Mousa v. Saad
2019 Ohio 742
Ohio Ct. App.2019Background
- Mousa and Saad (married 2005) divorced after contested proceedings; trial court found Mousa engaged in financial misconduct by diverting/dissipating marital funds and failing to disclose assets.
- Mousa transferred $90,000 from a joint PNC account into a First Citizens account, then dispersed funds (checks/wires) from First Citizens to his brother and others in 2013.
- Mousa opened Chase accounts for his parents and deposited funds; Saad showed portions were marital income.
- Trial court added dissipated/undisclosed funds to the marital estate, valued the estate, ordered an equalization payment, and awarded Saad $400,000 under R.C. 3105.171(E)(5); it also issued an injunction restricting Mousa from sending assets abroad.
- On prior appeal this Court remanded for clarification of the property division and the basis for the R.C. 3105.171(E)(5) award; on remand the trial court issued a clarifying entry further detailing the sums it attributed to dissipation/ nondisclosure (totaling $810,279) and the parties’ assets.
- This appeal challenges (inter alia) double counting of funds, valuation dates for bank accounts, inclusion of parental deposits as marital funds, propriety/amount of the $400,000 distributive award, and the injunction against transferring assets abroad.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court double-counted $90,000 transferred from PNC to First Citizens when valuing the marital estate | Mousa: the $90,000 was moved into First Citizens and later dissipated there; counting it again as a separate PNC asset double counts the money | Saad: trial court treated both defunct accounts as dissipated and included both values to capture diverted funds | Court: Sustained. Trial court double-counted; PNC funds traced into First Citizens and should not be separately valued. |
| Whether trial court erred by valuing Chase acct #-8780 using an August 26, 2015 statement instead of an October 16, 2015 statement | Mousa: the October statement (closer to hearing) showed less money and should control, reducing his equalization obligation | Saad: earlier statement was in evidence and trial court can choose valuation dates | Court: Sustained in part and remanded for explanation — trial court must explain why it used an earlier statement rather than the one nearest the hearing. |
| Whether the $400,000 distributive award under R.C. 3105.171(E)(5) was improper or inequitable | Mousa: award makes division inequitable and improperly relies on funds dissipated before filing or on miscounted totals | Saad: trial court found willful nondisclosure/dissipation; award permissible up to 3x undisclosed assets | Court: Sustained in part and remanded — court may award under (E)(5) but must (1) separate nondisclosed assets (E)(3) from pre-filing dissipation (E)(4), (2) recalc values after correcting valuation errors, and (3) re-evaluate an equitable amount. |
| Whether trial court double-counted the OB/GYN practice bank accounts when valuing the practice at $145,000 | Mousa: practice valuation included bank-account cash so listing both double counts ~$40,435 | Saad: valuation was based on future earnings, not net assets; cash accounts were not included in the $145,000 valuation | Court: Overruled. Expert valued the practice on earnings, not adjusted net assets; no double counting shown. |
| Whether $24,030 in deposits to accounts held for Mousa’s parents should have been excluded as nonmarital | Mousa: those deposits were his parents’ money and not marital | Saad: evidence showed portions were marital income and Mousa’s explanations lacked credibility | Court: Overruled. Trial court’s credibility findings were supported and inclusion was supported by competent, credible evidence. |
| Whether the injunction barring Mousa from transferring assets abroad or to relatives was an abuse of discretion | Mousa: injunction is overbroad | Saad: trial court previously approved similar restriction; issue already litigated | Court: Overruled. Law-of-the-case and prior appeal resolved this issue against Mousa (App.R.12(A)(2) waiver on earlier briefing). |
Key Cases Cited
- Josselson v. Josselson, 52 Ohio App.3d 60 (8th Dist.) (trial court may include withdrawn joint-account funds in marital estate if spouse cannot account for them)
- DiLacqua v. DiLacqua, 88 Ohio App.3d 48 (9th Dist.) (trial court may add value of wrongfully dissipated marital funds to marital estate)
- Schwenk v. Schwenk, 2 Ohio App.3d 250 (8th Dist.) (similar principle on dissipated assets)
- Nolan v. Nolan, 11 Ohio St.3d 1 (Ohio 1984) (law-of-the-case doctrine explained)
- Hawley v. Ritley, 35 Ohio St.3d 157 (Ohio 1988) (discusses final adjudication and preclusive effect of appellate rulings)