Court of Appeals of Ohio, Fifth District, Muskingum
from the Muskingum County Court of Common Pleas, Domestic
Relations Division, Case No. DB2014-0405
Plaintiff-Appellee/Cross-Appellant JEANETTE MOLL
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.
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). 
OF THE FACTS AND CASE
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
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
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.
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.
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.
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.
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).
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.
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
Appellant assigns five errors on appeal to this Court:
"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.
"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.
"III. THE TRIAL COURT ERRED BY CONCLUDING THAT THE REAL
ESTATE REFERRED TO AS 'DAMASCUS' WAS THE
APPELLEE'S SEPARATE PROPERTY BASED ON A
"IV. THE TRIAL COURT ERRED BY CONCLUDING THAT REAL
ESTATE REFERRED TO AS 'SAFITA 1' WAS MARITAL
"V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
GRANTING RELIEF UNDER OHIO CIV. R. 60(B)."
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.
Appellee filed a notice of appeal from the judgment
(CT2017-0010) and assigns the following errors on
"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.
"II. THE TRIAL COURT ERRED BY MISAPPLYING
MORRIS AS WELL AS SEEKING TO RETROACTIVELY APPLY
"III. THE TRIAL COURT CORRECTLY GRANTED 60(B) RELIEF IN
ITS ENTRY OF NOVEMBER 23, 2015.
"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
Appellant has added one supplemental assignment of error
based on the court's judgment on remand:
"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."
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.
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
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.
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.
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
The first assignment of error is overruled.
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.
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.
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