Momotaz v. Sattar , 2022 Ohio 2676 ( 2022 )

[Cite as Momotaz v. Sattar, 2022-Ohio-2676.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
HASINA MOMOTAZ, :
Plaintiff-Appellee, :
No. 111034
v. :
ABDUS SATTAR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 4, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-19-377548
Appearances:
Sharon Comet-Epstein; Nicola, Gudbranson & Cooper,
LLC, and John D. Sayre, for appellee.
Michael Shaut Law Office and Michael Shaut, for
appellant.
SEAN C. GALLAGHER, A.J.:
Defendant-appellant Abdus Sattar (“husband”) appeals the trial
court’s April 29, 2021 summary judgment decision, the July 15, 2021 denial of his
Civ.R. 60(B) motion, and the October 29, 2021 judgment entry of divorce. Husband
challenges the trial court’s ruling on the validity of his marriage with plaintiff-
appellee Hasina Momotaz (“wife”) and the trial court’s subject-matter jurisdiction
over the parties’ divorce. He also challenges the property division, spousal-support
award, and attorney-fee award of the judgment entry of divorce. Upon review, we
affirm the judgment of the trial court.
I. Factual and Procedural History
On August 22, 2005, the parties participated in a telephonic marriage
ceremony, which was conducted over a speaker phone. At the time of the marriage
ceremony, husband resided in the United States, wife resided in Bangladesh, and
both were citizens of Bangladesh. Husband traveled from Pennsylvania to New York
and was with friends and relatives during the ceremony. Wife was in Bangladesh
with friends and family members and husband’s father. Also present in Bangladesh
was Mawlana Kofiul Ahmed, who solemnized the marriage and identified himself as
an assistant marriage registrar, and Abul Hashem Majumdar, a community leader
who appeared to sign the marriage register on husband’s behalf as his “pleader.”
Pictures of the marriage ceremony were provided.1 Witness statements indicated
that the solemnization was according to Sharia law.
The legal marriage contract that was entered into between the parties
is referred to as a “Nikah Nama.” Husband stated in his deposition that there were
1 One photograph depicts Majumdar signing the marriage register during the
marriage ceremony. Wife alleges that Majumdar was invited by husband’s father to be
the pleader. Although there are conflicting statements from witnesses, several witnesses
stated that during the ceremony husband was asked for the appointment of Majumdar as
his pleader and husband consented.
no issues with the ceremony or the solemnization of the marriage before witnesses
according to Muslim law, and he believed he was lawfully married according to
Bangladesh law.
Following the marriage ceremony, wife continued to reside in
Bangladesh until 2007, when husband traveled to Bangladesh. The marriage was
consummated at that time. After a temporary stay in Canada, in August 2007, the
couple arrived together in the United States, and they resided together in
Pennsylvania. One child was born as issue of the marriage in February 2009. In
October 2009, the family moved to Cleveland. Throughout their marriage, husband
and wife presented themselves as a married couple. They lived together for 12 years,
raised their child together, filed joint income tax returns, and wife received tuition
benefits at Case Western Reserve University because husband was a faculty
member.
In 2019, the parties permanently separated. Husband went to
Bangladesh to obtain a divorce. Husband filed an affidavit stating he “got married
to [wife] * * * as per the laws of Bangladesh and conditions of Sharia law.” Husband
also filed a civil suit in Bangladesh for a declaration and cancellation of the marriage
registration.
On July 15, 2019, wife filed her complaint for divorce in the Cuyahoga
County Court of Common Pleas Domestic Relations Division. In his answer to wife’s
complaint, husband raised affirmative defenses that the parties’ marriage was
invalid under Bangladesh law and that the court lacked subject-matter jurisdiction
over the complaint.
Thereafter, husband filed a brief on the alleged invalidity of his
marriage to wife. Wife filed a brief in opposition in which she gave notice of her
intent to rely on the law of a foreign country, Bangladesh, with respect to the validity
of the marriage. Husband agreed that the law of Bangladesh governed whether the
parties were legally married.
Husband argued that he “never signed the marriage register/contract
of marriage,” that the marriage was solemnized by Ahmed, who is not a government-
appointed marriage registrar, and that husband never authorized or appointed
Majumdar to sign the marriage register on his behalf. Husband stated that after
initiating divorce proceedings in Bangladesh, he learned of the irregularity of the
pleader’s signature on the marriage documents and the utilization of an “Assistant
Muslim Marriage Registrar” to solemnize the ceremony.
Husband’s position was that “the marriage was unlawfully registered
in violation of * * * [the Muslim Marriages & Divorces (Registration) Act, 1974 § 5,
and Muslim Marriages [and] Divorces (Registration) Rules 2009].” Husband
claimed that the marriage registration was prima facie invalid under Bangladesh law
and that wife’s complaint should be dismissed for lack of subject-matter jurisdiction.
Among other exhibits, husband provided an expert opinion from a Bangladesh
barrister2 who opined “on the basis of Bangladesh laws after perusing information
& documents provided” that “the registration of the [subject] marriage is not valid
and [is] unmaintainable in law.”
Wife argued that “[u]nder Bangladesh law, an invalid registration
would not render an otherwise valid marriage invalid.” Wife cited Bangladesh cases
recognizing a marriage between Muslims is purely a civil contract and that
“‘[n]either writing nor any religious ceremony is essential’” to a valid marriage under
Bangladesh law. Hossain v. Begum, 4 BLC 521, 522-523 (1999), quoting Mulla’s
Mohammedan Law, Section 252. In Hossain v. Begum, the court indicated that
“[n]on-registration of the marriage in question puts the opposite party at some
disadvantage and at the same time strictly requires her to prove the factum of
marriage.” Id. at 522. As stated in Chan Mia v. Rupnahar, 51 DLR 293, 294 (1999):
16. [Under Mohammedan Law,] [m]arriage is legally contracted by
declaration made by one contracting party being followed by a
corresponding acceptance from the other.
17. If the marriage is otherwise valid, absence of written kabinnama or
its registration does not invalidate the marriage. The Muslim
Marriages and Divorces (Registration) Act 1974 has provided that
“marriage solemnized under Muslim Law shall be registered in
accordance with the provisions of this Act.” But nowhere in the said
Act it has been provided that non-registration would render the
marriage invalid.
See also Begum v. Hossain, 40 CLC (AD) [5222], at ¶ 12 (2011) (recognizing “[t]he
Mohammedan Law does not insist upon any particular form in which the
2 The legal opinion provided by husband was from Barrister Shajib Mahmood
Alam, Advocate, Supreme Court of Bangladesh.
contractual performance should be effected” or that the union be evidenced by any
writing, and that “even in the absence of formal proof of a valid marriage, a marriage
can be presumed by evidence of conduct and reputation * * *.”)
As argued by wife, “[t]here is no rule or law in Bangladesh that
stipulates that a marriage would be rendered invalid if it were not properly
registered.” Wife provided expert legal opinions from Bangladesh barristers3 that
construed Bangladesh law and reached the conclusion that the marriage between
husband and wife is valid.
Wife filed a motion for summary judgment, and husband filed a
cross-motion for summary judgment on the issue of the validity of the marriage and
the court’s jurisdiction. Wife claimed the parties had a valid marriage. Husband
claimed no lawful marriage existed and that the court lacked subject-matter
jurisdiction. Both parties filed numerous exhibits in support of their respective
motions.
On April 29, 2021, the trial court granted wife’s motion and denied
husband’s motion. The trial court determined that “[t]he parties’ marriage * * * is
governed by Muslim Law also known as ‘Sharia Law’ or ‘Mohammedan Law[,]’” that
“the validity of the registration document is not an element to a valid Muslim
marriage in Bangladesh and an invalid registration does not render the marriage
3Wife provided legal opinions from Omar H. Khan, Barrister-at-Law, Advocate,
Supreme Court of Bangladesh; and Mahmud & Bhuiyan Barristers & Associates, Taisir
Mahmud and Hasibul Islam Bhuiyan, Barristers-at-Law, Advocates, Supreme Court of
Bangladesh.
invalid,” and that the elements for a valid Muslim marriage were met. Upon the
evidence presented, the trial court concluded as follows:
[T]he Court finds that there are no issues of material fact and the
parties’ marriage in Bangladesh was valid. [Wife] demonstrated that:
(1) the parties’ admitted telephone marriage on August 22, 2005 met
the essentials of a valid Mohammedan and Bangladeshi marriage and
[2] registration of the marriage is not an essential element in order to
establish the validity of a marriage. Accordingly, [Wife] is entitled to
judgment as a matter of law and the Court retains jurisdiction over the
parties’ divorce.
Following the summary-judgment ruling, husband filed a Civ.R.
60(B) motion for relief from judgment that was denied by the trial court on July 15,
2021. The case proceeded to trial.
On October 29, 2021, the trial court issued a judgment entry of
divorce, which included a division of property, an award of spousal support to wife,
an award of attorney fees to wife, and other provisions. The trial court adopted and
incorporated the parties’ agreed shared parenting plan, and the court ordered father
to pay child support.
Husband timely filed this appeal.
II. Law and Analysis
Husband raises nine assignments of error, which can be grouped
together into those challenging the trial court’s summary-judgment ruling on the
validity of the marriage and those challenging the spousal-support award, property
division, and attorney fee award in the judgment entry of divorce.
A. Validity of Marriage
Assignments of error Nos. 1 through 5 challenge the trial court’s
summary-judgment ruling that determined the court had subject-matter
jurisdiction over the divorce complaint. Husband specifically challenges the court’s
determination that the parties’ marriage was valid.
Appellate review of summary judgment is de novo and is governed by
the standard set forth in Civ.R. 56. See State ex rel. Awms Water Solutions v. Mertz,
162 Ohio St.3d 400, 2020-Ohio-5482, 165 N.E.3d 1167, ¶ 23. “Under Civ.R. 56(C),
summary judgment is appropriate when (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3) it
appears after construing the evidence most strongly in the nonmoving party’s favor
that reasonable minds can come to but one conclusion.” Mertz at ¶ 23.
“A court lacks subject-matter jurisdiction over a divorce proceeding if
the marriage between the parties was invalid.” Tatsing v. Njume-Tatsing, 10th Dist.
Franklin No. 16AP-827, 2017-Ohio-8460, ¶ 8, citing Hussain v. Hussain, 12th Dist.
Butler No. CA2015-07-127, 2016-Ohio-3214, ¶ 12. “Generally, the validity of a
marriage is determined by the lex loci contractus; if the marriage is valid where
solemnized, it is valid elsewhere; if it is invalid there, it is invalid everywhere.”
(Emphasis sic.) Mazzolini v. Mazzolini, 168 Ohio St. 357, 155 N.E.2d 206 (1958),
paragraph one of the syllabus; see also Verma v. Verma, 179 Ohio App.3d 637,
2008-Ohio-6244, 903 N.E.2d 343, ¶ 14 (2d Dist.), citing Mazzolini at paragraph one
of the syllabus; 45 Ohio Jurisprudence 3d, Family Law, Section 11 (Validity of
foreign and sister state marriages).
Civ.R. 44.1(B) applies to the determination of foreign law and
provides as follows:
(B) Determination of foreign law. A party who intends to rely on
the law of a foreign country shall give notice in his pleadings or other
reasonable written notice. The court in determining the law of a foreign
country may consider any relevant material or source, including
testimony, whether or not submitted by a party. The court’s
determination shall be treated as a ruling on a question of law and shall
be made by the court and not the jury.
The Staff Note to Civ.R. 44.1(B) indicates that the rule requires a party to give
advance notice of reliance upon the law of a foreign country, which is to be
determined by the court and may often need translation and interpretation by an
expert to aid the court in determining the applicability of the particular law. There
is no dispute that notice of reliance on foreign law was provided in this case.
“‘Ohio courts may determine the law of a foreign country, which
determination is made as a matter of law.’” Hussain at ¶ 19, quoting EnQuip
Technologies Group v. Tycon Technoglass, 2012-Ohio-6181, 986 N.E.2d 469, ¶ 35
(2d Dist.). A court may give an expert’s opinion on application of foreign law
whatever weight it deems appropriate. Id. at ¶ 17-18.
Husband claims that the trial court erred by concluding the marriage
was valid despite the lack of a validly executed contract and an invalid registration
under Bangladesh law. He argues that the marriage registrar did not perform the
ceremony, witness the signatures, or examine the signors; and that husband never
signed the marriage register and did not appoint a pleader to sign on his behalf; and
husband raises other challenges to the validity of the Nikah Nama.
The trial court determined that the parties’ marriage was valid under
Bangladesh law. More specifically, the court found that the parties agreed the
marriage met the essentials of a valid Mohammedan and Bangladeshi marriage and
that the alleged invalidity of the registration does not render the marriage invalid.
Upon our review of the record, we agree.
Husband refers to the Muslim Marriages and Divorces (Registration)
Act, 1974, which “applies to all Muslim citizens of Bangladesh wherever they may
be” and requires “every marriage solemnized under Muslim law shall be registered
in accordance with the provisions of this Act.” However, wife cites to case law
finding that “nowhere in the said Act [is it] provided that non-registration would
render the marriage invalid.” Chan Mia, 51 DLR at 294, ¶ 17. Rather, “[Under
Mohammedan Law,] [m]arriage is legally contracted by declaration made by one
contracting party being followed by a corresponding acceptance from the other” and
“[i]f the marriage is otherwise valid, absence of written kabinnama or its registration
does not invalidate the marriage.” Id. at 294, ¶ 16-17. In Begum v. Hossain, 40 CLC
(AD) [5222], the court recognized that “[m]arriage under the Mohammedan Law is
a civil contract requiring no ceremony or special formality” and that “[t]here is no
dispute that the Mohammedan marriage among muslims is not sacrament but
purely civil contract.” Id. at ¶ 8, 10. Upon reviewing various authorities on
Mohammedan Law and considering the principles of Mulla’s Mohammedan Law,
Sections 252, 254, and 268, the court determined “[t]he Mohammedan Law does
not insist upon any particular form in which the contractual performance should be
effected,” a writing is not required for there to be a valid marriage, and “[a] marriage
may also be proved presumptively by general conduct of the parties.” Id. at ¶ 10-12,
37-39. Further, it was explained that an irregular marriage may arise from
accidental circumstances and is not unlawful in itself. Id. at ¶ 16-17.
Thus, as explained in the expert legal opinion of Barrister Khan,
which was submitted by wife, “[n]on-registration of the marriage may cause doubt
on the solemnization of the marriage itself, but does not make [the marriage]
invalid.” Likewise, the expert legal opinion of Mahmud & Bhuiyan Barristers &
Advocates indicates “the law on Muslim marriages in Bangladesh is very clear.
Marriage and its registration are two completely separate things. The invalidity of
registration does not invalidate the marriage. Based on the documents we have
before us it is our conclusive opinion that the marriage [herein] is valid.” We find
the expert legal opinions submitted by wife are convincing.
We are not persuaded otherwise by the authority, expert legal
opinion, and exhibits presented by husband. For example, Begum v. Sarkar, 50
DLR 181 (1998), was a suit instituted by a plaintiff for restitution of conjugal rights
and for a permanent injunction restraining the defendant from marrying another
man with whom she had six children. Id. at ¶ 2, 9. The defendant denied that she
was married to the plaintiff and claimed the Kabinnama he submitted was forged.
Id. at ¶ 5. After the trial court rendered a decision finding the plaintiff failed to prove
the marriage and the Kabinnama, the defendant got married to the father of her
children, and the plaintiff also got married. Id. at ¶ 9. Nevertheless, the plaintiff
appealed, and the judgment was reversed by the appellate court upon a misreading
of the evidence. Id. at ¶ 7-8. The High Court Division set aside the appellate court’s
decision, recognizing that the plaintiff had failed to prove the Kabinnama and found
“[i]n such circumstances the marriage was not proved” and “no amount of oral
evidence will cure the deficiency * * * when the plaintiff failed to prove the
Kabinnama according to law.” Id. at ¶ 15, 24. The court also recognized that “women
shall have equal rights with men” and the fundamental rights under the Bangladesh
Constitution. Id. at ¶ 21. The Sarkar case was decided on the facts and
circumstances presented and does not, as father suggests, require a signed Nikah
Nama or valid registration as an essential for proving a valid marriage in this matter.
Unlike the Sarkar case, the parties herein believed they were married
in accordance with Bangladesh law and Mohammedan law. They participated in a
marriage ceremony that included a proposal and an acceptance and the
solemnization in the presence of witnesses.4 We find husband’s assertions of fraud
in this matter are inapposite. We also reject husband’s argument against the trial
court’s consideration of Mulla’s Mohammedan Law, Section 252. The evidence
4 Several witness statements were provided that verified the solemnization was in
accordance with the law of Bangladesh. Also, Mawlana Kofiul Ahmed, who solemnized
the marriage, attested that “[the] marriage contract agreed upon by a telephone
conversation is valid in Bangladesh and Bangladesh government approved this marriage
as it was conducted as per the law of Bangladesh and conditions of sharia law
requirements.”
establishes that the parties had a prolonged and relatively continuous cohabitation
for over 12 years, they held themselves out as husband and wife, they consummated
the marriage, and they had a child together. Under the applicable laws, proof of a
valid registration was not required and the alleged lack of a valid registration did not
invalidate the marriage. We need not dwell on other exhibits that have been
submitted and reviewed, and we are not persuaded by any other arguments raised.
Husband proceeds to argue that the trial court erred by applying the
Muslim Sharia Law of Bangladesh because he was a resident of the United States
and not a Bangladesh resident at the time of the 2005 telephonic marriage
ceremony. In support of this argument, he cites to the Muslim Personal Law
(Shariat) Application Act, 1937, which makes “provision for the application of the
Muslim Personal Law (Shariat) to Muslims in Bangladesh” and states that “[i]t
extends to the whole of Bangladesh.” While husband refers to language referencing
a “resident of Bangladesh” he cites no authority or logical reason to limit the Muslim
Sharia Law to only residents of Bangladesh. Further, as argued by wife, subsequent
legislative enactments to the 1937 Act, including the 1961 Family Laws and the 1974
Registration Act, are indicative of including “Muslim citizens of Bangladesh
wherever they may be” and husband availed himself of these laws. Additionally, the
expert legal opinions provided by wife support the conclusion that the marriage
between the parties was valid.
Husband further claims that the trial court erred by recognizing a
transnational telephonic marriage solemnization despite the lack of any authorizing
provision of Bangladesh law or Muslim law. However, as stated in the legal opinion
of Mahmud & Bhuiyan Barristers & Advocates, under Bangladesh law or
Mohammedan law, “there is no legal bar against such telephone marriage” and they
“are common in Bangladesh, and since they have all the essentials of a valid
marriage contract, they are valid under the laws of Bangladesh.” This is consistent
with authority that “[m]arriage under the Mohammedan Law is a civil contract
requiring no ceremony or special formality.” Begum v. Hossain, 40 CLC (AD)
[5222], at ¶ 8. Thus, as observed by Barrister Kahn, “[t]here are witness statements
that this marriage was conducted according to Sharia law” and “the mere fact that
the marriage was conducted through telephone will not invalidate this otherwise
valid marriage.”
Based on the facts and circumstances of this case, we find the trial
court did not err in finding the marriage between husband and wife was valid. After
thoroughly reviewing the entire record, we conclude wife was entitled to summary
judgment on the validity of the marriage. We reject all other arguments raised by
husband regarding the validity of the marriage. The first five assignments of error
are overruled.
B. Property Division and Spousal Support
Assignments of error Nos. 6 through 8 challenge the spousal support,
property division, and attorney fees provisions of the judgment entry of divorce.
We review a trial court’s determination in a domestic relations case
for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028(1989).
Since it is axiomatic that a trial court must have discretion to do what
is equitable upon the facts and circumstances of each case, * * * it
necessarily follows that a trial court’s decision in domestic relations
matters should not be disturbed on appeal unless the decision involves
more than an error of judgment.
Id., citing Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981).
First, husband argues that the trial court erred and abused its
discretion in its calculation of the duration and amount of spousal support. He
maintains that the spousal support should be reduced by the two-and-one half years
of spousal support already paid since the parties separated in June 2019. He also
argues that the trial court failed to consider relevant statutory factors under R.C.
3105.18(C) in determining the spousal-support award, such as wife’s earning
capacity and her lack of hardship.
A trial court has broad discretion in awarding spousal support.
Williams v. Williams, 8th Dist. Cuyahoga No. 103975, 2016-Ohio-7487, ¶ 9, citing
Gordon v. Gordon, 11th Dist. Trumbull No. 2004-T-0153, 2006-Ohio-51, ¶ 13. “In
determining whether to grant spousal support and in determining the amount and
duration of the payments, the trial court must consider the factors listed in R.C.
3105.18.” Id., citing Deacon v. Deacon, 8th Dist. Cuyahoga No. 91609,
2009-Ohio-2491, ¶ 57. “The goal of spousal support is to reach an equitable result.”
Id., citing Kaechele v. Kaechele, 35 Ohio St.3d 93, 96, 518 N.E.2d 1197 (1988).
“Courts are not required to order the commencement of spousal support as of the
de facto termination date of the marriage.” Id. at ¶ 26, citing Saks v. Riga, 8th Dist.
Cuyahoga No. 101091, 2014-Ohio-4930, ¶ 85; Best v. Best, 10th Dist. Franklin No.
11AP-239, 2011-Ohio-6668, ¶ 31. Nothing in R.C. 3105.18 requires the court to use
a de facto termination date in determining spousal support. Further, “even if the
trial court would have used the de facto termination date for purposes of spousal
support, the duration of the marriage is only one factor to consider when
determining what amount of spousal support is appropriate under R.C.
3105.18(C)(1).” Id. at ¶ 27.
Moreover, although R.C. 3105.171(A)(2) permits a court to use a de
facto termination date in making the division of marital property, “[t]he date of the
final hearing in a divorce proceeding is presumed to be the termination date of the
marriage, unless the court determines that the use of that date would be inequitable
in determining marital property.” Kobal v. Kobal, 2018-Ohio-1755, 111 N.E.3d 804,
¶ 19 (8th Dist.), citing R.C. 3105.171(A)(2). Although a de facto date may be used
where reasonable under the facts and circumstances presented in a particular case,
“[t]he trial court has broad discretion in choosing the appropriate marriage
termination date and this decision should not be disturbed on appeal absent an
abuse of that discretion.” Id., citing Berish v. Berish, 69 Ohio St.2d 318, 321, 432
N.E.2d 183 (1982). A de facto date should not be used unless it is shown to be
appropriate under the totality of the circumstances and should not be based only on
the fact that one spouse has vacated the marital home. Brown v. Brown, 2014-Ohio-
2402, 14 N.E.3d 404, ¶ 9 (8th Dist.), citing O’Brien v. O’Brien, 8th Dist. Cuyahoga
No. 89615, 2008-Ohio-1098, ¶ 40.
In this case, the trial court determined that the duration of the
marriage was over 16 years, from August 22, 2005, until August 24, 2021, and the
court ordered that husband shall pay spousal support to wife in the sum of $2,800
per month, plus a 2 percent processing charge, for a term of 64 months commencing
August 24, 2021.
R.C. 3105.18(C)(1) sets forth the factors a court must consider when
determining whether spousal support is appropriate and reasonable and in
determining the amount and duration of spousal support. Contrary to husband’s
argument, the record reflects that the court considered the statutory factors in
determining an appropriate and reasonable amount of spousal support. The trial
court stated in the judgment entry that it considered “all of the factors set forth in
[R.C.] 3105.18(C)(1)” and specifically noted factors supporting the award, stating as
follows:
The Court finds the following factors support this award: the disparity
in income between the parties, the relative earning abilities between
the parties, the duration of the marriage, and the relative assets and
liabilities of the parties, including but not limited to any court-ordered
payments by the parties, and any other factor that the court expressly
finds to be relevant and equitable.
The Court finds that Defendant has obtained tenure at a
prestigious university and has secure employment. Plaintiff is on staff
but does not enjoy the same protection as a tenured position provides.
Defendant earns over triple the amount of salary the Plaintiff does.
Defendant strenuously sought reduction in his temporary support
payments without disclosing that he had received a significant increase
in income. Through testimony and evidence presented at trial,
Defendant clearly attempted to micromanage every financial decision
the Plaintiff made during their marriage.
Husband claims the trial court failed to consider wife’s earning
capacity and ignored certain testimony from husband about wife’s lack of effort to
apply for a job to increase her income and ignored the lack of hardship on wife. The
record reflects that husband is a tenured professor and earned $162,003 in 2020,
while wife earned $49,878 as a biostatistician at the same university. Wife testified
that she has a master’s degree in biostatistics, which is required for her current
position, and that she applied for a biostatistician position at the Cleveland Clinic in
2019 but did not get the job. Other testimony and evidence were presented upon
which the trial court was able to consider all of the relevant factors and weigh the
need for spousal support against the ability to pay.
The trial court heard the testimony that was provided and stated it
had considered all of the statutory factors, including the relative earning abilities
between the parties. The court was not required to comment on each factor. See
Williams, 8th Dist. Cuyahoga No. 103975, 2016-Ohio-7487, at ¶ 10. It is apparent
that the trial court considered the totality of the evidence presented, and the
judgment entry demonstrates that it considered all of the relevant factors. Although
husband may disagree with the amount and duration of the spousal-support award,
we do not find that the trial court abused its discretion under the facts and
circumstances presented.
Next, husband argues that the trial court failed to consider relevant
factors under R.C. 3105.171 concerning property division and erred in determining
the award of retirement and savings funds that are to be transferred to wife. “In any
divorce action, the starting point for a trial court’s analysis is an equal division of
marital assets.” Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d
434, ¶ 5, citing R.C. 3105.171(C)(1). However, pursuant to R.C. 3105.171(C)(1), “[i]f
an equal division of marital property would be inequitable, the court * * * shall divide
it between the spouses in the manner the court determines equitable.” In making
this determination, “the court shall consider all relevant factors,” including those set
forth in R.C. 3105.171(F).
The record herein shows that the court considered all relevant factors
to achieve an equitable property division. The court recognized that the parties were
married over 16 years and that the primary assets of the marriage were marital bank
accounts and their respective retirement accounts. The judgment includes the
division of real property, personal property, automobiles, debts, bank accounts, and
retirement accounts.
In awarding wife an additional $25,000 from husband’s portion of
the division of bank account funds, the court indicated this was to compensate wife
for funds husband transferred from a marital bank account into his own bank
account without wife’s knowledge or consent. The trial court found wife’s testimony
concerning the marital account to be credible. The trial court also noted that
husband leased a more extravagant vehicle and had continued to make his lease
payments from the marital bank account. Additionally, the trial court found “[wife]
is entitled to half of all monies accrued in [husband’s] retirement account(s) during
the marriage.” The record reflects that husband had a much larger retirement
account. “In general, pension and retirement benefits acquired by a spouse during
the marriage are deemed marital assets that are subject to division.” Neville at ¶ 6,
citing Erb v. Erb, 75 Ohio St.3d 18, 20, 661 N.E.2d 175 (1996).
The trial court determined that the “division of property, though not
equal, is equitable” and made specific findings regarding husband’s conduct during
the course of the marriage. Among other findings, the trial court found that during
the marriage, husband questioned wife about every purchase she made over $30,
that he moved funds from a bank account without wife’s knowledge and consent,
that he attempted to move available income into his retirement account, that he
traveled to Bangladesh at least twice regarding divorce proceedings he initiated
there, and that he did not think wife was entitled to any of the funds he earned or
the parties saved during the marriage. The trial court’s findings are supported by
the record, and we find no abuse of discretion with the trial court’s equitable division
of property.
Next, husband claims the trial court abused its discretion in awarding
attorney fees to wife and failed to decide the reasonableness of the attorney-fee
award. The judgment entry reflects that the trial court’s determination that wife is
entitled to some attorney fees was made pursuant to R.C. 3105.73(A), which
provides:
In an action for divorce, * * * a court may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court finds
the award equitable. In determining whether an award is equitable, the
court may consider the parties’ marital assets and income, any award
of temporary spousal support, the conduct of the parties, and any other
relevant factors the court deems appropriate.
The statute requires an award to be “equitable” in light of the
permissive factors. Moore v. Moore, 10th Dist. Franklin No. 21AP-276, 2022-Ohio-
1862, ¶ 100. The trial court made the proper considerations and considered relevant
factors in awarding reasonable attorney fees. The court found in part as follows:
While the divorce was pending, [wife’s] scrupulous adherence to a strict
budget allowed her to pay attorney fees, pay off her Nissan, pay all of
her household bills, and still save a small amount of money.
[Husband], however, leased an unnecessary larger apartment, leased a
Mercedes, and felt the need to supplement his income from the parties’
marital bank account.
After noting the amount of each party’s attorney fees, which was nearly the same,
the trial court ordered husband “to pay $33,000 for [wife’s] remaining attorney
fees.” Upon the record before us, we find no abuse of discretion with the attorney-
fee award. Assignments of error Nos. 6 through 8 are overruled.
Finally, under his ninth assignment of error, husband claims the trial
court exhibited bias by failing to rule on his motion for a partial stay of the court’s
award pending the appeal. We find no reversable error occurred.
We have thoroughly reviewed the issues raised and the record before
us. We are not persuaded by any other argument not specifically addressed herein.
Judgment affirmed.
It is ordered that appellee recover of 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.
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SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., CONCURS WITH SEPARATE CONCURRING
OPINION;
ANITA LASTER MAYS, J., CONCURS AND CONCURS WITH THE SEPARATE
CONCURRING OPINION OF EILEEN A. GALLAGHER, J.
EILEEN A. GALLAGHER, J., CONCURRING:
I concur with the decision issued by this court and write separately to
express my incredulity with appellant’s position that there was no legal marriage
between himself and his ex-wife. I am flummoxed by his assertion.
As appellant suggests that there was no legal marriage, then I would
suggest that there was fraud committed by him against the United States of America
and his employer, Case Western Reserve University.
Appellant secured entry into this country, albeit through Canada for
reasons which are unclear, for his spouse. Appellant and his spouse filed joint tax
returns thereby utilizing the system in that respect. Appellant and his spouse took
advantage of his employer, Case Western Reserve University, to avail themselves of
tuition benefits for spouses of employees.
I find that for appellant to now argue that there was no valid marriage
is staggering.