[Cite as Shalash v. Shalash, 2014-Ohio-3317.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



IMAN SHALASH                                    :   JUDGES:
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                                :   Hon. John W. Wise, J.
-vs-                                            :
                                                :
HATEM SHALASH, ET AL.                           :   Case No. 14 CAF 02 0014
                                                :
        Defendants-Appellants                   :   OPINION
                                                :


CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Domestic Relations Division,
                                                    Case No. 10 DRA 03 140



JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   July 28, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendants-Appellants:

ROBERT C. PETTY                                     RONALD B. NOGA
270 Bradenton Avenue                                1010 Old Henderson Road
Suite 100                                           Suite 1
Dublin, OH 43017                                    Columbus, OH 43220
Delaware County, Case No. 14 CAF 02 0014                                                  2

Farmer, J.

       {¶1}   On June 23, 1995, Hatem Shalash and appellee, Iman Shalash, were

married. On March 16, 2010, appellee filed a complaint for divorce.

       {¶2}   Mr. Shalash owned a corporation, 1925 Express Business, Inc. In 2007,

the corporation had purchased a drive thru for approximately $200,000.00. On March

23, 2010, Mr. Shalash sold 1925 Express Business for approximately $56,500.00 to his

mother, appellant, Fatheih Shalash.      Appellant-mother formed a corporation named

Satsha Express, Inc., another appellant herein.           Both appellants were named

defendants in the divorce action.

       {¶3}   Hearings on the divorce complaint were held in June 2012. By judgment

entry filed June 11, 2012, the trial court found the sale of 1925 Express Business was a

sham transaction and the new business entity known as Satsha Express was a marital

asset, and ordered appellant-mother to hold the business in a constructive trust for the

parties. By judgment entry filed June 19, 2012, the trial court found fifty percent of the

proceeds from a $60,000.00 sale of another business, Frebis Beer Dock, Inc., sold by

Mr. Shalash and his brother to appellant-mother in 2011 in violation of a restraining

order, constituted a marital asset to be divided between the parties. The trial court

ordered appellant-mother to place Mr. Shalash's share into a separate bank account,

distribution of which was subject to a final decree of divorce.

       {¶4}   By judgment entry decree of divorce filed October 18, 2012, the trial court

found Mr. Shalash engaged in financial misconduct and assigned to him all of the

marital debt. The trial court also ordered distribution to appellee of the funds in the bank

account from the Frebis Beer Dock sale. In a separate judgment entry filed same date,
Delaware County, Case No. 14 CAF 02 0014                                                3


the trial court reiterated its decision of June 11, 2012, that the sale of 1925 Express

Business was a sham transaction and the new business entity was a marital asset, and

ordered appellant-mother to transfer the business known as Satsha Express, Inc. to

appellee by November 1, 2012. The transfer included all equipment, fixtures, inventory,

and rights to existing liquor permits, but not any debts or liabilities. Mr. Shalash was

granted thirty percent of the net profits of which any tax assessments against Satsha

Express were to be paid.

      {¶5}   Appellants filed an appeal. This court reversed the case, finding the trial

court was correct in finding financial misconduct on the part of Mr. Shalash, but erred in

vacating the sale of 1925 Express Business and ordering the business and liquor

license transfers from appellant-mother to appellee. The trial court instead should have

considered the value of the business as a marital asset and awarded appellee a

distributive award or a greater share of the marital property. Shalash v. Shalash, 5th

Dist. Delaware No. 12 CAF 11 0079, 2013-Ohio-5064.

      {¶6}   Upon remand, the trial court issued an amended judgment entry decree of

divorce on January 24, 2014, finding the business value to be $56,500.00, and awarded

said amount to appellee. The trial court ordered appellant-mother to pay her monthly

payment to appellee until the sale price was paid in full.      Any down payment and

monthly payments previously paid to Mr. Shalash shall be deducted from the value and

shall be paid by Mr. Shalash to appellee.         If appellant-mother failed to provide

documentation of paying the down payment and any monthly payments to Mr. Shalash,

she was to pay the amounts to appellee.
Delaware County, Case No. 14 CAF 02 0014                                             4


      {¶7}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

      {¶8}   "THE DOMESTIC RELATIONS COURT'S ORDER CREATING A NEW

PERSONAL OBLIGATION BETWEEN APPELLANT AND PLAINTIFF'S WIFE BELOW

WAS OUTSIDE THE JURISDICTION OF THE DIVISION OF DOMESTIC RELATIONS

AS IT DETERMINES A COLLATERAL CLAIM AND THE RIGHTS OF A THIRD

PARTY."

                                             I

      {¶9}   Appellant-mother claims the trial court erred in creating a new obligation

between her and appellee. We agree.

      {¶10} In Shalash v. Shalash, 5th Dist. Delaware No. 12 CAF 11 0079, 2013-

Ohio-5064, ¶ 29, this court found the following:



             Under R.C. 3105.171(E)(4), the trial court has two remedies to

      compensate a spouse for the other spouse's financial misconduct: (1) a

      distributive award or (2) a greater award of marital property.       1925

      Express Business, Inc. was a marital asset through which Husband

      engaged in financial misconduct in disposing of that asset via sale to his

      Mother.    Pursuant to the guidance of Albaugh [v. Albaugh, 10th Dist.

      Franklin No. 81AP-637, 1982 WL 4296 (July 22, 1982)] and the limitations

      of R.C. 3105.171(E)(4), we find the trial court, in compensating Wife for

      Husband's financial misconduct, should have considered the value of
Delaware County, Case No. 14 CAF 02 0014                                             5


      1925 Express Business, Inc. as part of the marital estate, rather than

      vacating the sale of the business and granting Wife the ownership of the

      business. Ordering the transfer of the business from Mother to Wife was

      an inappropriate extension of the trial court's authority in this case

      because the court had alternative remedies to utilize, such as the

      application of the financial misconduct statute. The trial court could award

      Wife a distributive award or a greater award of marital property from the

      total marital estate.



      {¶11} Upon remand, the trial court issued an amended judgment entry decree of

divorce on January 24, 2014, finding the following:



             The Court determines that despite the transfer of this business to

      Co-Defendant, the value of the business shall be considered a marital

      asset. Accordingly, as noted supra, the Court issued a restraining order

      barring the Co-Defendant from disposing of any of the assets of the

      business until further order of the Court.

             The Court determines the value of the business to be $56,500.

      Due to the financial misconduct of the Defendant, the Court awards the

      entire value of this business asset to the Plaintiff Iman Shalash.

      Testimony revealed that the Co-Defendant was supposed to have paid the

      Defendant a down payment of $5000 and $1000 per month until the
Delaware County, Case No. 14 CAF 02 0014                                               6


      purchase price was paid in full. The restraining order of June 11, 2012

      prohibited the Co-Defendant from paying any monies to the Defendant.

             Therefore the Court orders the Co-Defendant to pay the $1000 per

      month payments to the Plaintiff Iman Shalash until the business sale price

      is paid in full. Attorney Ronald Noga is ordered to pay to the Plaintiff Iman

      Shalash all monies deposited into his trust account by Co-Defendant

      which shall be credited against the purchase price of the business.

             If the Co-Defendant fails to present any documentation that she

      actually transferred the $5000 down payment together with any monthly

      payments to the Defendant before the June 11, 2012 restraining order, the

      Co-Defendant shall be required to pay this amount and all monthly

      amounts due to the Plaintiff Iman Shalash.          If the Co-Defendant can

      substantiate that she paid the $5000 and any monthly payments directly to

      the Defendant before the June 11, 2012 restraining order, the $5000 and

      any paid monthly payments paid directly to Defendant shall be deducted

      from the value of the business (i.e. $56,500). All deducted amounts shall

      constitute an additional sum due from the Defendant to the Plaintiff Iman

      Shalash as part of the marital property division.



      {¶12} Appellant-mother argues she cannot be personally liable to appellee as

the cognovit promissory note dated April 25, 2010 involving 1925 Express Business,

attached to appellants' brief, obligates Satsha Express, Inc. only.      We agree.    As

conceded by appellants in their brief at 5, the trial court could award the cognovit
Delaware County, Case No. 14 CAF 02 0014                                                  7


promissory note to appellee directly. The trial court could also order Satsha Express to

make the ordered payments to appellee instead of appellant-mother, as Satsha

Express, Inc. was a party-defendant to the case.          See, Amended Complaint filed

October 8, 2010.

       {¶13} In her brief at 3, appellant-mother also challenges the trial court's

determination on another business, Frebis Beer Dock. The trial court's decision in its

January 24, 2014 amended judgment entry decree of divorce on this business is

identical, word for word, to the trial court's determination in its judgment entry decree of

divorce filed October 18, 2012. Appellants appealed the October 18, 2012 judgment

entry decree of divorce, but failed to assign this determination as error. We find the

doctrine of res judicata applies sub judice: "[a] valid, final judgment rendered upon the

merits bars all subsequent actions based upon any claim arising out of the transaction

or occurrence that was the subject matter of the previous action." Grava v. Parkman

Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.

       {¶14} This matter is remanded to the trial court to either award the cognovit

promissory note to appellee directly or order Satsha Express, Inc. to make the ordered

payments to appellee.

       {¶15} The sole assignment of error is granted.
Delaware County, Case No. 14 CAF 02 0014                                     8


      {¶16} The judgment of the Court of Common Pleas of Delaware County, Ohio,

Domestic Relations Division is hereby reversed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/sg 715
