Baze-Sif v. Sif

[Cite as Baze-Sif v. Sif, 2016-Ohio-29.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Sanaa Baze-Sif, :
Plaintiff-Appellee, :
No. 15AP-152
v. : (C.P.C. No. 13DR-2661)
Said Sif, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on January 7, 2016
Morgan Law Offices, LLC, and Kelly Morgan, for appellee.
Bellinger & Donahue, and Kerry M. Donahue, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
HORTON, J.
{¶ 1} Defendant-appellant, Said Sif, appeals from a judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, granting a divorce to him
and plaintiff-appellee, Sanaa Baze-Sif. Said filed a previous appeal in this action, which we
dismissed for lack of a final appealable order. See Sif v. Sif, 10th Dist. No. 14AP-434,
2014-Ohio-3402. After the prior appeal was dismissed, the trial court proceeded to
address the remaining issues before it. The matter is now properly before this court for
review. Said assigns the following six errors for our consideration:
I. THE COURT COMMITTED ERROR BY NOT
DETERM[IN]ING THE DIVORCE COMPLAINT FILED IN
THIS MATTER TO BE RES JUDICATA AND BY
PURPORTING TO RELIT[I]GATE THE SAME DIVORCE A
SECOND TIME.
No. 15AP-152 2
A. IT WAS ERROR NOT TO GRANT APPELLANT'S MOTION
FOR DISMISSAL.
II. THE LOWER COURT MISUNDERSTOOD AND THUS
MISAPPLIED THE RULE OF COMITY.
III. THE COURT PROCEEDED TO FINAL HEARING ON AN
"AMENDED COMPLAINT" THAT WAS IMPROPER IN
FORM AND SUBSTANCE AND WHICH WAS NOT
PROPERLY SERVED UPON APPELLANT.
IV. THE LOWER COURT HAD NO BASIS IN WHICH TO
MAKE A BEST INTEREST OF THE CHILD
DETERMINATION.
A. NO VISITATION RIGHTS WERE GRANTED TO
APPELLANT FATHER BY THE FRANKLIN COUNTY
COURT OF COMMON PLEAS DIVISION OF DOMESTIC
RELATIONS AND NO EXPLANATION WAS GIVEN FOR
THE ORDER.
V. IT WAS ERROR FOR THE COURT TO ORDER ITEMS
PAID FROM HUSBAND[']S MARITAL PORTION OF HIS
RETIREMENT ACCOUNT IN AN AMOUNT OVER 50% OF
THE MARITAL PORTION TO APPELLEE.
A. THE LOWER COURT DID NOT HAVE SUFFICIENT
ADMISSABLE EVIDENCE TO MAKE AN EQUITABLE
PROPERTY DIVISION/SETTLEMENT OR AN
UNREQUESTED SUPPORT ORDER.
B. THE LOWER COURT COMPLETELY FAILED TO TAKE
INTO CONSIDERATION DEBT OR THE PROPERTY
DIVISION/SETTLEMENT ORDER ALREADY ORDERED
AND PAID IN CASABLANCA, MOROCCO.
C. IT WAS ERROR FOR THE COURT TO ISSUE AN EX
PARTE AND UNLAWFUL FORM 1 TO STRS.
VI. APPELLANT WAS DENIED HIS RIGHT TO PRACTICE
HIS OWN RELIGIOUS BELIEFS AS ENCOMPASSED BY
THE MUSLIM LAW OF THE LAND OF HIS MARRIAGE.
{¶ 2} The first two assignments of error heavily overlap and, therefore, will be
addressed together. Both assignments are premised on Said's contention that the trial
court should have extended comity to a divorce decree issued by the Kingdom of Morocco.
No. 15AP-152 3
By way of background, both parties were born in Morocco and grew up there. Said came
to the United States in the 1980's to pursue studies at Harvard University and Boston
University. In 1999, Said secured employment with The Ohio State University ("OSU") as
a professor of molecular biology. Said was employed by OSU until the time of the instant
divorce; his 2012 W-2 reflected annual wages of $133,407.57.
{¶ 3} The parties were married on June 7, 2007. Although the parties were
married in Morocco, shortly after their marriage they returned to Ohio and established
their residence in Dublin, Ohio. On June 21, 2010, Sanaa gave birth to the couple's first
child, Anwar. As he was born here in Ohio, Anwar is a United States citizen. In 2011, Said
hit Sanaa; she called the police, and Said was charged with domestic violence as a result.
Said asked Sanaa to go to Morocco so she would be unable to testify. He told Sanaa he was
"sorry," and that he "still love[d]" her. (Sept. 15, 2014 Tr., 21.) Sanaa went to Morocco as
he had asked her to do. In 2014, Sanaa became pregnant again. Said told Sanaa to abort
the pregnancy, but she refused to do so. (Sept. 15, 2014 Tr., 13-14.)
{¶ 4} In June 2014, Said told Sanaa that they were going to take a trip to Morocco
to see their families. The couple was not moving to Morocco, they had round trip tickets.
They did not intend to become residents of Morocco, and they never lost their Ohio
residency. Nevertheless, the day after their arrival in Morocco, Said filed for divorce in the
Moroccan courts, apparently believing that the court's of Morocco would treat him better
than the court's here in Ohio where the couple resided. Sanaa "had no idea that [her]
husband intended to file for a divorce in Morocco." (Plaintiff's exhibit No. 10, Sanaa's
Affidavit, ¶ 3.) Sanaa and Anwar stayed with Sanaa's mother for the remainder of the visit.
Sanaa became ill while in Morocco, and when she went to the doctor she discovered that
she was in fact pregnant with twins.
{¶ 5} Sanaa participated in one meeting before the Moroccan court, and secured
counsel to represent her there. However, she realized that her interests would not be
protected before the Moroccan courts. (See Jan. 6, 2015 Tr., 33.) As such, Sanaa decided
to return home to the United States. When she tried to leave Morocco, however, she
realized that Said had "kept Anwar's passport, and he tried to cancel [her] return trip by
telling the airline that [she] was ill." (Plaintiff's exhibit No. 10, Sanaa's Affidavit, ¶ 4.)
Sanaa informed the airline that she was not ill, and explained that Said had retained
No. 15AP-152 4
Anwar's passport. Sanaa went to the American Consulate in Casablanca to determine
what she should do. Employees there advised her "that [she] should leave [her] son with
[her] mother until the passport could be replaced." (Plaintiff's exhibit No. 10, Sanaa's
Affidavit, ¶ 5.) Sanaa gave her mother a power of attorney over Anwar, and she left Anwar
with her mother and returned to Ohio.
{¶ 6} Sanaa filed the complaint for divorce in this action on July 15, 2013. She
attached an affidavit to the complaint which explained the circumstances surrounding the
trip to Morocco, Said's attempts to file for divorce there, and Said's retention of Anwar's
passport. Sanaa asked the court to issue an emergency order granting her custody over
Anwar, and to order Said to return Anwar's passport or cooperate with the replacement of
the passport so that Anwar could be returned to her.
{¶ 7} Shortly after Sanaa filed for divorce, Said took a leave of absence from OSU
and returned to Morocco. Said went to Sanaa's mother's home and said that he would
take Anwar "just from 2:00 to 6:00 to see him and then turn him back," but "he never did
that." (Jan. 6, 2015 Tr., 11.) Said has never returned Anwar to Sanaa. Sanaa has attempted
to contact Anwar, she has "tried to call him," but Said "and his family, they never let [her],
you know, talk with [her] son." (Jan. 6, 2015 Tr., 36.) Due to the pregnancy, Sanaa was
not medically able to travel back to Morocco to search for her son. She also does not have
the funds to afford a plane ticket to Morocco.
{¶ 8} The Moroccan court issued a divorce decree on December 11, 2013. Said
grossly understated his income to the Moroccan court, as he represented that he made
$5,400 a month, when his monthly income from OSU was actually $12,000 a month. (See
Plaintiff's exhibit No. 17.) Sanaa received a small property settlement under the Moroccan
decree of approximately $8,000, but the decree did not mention or address the parties'
bank accounts or Said's sizeable State Teachers Retirement System ("STRS") account.
Although the Moroccan decree provided that Sanaa was to "have first right to the
guardianship of her children until they become of age," Said still did not return Anwar to
Sanaa. (Plaintiff's exhibit No. 7.)
{¶ 9} Sanaa gave birth to her twin children on January 30, 2014, at the OSU
Medical Center. Said attempted to cancel Sanaa's health insurance at this time. Sanaa
testified that, shortly after she gave birth, a woman came into the hospital room and told
No. 15AP-152 5
her " 'you're not covered with your twins and you have to pay.' " (Sept. 15, 2014 Tr., 45.)
Sanaa was "totally shocked." Id. Said has never made any effort to see the twins.
{¶ 10} After Said reappeared in this country, Sanaa was able to perfect service on
him by way of personal service on January 27, 2014. After service was perfected, Said
voluntarily resigned from his teaching position at OSU. Said did not testify in the
proceedings below, but he did have counsel present to represent his interests. Sanaa
received her United States citizenship on August 13, 2014. She currently supports herself
and her children by working at a McDonald's restaurant.
{¶ 11} As noted, Said contends that the lower court erred by refusing to extend
comity to the Moroccan divorce decree. Comity is " 'a principle in accordance with which
the courts in one state or jurisdiction will give effect to the laws and judicial decisions of
another, not as a matter of obligation but out of deference and respect.' " Kaur v.
Bharmota, 182 Ohio App.3d 696, 700, 2009-Ohio-2344, ¶ 7 (10th Dist.), quoting
Bobala v. Bobala, 68 Ohio App. 63, 71 (7th Dist.1940). States are empowered, if they elect
to do so, to recognize the validity of certain judicial decrees of foreign governments when
they are found by the state of the forum to be valid under the law of the foreign state, and
when such recognition is harmonious with the public policy of the forum state. Yoder v.
Yoder, 24 Ohio App.2d 71, 72 (5th Dist.1970). An Ohio court's recognition of a foreign
decree is a matter of courtesy rather than of right. State ex rel. Lee v. Trumbull Cty.
Probate Ct., 83 Ohio St.3d 369, 374 (1998). "An Ohio court is not bound to enforce a
foreign judgment when it is repugnant to the laws of the United States and Ohio or
violates Ohio public policy." Patel v. Krisjal, L.L.C., 10th Dist. No. 12AP-16, 2013-Ohio-
1202, ¶ 48. See also Tahan v. Hodgson, 662 F.2d 862, 864 (D.C.1981), quoting Hilton v.
Guyot, 159 U.S. 113 (1895).
{¶ 12} The issue of comity " 'is frequently applied in divorce cases; a decree of
divorce granted in one country by a court having jurisdiction to do so will be given full
force and effect in another country by comity.' " Kalia v. Kalia, 151 Ohio App.3d 145,
2002-Ohio-7160, ¶ 37, quoting Litvaitis v. Litvaitis, 162 Conn. 540, 544-45 (1972).
However, " '[a] decree of divorce will not be recognized by comity where it was obtained
by a procedure which denies due process of law in the real sense of the term, or was
obtained by fraud, or where the divorce offends the public policy of the state in which
No. 15AP-152 6
recognition is sought, or where the foreign court lacked jurisdiction.' " Id. quoting
Litvaitis. We review a trial court's decision to grant or deny comity under an abuse of
discretion standard. Patel at ¶ 46.
{¶ 13} The trial court did not abuse its discretion by refusing to extend comity to
the Moroccan divorce decree. The court noted that the Moroccan divorce decree offended
the public policy of this state regarding the division of marital assets, as it contained no
discussion of the parties' marital assets or debts, and did not address Said's retirement
account. Said also grossly understated his monthly income to the Moroccan court. The
trial court also concluded that, as neither party contended "via testimony or in any briefs
filed in this action, that Said or Sanaa were residents of Morocco," and since they were not
"bona fide residents of Morocco, the Moroccan Court lacked subject matter jurisdiction
over the parties when Said ambushed Sanaa with the petition for divorce during their
vacation." (Decree, 8.) The trial court noted that the parties had been residents of Dublin,
Ohio in the six months prior to the filing of the complaint, and that jurisdiction was thus
proper here pursuant to R.C. 3105.03.
{¶ 14} The trial court also noted that, Morocco and the United States are both
participating countries in the Hague Convention, and that the "unrefuted conduct of Said
is reprehensible and presents a classic case of unlawful detention of a child" which the
"law of this state clearly condemns." (Decree, 9.) Indeed, the domestic relations courts of
Ohio are courts of equity, and a party is expected to approach a court of equity with clean
hands in order to obtain the relief the party deserves. Said clearly did not approach the
lower court with anything approaching clean hands. The trial court's well-reasoned and
thorough analysis of the comity issue cannot be improved upon by the court.
{¶ 15} The second assignment of error is overruled.
{¶ 16} Said's first assignment of error asserts that the trial court erred in not
finding that Sanaa's complaint for divorce was barred by res judicata. The doctrine of res
judicata provides that "[a] valid final judgment rendered upon the merits bars all
subsequent actions based upon any claim arising out of the transaction or occurrence that
was the subject matter of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d
379 (1995), syllabus. Said contends that the Moroccan divorce decree operates to bar the
instant action under res judicata. However, as we find no abuse of discretion in the court's
No. 15AP-152 7
resolution of the comity question, and Said fails to point to any other legitimate divorce
decree in existence between these parties, there is no prior valid, final judgment on the
merits which would bar the instant action for divorce. Compare Lingo v. State, 138 Ohio
St.3d 427, 2014-Ohio-1052, ¶ 25 (res judicata does not apply to void judgments).
Moreover, the record before us does not adequately communicate what, if anything, was
fully litigated in Morocco.
{¶ 17} The first assignment of error is overruled.
{¶ 18} The third assignment of error asserts that the trial court erred by
proceeding to a final hearing on an amended complaint. Initially, Said asserts that he "was
not served with the original compliant [sic] in this matter for over 6 months from when it
was originally filed." (Appellant's Brief, 49.) Sanaa filed her complaint on July 19, 2013,
and service was perfected on Said by way of personal service on January 27, 2014. Civ.R.
4(E) provides that, if "service of the summons and complaint is not made upon a
defendant within six months after the filing of the complaint and the party on whose
behalf such service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed." Said waived any argument he may have
had regarding the untimely service, by failing to raise it in his February 5, 2014 motion to
dismiss. See Civ.R. 12(H). Moreover, Sanaa would have been able to demonstrate good
cause for the untimely service, as the delay in service was due to Said's decision to leave
this country.
{¶ 19} Sanaa filed an amended complaint on February 6, 2014, without leave. On
August 12, 2014, Sanaa filed a motion seeking leave to file the amended complaint. Said
filed a memorandum contra the motion for leave on August 18, 2014; however, the trial
court granted the motion for leave on August 18, 2014. Sanaa re-filed the amended
complaint on August 21, 2014, and the amended complaint was served on Said's attorney
pursuant to Civ.R. 5. The amended complaint incorporates the allegations from the
original complaint, and notes that Sanaa gave birth to the twins on January 30, 2014. The
amended complaint contains a demand for divorce, requests that Sanaa be granted
custody of the children, requests permanent spousal support, and asks the court to make
an equitable division of the marital property and indebtedness.
No. 15AP-152 8
{¶ 20} Said filed a motion to strike the amended complaint on August 23, 2014,
claiming that the amended complaint failed to state a cause of action. The trial court
denied the motion to strike, noting that it was "routine for the court to grant a party leave
to file an amended complaint * * * when there is a child (or children) born after the filing
of the initial divorce pleadings." (Decision and Entry, 3.) The court further noted that
"allowing Sanaa to amend her complaint to include a request regarding the maintenance
of the children in no way materially prejudices Said," as the court would have the duty to
allocate the parental rights and responsibilities regarding all of the parties' children even
if the complaint did not include the later born children. (Decision and Entry, 4.) See
Bower v. Bower, 90 Ohio St. 172, 174 (1914). The court finally noted that, as Said was
represented by counsel, service of the amended complaint had to be made on Said's
counsel pursuant to Civ.R. 5(B).
{¶ 21} Said asserts that the amended complaint was never served on him.
However, the amended complaint did not have to be served on Said, and it was in fact
served on his counsel as required by the Civil Rules. Said also asserts that the amended
complaint did "properly site [sic] a cause of action." (Appellant's Brief, 49.) This is simply
wrong. The amended complaint incorporated all the allegations from the original
complaint, and independently asserted causes of action for divorce, custody of the
children, spousal support and for division of the property. Said suffered no prejudice from
either the form of the pleading of the amended complaint, or in the way the trial court
conducted the proceedings with respect to the amended complaint.
{¶ 22} This third assignment of error is overruled.
{¶ 23} The fourth assignment of error alleges that the trial court had no basis on
which to determine the best interests of Anwar, and that the trial court erred by not
providing Said with visitation rights. Said's contentions again lack merit.
{¶ 24} Trial courts have broad discretion in deciding custody matters. Davis v.
Flickinger, 77 Ohio St.3d 415, 421 (1997). Appellate courts accord that discretion " 'the
utmost respect, given the nature of the proceeding and the impact the court's
determination will have on the lives of the parties concerned.' " Pater v. Pater, 63 Ohio
St.3d 393, 396 (1992), quoting Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). This
deference is owed because "the trial judge has the best opportunity to view the
No. 15AP-152 9
demeanor, attitude, and credibility of each witness, something that does not translate
well on the written page." Davis at 418. Under the abuse of discretion standard
applicable to appeals of custody matters, " '[a] reviewing court should not reverse a
decision simply because it holds a different opinion concerning the credibility of the
witnesses and evidence submitted before the trial court.' " Id., quoting Seasons Coal
Co. v. Cleveland, 10 Ohio St.3d 77, 81 (1984).
{¶ 25} The trial court made a well-reasoned decision with respect to the custody of
Anwar, based on the testimony and evidence produced at the trial. The court noted the
difficulty it faced in formulating a reasonable parenting plan, as all of Said's efforts in this
case had "been directed toward a denial of this Court's jurisdiction over the marriage."
(Decree, 11.) The court also observed that Said had made no effort to assert any parental
rights to his infant twin children, and that while the Moroccan decree had granted custody
of Anwar to Sanaa, Said had "refused to honor that order." (Decree, 11.)
{¶ 26} In making its custody order the court relied on the best interest factors
contained in R.C. 3109.04(F). The court specifically noted R.C. 3109.04(F)(1)(f), which
asks the court to consider who is "[t]he parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship rights." Considering
Said's refusal to honor the Moroccan decree's award of custody to Sanaa, Said's retention
of Anwar's passport, and his refusal to even let Anwar speak with Sanaa, Sanaa was
unquestionably the parent more likely to honor parenting time rights or visitation. The
court concluded that, upon consideration of "the relevant factors listed in 3109.04(F), it
[was] obvious that the best interests of the children mandate that this Court issue an
order granting custody of the three minor children to Sanaa." (Decree, 11.) The lower
court acted well within its discretion in making Sanaa the residential parent for the three
children.
{¶ 27} Said asserts that the court did not provide him with visitation rights.
However, the court provided that Said would be granted parenting time "upon the
completion of the Seminar For Divorcing Parents with companionship to commence
when he has returned Anwar to Sanaa." (Decree, 12.) The court acknowledged that, while
it was "generally reluctant to place strict restrictions upon a parent's exercise of
companionship," Said's "wrongful conduct and blatant disregard for his children [made]
No. 15AP-152 10
the current orders necessary to ensure the safety and best interests of Anwar, Malak, and
Maidi." (Decree, 12.) Thus, Said has visitation rights, and his rights will commence once
he completes the class and returns Anwar to Sanaa.
{¶ 28} The fourth assignment of error is overruled.
{¶ 29} The fifth assignment of error contends that the trial court erred in the
division of marital property. Said asserts that the trial court did not have sufficient
admissible evidence on which to make an equitable property division. Said refused to
personally participate in the proceedings or to produce discovery, and as a result, the
record as to marital and non-marital property was limited. However, Said was
represented by counsel throughout these proceedings, and as such he is not in a position
to complain that his due process rights were violated. Due process requires an
opportunity to be heard but does not mandate that potential evidence be known to the
trial court when the party chose not to present it and opted to minimize his participation.
Reviewing the record, it is evident that the trial court made a reasonable distribution of
the marital property given the evidence before it.
{¶ 30} R.C. 3105.171 provides for the division of marital property in a domestic
relations case, and R.C. 3105.171(C)(1) requires that the division of marital property be
equal unless an equal division would be inequitable. The court must "determine what
constitutes marital property and what constitutes separate property," and then "divide the
marital and separate property equitably between the spouses" and disburse a spouse's
separate property to that spouse. R.C. 3105.171(B); R.C. 3105.171(D). A domestic court
has broad discretion to make divisions of property. Middendorf v. Middendorf, 82 Ohio
St.3d 397, 401 (1998), citing Berish v. Berish, 69 Ohio St.2d 318 (1982). An appellate
court's job is not to reweigh the evidence but to determine whether competent, credible
evidence in the record supports the trial court's findings. Dunham v. Dunham, 171 Ohio
App.3d 147, 2007-Ohio-1167, ¶ 27 (10th Dist.). A trial court's valuation and division of
property will be affirmed absent an abuse of discretion. Colley v. Colley, 10th Dist. No.
09AP-333, 2009-Ohio-6776, ¶ 17.
{¶ 31} Said contends that the court erred in its division of the bank accounts.
Sanaa testified that during the marriage her husband had a checking and a savings
account at Chase Bank. Pursuant to subpoena, Chase Bank produced the records of Said's
No. 15AP-152 11
accounts. (See Plaintiff Trial exhibit No. 13.) In June 2013, prior to the parties' trip to
Morocco, there was $10,769.76 in the checking account and $118,016.21 in the savings
account. However, "within three days of his return to the United States in July 2013, Said
withdrew all of the savings account balance, and he further dissipated the checking
account balance prior to terminating his employment with The Ohio State University."
(Decree, 25.)
{¶ 32} The court concluded that Sanaa's equitable interest in the accounts was
$64,393; one-half of the total value of both accounts as of June 2013. The court also
acknowledged that Said had paid Sanaa $8,000 pursuant to the Moroccan decree, and
concluded that it was fair to assume that the $8,000 "was essentially * * * a partial
payment to Sanaa for her equitable interest in the Chase account funds." (Decree, 25.)
Accordingly, the court deducted the $8,000 payment from the $64,393. We find no error
in the court's division of the accounts.
{¶ 33} Said argues that the court failed to divide a $17,000 debt. At trial, defendant
presented exhibit Y, which demonstrated that in 2014 Said owed $17,659.05 on a Chase
credit card debt. However, Sanaa testified that she never had a credit card during the
marriage and that she was unaware of any indebtedness of the parties. As such, the court
ordered that Sanaa was to "assume, pay, and hold Said harmless on indebtedness
incurred solely by her," and ordered Said to "assume, pay, and hold Sanaa harmless on
indebtedness for the JPMorgan Chase credit card and any other indebtedness incurred
solely by him." (Decree, 28.) We find no error in the court's distribution of the
indebtedness of the parties.
{¶ 34} Said finally asserts that the trial court made an "unlawful order * * * to
disburse over 50% of the marital portion of a parties' retirement account." (Appellant's
Brief, 56.) At the trial, Rebekah Smith, CPA, testified regarding the marital portion of
Said's STRS account. Ms. Smith testified that the marital portion of the retirement
account was $236,431.44, and that Sanaa's one-half marital interest in the account was
$118,215.72. (See Jan. 6, 2015 Tr., 55, 58.) STRS records demonstrated that account
withdraw value was $286,713.37. (See Plaintiff's exhibit No. 15.) The court observed that,
pursuant to R.C. 3105.81 to 3105.85, it could order a distribution from a STRS
participant's retirement account, not to exceed fifty percent. See R.C. 3105.85(A).
No. 15AP-152 12
{¶ 35} Notably, Said ceased his employment with OSU in February 2014, and
"attempted to withdrawal his account value but could not because of th[e] Court's
Restraining Order." (Decree, 26.) As Said voluntarily ceased his employment with OSU,
and "a participant who is no longer in the public employment in Ohio is entitled to elect a
lump sum distribution of the retirement benefits," the court ordered that the entire lump
sum benefits were to be distributed. (Decree, 27.) The court further ordered that, "[f]rom
the account value shall be deducted the arrearages in child support that shall be payable
as a lump sum pursuant to a withholding order. From the remaining account value Said
and Sanaa shall each be entitled to fifty (50%) percent." (Decree, 27.) Said had child
support arrearages of $29,627.00 at the time the court issued the decree. (See Decree, 18.)
{¶ 36} The court's distribution of the retirement account was permissible. Initially,
the court ordered that the child support arrearages be deducted from the lump sum. The
child support arrearages that Said was obligated to pay for the well-being and support of
his children were not part of the property division, and considering Said's refusal to
comply with court orders with respect to his children, the court's deduction of the
arrearages from the account value was reasonable under these circumstances. Thus, the
resulting account value after the deduction of arrearages was $257,086.37 ($286,713.37 -
$29,627.00). One-half of that figure is $128,543.19.
{¶ 37} Although this number is slightly higher than Sanaa's marital portion of the
account, it is less than 50 percent of the total withdraw value, and therefore permissible.
See Cunningham v. Ohio Police & Fire Pension, 175 Ohio App.3d 566, 2008-Ohio-218, ¶ 9
(8th Dist.) (noting that "R.C. 3105.85(A) operates as a substantive limitation on the
maximum amount that can be distributed to an alternate payee and constitutes a legal
requirement that at least 50 percent of a pension is distributed directly to the member
whose service created the pension entitlement"). The court also noted that any additional
distribution to Sanaa was "fair and equitable upon consideration of the vast disparity in
earning capacity of the parties as well as Defendant's lack of cooperation in failing to
disclose the assets that he removed when the parties separated, in refusing to complete
discovery, and in otherwise failing to cooperate with the division of the marital assets."
(Decree, 27.) Indeed, with respect to the division of marital property, "[e]quitable need
No. 15AP-152 13
not mean equal." Cherry v. Cherry, 66 Ohio St.2d 348, 355 (1981). The trial court made
an appropriate and equitable division of the STRS account.
{¶ 38} The fifth assignment of error is overruled.
{¶ 39} The sixth assignment of error alleges that, because the trial court failed to
extend comity to the divorce decree entered in Morocco, the court denied Said his right to
practice his religious faith. Said fails to explain how the court's resolution of the comity
issue prevents him from practicing his faith. The trial court in no way denied Said his
right to practice his religion. The sixth assignment of error is overruled.
{¶ 40} Having overruled the six assignments of error, the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, is affirmed.
Judgment affirmed.
KLATT and LUPER SCHUSTER, JJ., concur.
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