Najjar v. NajjarNajjar v. Najjar
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED
Civil Appeal from the Cuyahoga County Common Pleas Court Domestic Relations Division Case No. D-287384
RELEASED: August 6, 2009
ATTORNEY FOR APPELLANT
Joseph F. Shucofsky
21300 Lorain Road
Fairview Park, Ohio 44126
ATTORNEYS FOR APPELLEE
Cassandra Collier-Williams
Anthony T. Parker
Aaron D. Plasco
Law Offices of Cassandra Collier-Williams, L.L.C.
P.O. Box 94062
Cleveland, Ohio 44101
Marvin T. Warren
653 Broadway
Suite 215
Bedford, Ohio 44146
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Plaintiff-appellant, Rashieda Najjar (“Wife“), appeals the trial court‘s judgment entry of divorce. After reviewing the facts of the case and pertinent law, we affirm in part, reverse in part and remand this case to the trial court for further proceedings.
{¶ 2} Defendant-appellee, Suluman D. Najjar (“Husband“), and Wife were married in the Middle East in 1986. That same year, Husband moved to the United States and Wife followed him here in 1988. The couple have five children. On July 3, 2002, when all five children were still minors, Wife filed for divorce. On October 7, 2002, the court ordered Husband to pay Wife $800 monthly in temporary support. On various dates over the next four years, a magistrate heard testimony and reviewed evidence. On November 5, 2007, Wife filed a motion to modify the temporary support order.
{¶ 3} On February 11, 2008, the magistrate issued a decision regarding child support, spousal support, and the division of marital property. Specifically, and as pertaining to this appeal, the magistrate‘s findings included a spousal support award to Wife of $1,000 per month for four years and an attorney fee award to Wife of $5,000. On May 18, 2008, the magistrate issued a subsequent decision that a financial document from a foreign bank, which Wife allegedly discovered after the February 11, 2008 decision, was inadmissible because it was not properly authenticated.
{¶ 5} On June 12, 2008, the court summarily overruled Wife‘s first and third objections. The court found Wife‘s second objection meritorious and increased the spousal support award to $1,530 per month for seven years. The court also decreased the child support obligation to $1,682.24 per month. The court granted Wife a divorce from Husband; ordered Wife as the residential parent of the children; divided the marital assets; and awarded Wife $5,000 in attorney fees.
{¶ 6} Wife now appeals, raising six assignments of error for our review. However, we first address Husband‘s assertion of a “fatal defect” in Wife‘s appellate brief. Husband argues that Wife failed to identify the parts of the record on which she relied in alleging the trial court‘s errors, in violation of
{¶ 7}
{¶ 8} Husband argues that although Wife “does make references to the Magistrate‘s Decisions which she alleges are in error,” these decisions are “not part of the record * * * as required by statute.” Husband insists that an appellant is required to reference the trial transcript in pointing to where the error occurred. While the trial transcript is certainly fair game for referencing the record, it is not the only part of the record to which a party may cite.1
{¶ 9} In the instant case, Wife cites to various parts of the record, including for example, “Judgment Entry, June 12, 2008, p.1.” The court‘s judgment entry, upon which this appeal is based, is certainly part of the record. Furthermore, it is within our discretion whether or not to review an assignment of error based on allegations of failure to cite to the record. See
{¶ 10} We begin by addressing Wife‘s first and third assignments of error:
{¶ 11} “I. The trial court erred as a matter of law and abused its discretion in the determination of the parties’ gross income for purposes of calculating child support.
{¶ 12} “III. The trial court erred as a matter of law and abused its discretion by determining that the Garfield Snack Shack had a fair market value of $125,000.00.”
{¶ 13} When appealing a court‘s ruling on objections to a magistrate‘s decision, pursuant to
{¶ 14} Wife failed to raise the above two issues in her objections to the magistrate‘s decisions; therefore, she has waived them for purposes of appeal. See Wilson v. Wilson, Cuyahoga App. No. 86817, 2006-Ohio-4361, at ¶25-26 (holding that ”
{¶ 15} Wife‘s first and third assignments of error are overruled.
{¶ 16} Wife‘s second assignment of error states as follows:
{¶ 17} “II. The trial court erred as a matter of law and abused its discretion by not adequately indicating the basis for its spousal support award.”
{¶ 18} When ruling on a magistrate‘s decision, the trial court “shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 20} In State ex rel. Duncan v. Chippewa Township Trustees (1995), 73 Ohio St.3d 728, 730, the Ohio Supreme Court held that “[w]hen a party objecting to a [magistrate‘s] report has failed to provide the trial court with the evidence and documents by which the court could make a finding independent of the report, appellate review of the court‘s findings is limited to whether the trial court abused its discretion in adopting the [magistrate‘s report], and the appellate court is precluded from considering the transcript of the hearing submitted with the appellate record.” See, also, Schott v. Schott, Tuscarawas App. No. 2003 AP 10-0082, 2004-Ohio-1914, at ¶16 (holding that “where an appellant fails to provide a transcript of the original hearing before the magistrate for the trial court‘s review, the magistrate‘s findings of fact are considered established“).
{¶ 21} In the instant case, transcripts from the original hearings and trial dates before the magistrate were not filed in the trial court at the time the court issued its June 12, 2008 judgment entry of divorce. Rather, Wife filed eight volumes of
{¶ 22} Although the magistrate‘s decision notes that transcripts were ordered, a scrupulous review of the record, including the court‘s docket, shows that they were not filed until after the court issued its judgment entry on June 12, 2008. The only transcripts that were provided to this Court are file-stamped on July 14, 2008 - clearly, we cannot review documents that were filed in the trial court on the same day as the notice of appeal.
{¶ 23}
{¶ 24} In the instant case, the trial court, in ruling on Wife‘s objections to the magistrate‘s decisions and granting the divorce in its June 12, 2008 judgment entry, stated the following regarding spousal support: “The Court further finds that Plaintiff‘s second objection is meritorious. Consequently, the spousal support for Plaintiff shall be increased to $1,500.00 per month and the duration of the spousal shall should [sic] be increased from 4 years to 7 years. * * * Suluman Najjar shall pay to Rashieda Najjar the sum of $1,530.00, which sum includes 2 percent processing charge, per month as spousal support. Said spousal support shall continue until the death of either party, or the remarriage of Plaintiff, or the expiration of seven (7) years from the date of the final decree in this matter (whichever shall first occur).”
{¶ 25} Although the court found merit to Wife‘s objection regarding spousal support and increased the award, the court did not refer to any findings of fact or conclusions of law from the magistrate‘s decision, and the judgment entry makes no other mention of spousal support or any other reasoning for the $530 increase.
{¶ 26} We find that the trial court failed to adhere to the mandates of
{¶ 27} In Longo v. Longo, Geauga App. No. 2004-G-2556, 2005-Ohio-2069, the Eleventh District Court of Appeals of Ohio held that
{¶ 29} Wife‘s second assignment of error is sustained, insomuch as the trial court abused its discretion.
{¶ 30} Wife‘s fourth assignment of error states as follows:
{¶ 31} “IV. The trial court judge failed to adopt any specific findings in support of its final judgment entry of divorce dated June 12, 2008.”
{¶ 32} In the instant case, Wife fails to cite to legal authority to support her assertions under this assignment of error. Pursuant to
{¶ 33}
{¶ 35} “(a) Action of court required. A magistrate‘s decision is not effective unless adopted by the court.
{¶ 36} “(b) Action on magistrate‘s decision. Whether or not objections are timely filed, a court may adopt or reject a magistrate‘s decision in whole or in part, with or without modification. A court may hear a previously-referred matter, take additional evidence, or return a matter to a magistrate.”
{¶ 37} In the instant case, the court did not expressly adopt or reject, with or without modification, the magistrate‘s February 11, 2008 decision. However, the court overruled Wife‘s first and third objections to the magistrate‘s decision relating to the issues of attorney fees and authentication of the financial document from a foreign bank. By implication, we assume the court adopted the magistrate‘s decision regarding these issues, including its findings of fact and conclusions of law. Additionally, the court found Wife‘s second objection “meritorious.” While it is unclear whether the court rejected the “magistrate‘s decision in whole or in part, with or without modification,” this argument is made moot by our ruling on Wife‘s second assignment of error. See
{¶ 38} Wife‘s fourth assignment of error is overruled in part and made moot in part.
{¶ 39} In Wife‘s fifth and sixth assignments of error, she states as follows:
{¶ 41} “VI. The trial court erred as a matter of law and abused its discretion when it refused to accept into evidence a bank statement titled in defendant-appellee‘s name from the Arab Bank of Jordan, reflecting funds in the amount of $384,439.48, and by failing to divide this marital asset.”
{¶ 42} We first note that although the trial court did not expressly “adopt” the magistrate‘s decision as required by
{¶ 43} Next, we are limited in our review of these issues because transcripts of matters before the magistrate were not filed in the trial court for the judge‘s review. “When a party objecting to a [magistrate‘s] report has failed to provide the trial court with the evidence and documents by which the court could make a finding independent of the report, appellate review of the court‘s findings is limited to whether the trial court abused its discretion in adopting the [magistrate‘s] report, and the appellate court is precluded from considering the transcript of the hearing submitted with the appellate record.” Duncan, supra, 73 Ohio St.3d, at 730. See, also, Cosic v. Singh, Cuyahoga App. No. 80366, 2002-Ohio-4085.
{¶ 44} In the instant case, the magistrate found that Wife requested that Husband pay $19,000 toward her attorney fees. “The Magistrate finds that the amount of fees requested by [Wife] are reasonable and necessary considering the
{¶ 45}
{¶ 46} Wife argues that the court did not specifically state that the award of attorney fees was equitable, nor did it specifically “indicate that it considered any of the factors listed in the statute.” Wife additionally argues that Husband had an “overwhelmingly greater income” than she did; therefore, “it is incomprehensible that the Trial Court would order a mere $5,000 to [Wife] as and for attorney fees.” Wife cites no case law to support her position.
{¶ 47} Despite our limited standard of review of this issue, we again find that the court abused its discretion regarding the magistrate‘s decisions. See Williams-Booker v. Booker, Montgomery App. Nos. 20752, 21767, 2007-Ohio-4717 (holding that it was not an abuse of discretion to award a party to a divorce action to pay 62
{¶ 48} The partial award of $5,000 is arbitrary and unreasonable. The magistrate‘s findings of fact, which we must consider “established,” support an award of $19,000, which is the entire amount Wife requested. The magistrate found that Wife‘s request was reasonable and necessary, as she did not have the means to pay her attorney fees, many of which were caused by Husband. The magistrate then inexplicably awarded Wife approximately 26 percent of her request. As there is no evidence that the court undertook an independent review of the partial award, we find the court abused its discretion in overruling Wife‘s objection to this decision.
{¶ 49} Wife‘s fifth assignment of error is sustained.
{¶ 50} In Wife‘s sixth and final assignment of error, she argues that the court abused its discretion in finding inadmissible a financial document that Wife allegedly discovered after the magistrate issued his February 2, 2008 decision.
{¶ 51} On April 28, 2008, the magistrate held a hearing on a motion to reopen the evidence that Wife filed on April 7, 2008. The magistrate‘s decision stated that Wife testified that Husband‘s relative, who she knows only by the name of “Omar,” mailed her a statement from the Arab Bank in Amman Jordan. The statement was
{¶ 52} The magistrate‘s decision also stated that Husband “testified that he has no relative named Omar, that the account in question was closed as he had testified at the original trial, and that [the document] was a forgery.”
{¶ 53} The magistrate then found that, although the document did not appear to be a forgery on its face, Wife‘s testimony was not enough to properly authenticate or establish a foundation for the document.
{¶ 54}
{¶ 55} In the instant case, the court did not abuse its discretion in determining that the document in question was inadmissible. Under
{¶ 57} Judgment affirmed in part, reversed in part and remanded to the trial court for further proceedings.
It is ordered that appellant recover from appellee her costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas, Domestic Relations Division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
COLLEEN CONWAY COONEY, A.J., CONCURS IN JUDGMENT ONLY