Ishaq v. Ameen

2012 Ohio 4445

• Court: Ohio Court of Appeals
• Decided: September 28, 2012
• Docket: 2012 CA 21
• Status: Published

Opinion

[Cite as Ishaq v. Ameen, 2012-Ohio-4445.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

ZUBEIDA S. ISHAQ :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 21

v. : T.C. NO. 10DR163

MOHAMED R. AMEEN : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellant :

:

..........

OPINION

Rendered on the 28th day of September , 2012.

KEITH R. KEARNEY, Atty. Reg. No. 0003191 and DAVID M. PIXLEY, Atty. Reg. No. 0083453, 2160 Kettering Tower, Dayton, Ohio 45423 Attorneys for Plaintiff-Appellee

MITCHELL W. ALLEN, Atty. Reg. No. 0052661, 5947 Deerfield Blvd., Suite 201, Mason, Ohio 45040 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Mohamed R. 2

Ameen, filed February 15, 2012. Ameen and Zubeida S. Ishaq were divorced on January 17,

2010, and Ameen appeals from the final judgment and decree of divorce issued by the trial court.

We hereby affirm the trial court’s judgment.

{¶ 2} Ishaq filed her five-paragraph complaint for divorce on May 18, 2010, in which

she asserted that the parties were married on January 11, 2001 in Columbo, Sri Lanka, and that

one child was born as issue of the marriage. According to the Complaint, Ameen is guilty of

extreme cruelty and gross neglect of duty, and the parties are incompatible. Ameen’s answer

provides that he admits the allegations in paragraphs one to five of the complaint with the

specific exception that he denies being guilty of extreme cruelty and gross neglect of duty.

{¶ 3} After a settlement conference on February 10, 2011, the court ordered the parties

to mediation. A pretrial conference scheduled for April 20, 2011 was rescheduled for May 25,

2011, and then for July 8, 2011, at the joint request of the parties for the purpose of continuing

mediation. Ishaq then requested another continuance for the reason that she filed a petition in

bankruptcy. The court granted the motion.

{¶ 4} On August 1, 2011, the trial court set the matter for a final hearing on October

25, 2011. The order provides: “The Plaintiff shall be responsible for obtaining the relief from

stay order in her bankruptcy case so the Court can proceed. No further continuances will be

granted for the parties to obtain the relief from stay.”

{¶ 5} On October 17, 2011, counsel for Ameen filed a motion to withdraw. The

motion provides that after “several mediation sessions,” the parties and their attorneys met for a

final session on October 7, 2011. The motion further provides that after the final session, the

parties and their attorneys signed a Mediation Agreement, but that Ameen subsequently decided 3

that “he wants to contest the divorce case generally.” Finally, the motion indicates that Ameen

“has been advised and is aware of the Court date and been advised of the consequences of his

decision.” Attached to the motion is an email from Ameen to his counsel, dated October 17,

2011, which provides that he intends to contest his divorce. The email further provides that he no

longer needs counsel’s services, that he decided to either “seek other attorney” or proceed pro se,

and that he is “aware of the court date set for October 25th.”

{¶ 6} Also on October 17, 2011, the court granted the motion to withdraw. Its order

provides in part:

It is the further Order of the Court that should the Defendant seek to obtain

new counsel to represent him that he shall present a copy of this ORDER to the

proposed new counsel prior to that new counsel entering an official notice of

appearance on behalf of the Defendant. The proposed new counsel must be

prepared to enter the case and be ready and willing to proceed with the already

scheduled hearing on October 25, 2011 at 1:30 p.m. No continuances will be

granted without a showing of good cause and specifically for the reasons that new

counsel has a conflict with another court hearing or to allow for additional time

for the attorney to prepare for a hearing.

{¶ 7} On October 20, 2011, Ameen filed a Suggestion of Stay, asserting that Ishaq

failed to file a motion for relief from the bankruptcy stay as ordered by the court, and arguing that

“no further action can be taken until relief from said stay is obtained or the stay is otherwise

terminated.” Ameen asked the court to cancel the final hearing and stay the proceedings.

{¶ 8} On October 25, 2011, substitute counsel for Ameen filed a “Limited Notice of 4

Appearance to File Motion to Continue Trial and Raise Certain Issues for the Record” (“Limited

Notice”). According to the Limited Notice, Ameen “wishes to have paternity tests to establish

the paternity of the child.” The notice further asserts that Ameen “has been unemployed for a

significant amount of time and a motion to reduce temporary spousal support should have been

filed in this case.” According to the notice, there is a “mahr provision” in the parties’

“marriage contract,” which “acts as a pre-nuptial agreement,” and this “issue needs to be litigated

and briefed.” The notice also asserts that the bankruptcy stay is still pending and that any

judgments entered in connection with the divorce would be void. Finally, the motion requested

a continuance to prepare for trial.

{¶ 9} At the final hearing, the court first addressed the issues raised by counsel for

Ameen in his Limited Notice. Ameen acknowledged that he sent the email attached to the

Limited Notice regarding withdrawal of counsel, and further that the court clearly indicated to

him that he needed to retain an attorney prepared to go to trial, and finally that current counsel’s

representation was limited to the filing of the Limited Notice.

{¶ 10} The court advised the parties as follows:

There was a suggestion of bankruptcy. I have in my possession a copy of

the Agreed Relief from Stay signed by * * * the trustee, Attorney Zeigler on

behalf of the Petitioner, Mr. Kearney, Mr. Tarazi, and both parties in the case.

In addition to that, I had a telephone conversation with the attorney and he

anticipates the discharge of the bankruptcy to be filed within a matter of date (sic)

in the bankruptcy court * * * .

{¶ 11} Ishaq then testified that the parties participated in four mediation sessions, the 5

last of which occurred on October 7, 2011. Ishaq stated that she, Ameen, counsel for both

parties, and the mediator were present, and they resolved the issues of custody, spousal and child

support, division of assets and allocation of debts. Ishaq identified the original mediation

agreement entered into by her and Ameen as well as their signatures thereon. Ishaq requested that

the court approve the mediation agreement and make it an official court order. Finally,

regarding the bankruptcy action, Ishaq acknowledged signing the original Agreed Relief from

Stay, she stated that Ameen also signed it in her presence, and she stated that it was then

presented to her bankruptcy lawyer to obtain the signature of the bankruptcy trustee. The

document is not part of the record. Regarding the bankruptcy, Ishaq acknowledged that any of

her surviving debt therefrom would be her responsibility. On cross-examination, Ameen raised

the issue of his child’s paternity, and the court advised him that he “had almost 18 months” to ask

the Court to order paternity testing, and that he further admitted paternity in his answer to the

complaint.

{¶ 12} Ishaq then called Ameen to the stand, and he admitted participating in mediation,

during which he, his counsel, Ishaq, her counsel, and the mediator were present. He identified

his signature on the Mediation Agreement of October 7, 2011. In an exchange with the court,

Ameen asserted that there “was a prenuptial agreement in the marriage,” that is a “civil contract,”

and “that is the condition that Sri Lanka courts are going by.” The court indicated that Ameen

failed to raise the issue, and that the court could not apply Sri Lanka law. Finally, in response to

questions from the court, Ameen indicated that the inventory of household goods attached to the

mediation agreement was “incomplete,” specifically regarding tools and paintings in the marital

residence. After a discussion with both parties, the court resolved the issue of household goods 6

to their satisfaction.

{¶ 13} The following exchange occurred at the conclusion of the hearing:

THE COURT: Is there anything else in that agreement that you somehow

want to tell me I need to know something about?

MR. AMEEN: Not really.

THE COURT: So I think we’ve covered all of your concerns.

MR. AMEEN: Yes. I’m sorry, the only thing - -

THE COURT: The legal ones I can’t do anything about.

MR. AMEEN: Yes.

THE COURT: You didn’t raise the issue of the parentage and you didn’t

bring me anything about the prenuptial agreement from Sri Lanka. I can’t do

anything about those.

Once again, between you and your attorney and whoever else you might

want to get involved, but there doesn’t seem to be any reason for me not to

divorce you folks and accept that agreement and add to it these two paintings that

you’re getting, and get you two separated legally.

Any other reason you could think of why I shouldn’t do that?

The court indicated that it granted the divorce and that the Mediation Agreement would be

incorporated into the final decree, “with the addition of the two paintings that the Plaintiff is

going to let the Defendant have at her choice.”

{¶ 14} Ameen asserts two assignments of error herein which we will consider together. 7

They are as follows:

“THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT

DEFENDANT’S REQUEST FOR A CONTINUANCE AND, WITHOUT JURISDICTION TO

DO SO, DIVIDED MARITAL PROPERTY AND DEBT.”

And,

“THE COURT ERRED IN FAILING TO RECOGNIZE THE MAHR PROVISION OF

THE PARTIES’ MARRIAGE CONTRACT AND TO ENFORCE THE SAME AS AN

ANTE-NUPTIAL AGREEMENT.”

{¶ 15} According to Ameen, Ishaq’s pending bankruptcy petition “brought into effect the

automatic stay of 11 U.S.C. § 362 which ‘stays the equitable distribution in a divorce case of the

debtor’s interest in marital assets.’ State ex rel. Miley v. Parrott (1996), 77 Ohio St.3d 64, 66.”

Ameen asserts that the court lacked jurisdiction to divide the marital assets and debts. Ameen also

asserts that he was unable to adequately prepare for the final hearing, since the court “released” his

counsel “a mere eight days prior to trial” and did not afford him “a proper opportunity to litigate the

issues in his case.” Ameen asserts that he is entitled to the enforcement of the the alleged “Mahr

provision.”

{¶ 16} Ishaq responds that Ameen “had eighteen months to prepare for the final hearing,

he signed an agreed order to remove the stay, and no assets of the bankruptcy estate were divided

until after the Appellee was granted a discharge in her bankruptcy case.”

{¶ 17} “The standard of review of a trial court’s decision on a motion for continuance

of a trial is an abuse of discretion.” Hoening v. Frick, 187 Ohio App.3d 139, 2010-Ohio-1788,

931 N.E.2d 211, ¶ 10 (2d Dist.) As the Supreme Court of Ohio determined: 8

“Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. (Internal citation omitted). It is to be expected that

most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it

deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would

support a contrary result. AAAA Enterprises, Inc. v. River Place Community

Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 18} As this Court noted in Hoening:

“In evaluating a motion for continuance, a court should note, inter alia: * *

* the length of the delay requested; whether other continuances have been

requested and received; the inconvenience to litigants, witnesses, opposing

counsel and the court; whether the defendant contributed to the circumstances

which give rise to the request for a continuance; and other relevant factors,

depending on the unique facts of each case. * * * .” Id., ¶ 12 (citation omitted).

{¶ 19} We agree with Ishaq that the court did not abuse its discretion in failing to grant

Ameen a continuance. While the filing of a bankruptcy petition does stay the equitable

distribution of the debtor’s interest in marital property (Miley, id.), the court indicated that it

possessed a copy of the “Agreed Relief from Stay,” signed by both parties, their counsel, and the

bankruptcy trustee, and Ameen did not dispute the existence of the document. Regarding 9

Ameen’s assertion that he lacked time to prepare for trial, Ameen contributed to the

circumstances giving rise to the need for a continuance when he terminated his relationship with

his counsel a little over a week before the final hearing.

{¶ 20} Further, the United States Bankruptcy Court for the Southern District of Ohio

issued a “Discharge of Debtor” regarding Ishaq’s petition on October 26, 2011, and on November

16, 2011, the Bankruptcy Court closed the matter, in Case No. 3:11-bk-33609. The parties’

marital assets were divided by court order on January 17, 2012, when the Final Decree was

issued. “It is well known that a court speaks through its journal entry.” Brookville National

Bank v. Credit Bureau of Dayton, Inc., 2d Dist. Montgomery No. 6301, 1980 WL 352479, * 3

(May 21, 1980). In other words, Ameen has not established that the court lacked jurisdiction

when it issued its final decree.

{¶ 21} Finally, regarding the “Mahr provision,” Ameen did not raise the issue until the

date of the final hearing, in his “Limited Notice,” almost a year and a half after the complaint was

filed. Civ.R. 10(D) provides: “When any * * * defense is founded on an account or other written

instrument, a copy of the account or written instrument must be attached to the pleading.” If the

written instrument is not attached, “the reason for the omission must be stated in the pleading.”

Id. There is no evidence of the alleged “antenuptial agreement” in the record, nor has the reason

for its omission been stated. Accordingly, Ameen’s assertion that he is entitled to its

enforcement fails.

{¶ 22} There being no merit to Ameen’s assigned errors, they are overruled, and the

judgment of the trial court is affirmed.

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FAIN, J. and HALL, J., concur.

Copies mailed to:

Keith R. Kearney David M. Pixley Mitchell W. Allen Hon. Steven L. Hurley