Abu-Nada v. Abu-Nada, Unpublished Decision (3-15-1999)
Abu-Nada v. Abu-Nada, Unpublished Decision (3-15-1999)
Opinion of the Court
Defendant-appellant, Mohammad Abu-Nada, appeals from a divorce decree entered by the Clermont County Court of Common Pleas, Domestic Relations Division.
Appellant married plaintiff-appellee, Aysha Abu-Nada, on August 20, 1976, in Amman, Jordan. On July 20, 1992, appellant was incarcerated by federal authorities under an eighty-eight month sentence for a drug-related offense.
Appellee filed for divorce on January 3, 1997. The magistrate held hearings on July 28, 1997 and September 22, 1997. At the time of the hearings, the parties had four minor children.
The magistrate's decision was filed on October 27, 1997. Appellant filed objections to the magistrate's decision, which were overruled by the trial court. The divorce decree was entered on June 30, 1998.
Appellant raises five assignments of error.
Assignment of Error No. 1:
THE TRIAL COURT ERRED IN REFUSING TO FIND THAT A DAUGHTER OF THE PARTIES WAS EMANCIPATED.
In his first assignment of error, appellant contends that the trial court erred by failing to find that the parties' seventeen-year-old daughter, Kholood, was emancipated. Kholood was married in Jordan in 1996 at age fifteen, but returned to the United States in early 1997 and has lived with and been supported by appellee ever since. Kholood was not divorced under Jordanian law, but appellee testified that she was attempting to arrange for such a divorce. At the hearing, the parties debated whether the marriage was void under Ohio law. The trial court found that Ohio had no obligation to recognize the foreign marriage and that appellant had presented no evidence to indicate that Kholood was otherwise emancipated. Appellant claims that the trial court did not have the authority to declare that the Jordanian marriage was void.
If Kholood is emancipated, appellant is not responsible for her support. The emancipation of a child may be effected in many ways: marriage, entering the armed services, leaving home, becoming employed and self-subsisting, or in any other manner in which the parent authorizes or occasions the child to remove himself from parental subjugation, control and care.Omohundro v. Omohundro (1982),
Assignment of Error No. 2:
THE TRIAL COURT ERRED IN FINDING DEFENDANT'S INCOME FOR PURPOSES OF CHILD SUPPORT TO BE $42,500.00.
In his second assignment of error, appellant argues that the trial court erred in imputing income of $42,500 to him for child support purposes. The parties operated labor intensive businesses such as a sandwich shop and carryout stores during the marriage. Joint tax returns from 1991-1995 showed income between $19,285 and $29,300. Appellee testified that appellant had earned between $40,000 and $45,000 from self-employment. Appellee reported 1996 income from the businesses of $32,300. Appellee was also caring for the parties' children. Her testimony that appellant had earned a higher figure from similar self-employment prior to his incarceration was therefore credible. Appellant did not cross-examine appellee on the amount she claimed appellant had earned prior to his incarceration. Appellant also presented no contradictory evidence. Appellant's wrongful conduct placed him in a position that he is no longer available for gainful employment, but does not relieve him from his obligation to support his children.Richardson v. Ballard (1996),
Appellant's third and fifth assignments of error concern the equity in certain real estate owned by the parties and will be considered together:
Assignment of Error No. 3:
THE TRIAL COURT ERRED IN COMPUTING THE RESPECTIVE INTEREST OF THE REAL ESTATE OWNED BY THE PARTIES.
Assignment of Error No 5:
THE TRIAL COURT ERRED IN FINDING THAT ALL EQUITY IN REAL ESTATE GENERATED AFTER DEFENDANT'S INCARCERATION WAS NOT MARITAL PROPERTY.
In his third assignment of error, appellant claims that the trial court erred in computing the parties' respective interest in the equity in two parcels of property: the marital residence on Twiggs Lane ("the Twiggs Lane property") and a building which contained one of the parties' businesses on Vine Street ("the Vine Street property"). In his fifth assignment of error, appellant claims that the trial court erred in determining that the increase in equity in the properties following his incarceration was appellee's separate property. Appellee has not cross-appealed but asks this court to correct an alleged error in the court's calculation of the appreciation in equity of the properties.
The parties stipulated and the trial court determined that the de facto termination date of the marriage was the date of appellant's incarceration, i.e., June 20, 1992. The parties stipulated to the value of the marital equity in both properties as of that date. The parties also stipulated in a June 9, 1997 pre-trial order to the "present value" of the properties ($115,000 for Twiggs Lane property and $43,000 for Vine Street property). On July 29, 1997, appellee provided revised figures for the mortgage balances and equity in the properties.
The magistrate found that appellee was entitled to the increase in equity from June 1992 until June 1997 as her separate property because it was acquired after the de facto termination of the marriage. Appellant argues that awarding appellee the increase in equity after the termination of the marriage was an abuse of discretion because such appreciation is not specifically listed in the categorization of separate property found at R.C.
Ordinarily, the period of time from the date of the marriage through the date of the final hearing in a divorce is considered "during the marriage" for purposes of property classification and valuation. See R.C.
The court made complete findings on all the marital and separate assets and liabilities of the parties, including the increases in equity discussed above. The magistrate noted that under R.C.
Appellant challenges the final figure secured by the Vine Street property because he claims it does not represent the amount of the equity in that property which was awarded to appellee. He is correct. However, as noted above, the amounts which were to be paid to appellee and which were secured by each parcel of property were not based solely upon her equity in the properties but were based upon a final calculation or "recapitulation" of what was owed by appellant to appellee based upon all of the assets and liabilities of the parties.1
It is well-established that in a domestic relations case, based upon the facts and circumstances of the particular case, the trial court has broad discretion in dividing the parties' marital assets. Briganti v. Briganti (1984),
Assignment of Error No. 4:
THE TRIAL COURT ERRED IN REFUSING TO RECOGNIZE THE FINANCIAL INTEREST OF CO-OWNERS OF REAL ESTATE.
In his fourth assignment of error, appellant claims that the trial court erred in refusing to recognize the interest of his parents, Salem and Labibeh Abu-Nada, in the Twiggs Lane property. The property was titled in the name of "Mohammad Abu-nada, Trustee, and Salem Abu-nada, who is married to Labibeh S. Abu-nada." Salem and Labibeh Abu-Nada were joined as defendants and were served with process pursuant to Civ.R. 75(B). They did not enter appearances in the case, although Labibeh testified at the hearing. Labibeh testified that her social security check was used for the Twiggs Lane mortgage. However, appellee testified that she had paid all expenses after appellant's incarceration. The magistrate found that appellant's parents had presented no credible testimony to indicate they were entitled to any equitable interest in the real estate.3 The trial court's findings concerning the credibility of witnesses are entitled to substantial deference. The findings of a trial court will be upheld where the record contains some competent evidence to support those findings.Fletcher v. Fletcher (1994),
Judgment affirmed.
YOUNG, P.J., and WALSH, J., concur.
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