Yousef v. Iskander ( 2021 )

[Cite as Yousef v. Iskander, 2021-Ohio-3322.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
HANI YOUSEF C.A. No. 29703
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARIAN ISKANDER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. DR-2018-03-0609
DECISION AND JOURNAL ENTRY
Dated: September 22, 2021
TEODOSIO, Judge.
{¶1} Hani Yousef appeals from the judgment of the Summit County Court of Common
Pleas, Domestic Relations Division. We affirm in part and reverse and remand in part.
I.
{¶2} This matter was initiated in March 2018, when Mr. Yousef filed a complaint for
divorce against his spouse, Marian Iskander. After a final hearing was conducted, the trial court
issued a decree of divorce, including a determination and division of marital property and an
award of child support. Of particular relevance to this appeal is the trial court’s determination
that certain student loan debt accrued for the payment of Mr. Yousef’s tuition and living
expenses while attending medical school in New York constituted his separate debt, and not
marital debt. Mr. Yousef appeals to this Court, raising three assignments of error.
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II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN DETERMINING HUSBAND’S STUDENT
LOAN DEBT TO BE HIS SEPARATE PROPERTY[.]
{¶3} Mr. Yousef first argues the trial court erred in its determination that his student
loan debt was his separate property.
{¶4} Because the determination of whether property is marital or separate is a fact-
based determination, we review a trial court’s decision under a manifest-weight-of-the-evidence
standard. Morris v. Morris, 9th Dist. Summit No. 22778, 2006-Ohio-1560, ¶ 23. When
reviewing the manifest weight of the evidence, the appellate court “weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether in resolving
conflicts in the evidence, the [finder of fact] clearly lost its way * * *.” Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115
(9th Dist.2001). “Only in the exceptional case, where the evidence presented weighs heavily in
favor of the party seeking reversal, will the appellate court reverse.” Boreman v. Boreman, 9th
Dist. Wayne No. 01CA0034, 2002-Ohio-2320, ¶ 10.
{¶5} R.C. 3105.171(B) provides that, in a divorce proceeding, the trial court must
make a determination of what is marital property and what is separate property and divide such
property equitably. “Marital property” includes “[a]ll real and personal property that currently is
owned by either or both of the spouses * * * and that was acquired by either or both of the
spouses during the marriage[.]” R.C. 3105.171(A)(3)(a)(i). “Marital property” does not include
separate property. R.C. 3105.171(A)(3)(b). Separate property includes “[a]ny gift of any real or
personal property or of an interest in real or personal property that is made after the date of the
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marriage and that is proven by clear and convincing evidence to have been given to only one
spouse.” R.C. 3105.171(A)(6)(a)(vii).
{¶6} Although the allocation of debt is not specifically addressed by the statute, the
division of property also includes marital debt. Mullen v. Mullen, 9th Dist. Summit No. 28083,
2017-Ohio-77, ¶ 11, citing Smith v. Smith, 9th Dist. Summit No. 26013, 2012–Ohio–1716, ¶ 8.
This Court adopts the definition used by our sister Courts stating that “marital debt” is “debt
incurred during the marriage for the joint benefit of the parties or for a valid marital purpose.”
Cross v. Cross, 8th Dist. Cuyahoga No. 102627, 2015-Ohio-5255, ¶ 30 quoting Ketchum v.
Ketchum, 7th Dist. Columbiana No. 2001CO60, 2003-Ohio-2559, ¶ 47, citing Turner, Equitable
Division of Property, Section 6.29, 455 (2d Ed.1994, Supp.2002). “Debts incurred during the
marriage are presumed to be marital unless it is proved they are separate.” Mullen at ¶ 11, citing
Kehoe v. Kehoe, 8th Dist. Cuyahoga No. 97357, 2012–Ohio–3357, ¶ 14, citing Vergitz v. Vergitz,
7th Dist. Jefferson No. 05 JE 52, 2007–Ohio–1395, ¶ 12.
{¶7} In the case sub judice, the trial court concluded that Ms. Iskander had proven that
the entirety of Mr. Yousef’s student loan debt was separate and therefore his sole responsibility.
Although the trial court, in the decree of divorce, defined “marital debt” as “debt incurred during
the marriage for the joint benefit of the parties or for a valid marital purpose[,]” it did not utilize
this definition in its analysis to determine whether the student loan debt in question was marital
or separate debt. For instance, despite the fact that the parties were still married at the time, the
trial court deemed the 2015, 2016, and 2017 tuition amounts to be Mr. Yousef’s separate debt
without any analysis of joint benefit or valid marital purpose. The trial court then based its
analysis of the remaining debt on Polacheck v. Polacheck, 9th Dist. Summit Nos. 26551 and
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26552, 2013-Ohio-5788, which discussed the equitable division of student loan debt that had
already been determined to be marital debt and not separate debt.
{¶8} In Polacheck, this Court stated: “[W]hen equitably dividing marital student-loan
debt, the trial court must examine all of the relevant circumstances of the parties including the
parties’ relative economic circumstances and ability to pay the debt as well as any other factor
the court finds to be relevant and equitable.” Id. at ¶ 33. In the divorce decree at issue, the trial
court utilized this standard in determining that it was “inequitable to shoulder the Defendant-
mother with additional debt,” and that Mr. Yousef was “in the best position to pay for his own
student loan debt.” Although this standard remains proper for the equitable division of marital
student loan debt, it does not address the issues necessary for a determination of whether the
debt, in the first instance, is marital or separate debt: namely, “the joint benefit of the parties”
and “a valid marital purpose.” See Cross at ¶ 30. Because the trial court did not analyze the
characterization of the student loan debt within this framework, we remand the matter to the trial
court for application of the correct legal standard in determining whether the debt is marital or
separate.
{¶9} We note, however, that as the trial court observed, the 2018 loans were incurred
after the complaint for divorce was filed. The trial court undertook the correct analysis in
determining that these loans were not for the joint benefit of the parties and were Mr. Yousef’s
separate debt.
{¶10} As to the student loan debt prior to 2018, Mr. Yousef’s first assignment of error is
sustained.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN FAILING TO GRANT HUSBAND SPOUSAL
SUPPORT[.]
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{¶11} In his second assignment of error, Mr. Yousef argues the trial court erred in
failing to grant spousal support. “Prior to considering appropriate and reasonable spousal
support, a trial court must determine what constitutes marital property or separate property and
then divide the marital property equitably between the spouses.” R.C. 3105.18(B); R.C.
3105.171. Because our resolution of the first assignment of error necessitates the trial court
revisit its determination and division of marital property, consideration of the second assignment
of error is rendered premature, and as such we decline to address it at this time.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED IN ITS CHILD SUPPORT AWARD[.]
{¶12} In his third assignment of error, Mr. Yousef argues the trial court erred in its
award of child support.
{¶13} R.C. 3119.02 governs the calculation of child support, providing that the amount
of child support obligation shall be calculated “in accordance with the basic child support
schedule, the applicable worksheet, and the other provisions of Chapter 3119 of the Revised
Code.” The court may order an amount of child support that deviates from this calculation if it
“determines that the amount calculated pursuant to the basic child support schedule and the
applicable worksheet would be unjust or inappropriate and therefore not be in the best interest of
the child.” R.C. 3119.22. R.C. 3119.23 sets forth the factors the trial court may consider in
determining whether to grant a deviation. These factors include “[o]ther court-ordered
payments” and “the relative financial resources * * * of each parent * * *.” R.C. 3119.23(B) &
(E).
{¶14} Our resolution of the first assignment of error necessitates the trial court revisit its
determination and division of marital property, which in course may affect any potential spousal
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support award. Because the trial court’s determination of assets and payments has not been
resolved, consideration of the third assignment of error is rendered premature, and as such we
decline to address it at this time.
III.
{¶15} Mr. Yousef’s first assignment of error is sustained as to the student loan debt prior
to 2018. We decline to address the second and third assignments of error because they have been
rendered premature. The judgment of the Summit County Court of Common Pleas, Domestic
Relations Division, is affirmed in part and reversed in part, and remanded for further proceedings
consistent with this decision.
Judgment affirmed in part
and reversed and remanded in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed equally to both parties.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, P. J.
CONCURS.
CARR, J.
DISSENTING.
{¶16} I respectfully dissent from the judgment of the majority. It is true that it is not
completely clear whether the trial court determined the entire student loan debt to be marital debt
or separate debt given its conflation of terms and its sometimes-confusing analysis in its 76-page
journal entry. Ideally, the trial court will first unambiguously determine what constitutes marital
and what constitutes separate property before dividing the property equitably between the
spouses. See R.C. 3105.171(B). While the trial court did not meet those ideals, and the entry
does not perfectly delineate the portions of the student loan debt that are marital
and the portions that are separate, it is abundantly clear that the trial court concluded that Mr.
Yousef should be solely responsible for all of the student loan debt. Because Mr. Yousef has not
demonstrated that that determination constitutes prejudicial error, I would affirm the judgment of
the trial court.
{¶17} Mr. Yousef maintains throughout his brief that the trial court did not consider that
Ms. Iskander failed to support him while he was living out of state for school. However, the trial
court did expressly consider this fact. As to the $129,689.69 portion of the debt that was
attributable to living expenses, the trial court stated that it could be considered marital, and that
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half of that amount could be considered to be attributable to Ms. Iskander. The trial
court then noted that Mr. Yousef did not have financial assistance from Ms. Iskander with
respect to that portion of the debt, that the debt was therefore marital and should be divided
between the parties. The trial court then engaged in a lengthy analysis using this Court’s
precedent, Polacheck v. Polacheck, 9th Dist. Summit Nos. 26551, 26552, 2013-Ohio-5788, as a
guide. In concluding that Mr. Yousef should be responsible for the debt, the trial court pointed
out that Mr. Yousef would be in the best position to repay the student loan debt and that
requiring Ms. Iskander to repay some or all of the debt would pose a financial hardship to her
and necessitate her moving back to Egypt, which would not benefit Mr. Yousef or the
children. See Polacheck at ¶ 31.
{¶18} As to the remaining portions of the student loan debt, while not articulated with
perfect clarity, it appears that the trial court concluded that Ms. Iskander met her burden to
demonstrate that the debt was separate. Mr. Yousef has not demonstrated the trial court
committed prejudicial error with respect to that conclusion.
{¶19} With respect to Mr. Yousef’s remaining assignments of error concerning child
and spousal support, I would overrule them. Mr. Yousef has not demonstrated that the trial court
abused its discretion in its determinations. Mr. Yousef only claims that he is entitled to a
deviation in child support, not that the amount awarded is incorrect. As to spousal support, Mr.
Yousef did not demonstrate that the denial of spousal support was unreasonable as he provided
no evidence that he paid any loans during his residency, nor did he provide the trial court with
documentation supporting his expenses.
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APPEARANCES:
SUSAN J. LAX, Attorney at Law, for Appellant.
CORINNE HOOVER SIX, Attorney at Law, for Appellee.