[Cite as Chahdi v. Elhassan, 2019-Ohio-4472.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Amina O. Chahdi,                                 :

                Plaintiff-Appellant,             :
                                                                      No. 18AP-674
v.                                               :                 (C.P.C. No. 17DR-2091)

Ali Elhassan,                                    :                (REGULAR CALENDAR)

                Defendant-Appellee.              :




                                          D E C I S I O N

                                   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.
No. 18AP-674                                                                                              2

        {¶ 2} The parties married on October 4, 2013.1 During the marriage, the parties
resided together in a condominium located at 5275 Berrywood Drive in Columbus, Ohio.
On May 31, 2017, Chahdi filed a complaint for divorce.
        {¶ 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[."]
1 The decree of divorce states that the parties married on December 4, 2013, but both the parties' testimony
and stipulations establish the wedding date as October 4, 2013. (Tr. at 10; May 15, 2018 Stipulations at ¶ 5
(stating that the duration of the marriage is "from 10-4-13 to present").)
No. 18AP-674                                                                                  3


(Tr. at 36.)
       {¶ 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." R.C. 3105.171(B). The court
must then divide the marital and separate property equitably between the spouses in
accordance with R.C. 3105.171. R.C. 3105.171(B); Wolf-Sabatino v. Sabatino, 10th Dist. No.
10AP-1161, 2011-Ohio-6819, ¶ 9. This equitable division entails splitting the marital
property equally or, if an equal split is inequitable, splitting the marital property equitably.
R.C. 3105.171(C)(1); Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, ¶ 5. Generally,
the court disburses a spouse's separate property to that spouse. R.C. 3105.171(D); Hamad
v. Hamad, 10th Dist. No. 06AP-516, 2007-Ohio-2239, ¶ 53.
       {¶ 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." R.C. 3105.171(A)(3)(a)(i). Marital
property does not include separate property. R.C. 3105.171(A)(3)(b). Separate property, as
relevant to this case, includes: (1) "[a]ny real or personal property or interest in real or
No. 18AP-674                                                                                 4

personal property that was acquired by one spouse prior to the date of the marriage," and
(2) "[a]ny gift of any real or personal property * * * that is made after the date of the
marriage and that is proven by clear and convincing evidence to have been given to only
one spouse." R.C. 3105.171(A)(6)(a)(ii) and (vii). Generally, "the holding of title to property
by one spouse individually or by both spouses in a form of co-ownership does not determine
whether the property is marital property or separate property." R.C. 3105.171(H).
       {¶ 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 R.C. 3105.171(A)(6)(a) definitions
applies to the asset. Beagle v. Beagle, 10th Dist. No. 07AP-494, 2008-Ohio-764, ¶ 23.
However, if a party claims the asset is separate property under R.C. 3105.171(A)(6)(a)(vii),
the burden is higher. In that situation, the party must demonstrate by clear and convincing
evidence that the asset was a gift bestowed only on one spouse. Id. at ¶ 23, fn. 1. An
appellate court will not reverse a trial court's characterization of property as marital or
separate property unless it is against the manifest weight of the evidence. Dach at ¶ 33.
       {¶ 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 R.C. 3105.171(A)(3)(a)(i), the Berrywood property qualified as marital
property. The trial court, therefore, should have begun its analysis with the presumption
that the Berrywood property was marital property and required the parties to prove
otherwise.
       {¶ 16} The trial court, instead, presumed that the Berrywood property was
Elhassan's separate property under R.C. 3105.171(A)(6)(a)(ii) because Elhassan acquired it
prior to the parties' marriage. Indisputably, Elhassan acquired the Berrywood property
prior to his marriage to Chahdi. However, it is equally indisputable that Elhassan divested
himself of the Berrywood property prior to the marriage. Over a year before he married
Chahdi, Elhassan transferred the Berrywood property to Jaber. Elhassan, therefore, did
not own the condominium when he married. This fact complicates the classification of the
Berrywood property.
No. 18AP-674                                                                                           5

        {¶ 17} In adopting R.C. 3105.171 in 1990, the General Assembly codified into Ohio
law the principle of equitable distribution of property at divorce. 1 Sowald & Morganstern,
Ohio Domestic Relations Law, Section 12:2 (4th Ed.2018). In an equitable distribution
jurisdiction that distinguishes between marital and separate property, like Ohio, assets
brought to the marriage by either spouse are separate property. Waggoner, Marital
Property Rights in Transition, 59 Mo.L.Rev. 21, 45-46 (1994); Levy, An Introduction to
Divorce-Property Issues, 23 Fam.L.Q. 147, 152 (1989). Consequently, "as a general matter
all property owned by either spouse before marriage continues to be his or her separate
property after marriage." 2 Tingley & Svalina, Marital Property Law, Section 53:1 (2d
Rev.Ed.2019). This exception to the presumption of marital property "reflects a widespread
consensus that marriage alone should not affect the ownership interest that each spouse
has over property possessed prior to the marriage." American Law Institute, Principles of
the Law of Family Dissolution: Analysis and Recommendations, Section 4.03, Comment
a (2002).
        {¶ 18} To protect a spouse's separate ownership of property brought into a marriage,
R.C. 3105.171(A)(6)(a)(ii) defines as separate property "[a]ny real or personal property or
interest in real or personal property that was acquired by one spouse prior to the date of the
marriage." Almost always, property that falls into the statutory definition (acquired by one
spouse prior to the date of marriage) will also fall into the other definition (brought into the
marriage). Consequently, Ohio courts have interpreted R.C. 3105.171(A)(6)(a)(ii) to mean
separate property is property brought into the marriage. Ortiz v. Ortiz, 7th Dist. No. 05 JE
6, 2006-Ohio-3488, ¶ 21; Hurte v. Hurte, 164 Ohio App.3d 446, 2005-Ohio-5967, ¶ 19 (4th
Dist.); Partridge v. Partridge, 2d Dist. No. 98 CA 38 (Aug. 27, 1999); Micham v. Micham,
6th Dist. No. L-97-1308 (Sept. 30, 1998).
        {¶ 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.

2 This case is extremely unusual because a divorce rarely involves real property that one spouse acquired
and disposed of before the marriage and the other spouse acquired during the marriage. Had Chahdi not
received ownership of the Berrywood property during the marriage, the property would not be at issue in
this divorce.
No. 18AP-674                                                                                6

       {¶ 20} Normally, the separate character of an asset becomes an issue in a divorce
because one spouse purchased it prior to the marriage and retained ownership into the
marriage. The law steps in to preserve the separate nature of the property; marriage does
not convert the previously acquired property to communal property. Where a spouse deeds
property to another before the marriage, the spouse does not bring the property into the
marriage. The law, then, has nothing to safeguard.
       {¶ 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 R.C. 3105.171(A)(6)(a)(ii) would
establish the Berrywood property as Elhassan's separate property because he acquired it
prior to the marriage. That result, however, is unreasonable given that Elhassan disposed
of the condominium before he married and, thus, he never separately owned it during the
marriage. The statute cannot intend to designate the Berrywood property as Elhassan's
separate property when only Chahdi owned the condominium during the marriage.
Consequently, we conclude that the Berrywood property is not Elhassan's separate property
pursuant to R.C. 3105.171(A)(6)(a)(ii).
       {¶ 23} In addition to relying on R.C. 3105.171(A)(6)(a)(ii), the trial court found the
Berrywood property was Elhassan's separate property because "[t]he ownership interests
of this particular parcel of real estate are clearly traceable." (Decision and Jgmt. Entry
Decree of Divorce at 9.) However, traceability has no applicability to this case.
       {¶ 24} Traceability determines whether separate property retains its separate
identity even after it is commingled with marital property, as when, for example, spouses
No. 18AP-674                                                                             7

pay for real estate with both separate and marital funds. R.C. 3105.171(A)(6)(b); Alexander
v. Alexander, 10th Dist. No. 09AP-262, 2009-Ohio-5856, ¶ 48. Upon a divorce, to establish
that property acquired during marriage is partially separate property and, thus, to
overcome the marital property presumption, a spouse must trace the property owned at the
time of the divorce to its prior separate identity. Furman v Furman, 10th Dist. No. 10AP-
407, 2011-Ohio-6558, ¶ 27. Thus, property "retain[s] its separate nature if the history of
the property [can] be accurately traced as separate property both before and during the
marriage." Bailey v. Marrero-Bailey, 7th Dist. No. 10 BE 16, 2012-Ohio-894, ¶ 33; accord
Fiamengo v. Fiamengo, 2d Dist. No. 26704, 2016-Ohio-4720, ¶ 28 (holding that separate
property is traceable if evidence demonstrates a connection between property currently
owned and some antecedent article of separate property).
       {¶ 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 R.C. 3105.171(A)(6)(b). Instead, the trial court followed the ownership
history of presumptively marital property, and, because that history led back to Elhassan,
the court found the property was his separate property. Nothing in R.C. 3105.171 authorizes
this method of classifying property.
       {¶ 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. R.C.
3105.171(A)(6)(a)(vii). To prove such a gift constitutes separate property, a spouse must
show by clear and convincing evidence that the property was "given with the intent to
provide a benefit to only one of the spouses." Lindsey v. Lindsey, 10th Dist. No. 15AP-733,
2016-Ohio-4642, ¶ 15; accord Garrett v. Garrett, 12th Dist. No. CA2015-09-024, 2016-
Ohio-262, ¶ 31; Fricke v. Martin-Fricke, 2d Dist. No. 00 CA 57 (May 18, 2001).
       {¶ 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
No. 18AP-674                                                                                             8

Berrywood property, therefore, is not Chahdi's separate property under R.C.
3105.171(A)(6)(a)(vii).
        {¶ 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." R.C. 5804.04. A trust has an illegal
purpose, and is thus invalid, if the settlor's purpose in creating the trust was to defraud
creditors. Official Comment, Uniform Trust Code Section 404.3 Consequently, "[i]f the
owner of property transfers it to another who agrees to hold it in trust for him and
subsequently to reconvey it to him, and the purpose of the settlor in creating the trust was
to prevent his creditors, present or future, from reaching the property, the intended trust is
invalid." Restatement of the Law 2d, Trusts, Section 63, Comment b (1959); accord
Restatement of the Law 3d, Trusts, Section 29, Comment d (2003) (stating that a trust is
invalid and thus unenforceable where a person "purchase[s] land * * * and, for the purpose
of defrauding creditors * * *, ha[s] title placed in the name of another, who agrees to hold
the property upon a trust for the purchaser").
        {¶ 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.




3 When the General Assembly enacted R.C. 5804.04, it adopted into Ohio law Section 404 of the Uniform
Trust Code. We, therefore, rely on the official comment to Section 404, as well as the Restatement sections
cited in that comment, to interpret R.C. 5804.04.
No. 18AP-674                                                                                9

       {¶ 31} Having addressed all of the parties' arguments, we conclude that neither
spouse rebutted the presumption that the Berrywood property constituted marital
property. The trial court, therefore, erred in concluding that the Berrywood property was
Elhassan's separate property. Accordingly, we sustain Chahdi's first assignment of error.
       {¶ 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 R.C. 3105.171(C), which governs the division of marital
property. Therefore, contrary to Elhassan's assertion, the court has yet to determine what
sort of property division is equitable. We thus sustain the second assignment of error.
       {¶ 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 R.C. 3105.171.
                                                    Judgment reversed; cause remanded.

                                SADLER, J., concurs.
                    NELSON, J., concurs in part and dissents in part.
No. 18AP-674                                                                                10

NELSON, J., concurring in part and dissenting 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 R.C. 3105.171(A)(6)(a)(vii), "separate property" includes "[a]ny
gift of any real or personal property or of an interest in real or personal property that is
made after the date of the marriage and that is proven by clear and convincing evidence to
have been given to only one spouse." (This provision, by the way, seems to me to add textual
support for the view that the terms of the (a)(ii) subsection relate to property brought into
the marriage by one spouse or the other, and the related statutory definition of "marital
property" further tends to support that understanding; reading the statute fairly and as a
whole, I do not think that we need to resort to arguments about what we might consider
"absurd" results.) The only way that the scheme as outlined by Elhassan could have worked
would have been for interest in the property to move solely to Chahdi, rather than being
given both to Chahdi and Elhassan: by their accounts, that is what Nidal and Ali Elhassan
seem to have intended to accomplish. But by their account too, although not in Chahdi's
version, the transfer to her might be seen as intended for their joint benefit, as the majority
observes.
       {¶ 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.
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