Amina O. Chahdi, Plaintiff-Appellant, v. Ali Elhassan, Defendant-Appellee.
No. 18AP-674 (C.P.C. No. 17DR-2091)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 31, 2019
[Cite as Chahdi v. Elhassan, 2019-Ohio-4472.]
(REGULAR CALENDAR)
Rendered on October 31, 2019
On brief: The Legal Aid Society of Columbus, Jamaal R. Redman, and Stuart Y. Itani, for appellant. Argued: Jamaal R. Redman.
On brief: Frederick L. Berkemer. Argued: Frederick L. Berkemer.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
KLATT, P.J.
{¶ 1} Plaintiff-appellant, Amina O. Chahdi, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, that granted Chahdi and defendant-appellee, Ali Elhassan, a divorce. For the following reasons, we reverse that judgment and remand this matter for further proceedings.
{¶ 3} The parties resolved all issues relevant to their divorce except whether the Berrywood property constituted marital or separate property. At trial, Elhassan testified that he purchased the Berrywood property in October 2005 with the financial assistance of his family. In June 2012, Elhassan transferred the Berrywood property to his brother, Jaber Elhassan, by quit claim deed. Elhassan testified that he transferred the Berrywood property to Jaber “[b]ecause [he] ha[d] bad credit and [he] was scared, like, [his creditors would] take [his] condominium from [him].” (Tr. at 29.)
{¶ 4} Although Jaber owned the Berrywood property, Elhassan continued to live there. After Elhassan married Chahdi in October 2013, Chahdi also moved into the Berrywood property.
{¶ 5} According to Elhassan‘s oldest brother, Nidal Elhassan, Elhassan and Jaber argued after Elhassan and Chahdi‘s wedding. As a result of this argument, Nidal decided to put the Berrywood property in his name. In January 2015, Jaber executed a quit claim deed transferring the Berrywood property to Nidal.
{¶ 6} While Nidal was the titleholder of the Berrywood property, he did not consider himself the owner of the condominium. Nidal “just ke[pt] [the Berrywood property] for [Elhassan] so * * * creditors [would not] take it from him.” (Tr. at 21.)
{¶ 7} In August 2016, Nidal transferred the Berrywood property to Chahdi at Elhassan‘s request. At trial, Elhassan and Chahdi recounted different motivations for the transfer. Chahdi believed that, by the transfer, “[Elhassan and Nidal] offered [her] the house.” (Tr. at 15.) However, according to Elhassan, Chahdi had agreed to protect the Berrywood property from his creditors and disclaimed any interest in it. Elhassan testified:
I ask her * * * [b]ecause I can‘t even put [the property] in my name because I have bad credit. So I ask her, [“]Can I put that in your name, you know what I mean, just to hold for me?[“]
She said, [“]Yes, you can. I will not even take your money. I would not take your family money. I will not take your condo from you[.“]
{¶ 8} Based on the above testimony, Chahdi asked the trial court to find the Berrywood property either her separate property or marital property. Elhassan argued that the condominium was his separate property because he and his family paid for it.
{¶ 9} In the decree of divorce entered August 7, 2018, the trial court concluded that the Berrywood property was Elhassan‘s separate property because he had acquired it prior to the parties’ marriage. The trial court ordered Chahdi to transfer the condominium to Elhassan by quit claim deed.
{¶ 10} Chahdi now appeals the August 7, 2018 judgment, and she assigns the following errors:
[1.] The trial court erred by classifying the parties’ marital residence as the separate property of Defendant-Appellee, and such finding was against the manifest weight of the evidence.
[2.] As a result of the trial court‘s error in classifying the property, the trial court abused its discretion by failing to equitably divide the parties’ property.
{¶ 11} By her first assignment of error, Chahdi argues that the trial court erred in finding the Berrywood property was Elhassan‘s separate property. We agree.
{¶ 12} In divorce proceedings, a trial court must determine “what constitutes marital property and what constitutes separate property.”
{¶ 13} Marital property, as relevant to this case, includes “[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.”
{¶ 14} When the parties dispute whether an asset is marital or separate property, the asset is presumed marital property unless proven otherwise. Dach v. Homewood, 10th Dist. No. 14AP-502, 2015-Ohio-4191, ¶ 33. In most cases, to prove otherwise, a party must show by a preponderance of the evidence that one of the
{¶ 15} Here, the undisputed evidence established that Chahdi owned the Berrywood property on the date the parties’ marriage terminated. She had acquired the condominium in August 2016, during the parties’ marriage, when Nidal transferred it to her. Thus, pursuant to
{¶ 16} The trial court, instead, presumed that the Berrywood property was Elhassan‘s separate property under
{¶ 18} To protect a spouse‘s separate ownership of property brought into a marriage,
{¶ 19} This case presents the highly unique situation where both definitions do not apply to the property at issue.2 Here, Elhassan acquired the Berrywood property prior to the marriage, but he did not own the property when he married. Because Elhassan did not enter the marriage owning the condominium, the rationale for designating it his separate property breaks down.
{¶ 21} The primary rule in statutory construction is to give effect to the General Assembly‘s intent by looking at the language of the statute. State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, ¶ 15. Where the language is plain and unambiguous, a court must apply it as written. Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 8. Nevertheless, because the General Assembly intends just and reasonable results when enacting statutes, courts must also construe statutes to avoid unreasonable or absurd consequences. Piazza v. Cuyahoga Cty., __ Ohio St.3d __, 2019-Ohio-2499, ¶ 30; Clay at ¶ 22-24. Thus, the absurd-result principle provides an exception to the rule that a court must interpret a statute according to its plain meaning. Clay at ¶ 22. Courts must exercise restraint when resorting to this exception, employing it only when the plain language of a statute produces an obviously unintended result. Id. at ¶ 26.
{¶ 22} Here, application of the plain meaning of
{¶ 23} In addition to relying on
{¶ 24} Traceability determines whether separate property retains its separate identity even after it is commingled with marital property, as when, for example, spouses
{¶ 25} Traceability involves tracking separate property (or the value derived from separate property) through the confusion of commingling. The case at bar involves no commingling to unravel, and consequently, the trial court did not perform any tracing as contemplated by
{¶ 26} Next, we turn to Chahdi‘s argument that the Berrywood property should be her separate property because Nidal gifted it to her. As we stated above, a gift of real property made during the marriage to one spouse may qualify as separate property.
{¶ 27} Here, Nidal testified that he deeded Chahdi the Berrywood property because Elhassan asked him to. Elhassan testified that he instigated the transfer as part of his scheme to protect the property from his creditors. Consequently, the transfer was intended to ensure Elhassan‘s ongoing possession of the property, which benefited both parties as both parties resided at the condominium. We thus conclude that the manifest weight of the evidence supports a finding that the transfer was not intended to benefit Chahdi alone. The
{¶ 28} Finally, we turn to Elhassan‘s argument that Chahdi does not personally own the Berrywood property; instead, she owns it as a trustee. According to Elhassan, he created an oral trust when he transferred the Berrywood property to Jaber, and Jaber, Nidal, and Chahdi have each served as trustees of that trust. Elhassan claims that, as the sole beneficiary of the trust, he owns an equitable interest in the Berrywood property, which is his separate property. We are not persuaded.
{¶ 29} “A trust may be created only to the extent that its purposes are lawful, not contrary to public policy, and possible to achieve.”
{¶ 30} Here, Elhassan testified at trial that he transferred the Berrywood property to Jaber “[b]ecause [he] ha[d] bad credit and [he] was scared, like, [his creditors would] take [his] condominium from [him].” (Tr. at 29.) When asked why he sought the transfer from Nidal to Chahdi, Elhassan answered, “I still have that credit card problem; * * * hard to pay the credit card.” (Tr. at 31.) Because Elhassan admittedly sought to create a trust in order to evade his creditors, any supposed trust was invalid from inception. Elhassan‘s trust argument, therefore, does not remove the Berrywood property from the rubric of marital property.
{¶ 32} By Chahdi‘s second assignment of error, she argues that the trial court erred in failing to equitably divide the Berrywood property. Elhassan maintains that the trial court evaluated the equities involved and determined that he should receive the Berrywood property. After reviewing the trial court decision, we conclude that the trial court granted Elhassan ownership of the Berrywood property because the court found that the condominium was Elhassan‘s separate property. The trial court erroneously failed to divide the Berrywood property pursuant to
{¶ 33} For the foregoing reasons, we sustain Chahdi‘s first and second assignments of error. We reverse the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and we remand this matter to that court so that it may divide the Berrywood property between the parties pursuant to
Judgment reversed; cause remanded.
SADLER, J., concurs.
NELSON, J., concurs in part and dissents in part.
{¶ 34} I agree wholeheartedly with the majority opinion that the domestic relations court was wrong to conclude that the Berrywood property is Elhassan‘s, exclusively, by virtue of his account that the transfer away from him (before the marriage) and subsequently to Chahdi (after the marriage) reflected “simply the ongoing pattern of placing the property outside the reach of [Elhassan‘s] creditors.” See Decision and Jgmt. Entry at 9. The governing statute requires that the judgment be reversed. But I am not so sure under these circumstances that the property is marital property as opposed to Chahdi‘s separate property.
{¶ 35} Pursuant to
{¶ 36} Because I think that it is for the domestic relations court in the first instance to determine whether the Berrywood property is marital property, as presumed, or Chahdi‘s separate property, I very respectfully dissent from the thorough majority opinion to the extent that it directs the former outcome.