[Cite as Salameh v. Doumet, 2019-Ohio-5391.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


 LINA YOSSEF SALAMEH                           :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Third-Party Plaintiff-Appellee         :   Hon. Craig R. Baldwin, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 19 CAF 01 0009;
                                                   Consolidated with 19 CAF 01 0008
                                               :
 BOUCHRA DOUMET                                :
                                               :
                                               :
        Third-Party Defendant-Appellant        :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court
                                                   of Common Pleas, Domestic Relations
                                                   Division, Case No. 16 DR A 06 0316



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 27, 2019




APPEARANCES:

 For Third-Party Plaintiff-Appellee:               For Third-Party Defendant-Appellant:

 ROBERT BRACCO                                     OMAR TARAZI
 1170 Old Henderson Road                           5635 Sandbrook Lane
 Suite 109                                         Hilliard, OH 43026
 Columbus, OH 43220
Delaware County, Case No. 19 CAF 01 0009                                                 2



Delaney, P.J.

       {¶1} Third-Party Defendant-Appellant Bouchra Doumet appeals the December

27, 2018 Judgment Entry on the Amended Third-Party Complaint and Counterclaim and

other judgment entries of the Delaware County Court of Common Pleas, Domestic

Relations Division. Third-Party Plaintiff-Appellee is Lina Yossef Salameh.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Plaintiff-Appellant Anmar Salameh (“Husband”) and Defendant/Third-Party

Plaintiff-Appellee Lina Salameh (“Wife”) were married in Syria on August 7, 2009 and in

the United States on November 16, 2009.

                                      Marital Home

       {¶3} Husband has a brother, Bachar, and two sisters, Bouchra and Ritta. At the

time of the trial, Husband’s parents were living in Syria. Sister and her husband reside in

Toledo, Ohio. Bachar lives in Paris, France. Ritta lives with her parents in Syria. The

siblings testified at the trial and spoke of a close and supportive relationship, both

emotionally and financially. The evidence presented at trial showed numerous transfers

of money between Husband and his family before and during Husband and Wife’s

marriage in relation to property purchases.

       {¶4} Husband and Wife resided together at 10350 Widdington Close (“marital

home”) until December 27, 2016, when trial court issued a civil protection order against

Husband requiring Husband to vacate the marital home. The marital home, however, was

titled in the name of Sister.

       {¶5} On February 28, 2014, Husband and Wife closed on a property located at

10350 Widdington Close (“marital home”). The marital home was a foreclosure and listed
Delaware County, Case No. 19 CAF 01 0009                                               3


on a short sale for $650,000. At the time of the purchase, Husband stated he could not

obtain financing because he had lost his job with Beaver Excavating as a civil engineer.

Husband claimed that he and Sister, with advice from his real estate broker, agreed that

Sister would purchase the marital home as an investment property. Sister wanted to

purchase the house outright, but because of the short sale, the real estate broker

recommended the marital home be purchased in the name of Husband and Wife.

Husband and Wife could then transfer the marital home to Sister. Husband testified that

he, Wife, and Sister reached an oral agreement regarding the transfer to Sister. Wife

denied agreeing with the transfer to Sister. On February 20, 2014, Husband, Wife, and

Sister signed a “Terms of Transfer” document, which stated as follows:

      Anmar Salameh and Lina Yossef (the “Transferers”), a married couple,

      agree to transfer the sole title & ownership of the property located in

      Delaware County at 10350 Widdington Close, Powell, Ohio 43065 * * * to

      Bouchra S Doumet (the “Transferee”), a married woman, for the purchase

      price of $0 (zero dollars) immediately following the closing & settlement at

      Peak Title Agency, LLC. For the Transferers’ purchase of said property &

      parcels on February 28th, 2014.

      By signing below, the aforementioned parties agree to the terms set forth in

      the “Terms of Transfer”:

      {¶6} On February 28, 2014, Wife signed a HUD-1 Settlement Statement

regarding the sale of the marital home from the original sellers to Husband and Wife. The

contract price of the marital home was $350,000, which was then reduced by a real estate

tax credit from sellers for the purchase amount of $346,557.95. Husband paid $46,558 at
Delaware County, Case No. 19 CAF 01 0009                                                4


closing. He stated $37,279 were his separate funds from the sale of his pre-marital home

and $7,279 was marital funds. Sister paid $300,000. The account from which Sister

withdrew the $300,000 to pay for the marital home was also the account that she

deposited $130,000 from Husband. In 2013, Husband gave Sister $130,000 that she was

to give to Bachar for the construction of an apartment building in Syria.

       {¶7} On February 21, 2014, Wife signed a HUD-1 Settlement Statement

regarding the transfer of the marital home from Husband and Wife to Sister. After closing,

Husband and Wife transferred title and ownership of the marital home to Sister for no

consideration. Sister transferred her ownership of the marital home to a limited liability

company, BDMD, LLC, the sole member of which is a trust managed by Sister and her

husband.

                                     Divorce Action

       {¶1} On June 30, 2016, Husband filed a Complaint for Divorce with Children in

the Delaware County Court of Common Pleas, Domestic Relations Division. Wife filed an

Answer, Counterclaim, and Third-Party Complaint against Third-Party Defendant Valcon

Consulting Group, LLC.

       {¶2} The following summarizes the numerous filings by Wife and Sister in

relation to the issue of the marital home. Our summary does not include the equally

numerous filings between Wife and Husband; those can be found in our decision on

Husband’s separate appeal of the divorce proceedings.

       {¶3} On January 4, 2017, Wife filed a Motion to Add Third-Party Defendant

Instanter. Wife moved to add Husband’s sister, Third-Party Defendant-Appellant Bouchra

Doumet (“Sister”) as a third-party defendant due to Sister’s possession of an alleged
Delaware County, Case No. 19 CAF 01 0009                                                  5


marital asset, the marital home. Wife argued Sister was a necessary party to adjudicate

all property claims in the divorce proceeding.

       {¶4} Sister and Husband both opposed Wife’s motion to join Sister as a third-

party defendant. On January 27, 2017, Wife filed an amended motion to add Sister as a

third-party defendant. In her amended motion, Wife argued that Sister should be joined

to the divorce action pursuant to Civ.R. 75(B)(1). Wife also filed a reply to her motion to

add Sister as a third-party defendant.

       {¶5} Sister moved to evict Wife from the marital home on January 27, 2017.

       {¶6} On February 1, 2017, the magistrate assigned to the divorce proceeding

issued his order granting Wife’s motion to join Sister as a party to the action. The

magistrate found that pursuant to Civ.R. 15, Civ.R. 75, and R.C. 3105.171, the trial court

had jurisdiction to determine whether the residence was a marital asset and whether

Husband engaged in a fraudulent conveyance of said asset to Sister. It granted the motion

to add Sister as a third-party defendant. The trial court further granted Wife leave to file

an Amended Answer and Counterclaim. On February 9, 2017, the magistrate issued a

nunc pro tunc order to correct a typographical error.

       {¶7} On February 10, 2017, Sister filed a motion to set aside the magistrate’s

order granting Wife’s motion to join Sister as a third-party defendant. Sister contended

the Domestic Relations Division was without subject matter jurisdiction to consider Wife’s

arguments as to the ownership of the marital home. Sister filed a supplemental motion on

February 13, 2017.

       {¶8} On February 14, 2017, Wife filed a motion for a temporary restraining order

against Sister. Wife requested the trial court restrain Sister from evicting Wife from the
Delaware County, Case No. 19 CAF 01 0009                                                 6


marital home during the divorce proceedings. On that same day, Wife filed an amended

answer, counterclaim, and third-party complaint. Sister responded to the motion for

temporary restraining order on February 14, 2017.

       {¶9} On March 9, 2017, Sister filed a motion for temporary orders that Wife pay

Sister rent while Wife resided in the marital home during the divorce proceedings.

       {¶10} Sister filed a complaint for eviction, declaratory judgment, and ejectment

against Wife in the Delaware County Court of Common Pleas, General Division on April

6, 2017. The matter was stayed pending the resolution of the divorce proceedings.

       {¶11} On April 11, 2017, the trial court ordered Husband to pay rent to Sister on

the marital home in the amount of $4,000 per month. The trial court further restrained

Sister from evicting Wife from the marital home. Finally, the trial court denied Sister’s

motion to set aside the February 1, 2019 magistrate’s order.

       {¶12} On September 29, 2017, Sister filed a motion to compel discovery regarding

Sister’s entry into the marital home for inspection purposes.

       {¶13} On October 2, 2017, Sister filed a motion to dismiss Wife’s third-party

complaint for failure to state a claim upon which could be granted. Wife filed a motion for

leave to amend and clarify the third-party complaint.

       {¶14} On October 5, 2017, Sister filed a counterclaim for declaratory judgment

arguing she was the record title owner of the marital home. She brought claims for

ejectment, trespass, and unjust enrichment. Sister stated that Husband and Wife

transferred the marital home to Sister by General Warranty Deed. The marital home was

then transferred from Sister to a limited liability company, BDMD, LLC, the sole member

of which was a trust managed by Sister and her husband.
Delaware County, Case No. 19 CAF 01 0009                                                7


       {¶15} On October 13, 2017, Sister filed a motion for leave to file a motion for

summary judgment on Wife’s claims against Sister. Wife responded and Sister replied.

On December 7, 2017, the trial court denied Sister’s motion for leave without explanation.

       {¶16} On November 29, 2017, Sister filed a motion to compel discovery from Wife

regarding entry and inspection of the marital home. Wife responded to the motion on

December 1, 2017. On December 7, 2017, the trial court denied Sister’s motion to enter

the home because Wife had arranged for a real estate appraiser to enter the property for

an appraisal, including appropriate photographs. The trial court noted that Wife’s real

estate appraiser was the same person as suggested by Sister.

       {¶17} On December 19, 2017, the trial court issued a “Judgment Entry En Banc”

resolving the multiple motions from Wife, Sister, and Husband pending before the trial

court. The trial court summarized as follows:

       The underlying facts in the Record, and as alleged to the Court are actually

       quite simple – Plaintiff-Husband and Defendant-Wife are seeking to

       terminate their marriage, and each element in the action remains contested.

       As the marital realty (where the parties lived during the coverture of the

       marriage) is titled to Third-Party Defendant-Husband’s sister, and the

       Defendant is asserting a claim in full or part in the same, the realty may be

       subject to a determination/valuation under R.C. §3105.171, and is before

       the Court. Thus, Husband’s sister has been named a party to the action.

       This Court will not address the various tort claims of the parties, and as a

       Court of Equity, will not conduct a Jury Trial. Nor will the Court continue to

       address or consider further pleading issues.
Delaware County, Case No. 19 CAF 01 0009                                                   8


       The undersigned finds that the Court has a sufficient understanding and

       notice of the issues and claims for adjudication, and the parties, by any

       stretch of legal analysis, should also possess a sufficient understanding.

       The Court Denies and Overrules the various Pleadings, Requests for

       Dismissal/Summary Judgment, Leave to File, Jury Trial Request, etc. – En

       Banc.

(Dec. 19, 2017 Judgment Entry).

       {¶18} On December 26, 2017, Sister filed a motion for clarification of the trial

court’s December 19, 2017 judgment entry.

       {¶19} Wife filed a second amended answer, counterclaim, and third-party

complaint on December 27, 2017. As to Sister, Wife brought a claim of fraud and unjust

enrichment as to the transfer of the marital home.

       {¶20} The parties filed multiple motions for the trial court’s consideration before

the matter went to trial on January 17, 2018. The trial was held over a span of 18 days.

Six attorneys and two certified court interpreters were present at the trial. The trial court

heard the testimony of the parties, two economic experts, one vocational expert, various

witnesses regarding the real estate, and witnesses regarding the Valcon Consulting

Group, LLC. The parties submitted numerous binders filled with exhibits.

       {¶21} On January 30, 2018, the trial court filed a judgment entry regarding

stipulations of fact entered into by the parties. The stipulations included documents

related to the purchase and transfer of the marital home.

       {¶22} On December 27, 2018, the trial court issued its Final Judgment for Divorce

with Children and its judgment entry on the Amended Third-Party Complaint and
Delaware County, Case No. 19 CAF 01 0009                                                   9


Counterclaim. The trial court determined the evidence demonstrated the marital home

was marital property and Sister was unjustly enriched when Husband engaged in financial

misconduct by transferring the home to Sister. The trial court voided the transfer of the

marital home to Sister and ordered the marital home sold by a receiver. Upon the sale of

the home, Husband was to pay Wife $80,000 for expense money as a portion of Wife’s

attorney and expert fees due to Husband’s financial misconduct. Sister was to be paid

$30,000 from the gross proceeds of the sale for her balance of her loan and an amount

equal to real estate taxes actually paid to her to the Delaware County Treasurer.

        {¶23} On January 3, 2019, Sister filed a request for findings of fact and

conclusions of law. The trial court denied the request by judgment entry filed on January

17, 2019.

        {¶24} Sister filed her notice of appeal of the trial court’s judgments on January 25,

2019. No stay was granted during the appeal of the trial court’s judgment entries and the

record shows the receiver has moved forward with the sale of the marital home

        {¶25} The pertinent parts of the decision and any additional facts will be

addressed under each of the corresponding Assignments of Error.

                               ASSIGNMENTS OF ERROR

        {¶26} Sister raises seven Assignments of Error:

        {¶27} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND EXCEEDED

ITS SUBJECT MATTER JURISDICTION IN VOIDING THE TITLE TRANSFER OF THE

10350     WIDDINGTON        CLOSE      PROPERTY        TO    BOUCHRA,       IMPOSING       A

CONSTRUCTIVE TRUST, AND RULING ON ALL CLAIMS AGAINST BOUCHRA AS

THESE DETERMINE COLLATERAL CLAIMS AND THE RIGHTS OF A THIRD PARTY.
Delaware County, Case No. 19 CAF 01 0009                                   10


      {¶28} “II. [SIC] TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A

MATTER OF LAW WHEN IT DENIED APPELLANT’S MOTION FOR LEAVE TO FILE

SUMMARY JUDGMENT WHICH RAISED THE ISSUE OF SUBJECT MATTER

JURISDICTION OF THE COURT TO HEAR AND DETERMINE A COLLATERAL CLAIM

AND THIRD PARTY RIGHTS.

      {¶29} “III. THE TRIAL COURT ERRED AS A MATER OF LAW, ABUSED ITS

DISCRETION, ITS FINDINGS OF THE ELEMENTS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE THAT BOUCHRA WAS UNJUSTLY ENRICHED AND IN

GRANTING JUDGMENT TO LINA ON HER UNJUST ENRICHMENT CLAIM AND IN

DETERMINING THE REMEDY.

      {¶30} “IV.   THE   TRIAL   COURT     ERRED   IN    DENYING    BOUCHRA’S

COUNTERCLAIMS       AGAINST      LINA    ‘UNDER    THE   TOTALITY    OF   THE

CIRCUMSTANCES’ AND BASED ON THE FINDING OF ‘UNJUST ENRICHMENT.’

      {¶31} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW, VIOLATED THE

PAROL EVIDENCE RULE, AND ITS FINDINGS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE WHEN IT FOUND THAT THERE WAS NOT A SALE TO

BOUCHRA, THE SALE TO BOUCHRA WAS A FICTION AND IN THE NATURE OF A

LOAN OR FINANCING FOR PART OF THE PURCHASE PRICE.

      {¶32} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT DENIED APPELLANT’S RIGHT TO A JURY TRIAL.

      {¶33} “VII. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

DENIED APPELLANT’S MOTIONS TO ACCESS THE PROPERTY PURSUANT TO

CIVIL RULE 34 FOR THE PURPOSE OF INSPECTION.”
Delaware County, Case No. 19 CAF 01 0009                                                 11


                                        ANALYSIS

                                             I.

       {¶34} Sister contends in her first Assignment of Error that the trial court went

beyond its subject matter jurisdiction in the December 27, 2018 judgment entry when it

declared the deed transferring the marital home from Husband and Wife to Sister was

void ab initio, set aside, and held for naught. We disagree.

       {¶35} The appellate court reviews “issues relating to subject matter jurisdiction de

novo, as such a determination is a matter of law.” T.A. v. R.A., 8th Dist. Cuyahoga No.

107166, 2019-Ohio-3179, 2019 WL 3764607, ¶ 17 citing In re E.G., 8th Dist. Cuyahoga

No. 98652, 2013-Ohio-495, ¶ 9, citing In re K.R.J., 12th Dist. Clermont No. CA2010-01-

012, 2010-Ohio-3953, ¶ 16.

       {¶36} R.C. 3105.171(B) requires the trial court to determine what constitutes

marital property and what constitutes separate property. There is no dispute the trial court

had jurisdiction to determine which of Husband’s and Wife’s assets were marital or

separate property. In this case, the trial court determined the marital home was marital

property, purchased in part with marital funds. Sister contends Wife’s claims against

Sister were collateral matters to the divorce proceeding, such that the trial court lacked

jurisdiction to enter judgment against her. We note that Husband and Wife have not

objected to the sale of the marital home.

       {¶37} R.C. 3105.011 provides:

       The court of common pleas including the divisions of courts of domestic

       relations, has full equitable powers and jurisdiction appropriate to the

       determination of all domestic relations matters. This section is not a
Delaware County, Case No. 19 CAF 01 0009                                                 12


       determination by the general assembly that such equitable powers and

       jurisdiction do not exist with respect to any such matter.

       {¶38} The Eighth District Court of Appeals held, in relevant part, that R.C.

3105.011, “limits the jurisdiction of the domestic relations [court] to the determination of

domestic relations matters. Any collateral claims must be brought in a separate action in

the appropriate court or division when the claim involves the determination of the rights

of a third-party.” Lisboa v. Karner, 167 Ohio App.3d 359, 2006–Ohio–3024, 855 N.E.2d

136 (8th Dist.). The Eleventh District Court of Appeals, relying upon Lisboa, held in

Mitchell v. Mitchell, 11th Dist. Portage No.2007–P–0023, 2008–Ohio–833, ¶ 63:

       Although the term “domestic relations matter” is not specifically defined in

       any of the relevant statutes, Tanagho [v. Tanagho, 10 Dist. Franklin No.

       92AP–1190, 1993 WL 50950 (Feb. 23, 1993) ], upon which the court in

       Lisboa relied, held that the determination of “whether [a] property is a * * *

       marital asset” [is] “within the jurisdiction of the domestic relations court,”

       despite the fact that a third party also was claiming an interest in the

       property. 1993 Ohio App. LEXIS 1201, at *7, 2003 WL 509501993 Ohio

       App. LEXIS 1201, at *7, 2003 WL 50950.

       {¶39} In Wife’s second amended answer, counterclaim, and third-party complaint,

Wife argued the marital home was marital property of which she had a marital interest.

She argued Sister engaged in fraud and was unjustly enriched when the marital home

was transferred to Sister in 2014. Sister does not appeal her joinder in the divorce

proceeding. Titled owners of real property, or persons with some purported interest in real

property, are necessary and indispensable parties to litigation seeking to divest those
Delaware County, Case No. 19 CAF 01 0009                                                 13


owners of their interest therein. Young v. Wells, 4th Dist. Gallia No. 06CA6, 2007-Ohio-

4568, 2007 WL 2482626, ¶ 20 citing Huener v. Huener (1996), 110 Ohio App.3d 322,

327; see, also, Congress Lake Club v. Witte, Stark App. No.2005CA0037, 2006-Ohio-59,

¶¶ 29, 34.

       {¶40} In the December 27, 2018 judgment entry, the trial court found that when

the marital home was initially deeded into the joint ownership of Husband and Wife, it was

marital property. The trial court found it could not establish a value for the marital home

based on the evidence presented at trial. It stated:

       The real property at issue has a gross appraised value of $720,000.00, less

       an unspecified amount to make repairs certainly necessary for sale * * *.

       The only evidence of value of the property * * * was the $720,000.00. Again,

       this did not (emphasis added) include the cost of repairs obviously required

       to sell at this price, nor did it include cost to sell. These two unknown

       deductions (repairs and cost to sell) preclude the undersigned from being

       able to establish a value to Plaintiff, Defendant, and Third-Party Defendant

       and to leave “record-title” with Third-Party Defendant, and to provide for a

       monetary division. The only solution to this inability to determine value is to

       order the property sold * * *.

(Dec. 27, 2018 Judgment Entry).

       {¶41} The trial court further stated:

       The undersigned does also find by clear and convincing evidence that the

       Third-Party Defendant has been unjustly enriched by virtue of the execution

       and delivery of the Deed from Plaintiff and Defendant to her without
Delaware County, Case No. 19 CAF 01 0009                                                    14


       adequate consideration. The Court also finds that the foregoing unjust

       enrichment is directly a result of Plaintiff’s financial misconduct in the marital

       relationship. He took advantage of the Defendant’s English language

       shortcomings, her lack of familiarity with legal real estate issues, her near

       exclusion from ongoing involvement in the transaction as evidenced by all

       emails with the Realtor being with Plaintiff, and transfer of $170,000

       ($130,000.00 plus $40,000.00) to Third-Party Defendant prior to the closing

       and the transfer of $100,000.00 in two $50,000.00 payments subsequent to

       the closing.

(Dec. 27, 2018 Judgment Entry). The trial court found the evidence presented did not

support Wife’s claim of fraud against Sister in relation to the transfer of the marital home.

       {¶42} In Husband’s appeal of the December 27, 2018 Final Judgment for Divorce

with Children and Judgment Entry, we found the trial court did not abuse its discretion

when it found the marital home was marital property and Husband engaged in financial

misconduct when he orchestrated the transfer of the marital home to Sister. (Salameh v.

Salameh, Case No. 19 CAF 01 0008).

       {¶43} Sister contends the trial court was without subject matter jurisdiction to

vacate the transfer of the marital home. In support of her argument in this regard, Sister

directs this court's attention to our decision in Shalash v. Shalash, 5th Dist. Delaware No.

12-CAF-110079, 2013-Ohio-5064. In Shalash, the wife filed for divorce against the

husband on March 16, 2010. The husband owned a drive-thru beverage business and

the wife named the business corporation as a defendant in the divorce complaint. The
Delaware County, Case No. 19 CAF 01 0009                                                   15


wife also served a restraining order upon the husband, restraining him from selling,

encumbering, disposing, or in any manner secreting assets of the marriage.

       {¶44} On March 23, 2010, the husband sold the corporation to his mother. The

husband's mother then created a separate corporation to run the business. On October

8, 2011, the wife filed an amended complaint and named the mother's corporation as a

defendant. The trial court found the transaction from the husband to his mother to be a

“sham transaction” and the trial court vacated the transaction as part of the divorce

decree. The trial court also found the mother's corporation to be a marital asset and

ordered mother to transfer the corporation to the wife.

       {¶45} On appeal, we found “the trial court had jurisdiction to determine which

assets comprised the marital estate because that determination is primarily a domestic

relations matter.” Id. at ¶ 21. Once the trial court found evidence that the husband

engaged in financial misconduct by disposing of the business via a sale to his mother, we

found the trial court should have either awarded a distributive award or a greater award

of marital property pursuant to R.C. 3105.171(E)(4). Id. at ¶ 29. We held that ordering the

mother to transfer ownership of the business to the wife was an inappropriate extension

of the trial court’s authority because alternative remedies were available. Id.

       {¶46} We understand Sister’s reliance on Shalash; however, under the specific

factual and financial circumstances of this case, we find the authority of the Eighth District

Court of Appeal’s decision in T.A. v. R.A., 8th Dist. Cuyahoga No. 107166, 2019-Ohio-

3179, to be on point. In T.A. v. R.A., the husband filed a complaint for divorce and the

wife answered, also filing a claim against the husband’s brother. Part of the marital estate

consisted of two gas stations and the marital home. During the marriage, the husband
Delaware County, Case No. 19 CAF 01 0009                                                     16


granted mortgages on the marital home and one of the gas stations to his brother. The

trial court found the husband engaged in financial misconduct based on the mortgages

and ordered the brother to release the mortgages on the marital home and gas station.

Id. at ¶ 19. The brother appealed, arguing the trial court was without jurisdiction to order

him to release the mortgages because they were a collateral matter to the divorce. In so

arguing, the brother relied upon our decision in Shalash.

       {¶47} The Eighth District Court of Appeals distinguished the matter from Shalash,

finding that the trial court did not rescind the transaction. Id. at ¶ 25. The husband and

the wife had a marital interest in the properties and by releasing the mortgages, the trial

court correctly granted the wife a greater award of the marital property under R.C.

3105.171(E)(4). Id. at ¶ 33, 34.

       {¶48} In this case, the trial court found the marital home was marital property that

was purchased with separate funds, marital funds, and funds from Sister. Specifically, the

Sister paid $300,000 for the purchase of the marital home, but the trial court traced

$130,000 of the $300,000 to Husband. R.C. 3105.171(B) states in pertinent part: “ * * *

For purposes of this section, the court has jurisdiction over all property, excluding the

social security benefits of a spouse other than as set forth in division (F)(9) of this section,

in which one or both spouses have an interest.”

       {¶49} The trial court declared the deed void, but it imposed a constructive trust on

the property and ordered the property to be sold by an appointed receiver. Sister has not

pointed to this Court to the record to show which party is the owner of the marital home

at this time. The trial court ordered that Sister receive $30,000 from the sale of the marital

home, based on her investment. We cannot say the trial court abused its discretion in its
Delaware County, Case No. 19 CAF 01 0009                                                     17


decision based on the complicated financial maneuverings between Husband and Sister,

the purchase of the marital home being just one example. Sister did not charge Husband

rent while he lived in the home. Husband was permitted to keep the real estate tax

rebates. It was not until the divorce proceedings that Sister moved to evict Wife from the

marital home while she was living in the home with G.S. “A domestic relations court has

the power to ‘grant complete relief in a matter which is primarily a domestic relations

matter.’ ” Kell v. Verderber, 1st Dist. Hamilton No. C-120665, 2013-Ohio-4223, ¶ 20,

quoting In re Dunn, 101 Ohio App.3d 1, 5, 654 N.E.2d 1303 (12th Dist.1995).

       {¶50} Sister’s first Assignment of Error is overruled.

                                              II.

       {¶51} In her second Assignment of Error, Sister contends the trial court abused

its discretion when it denied Sister’s motion for leave to file summary judgment.

       {¶52} On October 13, 2017, Sister filed a motion for leave to move for summary

judgment. In her proposed motion for summary judgment, Sister argued she was entitled

to judgment as a matter of law because the trial court did not have subject matter

jurisdiction over Wife’s third-party complaint against Sister. Sister argued in the

alternative, if the trial court did have jurisdiction, Wife’s claims against Sister were without

merit. On December 7, 2017, the trial court denied Sister’s motion for leave without

explanation.

       {¶53} In her argument, Sister does not cite to any law to support her position. It is

not the duty of an Ohio appellate court to create arguments for the parties and search the

record for evidence to support them. Colvin v. Colvin, 5th Dist. Guernsey No. 18 CA 27,

2019-Ohio-2209, 2019 WL 2375394, ¶ 40 citing Washek v. Washek, 5th Dist. Fairfield

No. 18 CA 22, 2019-Ohio-1504, 2019 WL 1785411, ¶ 21 citing Sisson v. Ohio Department
Delaware County, Case No. 19 CAF 01 0009                                                 18


of Human Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396. However, Civ.R.

56(A) and (B) provide that if an action has been set for pretrial or trial, parties may move

for summary judgment only with leave of court. Absent an abuse of discretion, an

appellate court will not reverse a trial court's decision to deny a motion for leave to file

summary judgment. Baker v. Manchi, 7th Dist. No. 15 MA 0091, 2017-Ohio-730, 86

N.E.3d 118, 2017 WL 823767, ¶ 13 citing Blatnik v. Avery Dennison Corp., 148 Ohio

App.3d 494, 774 N.E.2d 282, ¶ 45 (11th Dist.2002) An abuse of discretion means the trial

court's decision is unreasonable based upon the record; that the appellate court may have

reached a different result is not enough to warrant reversal. Downie v. Montgomery, 7th

Dist. No. 12 CO 43, 2013-Ohio-5552, 2013 WL 6687239, ¶ 50; Blatnik, ¶ 45.

       {¶54} Based on the breadth of these acrimonious proceedings, we cannot say the

trial court abused its discretion in denying Sister’s motion for leave to file summary

judgment. There were arguably genuine issues of material fact before the trial court as to

the parties’ finances and whether the marital home was marital or separate property.

       {¶55} Sister’s second Assignment of Error is overruled.

                                        III. and V.

       {¶56} Sister contends in her third Assignment of Error that the trial court erred

when it found Sister was unjustly enriched when she took possession of the marital home.

We also consider Sister’s fifth Assignment of Error that states the trial court violated the

parol evidence rule in making its decision that the transaction between the parties was

not a sale but a loan.

       {¶57} In the December 27, 2018 Judgment Entry, the trial court stated:
Delaware County, Case No. 19 CAF 01 0009                                                    19


       The undersigned does not find that Third-Party Defendant committed fraud,

       however, she would be unjustly enriched if her claim to one-hundred

       percent (100%) ownership of the marital home was sustained. There was

       not a sale to Third-Party by Plaintiff and Defendant under the terms of the

       transfer, but rather the “sale” was a fiction. It was in the nature of a loan or

       financing for part of the purchase price.

       ***

       The property was deeded initially into the joint ownership of the Plaintiff and

       Defendant and the undersigned finds at that point it was marital property.

       The undersigned does also find by clear and convincing evidence that the

       Third-Party Defendant has been unjustly enriched by virtue of the execution

       and delivery of the Deed from Plaintiff and Defendant to her without

       adequate consideration. The Court also finds that the foregoing unjust

       enrichment is directly a result of Plaintiff’s financial misconduct in the marital

       relationship.

       {¶58} To establish an unjust enrichment claim, the plaintiff must demonstrate: (1)

a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the

benefit; and (3) retention of the benefit by the defendant under circumstances where it

would be unjust to do so without payment. Mun. Services Corp. v. Hall Community Dev.

LLC, 5th Dist. Tuscarawas No. 2018 AP 12 0042, 2019-Ohio-3079, 2019 WL 3458731, ¶

25 citing Robinette v. PNC Bank, 5th Dist. Licking No. 15-CA-47, 2016-Ohio-767, 2016

WL 771319, ¶ 23 citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465

N.E.2d 1298 (1984). Under Ohio law, unjust enrichment is a claim under quasi-contract
Delaware County, Case No. 19 CAF 01 0009                                                  20


law that arises out of the obligation cast by law upon a person in receipt of benefits that

he is not justly entitled to retain. FedEx Corp. Services, Inc. v. Heat Surge, LLC, 5th Dist.

Stark No. 2018CA00026, 2019-Ohio-217, ¶ 1 citing Beatley v. Beatley, 160 Ohio App.3d

600, 2005-Ohio-1846, 828 N.E.2d 180.

       {¶59} Sister argues there was an express contract between Husband, Wife, and

Sister for the transfer of the marital home to Sister. Initially, Husband, Wife, and Sister

made an oral agreement that the original sellers would transfer the marital home to

Husband and Wife and then Husband and Wife would transfer the marital home to Sister.

To effectuate the first transfer, Sister paid $300,000 and Husband paid approximately

$50,000 to the original sellers. On February 20, 2014, Husband, Wife, and Sister signed

a “Terms of Transfer” document, which stated as follows:

       Anmar Salameh and Lina Yossef (the “Transferers”), a married couple,

       agree to transfer the sole title & ownership of the property located in

       Delaware County at 10350 Widdington Close, Powell, Ohio 43065 * * * to

       Bouchra S Doumet (the “Transferee”), a married woman, for the purchase

       price of $0 (zero dollars) immediately following the closing & settlement at

       Peak Title Agency, LLC. For the Transferers’ purchase of said property &

       parcels on February 28th, 2014.

       By signing below, the aforementioned parties agree to the terms set forth in

       the “Terms of Transfer”:

By the terms of the oral agreement and as evidenced by the Terms of Transfer document,

Sister paid no additional funds to Husband and Wife for the second transfer.
Delaware County, Case No. 19 CAF 01 0009                                                 21


       {¶60} The essential elements of a contract include an offer, acceptance,

contractual capacity, consideration (the bargained-for legal benefit and/or detriment), a

manifestation of mutual assent, and legality of object and of consideration. Spectrum

Benefit Options, Inc. v. Med. Mut. of Ohio, 4th Dist. No. 06CA19, 174 Ohio App.3d 29,

2007-Ohio-5562, 880 N.E.2d 926, ¶ 28. “A meeting of the minds as to the essential terms

of the contract is a requirement to enforcing the contract.” Id. citing Episcopal Retirement

Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St.3d 366, 369, 575 N.E.2d

134. Thus, to declare the existence of a contract, the parties must consent to its terms,

there must be a meeting of the minds of the parties, and the contract must be definite and

certain. Episcopal Retirement Homes, 61 Ohio St.3d at 369, 575 N.E.2d 134.

       {¶61} The trial court found there was no consideration exchanged between

Husband, Wife, and Sister when the marital home was transferred to Sister.

“Consideration may consist of either a detriment to the promisee or a benefit to the

promisor.” Capital City Financial Group, Inc. v. Mac Const. Inc., 5th Dist. No. 02CA-E-01-

006, 2002-Ohio-4543, 2002 WL 2016332, ¶ 24 quoting Brads v. First Baptist Church

(1993), 89 Ohio App.3d 328, 336, 624 N.E.2d 737. “A benefit may consist of some right,

interest, or profit accruing to the promisor, while a detriment may consist of some

forbearance, loss or responsibility given, suffered or undertaken by the promisee.” Id.

“The benefit or detriment must be something intended by the parties as such; it cannot

be something merely incidental to the contract.” Id.

       {¶62} Upon this record, we find there was competent and credible evidence

before the trial court to find there was no bargained legal benefit and/or detriment

exchanged between Husband, Wife, and Sister for the transfer of the marital home to
Delaware County, Case No. 19 CAF 01 0009                                                   22


Sister. Consideration is a necessary element of an express contract. We find no error for

the trial court to examine Wife’s claim for unjust enrichment. We further find the evidence

supports the trial court’s determination that Sister was unjustly enriched by the transfer of

the marital home to her name. Wife conferred a benefit upon Sister (and Husband) and

Sister (and Husband) retained the benefit without payment to Wife.

       {¶63} Wife’s third Assignment of Error is overruled.

       {¶64} Sister contends in her fifth Assignment of Error that the trial court erred

when it determined the sale of the marital home to Sister was a fiction and the nature of

a loan. Pursuant to our decision on Sister’s first and third Assignments of Error, we find

Sister’s fifth Assignment of Error to be moot. It is overruled.

                                             IV.

       {¶65} In her fourth Assignment of Error, Sister argues the trial court erred in

denying her claims against Wife. On October 5, 2017, Sister filed a counterclaim for

declaratory judgment arguing she was the record title owner of the marital home. She

brought claims for ejectment, trespass, and unjust enrichment. Sister stated that Husband

and Wife transferred the marital home to Sister by General Warranty Deed. The marital

home was then transferred from Sister to a limited liability company, BDMD, LLC, the sole

member of which was a trust managed by Sister and her husband.

       {¶66} This Court again cites to App.R. 16(A)(7) in reference to Sister’s appellate

argument. In this Assignment of Error, Sister does not refer this Court to the record or cite

any case law or statute to support her claims that the trial court erred in denying her claims

of declaratory judgment, ejectment, trespass, and unjust enrichment. It is not the duty of

an Ohio appellate court to create arguments for the parties and search the record for
Delaware County, Case No. 19 CAF 01 0009                                                     23


evidence to support them. Colvin v. Colvin, 5th Dist. Guernsey No. 18 CA 27, 2019-Ohio-

2209, 2019 WL 2375394, ¶ 40 citing Washek v. Washek, 5th Dist. Fairfield No. 18 CA 22,

2019-Ohio-1504, 2019 WL 1785411, ¶ 21 citing Sisson v. Ohio Department of Human

Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396.

       {¶67} Sister’s fourth Assignment of Error is overruled.

                                              VI.

       {¶68} Sister argues in her sixth Assignment of Error the trial court erred as a

matter of law and abused its discretion when it denied Sister’s request for a jury trial. She

contends that the Ohio Constitution guarantees the right for a trial by jury in civil cases

know to common law. This is a correct statement of law; however, the claims that Sister

brought against Wife are more nuanced than her broad statement that she is entitled to

a jury trial on her claims. Sister filed a counterclaim for declaratory judgment arguing she

was the record title owner of the marital home. She brought claims for ejectment,

trespass, and unjust enrichment.

       {¶69} If Sister’s action is simply one to quiet title, the action is equitable in nature.

McCarley v. O.O. McIntyre Park Dist., 4th Dist. Gallia No. 99 CA 07, 2000 WL 203997, *8

(Feb. 11, 2000), citing McBride v. Murphy (1924), 111 Ohio St. 443, 447. Equitable actions

are traditionally tried by the court, without a jury. Hiener v. Kelley, Washington App. No.

98CA7, 1999 WL 595363 (July 23, 1999) citing Pierce v. Stewart (1899), 61 Ohio St. 422,

paragraph one of the syllabus.

       {¶70} The trial court in this case found that Sister’s claims were equitable and it

was a court of equity; therefore, it denied Sister’s demand for a jury trial. Sister has not

developed her argument pursuant to App.R. 16(A)(7) that her claims of declaratory
Delaware County, Case No. 19 CAF 01 0009                                                 24


judgment, ejectment, trespass, and unjust enrichment were claims triable by a jury. It is

not the duty of an Ohio appellate court to create arguments for the parties and search the

record for evidence to support them. Colvin v. Colvin, 5th Dist. Guernsey No. 18 CA 27,

2019-Ohio-2209, 2019 WL 2375394, ¶ 40 citing Washek v. Washek, 5th Dist. Fairfield

No. 18 CA 22, 2019-Ohio-1504, 2019 WL 1785411, ¶ 21 citing Sisson v. Ohio Department

of Human Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396.

       {¶71} Sister’s sixth Assignment of Error is overruled.

                                            VII.

       {¶72} In her final Assignment of Error, Sister argues the trial court abused its

discretion when it denied her discovery motion to permit her and her real estate appraiser

access to the marital home. We disagree.

       {¶73} Sister filed multiple motions to compel discovery from Wife regarding entry

and inspection of the marital home. Wife responded to the motions. On December 7,

2017, the trial court denied Sister’s motion to enter the home because Wife had arranged

for a real estate appraiser to enter the property for an appraisal, including appropriate

photographs. The trial court noted that Wife’s real estate appraiser was the same person

as suggested by Sister.

       {¶74} In the regulation of discovery, the trial court has discretionary power and its

decisions will not be overturned absent an abuse of that discretion. Cooley v. Hartland,

5th Dist. Licking No. 14-CA-51, 2014-Ohio-5452, 2014 WL 7004760, ¶ 13 citing Mauzy v.

Kelly Servs., Inc., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996); State ex rel. Daggett

v. Gessaman, 34 Ohio St.2d 55, 57, 295 N.E.2d 659 (1973). An appellate court reviews

a claimed error relating to a discovery matter under an abuse-of-discretion standard.
Delaware County, Case No. 19 CAF 01 0009                                               25


Lightbody v. Rust, 137 Ohio App.3d 658, 663, 739 N.E.2d 840 (8th Dist.2000); Trangle v.

Rojas, 150 Ohio App.3d 549, 782 N.E.2d 617, 2002–Ohio–6510 (8th Dist.). Under this

standard, reversal is warranted only where the trial court's attitude was arbitrary,

unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶75} We find no abuse of discretion for the trial court to deny Sister’s motion to

enter the marital home for discovery purposes. It appeared from the record that Wife had

also arranged for a real estate appraiser to inspect the marital home.

       {¶76} Sister’s seventh Assignment of Error is overruled.

                                     CONCLUSION

       {¶77} The judgment of the Delaware County Court of Common Pleas, Domestic

Relations Division is affirmed.

By: Delaney, P.J.,

Baldwin, J. and

Wise, Earle, J., concur.
