parents. Accordingly, the magistrate concluded that the testimony of the
professionals who had actually observed A.Z.’s interaction with her father — Becky
Blair, the guardian ad litem, and Elevani Fletcher, a custody evaluator who performed an
evaluation in this case — was more insightful and compelling than Dr. Ezzo’s.
{¶7} Blair, a licensed attorney and practicing guardian ad litem for over 25 years,
testified that she spent time with A.Z. on three occasions and observed her interaction
with both her mother and father. She observed that within a few minutes of being with
Raghib, “A.Z. had smiles and kisses and a strong attachment to her father.” In light of
her observations, the guardian ad litem recommended a shared parenting plan and
supervised visits for a short period of time and then unsupervised visits that could occur
in Mississippi.
{¶8} Ms. Fletcher testified that she too observed A.Z.’s interactions with both
her mother and father. She stated that A.Z. seemed to be more tempermental when she
was with Samira, and “squealed, squirmed, kicked and cried.” Conversely, Ms. Fletcher
testified that she saw A.Z. showing affection for Raghib in response to his care and terms
of endearment expressed toward her. Based on her observations, Ms. Fletcher
recommended a shared parenting plan and unsupervised parenting time in Ohio and
Mississippi to occur on a frequent basis.
{¶9} In light of this evidence, we find no abuse of discretion in the trial court’s
judgment ordering supervised visits that could occur outside Ohio. Unlike Dr. Ezzo,
who never observed A.Z. with her father, the professionals who actually saw A.Z.’s
interactions with him recommended shared parenting and that visits could occur outside
of Ohio. Furthermore, Dr. Ezzo admitted on cross-examination that some of the
information that Raghib’s counsel had made him aware of at trial could have caused his
recommendation to change.
{¶10} We likewise find no abuse of discretion in the trial court’s judgment that
visits could be supervised by either Raghib’s girlfriend or his parents. Raghib’s mother
testified that she was available to accompany A.Z. to Mississippi and take care of her if
necessary while Raghib was at work. Raghib’s girlfriend, who lives with him, testified
that she was also available to care for A.Z.
{¶11} Samira also contends that the trial court abused its discretion because it
failed to consider Raghib’s anger management issues, in violation of R.C.
3109.04(F)(1)(e), which requires the court to consider the mental and physical health of
all persons involved when allocating parental rights and responsibilities. But the record
reflects that the trial court expressly found that both Samira and Raghib have mental
health and anger management issues that affected the allocation of parental rights and
responsibilities and visitation. Furthermore, the trial court ordered that supervised visits
outside Ohio could not begin until Raghib had presented the guardian ad litem with
certification that he was engaged in an anger management counseling. Thus, it is
apparent that the trial court considered Raghib’s mental health issues before ordering
supervised visits.
{¶12} The first and second assignments of error are therefore overruled.
{¶13} In her third assignment of error, Samira contends that the trial court erred in
awarding the income tax dependency exemption to Raghib.
{¶14} R.C. 3119.82 provides that “whenever a court issues * * * a court child
support order, it shall designate which parent may claim the children * * * as dependents
for federal income tax purposes * * * *.” We review the trial court’s designation for an
abuse of discretion. Dunlap v. Dunlap, 9th Dist. Summit No. 23860, 2008-Ohio-3201, ¶
11.
{¶15} The dependency exemption may be awarded to the noncustodial parent
when that allocation would produce a net tax savings for the parents, thereby furthering
the best interest of the child. R.C. 3119.82; Singer v. Dickinson, 63 Ohio St.3d 408, 588
N.E.2d 806 (1992), paragraph two of the syllabus. While the trial court need not state a
basis for allocating the exemption, the record does need to include financial data to
support the trial court’s decision. Dunlap at ¶ 12.
{¶16} We find no abuse of discretion in the trial court’s award. The trial court
found that Raghib earned $80,000 per year and Samira earned $15,255 per year. As this
court stated in Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467, 2006-Ohio-1355, ¶
51, “[t]he relative incomes of the parties necessarily dictates that appellee could make the
best use of the exemption, which would be of little or no economic value to appellant
based upon her tax bracket.” Furthermore, the financial statements of the parties in the
record demonstrate that the dependency exemption is worth nearly double the tax savings
and benefit to Raghib than to Samira. The third assignment of error is therefore
overruled.
{¶17} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR