Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sayegh v. Khoury

Court of Appeals of Ohio, Fifth District, Muskingum

May 17, 2017

MICHAEL SAYEGH Plaintiff - Appellee/Cross-Appellant
v.
SAMAR KHOURY Defendant-Appellant/Cross-Appellee

         Appeal from the Muskingum County Court of Common Pleas, Domestic Relations Division, Case No. DB2014-0405

          For Plaintiff-Appellee/Cross-Appellant JEANETTE MOLL

          For Defendant-Appellant/Cross-Appellee DAVID F. AXELROD ADAM M. GALAT Shumaker, Loop & Kendrick, LLP

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          Baldwin, J.

         {¶1} Appellant Samar Khoury appeals a divorce decree of the Muskingum County Common Pleas Court, Domestic Relations Division terminating her marriage to appellee Michael Sayegh and dividing marital property (CT2015-0045). She also appeals a judgment granting appellee's motion for Civ. R. 60(B) relief (CT2015-0063). [1]

         STATEMENT OF THE FACTS AND CASE

         {¶2} The parties in the instant case were married on April 2, 2005. Appellant is a physician specializing in cardiology. Appellee is a physician specializing in anesthesiology and pain management. No children were born as issue of the marriage.

         {¶3} Appellee filed the instant complaint for divorce on May 8, 2014. Appellant answered and counterclaimed. The case proceeded to a three-day trial commencing April 1, 2015. The issues centered nearly entirely around the division of the assets of the marriage, as the parties owned commercial and residential real estate both in Muskingum County and in Syria.

         {¶4} On June 1, 2015, the parties both filed extensive proposed findings of fact and conclusions of law. On August 17, 2015, the court entered judgment stating that it would adopt appellee's proposed findings of fact and conclusions of law with certain changes set forth in the judgment. The court ordered appellee to prepare a judgment of divorce accordingly. The court entered judgment in accordance with the entry prepared by appellee on August 19, 2015. Appellant filed a notice of appeal from this entry.

         {¶5} On the second day of trial, a car crashed into the side of a commercial building owned by the parties on Maple Avenue in Zanesville. The parties had stipulated that the value of the building was $990, 000.00. The damage was acknowledged on the record, and the parties stipulated that insurance proceeds would follow the building and be assigned in the same manner in which the property was distributed.

         {¶6} While completing repairs from the accident, Ronald Lafferty, the general contractor, discovered additional moisture damage relating to improper construction. He prepared an estimate to address these damages of $45, 415.00.

         {¶7} Work began to address the additional damages on September 11, 2015. Portions of the outside walls known as drivit were removed, revealing substantial structural compromise to the supporting roof beams caused by water leaking over a period of time. A structural engineer who assessed the integrity of the building estimated the repair cost to be $205, 364.00.

         {¶8} Appellee moved for relief from judgment pursuant to Civ. R. 60(B)(2). Appellee amended his motion to seek relief pursuant to Civ. R. 60(B)(1) and (5).

         {¶9} The court set the matter for an evidentiary hearing. At the hearing, Ron Lafferty testified that the discovery of these damages could only be made upon the removal of the exterior drivit, which would not typically be done during a real estate appraisal or inspection due to the expense of removing and replacing the drivit, and matching it to the color of the adjacent exterior areas.

         {¶10} The trial court granted the motion, finding that the parties were mutually mistaken as to the condition of the building, and the evidence concerning the structural damage to the building was not available to either of them prior to trial, as it was not discoverable through an ordinary inspection or appraisal process. Appellant filed a notice of appeal from this entry.

         {¶11} Appellant assigns five errors on appeal to this Court:

         {¶12} "I. THE TRIAL COURT ERRED BY DENYING APPELLANT THE PROTECTIONS AFFORDED BY LOCAL RULE 9 OF THE DOMESTIC RELATIONS RULES OF PRACTICE AND PROCEDURE FOR MUSKINGUM COUNTY COURT OF COMMON PLEAS.

         {¶13} "II. THE TRIAL COURT ERRED BY ADOPTING APPELLEES PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, WHICH WERE FACTUALLY AND LEGALLY INACCURATE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶14} "III. THE TRIAL COURT ERRED BY CONCLUDING THAT THE REAL ESTATE REFERRED TO AS 'DAMASCUS' WAS THE APPELLEE'S SEPARATE PROPERTY BASED ON A 'GIFT/INHERITANCE.'

         {¶15} "IV. THE TRIAL COURT ERRED BY CONCLUDING THAT REAL ESTATE REFERRED TO AS 'SAFITA 1' WAS MARITAL PROPERTY.

         {¶16} "V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING RELIEF UNDER OHIO CIV. R. 60(B)."

         {¶17} After oral argument, we sua sponte stayed the appeal and remanded to the trial court for the limited purpose of finishing its disposition of the Civ. R. 60(B) motion, as the trial court had not allocated financial responsibility for the structural damage prior to the filing of the notice of appeal from the entry granting the motion. Judgment Entry, 9/26/16. The trial court initially set the matter for an evidentiary hearing on the issue of damages. However, on January 17, 2017, the court dismissed the Civ. R. 60(B) motion based on the Ohio Supreme Court's decision in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5502, 69 N.E.3d 664.

         {¶18} Appellee filed a notice of appeal from the judgment (CT2017-0010[2]) and assigns the following errors on cross-appeal:

         {¶19} "I. THE TRIAL COURT ERRED IN RULING ON DR. KHOURY'S MOTION TO DISMISS AS IT LACKED JURISDICTION SUCH THAT THE TRIAL COURTS ENTRIES OF JANUARY 17, 2017 AND FEBRUARY 1, 2017 ARE VOID AB INITIO.

         {¶20} "II. THE TRIAL COURT ERRED BY MISAPPLYING MORRIS AS WELL AS SEEKING TO RETROACTIVELY APPLY SUCH HOLDING.

         {¶21} "III. THE TRIAL COURT CORRECTLY GRANTED 60(B) RELIEF IN ITS ENTRY OF NOVEMBER 23, 2015.

         {¶22} "IV. AS THE TRIAL COURT DID NOT LACK SUBJECT MATTER JURISDICTION WHEN IT GRANTED DR. SAYEGH'S CIV. R. 60(B) MOTION, THE ENTRY OF NOVEMBER 23, 2015 IS NOT VOID AB INITIO."

         {¶23} Appellant has added one supplemental assignment of error based on the court's judgment on remand:

         {¶24} "VI. THE TRIAL COURT ERRED BY FAILING TO VACATE AS VOID AB INITIO THE NOVEMBER 23, 2015 JUDGMENT BASED ON ITS LACK OF SUBJECT MATTER JURISDICTION."

         I.

         {¶25} In her first assignment of error, appellant argues that the trial court failed to comply with Local R. 9 of the Muskingum County Domestic Relations Court, which provides:

Unless otherwise ordered by the Court, the Court shall prepare and file the proper Entry and cause a filed stamped copy thereof to be sent to all counsel of record and or parties unrepresented by counsel. Except as to matters in which the Court prepares a proper Entry, counsel for the party in whose favor an order, decree or judgment is rendered, shall within five (5) days thereafter prepare the proper entry, and submit it to counsel for the adverse party who shall approve or reject the same within five (5) days after the receipt thereof. If approval or rejection of an entry is not communicated to counsel for the prevailing party within the five (5) day period or if counsel for the prevailing party does not prepare an entry within the five (5) day period, counsel for the other party may forthwith present an entry to the trial Court for approval. When the entry is approved by counsel, it shall be so endorsed and presented to the Judge to whom the case is assigned for approval and if signed by him shall be forthwith filed with the Clerk. If counsel are unable to agree upon an entry, the trial Judge shall prepare and enter a proper entry.

         {¶26} On June 1, 2015, both parties filed extensive proposed findings of fact and conclusions of law. By entry of August 17, 2015, the trial court informed the parties that it intended to accept appellee's findings with certain enumerated exceptions. The trial court instructed appellee to prepare the divorce decree. The decree was submitted to the court by appellee on August 19, 2015, and filed by the trial court on August 21, 2015. Therefore, appellant argues that she was not given the requisite five days to respond to the entry.

         {¶27} Appellee argues that this rule, which was effective October 14, 1977, was superseded by the Local Rules for the Muskingum County Common Pleas Courts which became effective February 1, 2014. Appellant maintains that as a specific rule of the Domestic Relations Court, the above-quoted rule applied regardless of the intervening adoption of rules for the Common Pleas Court.

         {¶28} Assuming arguendo that Loc. R. 9 as quoted above applied to the instant action, appellant has not demonstrated prejudice from the court's failure to allow her five days to respond to the entry prepared by appellee. Appellant filed a thirty-eight page document setting forth her proposed findings of fact and conclusions of law on June 1, 2015. Appellant thus was afforded ample opportunity to present her arguments to the court concerning the disputed issues in the case, and the court was aware of her position.

         {¶29} From the text of the rule, it appears that the purpose of the five day period is to allow the parties to reach an agreement upon an entry reflecting the court's ruling in the case, which was an exercise in futility in the instant case given the sharp disagreement between the parties concerning the division of marital assets. Appellant states at page six of her brief, "Dr. Khoury knew from Dr. Sayegh's proposed findings what to expect, and fully intended to detail the gross inaccuracies and object to the proposed decree." However, the trial court was fully aware of appellant's position on the issues in the case from her extensive proposed findings of fact and conclusions of law. Appellant has not demonstrated any prejudice from the court's failure to give her an opportunity to merely restate her position set forth at trial and in her proposed findings of fact and conclusions of law which were before the court.

         {¶30} The first assignment of error is overruled.

         II.

         {¶31} In her second assignment of error, appellant argues that the trial court failed to scrutinize appellee's proposed findings of fact and conclusions of law, and adopted them without regard to their accuracy. Appellant then cites to numerous findings of the court that she argues are against the manifest weight of the evidence.

         {¶32} Appellant's argument that the trial court merely signed off on appellee's proposed findings of fact without regard to the evidence presented at trial is wholly without merit. Both parties filed proposed findings on June 1, 2015. On August 17, 2015, the trial court issued a judgment concerning these findings which stated in pertinent part:

Subsequent to the conclusion of the final hearing the Court required both parties to submit proposed Findings of Fact and Conclusions of Law. After reviewing the submissions of both parties, and further upon the evidence presented, the Court hereby adopts the Findings of Fact and Conclusions of Law of Plaintiff except to the extent modified herein.

         {¶33} The court then set forth its modifications to appellee's findings of fact and conclusions of law, and ordered counsel for appellee to prepare a divorce decree accordingly. The record does not support appellant's claim that the trial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.