[Cite as Patel v. Patel, 2014-Ohio-2150.]


                               IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT

Aavaben K. Patel,                                :

                 Plaintiff-Appellee,             :
                                                                  No. 13AP-976
v.                                               :            (C.P.C. No. 13DR-02-511)

Bkamikkumar J. Patel,                            :        (REGULAR CALENDAR)

                 Defendant-Appellant.            :
                        ________

                                            D E C I S I O N

                                    Rendered on May 20, 2014
                              _______

                 Sonjay K. Bhatt, for appellee.

                 Ron Khasawneh, for appellant.
                             ______
                    APPEAL from the Franklin County Court of Common Pleas,
                                Division of Domestic Relations

DORRIAN, J.
        {¶ 1} Appellant, Bkamikkumar J. Patel ("appellant"), appeals from a judgment of
the Franklin County Court of Common Pleas, Division of Domestic Relations, granting a
decree of annulment of his marriage to appellee, Aavaben K. Patel ("appellee"), and finding
his counterclaim for divorce to be moot. For the following reasons, we affirm.
        {¶ 2} Appellant and appellee are both of Indian descent and are practicing Hindus.
Their parents arranged their marriage, which was legalized on April 12, 2011, in Franklin
County. Appellee had met appellant, for a few hours at a time, on several occasions prior to
legally marrying him. Consistent with their religious beliefs, however, the parties agreed
that they would not consummate their marriage until after a Hindu wedding ceremony had
been celebrated. They initially planned for the Hindu ceremony to take place in December
2011. Accordingly, after the civil marriage ceremony, appellant, a mechanical engineer,
No. 13AP-976                                                                                 2


returned to his home in Maryland, where he was employed, and appellee continued to live
with her parents in Franklin County.
       {¶ 3} Appellee's mother, however, became seriously ill and the couple postponed
their planned December 2011 Hindu wedding ceremony. Appellant visited appellee in
Columbus on several occasions after they were legally married and stayed in the home of
appellee's parents during those visits. But during those visits, appellant slept in a room
separate from appellee.
       {¶ 4} In January 2012, appellee's mother died. After her death, both parties
traveled to India to conduct an ashes-distribution ceremony and to shop for the wedding.
The parties rescheduled the Hindu ceremony for April 2012. While in India, appellee,
accompanied by appellant, purchased a wedding dress and other items for the wedding. In
March 2012, appellee returned to the United States. Appellant, however, did not return to
the United States, and no April 2012 Hindu ceremony occurred.               Rather, appellant
remained in India until July 2012.
       {¶ 5} At trial, the parties disagreed as to the reason why the Hindu wedding
ceremony did not occur. Appellee testified that, throughout 2011 and through April 2012,
she remained willing to participate in a Hindu ceremony and to thereafter consummate the
marriage. She stated that, after she returned to the United States from India, appellant
made excuses and postponed the wedding several times; they stopped communicating by
telephone; and ultimately stopped contacting each other altogether. She testified that it
became apparent to her that appellant did not want to go through with the wedding.
       {¶ 6} Appellee further testified that she believed appellant entered into the civil
marriage in order to obtain permanent resident status in the United States. Appellee was a
citizen of the United States and, shortly after the civil marriage, had, with the assistance of
family members, filed an visa application on appellant's behalf based on the grounds that
they were legally married. As a result, appellant received a conditional green card
authorizing him to remain in the United States as a permanent resident.
       {¶ 7} Appellant also testified at trial. He stated that, in April 2011, he was in the
United States on a student visa and was working in Maryland in an immigration status
described as optional practical training status, although he had also applied for an H1-B
work visa. He acknowledged traveling to India with appellee in early 2012 and
No. 13AP-976                                                                              3


accompanying her when she purchased her wedding dress. He stated that he remained in
India through July 2012 because his mother and grandmother were in poor health, and he
wanted to care for them. He acknowledged that he could not have reentered the United
States in July 2012 had he not had the green card he had obtained as a result of the
application filed by appellee and her family. He expressly denied, however, that he had
married appellant in order to obtain a green card. He testified that he obtained new
employment in the state of Virginia in August 2012 and that he was not aware of the effect
an annulment of his legal marriage would have on his immigration status.
      {¶ 8} Appellant further testified that, when they were both in India in early 2012,
he had asked appellee to participate in a small Hindu wedding ceremony there and stay
with him to help him care for his ailing relatives. He stated that she refused and, instead,
returned to the United States in March 2012. He testified that, when he returned to the
United States in July 2012, appellee's father and uncle had already suggested by telephone
and e-mail that they intended to initiate proceedings to terminate the civil marriage.
Appellant stated the he, therefore, had no reason to suggest a date for a rescheduled Hindu
wedding ceremony. He testified, in short, that it was appellee, rather than he, who backed
out of the Hindu ceremony.
      {¶ 9} At trial, both parties acknowledged that they shared a mutual understanding
that they would not consummate the marriage until after the Hindu wedding ceremony
had been conducted, consistent with the religion they shared. Both parties testified that a
Hindu ceremony never occurred, they never consummated the marriage, and they have
never lived together as man and wife.
      {¶ 10} The trial court entered a judgment declaring the marriage of the parties to be
void and of no effect "for the reason that the marriage between [appellee] and [appellant],
although otherwise valid, was never consummated." (Oct. 22, 2013 Decree, 6.) The court
characterized appellant's testimony as "vague and evasive," causing the court to question
his veracity. It concluded that appellant had, "at the very least avoided the performance of
their religious ceremony." (Decree, 5.) The court further found that appellee, on the other
hand, had "provided clear and satisfactory evidence that she remained ready and willing to
commit to [appellant] in a Hindu wedding ceremony (and consummate the marriage
thereafter) but that [appellant] continually postponed the ceremony and eventually cut off
No. 13AP-976                                                                              4


all communication with her." (Decree, 5.) The court rejected, however, appellee's claim
that appellant had fraudulently induced her to enter into the civil marriage for immigration
purposes.
       {¶ 11} The trial court determined that appellant was entitled to an annulment
pursuant to R.C. 3105.31(F) and 3105.32(F). It cited Lang v. Reetz-Lang, 22 Ohio App.3d
77 (10th Dist.1985) as authority for the proposition that those statutes "mean that '[w]here
one of the parties has willfully or knowingly refused or avoided consummation of the
marriage, the other has a proper ground for annulment, although the marriage was valid
otherwise.' " (Decree, 4.)
       {¶ 12} The trial court recognized that, in Lang, this court found that annulment
requires a finding that the defendant is somehow at fault for not consummating the
marriage. It questioned Lang's holding that annulment requires a finding of fault,
observing that the case before it presented fairly unique circumstances that were most
likely not considered in 1963 when the annulment statutes were adopted. It found that
both parties strictly adhered to their Hindu faith and practices and opined that "[a] person
should not be denied an annulment because his or her religious practices have caused a
delay in consummation when the Hindu wedding ceremony forbids consummation before
said ceremony." (Decree, 6.) The trial court observed that, to the extent that a showing of
fault was required, the "Hindu ceremony was a condition precedent to the consummation
of the marriage, and [appellant's] failure to go through with the wedding then, constitutes
the required 'fault.' " (Decree, 6.)
       {¶ 13} Appellant has raised two assignments of error, as follows:
               I. The Trial Court erred and abused its discretion in awarding
               Plaintiff-Appellee an annulment on the basis of lack of
               nonconsummation [sic] when both parties agreed not to
               consummate the marriage and when the parties both had good
               cause to postpone their religious ceremonies.

               II. The Trial Court erred and abused its discretion in awarding
               Plaintiff-Appellee an annulment on the basis of lack of
               nonconsummation [sic] when her testimony was not supported
               by other credible evidence as required by Ohio Rule of Civil
               Procedure 75(M).
No. 13AP-976                                                                                5


       {¶ 14} We are unaware of specific precedent expressly discussing the appropriate
standard of appellate review to be applied in annulment cases. We are, however, cognizant
of our obligation generally to uphold the judgments of domestic relations courts absent a
finding that the court abused its discretion. Scinto v. Scinto, 10th Dist. No. 09AP-5,
2010-Ohio-1377, ¶ 4, citing Booth v. Booth, 44 Ohio St.3d 142 (1989) ("The standard of
review in domestic relations cases is whether the trial court abused its discretion."). See
also Dagostino v. Dagostino, 165 Ohio App.3d 365, 2006-Ohio-723, ¶ 12 (4th Dist.)
(applying abuse-of-discretion standard of review to trial court's determination whether the
plaintiff-appellee had established grounds for divorce). Moreover, in Buckles v. Buckles, 46
Ohio App.3d 102, 116 (10th Dist.1988), we recognized in a divorce case that the trial court
has a "large measure of discretion to determine the sufficiency of the evidence, the
credibility of the witnesses and the weight to be given to the testimony" and that "[a] trial
court has broad discretion to determine the proper grounds for divorce, and such finding
should not be overturned in the absence of any showing that there was an abuse of
discretion of such a nature as to * * * prejudicially affect the complaining party." Id.
       {¶ 15} In the case before us, both appellant and appellee sought termination of the
marriage and agreed on the underlying facts. While in this case appellant sought divorce as
the vehicle for terminating the marriage, and appellee sought annulment, the foregoing
precedent is nevertheless instructive and we therefore apply an abuse-of-discretion
standard of review. "An abuse of discretion occurs where a trial court's decision is
'unreasonable, arbitrary or unconscionable.' " Wolf-Sabatino v. Sabatino, 10th Dist. No.
12AP-1042, 2014-Ohio-1252, ¶ 6, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
       {¶ 16} In his first assignment of error, appellant suggests that he was not at fault in
failing to participate in a Hindu wedding ceremony because he had good cause to stay in
India and care for his ill mother and grandmother, rather than return to the United States
and participate in a Hindu wedding ceremony in April 2012. He argues that, pursuant to
Lang, appellee could not be awarded an annulment, and the court, therefore, should have
proceeded to adjudicate his counterclaim seeking divorce.
No. 13AP-976                                                                                                  6


          {¶ 17} We first review the two statutes that govern annulment in Ohio, R.C. 3105.31
and 3105.32. Both statutes were enacted in 1963 and have not been revised or amended
since.1
          {¶ 18} As relevant to this case, R.C. 3105.31 provides, as follows:
                 A marriage may be annulled for any of the following causes
                 existing at the time of the marriage:

                 ***

                 (F) That the marriage between the parties was never
                 consummated although otherwise valid.

          {¶ 19} As relevant to this case, R.C. 3105.32 provides:

                 An action to obtain a decree of nullity of a marriage must be
                 commenced within the periods and by the parties as follows:

                 ***

                 (F) For the cause mentioned in division (F) of section 3105.31
                 of the Revised Code, by the party aggrieved within two years
                 from the date of the marriage.

(Emphasis added.)
          {¶ 20} It is apparent that neither statute expressly references fault or makes fault on
the part of one of the parties a requisite to annulment. In Lang, however, the court held in
its syllabus that an annulment on the grounds of lack of consummation pursuant to R.C.
3105.31(F) "does require some finding of fault on the part of the defendant." The court
justified its inclusion of fault as a requisite for annulment based on the inclusion of the
term "party aggrieved" in R.C. 3105.32(F) to describe a plaintiff in an annulment action.
The court reasoned as follows:
                 The proper interpretation of R.C. 3105.31(F) and 3105.32(F) is
                 that an action based upon nonconsummation contemplates
                 that the defendant is somehow at fault. The language utilized
                 in R.C. 3105.32(F) imparts this meaning—the "party aggrieved"
                 brings the action for nonconsummation. One treatise writer has
1 Prior to the 1963 enactment of R.C. 3105.31 and 3105.32, Ohio courts annulled marriages as an exercise of

their equitable authority. See Waymire v. Jetmore, 22 Ohio St. 271 (1872); Duncan v. Duncan, 88 Ohio App.
243, 244 (9th Dist.1950) (observing that, as of the date of the decision in 1950,"there are no statutory grounds
for annulment in Ohio. Such action is cognizable only in a court of equity").
No. 13AP-976                                                                                                7


                indicated that the draftsmen had in mind, in addition to
                impotency, a willful refusal to consummate the marriage
                without good cause as a ground for annulment. The court finds
                this is to be a logical interpretation of the nonconsummation
                subsection. Where one of the parties has willfully or
                knowingly refused or avoided consummation of the marriage,
                the other has a proper ground for annulment, although the
                marriage was valid otherwise.

(Emphasis added.) Id. at 79.
        {¶ 21} The court in Lang thus interpreted R.C. 3105.31(F) and 3105.32(F) to mean
that, where one spouse has willfully or knowingly refused to consummate the marriage, the
other spouse is an "aggrieved party" who has grounds for annulment. It specifically held
that the spouse seeking annulment was not required to prove that the defendant was
physically incapable of consummating the marriage, observing that, although "R.C.
3105.31(F) includes the condition of impotency," id.2 at 79, a willful or knowing refusal or
avoidance of consummation also constitutes a proper ground for annulment.
        {¶ 22} Appellant argues that he may not be found to be "at fault" for the
nonconsummation of the marriage as he and appellee had agreed to defer consummation
until after a Hindu wedding ceremony and because he had good cause to stay in India
through July 2012, i.e., to care for ailing relatives. He argues that the fact that the marriage
was not consummated was therefore not "his fault." We reject this argument. Read in the
context of the facts before it, the Lang court held that, where a party has willfully or
knowingly refused or avoided consummation of the marriage, that party is "somehow at
fault." Indeed, in Lang, as in the case before us, "[o]n the parties' wedding night, they failed
to consummate the marriage and, thereafter, neither party made any further attempt to
consummate." Id. at 78. The Lang court nevertheless affirmed the annulment decree,
noting that the trial court's failure to specifically assign fault to the defendant was not
prejudicial error, as the record clearly demonstrated that the defendant had "knowingly"
avoided, if not outright refused, to participate in intercourse with the plaintiff. In short, we
do not interpret Lang as requiring a trial court to determine that a party was at fault by


2 But see Kugel v. Kugel, 6th Dist. No. H-91-1 (Dec. 20, 1991), holding that a husband's physical inability to

consummate the marriage did not constitute grounds for annulment where both parties were aware of that
inability prior to the marriage, and the husband, rather than the wife, sought the annulment.
No. 13AP-976                                                                               8


willfully avoiding consummation. Rather, Lang clearly contemplates that, in the absence of
such a finding of fault, a finding that the parties knowingly did not consummate their
marriage would satisfy R.C. 3105.31(F).
       {¶ 23} In the case before us, the trial court found, as a matter of fact, that the
marriage between appellant and appellee was never consummated because appellant
avoided the performance of a Hindu wedding ceremony. It is undisputed that appellant
knowingly abstained from intercourse, even though they were legally married. Therefore,
consistent with Lang, we find that the trial court did not err in concluding the criteria of
R.C. 3105.31(F) had been met. The fact that appellee may have also agreed to defer
consummation until after a Hindu ceremony does not mandate a different conclusion.
       {¶ 24} The trial court did not abuse its discretion in awarding appellee an
annulment as she (1) proved at trial that "the marriage between the parties was never
consummated although otherwise valid," thereby establishing grounds for annulment
pursuant to R.C. 3105.31(F); and (2) held the status of an "aggrieved party," as that term is
used in R.C. 3105.32(F) and interpreted in Lang. We therefore overrule appellant's first
assignment of error.
       {¶ 25} We turn to appellant's second assignment of error, which asserts that a
decree of annulment was invalid because appellant's testimony was not supported by other
credible evidence as required by Civ.R. 75(M).
       {¶ 26} Civ.R. 75(M) provides:
               Judgment for divorce, annulment, or legal separation shall
               not be granted upon the testimony or admission of a party
               not supported by other credible evidence. * * * The parties,
               notwithstanding their marital relations, shall be competent
               to testify in the proceeding to the same extent as other
               witnesses.

       {¶ 27} This court has previously considered similar arguments based on Civ.R.
75(M). In Young v. Young, 10th Dist. No. 95APF03-247 (Dec. 19, 1995), we affirmed a
decree of divorce where the husband had, through his testimony at trial, corroborated his
wife's allegation of infidelity where there was no evidence that his testimony was untrue or
that improper influences had been brought against him to prompt him to testify as he had.
Accordingly, we found that the entry of divorce on grounds of adultery did not violate the
No. 13AP-976                                                                                                   9


dictates of Civ.R. 75(L) (now Civ.R. 75(M)3). Similarly, in Brooks-Lee v. Lee, 10th Dist. No.
03AP-1149, 2005-Ohio-2288, a husband challenged a judgment of divorce claiming that
the wife had failed to introduce corroborating evidence of a statutory ground for divorce.
We rejected the argument, finding that both parties had testified that the defendant had left
the marital residence in 2005 and that there was sufficient evidence that the parties had
lived separately and apart without cohabitation for one year. Id. at ¶ 65. Moreover, other
courts of appeals have recognized that the corroboration requirement imposed by the civil
rule may be satisfied by the testimony of a defendant spouse. Accord Thomas v. Thomas, 5
Ohio App.3d 94 (5th Dist.1982) (holding that a wife's testimony concerning her husband's
adultery was corroborated by the non-collusive in-court testimony of the husband himself
and sufficient under Civ.R. 75(L) for the grant of a divorce); Minnick v. Minnick, 12th Dist.
No. CA89-12-029 (July 23, 1990) (recognizing that Civ.R. 75(L) did not prohibit a decree of
divorce where both parties admitted appellant's adultery, as "the testimony or admission of
one party supports that of the other and provides the necessary corroborating evidence."
Id.
        {¶ 28} Consistent with this precedent, we find that appellant himself provided
corroborating evidence of nonconsummation. He did so by testifying at trial that he
knowingly agreed to delay consummation pending a religious wedding ceremony and that
such a ceremony never occurred, nor did consummation of the marriage. We observe, as
well, that interpreting Civ.R. 75(M) to require additional corroborative evidence of
nonconsummation beyond the testimony of both spouses might well prove highly
problematic in a case such as the one before us. Not only does proof of nonconsummation
require the plaintiff to prove a negative, i.e., that sexual intercourse did not occur, but the
question of whether a marriage was consummated generally lies exclusively within the
personal knowledge of the two spouses.


3 Civ.R. 75 has been revised on several occasions since the adoption of the Civil Rules, causing the provision at
issue in this case to be identified as Civ.R. 75(L) during certain periods of time and as Civ.R. 75(M) during
others. See Brooks v. Brooks, 10th Dist. No. 87AP-980 (Nov. 1, 1988), at fn.1, noting that "Civ.R. 75(M) was
renumbered in 1977 and is now Civ.R. 75(L)." See also the 1998 Official Comment to Civ.R. 75, stating that, in
1998, a new division was added to Civ.R. 75 and that "the remainder of the divisions were relettered
accordingly."
No. 13AP-976                                                                        10


      {¶ 29} We therefore overrule appellant's second assignment of error.
      {¶ 30} For the foregoing reasons, both of appellant's assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas, Division of
Domestic Relations, is affirmed.
                                                                     Judgment affirmed.
                            TYACK and O'GRADY, JJ., concur.
                                   ______________
