Passyalia v. Moneir
Passyalia v. Moneir
Opinion
{¶ 1} Appellant (former husband) Tarek M. Moneir appeals from his divorce in the Stark County Court of Common Pleas, Domestic Relations Division. Appellee (former wife) is Doaa Aldo Passyalia. The relevant facts leading to this appeal are as follows.
{¶ 2} The parties were married in Egypt in April 1986. Two children were born as issue of the marriage, both of whom are now emancipated adults. In 2006, appellant obtained employment in county government in Virginia, and the parties separated. Appellee remained with the parties' children in North Canton, Ohio. During the ten-year separation, appellant paid the mortgage, taxes, insurance, and utilities for the North Canton residence occupied by appellee and the children.
{¶ 3} On July 15, 2015, Appellee Doaa filed a complaint for divorce. Appellant Tarek filed an answer and a counterclaim for divorce on September 12, 2015. The case proceeded to a trial to the court on August 9, 2016 and September 2, 2016.
{¶ 4} On September 12, 2016, the trial court issued a final decree of divorce, including orders regarding property division and spousal support, as further detailed infra . 1
{¶ 5} On October 6, 2016, appellant filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶ 6} "I. THE TRIAL COURT'S DIVISION OF PROPERTY WAS INEQUITABLE, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND AN ABUSE OF DISCRETION.
{¶ 7} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING SPOUSAL SUPPORT BEFORE FIRST MAKING AN EQUITABLE DIVISION OF PROPERTY."
I.
{¶ 8} In his First Assignment of Error, appellant contends the trial court abused its discretion in characterizing or awarding certain marital assets and debts, resulting in an inequitable division of property. We agree in part and disagree in part.
Standards of Review
{¶ 9} As an appellate court, we generally review the overall appropriateness of the trial court's property division in divorce proceedings under an abuse of discretion standard.
Cherry v. Cherry
(1981),
{¶ 10} In order to make an equitable division of property, the trial court should first determine the value of the marital assets.
Eisler v. Eisler
(1985),
2010 Toyota 4-Runner Automobile
{¶ 11} Appellant first challenges the trial court's determination of the value of the parties' 2010 Toyota 4-Runner. The court found that said vehicle, titled to appellant, had a fair market value of $17,306.00, with a lien balance of $7,628.00. Decree at 4. However, in its property distribution chart, instead of listing the net value at the mathematically expected figure of $9,678.00, the trial court set forth a value of $11,442.00. Appellant challenges this result as a math error in the amount of $1,764.00, although appellee responds that the $11,442.00 net value on the chart came about because of a fair market value of $19,070.00 culled from one of appellee's trial exhibits ( i.e. , $19,070.00 minus the $7,628.00 lien). Appellee also urges in response that appellant's proper remedy is to seek a nunc pro tunc order.
{¶ 12} Upon review, we find the discrepancy between the Toyota's valuation in the findings of fact and the figure used on the property distribution chart constitutes reversible error.
Canton Student Loan Foundation Loan
{¶ 13} Appellant next challenges the trial court's valuation of a loan balance owed on behalf of the parties' adult daughter, A.M. It appears undisputed that said loan from the Canton Student Loan Foundation was incurred by both appellant and appellee in 2005. The trial court, on its distribution chart, set forth a balance of $1,290.00 for the loan as a marital debt, which was then "awarded" to appellant.
{¶ 14} A review of the record, however, indicates that exhibits from the trial showed the Canton Student balance to be $9,530.17. Furthermore, on cross-examination, appellee estimated that the balance was "in the nine thousands." Tr. II at 10. We also note that trial testimony from both parties indicated A.M. herself had taken over making the payments on the loan, and documentation produced at trial showed that the loan statements were being addressed to and mailed directly to her. Thus, it is unclear to this Court how the trial court arrived at the $1,290.00 figure.
{¶ 15} Although an appellate court generally reviews a decision on property division in its entirety, rather than examining individual awards in a piece-meal fashion (
see
Espenschied v. Espenschied,
5th Dist. Tuscarawas No. 2002AP030021,
U.S. Department of Education Student Loan
{¶ 16} Appellant lastly challenges the trial court's classification as his separate debt a United States Department of Education Student Loan, with a balance of $134,689.00, that he took out on behalf of the parties' adult daughter, A.M. 2
{¶ 17} The trial court found in pertinent part on this issue: "The husband took out a loan on behalf of his daughter through the Federal Government, guaranteed student loan program. This obligation was incurred after the child's emancipation and while incurred with the knowledge of the wife, she is not a co-signor of the loan. As such, this obligation is deemed to be not a marital obligation but an obligation solely incurred by the husband. * * *." Decree at 5.
{¶ 18} R.C. 3105.171(B) states in pertinent part that "[i]n divorce proceedings, the court shall * * * determine what constitutes marital property and what constitutes separate property. * * *." The characterization of property as marital or separate must be supported by sufficient, credible evidence.
See
Chase-Carey v. Carey,
5th Dist. Coshocton No. 99CA1,
{¶ 19} Although Ohio's divorce statutes do not generally articulate debt as
an element of marital and separate property, the rules concerning marital assets are usually applied to marital and separate debt as well.
See
Vergitz v. Vergitz,
7th Dist. Jefferson No. 05 JE 52,
{¶ 20} Appellant cites
Altier v. Altier
, 5th Dist. Stark No. 2014CA00124,
{¶ 21} Appellant also directs us to one of the few Ohio cases in the present context dealing with student loan debt incurred during the marriage for the benefit of a couple's children,
Cooper v Cooper
, 12th Dist. Clermont No. CA2013-02-017,
{¶ 22} In her trial testimony in the case
sub judice
, appellee conceded that she and appellant had jointly applied for A.M.'s aforementioned 2005 "Canton Student" loan, but she recalled that "after that [A.M.] and her father were doing everything together." Tr. II at 82. She continued, in regard to the U.S. Department of Education loan: "I heard that she got something from the government. I don't really know what, which is which, what is
what."
{¶ 23} It is generally recognized that the trier of fact is in a far better position to observe the witnesses' demeanor and weigh their credibility.
See, e.g.,
Taralla v. Taralla,
5th Dist. Tuscarawas No. 2005 AP 02 0018,
{¶ 24} Appellant's First Assignment of Error is sustained in part and overruled in part.
II.
{¶ 25} In his Second Assignment of Error, appellant contends the trial court erred in making its award of spousal support.
{¶ 26} R.C. 3105.171(C)(3) mandates in pertinent part that "[t]he court shall provide for an equitable division of marital property under this section prior to making any award of spousal support to either spouse under section 3105.18 of the Revised Code * * *."
See
,
also
,
Jendrusik v. Jendrusik,
7th Dist. Belmont No. 00BA54,
{¶ 27} Appellant's argument is solely premised on the proposition from his first assigned error that the trial court failed to properly identify and equitably divide the parties' marital property. As such, he maintains that the issues of property division and spousal support should be simultaneously remanded for further proceedings.
See
Day v. Day
, 5th Dist. Ashland No.
{¶ 28} To the extent that our previous conclusions herein as to property division might affect spousal support, we remand the latter issue for discretionary review by the trial court. See R.C. 3105.18(C)(1)(i).
{¶ 29} Appellant's Second Assignment of Error is therefore sustained on these grounds.
{¶ 30} For the foregoing reasons, the judgment of the Court of Common Pleas, Domestic Relations Division, Stark County, Ohio, is hereby affirmed in part, reversed in part, and remanded.
Gwin, P.J., and
Hoffman, J., concur.
We note the trial court found the termination date of the marriage to be the last day of the trial. See Decree at 7.
The execution date of this loan is unclear in the transcript. Appellant testified that he signed for the loan in 2008 (Tr. II at 97), although he later indicated it was in 2010 (Tr. II at 160). Exhibit "J", attached to appellant's brief, is a July 2016 loan invoice showing a "date disbursed" of November 17, 2014.
Reference
- Full Case Name
- Doaa Aldo PASSYALIA, Plaintiff-Appellee v. Tarek M. MONEIR, Defendant-Appellant
- Cited By
- 12 cases
- Status
- Published
- Syllabus
- Marital debt