Yousef v. Iskander

[Cite as Yousef v. Iskander, 2022-Ohio-3126.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
HANI YOUSEF C.A. No. 30216
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 7, 2022
CALLAHAN, Judge.
{¶1} Appellant, Hani Yousef, appeals a judgment of the Summit County Court of
Common Pleas, Domestic Relations Division. This Court reverses.
I.
{¶2} Mr. Yousef (“Husband”) and Marian Iskander (“Wife”) married in 2010 in Cairo,
Egypt. They are the parents of three minor children. Husband practiced medicine as a cardiologist
before emigrating to the United States in 1999. Wife was a pharmacist. Husband’s medical degree
did not transfer for purposes of licensure in the United States, so between 1999 and 2015, he
worked in a number of different fields. In 2015, Husband enrolled in medical school in New York
City, although Wife and their children continued to reside in Ohio, where she was then working
as a pharmacist. During the years of his medical school training, Husband took out student loans
to fund his tuition and educational expenses as well as the living expenses he incurred as a result
of attending school in New York City and maintaining a separate residence there.
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{¶3} Husband filed a complaint for divorce on March 7, 2018, while he was still enrolled
in medical school. He incurred additional student loans while the divorce was pending. In total,
Husband incurred $419,529.00 in student loans plus accrued interest that result in a loan balance
of $464,381.25. During the trial of the divorce case, the parties entered into a shared parenting
plan, leaving only financial issues in dispute. On March 3, 2020, the trial court entered a judgment
entry and decree of divorce, concluding that with respect to the student loans incurred in 2018 and
2019, the debt constituted Husband’s separate property. With respect to the remaining student
loans, the trial court determined that the entire remaining balance of Husband’s student loans,
representing debts incurred in 2015, 2016, and 2017 for tuition and educational expenses and for
living expenses, was also his separate property, reasoning that “[i]f one party solely takes on a
debt, and the other party is not permitted to be a part of the decision-making process, then the other
party should not be held liable for that debt.” The trial court also reasoned that Wife did not
understand the process of obtaining and using student loans in the United States and, consequently,
that “[Husband’s] actions border[ed] on covert financial activity[.]”
{¶4} Husband appealed, and this Court reversed the trial court’s judgment with respect
to the student loans incurred in 2015, 2016, and 2017. See generally Yousef v. Iskander, 9th Dist.
Summit No. 29703, 2021-Ohio-3322. This Court noted that although the trial court defined
“marital debt” correctly, “it did not utilize this definition in its analysis to determine whether the
student loan debt in question was marital or separate debt.” Id. at ¶ 7. Instead, as this Court
observed, the trial court analyzed the equitable division of the debt without making this threshold
determination. Id. Consequently, we remanded the matter for a determination of whether the
student loans were marital or separate debt. Id. at ¶ 8.
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{¶5} On remand, the trial court concluded that the student loan debt allocated to
Husband’s tuition and educational expenses in 2015, 2016, and 2017 was Husband’s separate debt,
but that the amount allocated to Husband’s living expenses was marital debt. The trial court further
determined that “it [] would be inequitable to impose the burden of [Husband’s] student loan debt
incurred in 2015, 2016, and 2017 for [Husband’s] living expenses * * * on [Wife].” With respect
to the student loan debt incurred for Husband’s tuition and educational expenses, the trial court
concluded that even if that debt should have been classified as marital, “the principles of equity
likewise required that debt to be allocated to [Husband] in its entirety.” In so doing, the trial court
reasoned that “[Husband] did not offer any evidence to show he used his student loan funds on
anything other [than] education[-]related expenses, tuition, and his New York living expenses.”
The trial court also ordered Husband to pay child support in the amount of $1,450.16 per month
plus cash medical support, retroactive to August 1, 2019, and to pay $148.17 monthly toward
arrears. Although Husband requested spousal support, the trial court determined that an award of
spousal support would be inequitable given that Husband “is expected to see a dramatic increase
in income.”
{¶6} Husband appealed, raising four assignments of error.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DETERMINING HUSBAND’S STUDENT
LOAN DEBT TO BE HIS SEPARATE PROPERTY.
{¶7} Husband’s first assignment of error argues that the trial court erred by determining
that the portion of his student loans allocated to tuition and educational expenses was not marital
debt. This Court agrees.
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{¶8} R.C. 3105.171(B) provides that “[i]n divorce proceedings, the court shall * * *
determine what constitutes marital property and what constitutes separate property.” This is a fact-
based determination that falls squarely within the province of the trial court, and this Court reviews
that determination under a manifest weight standard. See Suppan v. Suppan, 9th Dist. Wayne No.
17AP0015, 2018-Ohio-2569, ¶ 23, citing Morris v. Morris, 9th Dist. Summit No. 22778, 2006-
Ohio-1560, ¶ 23. When the weight of the evidence is challenged in a civil case, this 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 * * *.’”
(Alteration in original.) 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).
{¶9} “Marital property” is “[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). “Separate property,” on the other hand, includes:
all real and personal property and any interest in real or personal property that is
found by the court to be any of the following:
(i) An inheritance by one spouse by bequest, devise, or descent during the course
of the marriage;
(ii) Any real or personal property or interest in real or personal property that was
acquired by one spouse prior to the date of the marriage;
(iii) Passive income and appreciation acquired from separate property by one
spouse during the marriage;
(iv) Any real or personal property or interest in real or personal property acquired
by one spouse after a decree of legal separation issued under section 3105.17 of the
Revised Code;
(v) Any real or personal property or interest in real or personal property that is
excluded by a valid antenuptial agreement;
(vi) Compensation to a spouse for the spouse’s personal injury, except for loss of
marital earnings and compensation for expenses paid from marital assets; [or]
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(vii) Any gift of any real or personal property or of an interest in real or personal
property that is made after the date of the marriage and that is proven by clear and
convincing evidence to have been given to only one spouse.
R.C. 3105.171(A)(6). R.C. 3105.171 does not specifically address debt, but this Court has
concluded that the division of property must also include marital debt. Smith v. Smith, 9th Dist.
Summit No. 26013, 2012-Ohio-1716, ¶ 8, citing Hines v. Hines-Ramsier, 9th Dist. Wayne No.
10CA0059, 2011-Ohio-6093, ¶ 5. “Marital debt” is “‘debt incurred during the marriage for the
joint benefit of the parties or for a valid marital purpose.’” Yousef, 2021-Ohio-3322, at ¶ 6, quoting
Cross v. Cross, 8th Dist. Cuyahoga No. 102627, 2015-Ohio-5255, ¶ 30, quoting Ketchum v.
Ketchum, 7th Dist. Columbiana No. 2001 CO 60, 2003-Ohio-2559, ¶ 47, citing Turner, Equitable
Distribution of Property, Section 6.29, 455 (2d Ed.1994, Supp.2002). This Court has observed
that “‘[d]ebts incurred during the marriage are presumed to be marital unless it is proved they are
separate.’” Yousef at ¶ 6, quoting Mullen v. Mullen, 9th Dist. Summit No. 28083, 2017-Ohio-77,
¶ 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.
{¶10} “Student loans obtained by one spouse during the marriage may be categorized as
marital debt subject to equal distribution.” Heavilin v. Fillman, 5th Dist. Tuscarawas No. 2019
AP 04 0014, 2019-Ohio-5428, ¶ 20. When determining whether student loans were incurred “‘for
the joint benefit of the parties or for a valid marital purpose[,]’” see Cross at ¶ 30, quoting Ketchum
at ¶ 47, courts consider factors such as whether the couple was in agreement about the decision for
one spouse to obtain further education, whether the spouse enrolled in school worked during that
time period, and whether the loans were used for family expenses. See Heavilin at ¶ 23. This
characterization recognizes a fundamental principle regarding student loans in these
circumstances:
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When a spouse pursues a higher education during the marriage, it represents a
common goal of the parties to increase their economic standing. The marital
partners expect to share in the rewards of such an education. For this reason, it is
not uncommon that one spouse will assist the other in that goal through financial
or emotional support or both. The supporting spouse may also assume more of the
household duties so that the other may spend more time on studies. Student loans
are often taken out not only to pay for school, but also to provide additional
financial resources while the one spouse is pursuing an education. [In re Marriage
of Speirs, 956 P.2d 622, 623-24 (Colo.App. 1997)]. For this reason, contributions
made by one spouse to the other’s education may be considered when dividing the
marital estate or determining spousal support, just as the efforts of one spouse
which result in an appreciation of the value of the other’s property are relevant in
dividing the marital estate.
Webb v. Webb, 12th Dist. Butler No. CA97-09-167, 1998 WL 820838, *3 (Nov. 30, 1998). Thus,
“[c]lassifying the student loans obtained during the marriage as marital liabilities recognizes the
nature of the parties’ expectations during the time the higher education is pursued as well as the
respective roles of the parties in seeking the degree and supporting one another.” Id. at *4. As
another court has noted, “[t]he fact that [the other spouse] never saw the economic fruition of [the
enrolled spouse’s] additional education does not serve to transform the nature of the debt from
marital debt to separate debt.” Heavilin at ¶ 23.
{¶11} Husband enrolled in medical school with Wife’s full support after his attempts to
become licensed in the United States by pursuing a residency directly failed. Wife’s testimony
demonstrates that she appreciated the interrelated financial issues presented by the family’s
situation: Husband’s income without practicing medicine was limited, and the cost of repeatedly
applying for residencies was prohibitive. Wife testified that she understood that medical school
was expensive and appreciated that the cost of living in New York City was higher than in Ohio.
Her testimony also demonstrates a thorough understanding of the family’s financial position from
which it can be inferred that she understood they could not pay those expenses without additional
resources. Wife also testified that as a result of conversations with current medical residents in
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her workplace, she understood the amount of debt that others had undertaken under similar
circumstances. Although Wife ultimately expressed reservations regarding the cumulative amount
of that debt, it is equally true that she supported and encouraged Husband in his endeavor, and she
recognized that Husband’s future stream of income would be of benefit to the family.
{¶12} With respect to the student loans attributable to tuition and educational expenses,
therefore, it is apparent from the record that Husband’s medical education represented “a common
goal of the parties to increase their economic standing[]” and that Husband and Wife “expect[ed]
to share in the rewards of such an education.” Webb at *3. In classifying these loans as Husband’s
separate property—but classifying the loans attributable to his living expenses as marital
property—the trial court disregarded the principle, articulated above, that furthering a spouse’s
education for the purpose of generating future income can represent “‘a valid marital purpose[]’”
that is undertaken “‘for the joint benefit of the parties[.]’” Cross at ¶ 30, quoting Ketchum at ¶ 47.
In so doing, the trial court discounted evidence to that effect as well. Simply put, there is no basis
in the record for a distinction that justified the classification of student loans attributable to
Husband’s living expenses as marital property, but those attributable to earning the degree itself
as separate property.
{¶13} Accordingly, this Court agrees that the trial court’s determination that the student
loans attributable to Husband’s tuition and educational expenses were his separate property is
against the manifest weight of the evidence. Husband’s first assignment of error is, therefore,
sustained.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN DETERMINING IT EQUITABLE TO
ALLOCATE ALL OF HUSBAND’S STUDENT LOAN DEBT TO HUSBAND
ALONE.
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{¶14} In his second assignment of error, Husband argues that the trial court abused its
discretion by allocating the student loan debt attributable to his living expenses solely to him.
Husband also challenges the trial court’s alternative conclusion that, even if the student loan debt
attributable to tuition and educational expenses was marital debt, it should also be allocated to
Husband.
{¶15} R.C. 3105.171(C)(1) requires trial courts to divide marital property equally, except
to the extent that an equal division would be inequitable. Neville v. Neville, 99 Ohio St.3d 275,
2003-Ohio-3624, ¶ 5. In that situation, a trial court may order an equitable division. Id. The trial
court must bear in mind that “[e]ach spouse shall be considered to have contributed equally to the
production and acquisition of marital property” and must consider “all relevant factors” related to
the property division in determining what is equitable. R.C. 3105.171(C)(2). See also Neville at
¶ 11. See generally R.C. 3105.171(F)(1)-(10). Like marital assets, marital debts are subject to
allocation as part of a property distribution. Polacheck v. Polacheck, 9th Dist. Summit Nos. 26551,
26552, 2013-Ohio-5788 ¶ 18. A trial court’s decision regarding the division of marital debt is
reviewed for an abuse of discretion. Id. at ¶ 7. An abuse of discretion is present when a trial
court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly
unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola
v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
{¶16} The division of marital debt is often guided by consideration of the factors set forth
in R.C. 3105.171(F). See Polacheck at ¶ 18. As this Court has recognized, however, these factors
“seem to anticipate that marital liabilities can and should be paid from the pool of marital assets.”
Id. at ¶ 22. Consequently, when unsecured debts such as student loans that are to be repaid from
future income are part of the marital estate, courts also consider other factors—particularly those
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which affect the spouses’ relative abilities to pay the debt and the spouse who will ultimately obtain
the benefit of increased income. Id. at ¶ 23, 26. When student loans are characterized as marital
property, the trial court has “‘the greatest power to enter an equitable division of the marital estate
and [can] * * * consider all of the circumstances surrounding the parties’ positions when the loans
were first taken out and at the time of the divorce.’” Heavilin, 2019-Ohio-5428, at ¶ 20, quoting
Webb, 1998 WL 820838, at *4.
{¶17} In Polacheck, this Court rejected “[t]he notion that the degree-earning spouse is the
sole beneficiary of the earned degree, and hence should shoulder all of the student-loan debt” as
“inherently flawed.” Id. at ¶ 28. Noting that “it is inequitable to require the spouse earning a
degree toward the end of the marriage to shoulder the entire burden of the debt simply because
debt was incurred toward the end of the marriage[,]” this Court concluded that the equitable
division of student loan debt should be done with consideration for “the parties’ relative economic
circumstances” and “any fact it expressly finds to be relevant and equitable.” Id. at ¶ 30-32.
Accord Heavilin at ¶ 21; Shoenfelt v. Shoenfelt, 3d Dist. Shelby No. 17-14-13, 2015-Ohio-225, ¶
54-61. See generally R.C. 3105.171(F)(10). Relevant factors include “‘when the income
generated by the degree was realized; whether the spouse undertaking the degree was not working
while obtaining the degree, thus depriving the family of additional income; and whether the student
loans were used to pay for family expenses.’” Heavilin at ¶ 21, quoting Shoenfelt at ¶ 55.
{¶18} The trial court noted that Husband testified that some of the student loan proceeds
were used to reduce the parties’ mortgage indebtedness, but stated that Wife’s testimony on that
point contradicted Husband’s. The record does not, however, bear out that distinction. Wife
acknowledged that the proceeds from the student loans were deposited in the parties’ joint bank
account, and she agreed that they were not used to pay for “household expenses[.]” Her testimony
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is silent regarding the use of the loan proceeds to pay down the principal amount owed on the
marital residence, however. It was undisputed that the parties had a significant level of equity in
the marital home despite its recent purchase after Husband started medical school, and Husband
testified that the parties completed $30,000-$50,000 in renovations on the marital home “[s]o that
student loan was helpful.”
{¶19} The trial court also reasoned that some of the loan proceeds were used exclusively
to fund Husband’s living expenses in New York City while Wife supported the family living in
Ohio. According to Wife’s testimony, this was by agreement. She testified that she knew the cost
of living in New York City was higher, but supported Husband’s decision to live and attend school
there. When pressed for suggestions regarding how Husband might have reduced his living
expenses, Wife offered only that he could have shared housing, but chose not to do so. With
respect to the student loans attributable to Husband’s education expenses and tuition, Wife’s
testimony as a whole demonstrates that she appreciated the future benefits that would accrue to
the family as a result of Husband’s medical degree.
{¶20} The gravamen of the trial court’s analysis appears to be the parties’ testimony about
their respective knowledge of the student loan process. In that respect, the trial court noted that
the decision to borrow loans was solely Husband’s and emphasized that Wife “was unfamiliar with
the use of student loans because in Egypt, where she went to college, they do not use such loans.”
Although Wife did testify that student loans are not used in Egypt, her full testimony belies the
conclusion that she was ignorant of the potential debt load that results from medical school. The
testimony from both parties suggests that neither Husband nor Wife had a cumulative number in
mind when Husband first applied for student loans, but both were aware of the magnitude of the
loans at least as soon as the first disbursement. Wife, in particular, testified that she was aware
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from discussions with coworkers that medical school was expensive and could result in a high
burden of student loan debt.
{¶21} On the other hand, as the trial court observed, Wife testified that she expressed
concern on several occasions regarding the mounting student loan debt, even at one point
consulting a financial advisor. According to Wife’s testimony, Husband was confident that his
future income stream would be sufficient to make the loan payments, and it is apparent that
Husband enrolled in medical school in New York City with Wife’s full support. Indeed, Wife
testified that the alternatives—continuing to pay annual expenses involved in applying for a
residency and living within the financial constraints imposed by Husband’s circumstances—were
unfeasible given the family’s financial position.
{¶22} In that respect, the parties testified that once Wife became licensed as a pharmacist
in the United States, her earning capacity far outpaced Husband’s. During his enrollment in
medical school, Husband was a full-time student, and he testified that this arrangement was
customary given the demands of medical school. Wife continued to work full-time as a
pharmacist, and the parties stipulated that her income was $120,000 per year. There is no dispute
that with the exception of car insurance, Wife paid for all of the household expenses for her and
the three children while Husband attended medical school.
{¶23} Although Husband had not yet obtained a residency placement at the time of trial,
counsel later informed the trial court that his salary over the three years of his residency would be
$57,475, $58,400, and $61,350. Husband testified that he could pursue additional training after
residency, which would result in another year at approximately the same level of income. Husband
had not yet relocated to Ohio for his residency, so the record does not contain evidence regarding
his future living expenses. Husband also testified that his future income could vary depending on
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the subspeciality of cardiology that he pursued, but estimated that it would be $350,000 per year
or more. Wife’s estimate of Husband’s future income was similar.
{¶24} Although this Court takes no position at this time regarding what allocation of the
student loan debt is appropriate under these circumstances, two considerations that seem to be
implicit in the trial court’s reasoning are of concern in light of this Court’s decision in Polacheck.
First, as noted above, this Court rejected “[t]he notion that the degree-earning spouse is the sole
beneficiary of the earned degree, and hence should shoulder all of the student-loan debt[.]”
Polacheck, 2013-Ohio-5788, at ¶ 28. In addition, this Court emphasized in Polacheck that “marital
fault” plays no role in the allocation of marital property. Id. at ¶ 36. Although the parties in this
case may well have suffered from a near-total mismatch of expectations regarding finances—and
the record speaks of a rising level of conflict in their relationship—there is no basis apparent from
the record to attribute misconduct to either party in connection with the student loans. See id. at ¶
28. See generally R.C. 3105.171(E)(4).
{¶25} Under these circumstances, this Court concludes that the trial court’s determination
that all of Husband’s student loan debt should be allocated to Husband constituted an abuse of
discretion. Husband’s second assignment of error is, therefore, sustained.
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ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FAILING TO GRANT HUSBAND SPOUSAL
SUPPORT.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED IN ITS CHILD SUPPORT AWARD IN BOTH
THE AMOUNT AND EFFECTIVE DATE.
{¶26} In his third and fourth assignments of error, Husband challenges the trial court’s
determinations regarding spousal support and child support. In light of this Court’s resolution of
his first and second assignments of error, his third and fourth assignments of error are premature.
See Yousef, 2021-Ohio-3322, at ¶ 11, 13-14.
III.
{¶27} Husband’s first and second assignments of error are sustained. His third and fourth
assignments of error are premature. The judgment of the Summit County Court of Common Pleas,
Domestic Relations Division, is reversed, and this matter is remanded for proceedings consistent
with this opinion.
Judgment reversed
and cause remanded.
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
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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.
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
CONCURS.
SUTTON, J.
DISSENTING.
{¶28} I respectfully dissent from the majority’s opinion.
{¶29} At the February 19, 2019 trial, Wife testified she agreed Husband should go back
to medical school to achieve his dream of once again practicing medicine as a cardiologist.
However, this decision was not based upon financial circumstances. The record demonstrates
Wife was not anticipating, or depending upon, a financial windfall after Husband completed
medical school. Wife testified, with her salary as a Summa pharmacist of $120,000.00 per year,
she was fully capable of paying the mortgage, utilities, childcare and living expenses for herself
and the parties’ three minor children.
{¶30} While Husband attended medical school, he was not employed and did not
contribute financially to the family. Wife worked full-time and raised the children in Ohio, while
Husband attended medical school in New York. Wife was not consulted regarding the student
loans, nor did she consent to the amount of the loans. Wife did not sign any of the loan documents.
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Instead, Wife learned of the amount of indebtedness after Husband secured the loans. Wife
testified, “I was always informed after the fact.” Both parties testified they did not discuss
repayment of the loans. Wife further testified Husband stated: “I believe that I am going to make
enough money to pay off this loan in the future.” Additionally, Wife testified upon asking Husband
to consider a less expensive housing option in New York, Husband replied, “[t]his is my money
and don’t tell me where to spend it.”
{¶31} Based upon this record, and in accordance with R.C. 3105.171(B), I do not support
the majority’s conclusion that the trial court “clearly lost its way and created a manifest miscarriage
of justice” in determining the 2015, 2016, and 2017 student loan debt, allocated for Husband’s
tuition and educational expenses, was separate debt. See Eastley, 2012-Ohio-2179, at ¶ 20; see
also Suppan, 2018-Ohio-2569, at ¶ 23. This is a fact-based determination, laying squarely in the
province of the trial court, and not an “exceptional case, where the evidence presented weighs
heavily in favor of the party seeking reversal[.]” Suppan at ¶ 23.
{¶32} Further, based upon this record, I also do not support the majority’s conclusion that,
by allocating the student loan debt attributed to Husband’s living expenses solely to Husband, the
trial court abused its discretion. This is not a situation where the trial court’s decision “is contrary
to law, unreasonable, not supported by evidence, or grossly unsound.” Menke, 2015-Ohio-2507,
at ¶ 8.
{¶33} Accordingly, I would overrule Husband’s first and second assignments of error,
and resolve Husband’s third and fourth assignments of error on the merits.
APPEARANCES:
CORINNE HOOVER SIX, Attorney at Law, for Appellant.
ADAM R. MORRIS, Attorney at Law, for Appellee.