Roberts v. Opalich

[Cite as Roberts v. Opalich, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

KILLEEN A. ROBERTS,                               :

                 Plaintiff-Appellee,              :
                                                             No. 112612
                 v.                               :

MITCHELL D. OPALICH,                              :

                 Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 21, 2023


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                             Domestic Relations Division
                               Case No. DR-20-380802


                                            Appearances:

                 Lanter Legal, LLC, and Joseph J. Lanter, for appellee.

                 Edward L. Joseph and Randy J. Hart, for appellant.



KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, Mitchell D. Opalich (“Husband”), appeals from

the trial court’s judgment granting a divorce to Husband and plaintiff-appellee,

Killeen Roberts (“Wife”), and dividing their property. Finding no merit to the

appeal, we affirm.
I.   Background

               In March 2020, Wife filed a complaint for divorce. Husband filed an

answer and counterclaim, in which he averred that “[Husband] and [Wife] were

married to each other on or about January 13, 2013, in Florida and no children were

born as issue of the marriage.” More than ten months later, Husband filed an

amended answer to the complaint in which he questioned the validity of the

marriage.

               On the first day of trial before a magistrate, the parties stipulated to

the following facts:

      On December 7, 2012, Husband and Wife, both Cuyahoga County
      residents, obtained a marriage license from the Cuyahoga County
      Common Pleas Court, Probate Division.

      On January 6, 2013, while on a business trip in Aventura, Florida,
      Husband and Wife participated in a marriage/wedding ceremony
      officiated by a minister.

      Following the wedding, the minister filed the certificate of marriage
      with the Cuyahoga County Common Pleas Court, Probate Division.

      Husband and Wife never applied for or obtained a Florida marriage
      license.

      After January 16, 2013, Husband and Wife did not participate in
      another wedding.

      For the years 2013 through 2019, the parties filed federal tax returns as
      “married, filing jointly.”

      Following the wedding until the present, Husband listed Wife as his
      “Spouse” and the primary beneficiary on his life insurance policy, and
      listed Wife as his “Spouse” on the company-provided healthcare
      insurance.

      The parties separated on May 1, 2020.
      Husband purchased the real estate located at 4979 Countryside Road,
      Lyndhurst, Ohio, in 2009, and it had a current value of $485,000.

      Husband purchased the real estate located at 1383 Slate Court,
      Cleveland Heights, Ohio, in 2007, and it had a current value of
      $280,000.

      Husband purchased the real property located at 25901 Tungsten Road,
      Euclid, Ohio, in 1994. The property is owned by SAM Corp., which is
      owned by Husband, and had a current value of $650,000.

               The evidence at trial demonstrated that the above-referenced parcels

of property are encumbered by mortgages, and that during the marriage, the

Countryside Road mortgage was reduced by $82,320.68, and the Tungsten Road

mortgage was reduced by $182,364.84.

               The magistrate’s decision and recommendation issued after trial

found that the parties’ marriage was voidable, not void, and, therefore, the trial court

had jurisdiction to resolve all issues relating to the complaint for divorce. The trial

court subsequently overruled Husband’s objections to the magistrate’s decision and

ordered Wife’s counsel to prepare the judgment entry adopting the magistrate’s

decision.

               The trial court issued a judgment entry granting the parties a divorce,

ordering that Husband be granted his separate property consisting of SAM Corp.,

and the Tungsten Road, Countryside Road, and Slate Court properties, and

awarding Wife $132,000 in property division, payable by Husband in $5,000

monthly installments until fully paid.       The court ordered that Husband was

responsible for all debt incurred by the parties until July 1, 2020, when the

temporary support order took effect. The court awarded Wife her 401(k) account
that had a balance of $1,200, and further awarded Wife $54,670.50 from Husband’s

401(k). The court awarded each party the vehicle he or she was driving at the time

of trial and ordered that the parties were to divide by lot the items listed on Wife’s

personal property list. Husband now appeals.

II. Law and Analysis

      A. Validity of the Marriage

              In his first assignment of error, Husband argues that the parties’

marriage was void, rather than voidable, and, therefore, the trial court had no

jurisdiction to consider Wife’s complaint for divorce.

              A voidable marriage is valid when entered and remains valid until

either party secures a court order dissolving the marriage. Darling v. Darling, 

, 

 (8th Dist.1975). A void marriage is invalid from

its inception, and the parties may simply separate without a court order of divorce

or annulment. 

              “A court lacks subject-matter jurisdiction over a divorce proceeding if

the marriage between the parties was invalid.” Tatsing v. MJume-Tatsing, 10th

Dist. Franklin No. 16AP-827, 

, citing Hussain v. Hussain, 12th

Dist. Butler No. CA2015-07-127, 

. “Generally, the validity of a

marriage is determined by the lex loci contractus; if the marriage is valid where

solemnized, it is valid elsewhere; if it is invalid there, it is invalid everywhere.”

Mazzolini v. Mazzolini, 

, 

 (1958), paragraph one of

the syllabus; see also Verma v. Verma, 

, 

, 

 (2d Dist.). “In other words, the validity or existence of a marriage

should be determined under the law of the place where the alleged marriage was

contracted.” 

.

               Under Fla. Stat. 741.08, a marriage in Florida is not to be solemnized

without a license:

      Before any of the persons named in § 741.07 shall solemnize any
      marriage, he or she shall require of the parties a marriage license issued
      according to the requirements of § 741.01, and within 10 days after
      solemnizing the marriage he or she shall make a certificate thereof on
      the marriage license, and shall transmit the same to the office of the
      county court judge or clerk of the circuit court from which it issued.

Florida marriage licenses are to be issued by a county court judge or clerk of the

circuit court. Fla. Stat. 741.01

               Husband contends that based on the law of Florida, where the

wedding ceremony took place, he and Wife were never married because no Florida

county court judge or clerk of a circuit court issued a marriage license to them, and

no person may solemnize a marriage in Florida without a license having been issued.

Accordingly, he asserts that “on its face there is no valid marriage in the state of

Florida.” (Appellant brief, p. 5).

               Husband’s argument is without merit. “[T]he law of Florida now

provides for only one kind of marriage, one which is entered into by the parties in

good faith and in substantial compliance with chapter 741.” In re Estate of Litzky,

 (Fla.1974). Florida courts have applied the “good faith and

substantial compliance” test and determined that where the particular facts and
circumstances demonstrate the good faith of the parties and substantial compliance

with the statute, the marriage is valid, even where it is solemnized without a license.

               For example, in Metro. Dade Cty. v. Shelton, 

, (Fla.1979),

the court found a valid marriage, even though the parties were married without a

marriage license, where they attempted to obtain a license for their Friday evening

marriage and were advised by the court clerk that the marriage could proceed, even

though the license would not be issued until the following Monday. The court found

“no question as to the good faith of the parties” because “both of them intended to

enter into a valid marriage.”     

. The court further found substantial

compliance with the law because the same notary who married the couple signed

the marriage certificate, even though the notary signed the certificate of marriage as

having occurred on July 11, despite the ceremony occurring on July 8.               

Accordingly, the court found the marriage was valid.

               Conversely, in Hall v. Maal, 

 (Fla.2010), the court found

a marriage invalid where the couple was aware they needed a marriage license to be

married in Florida but did not obtain one. The court defined “good faith” as “an

honest belief * * * [an] honesty of intention, and freedom from knowledge of

circumstances which ought to put the holder on inquiry.” 

. The court

noted that a year after they were married, the couple applied for a marriage license,

which the court found demonstrated that the couple was well aware that the original

wedding ceremony did not produce a legally, cognizable marriage under Florida law.

 With respect to substantial compliance, the court stated that “in order for there
to be substantial compliance, there has to be some compliance. Some compliance

would, at a minimum, entail the parties applying for and receiving a license.” 

               We find that under the particular circumstances of this case, Husband

and Wife acted in good faith and substantial compliance with Florida law such that

their marriage was voidable, rather than void. The record reflects that the parties

obtained a marriage license from the Cuyahoga County Probate Court on December

7, 2012. Thereafter, the parties decided to marry in Florida, and apparently having

an “honest belief” that their Ohio marriage license was sufficient, made

arrangements to have their license and certificate sent to them via overnight mail.

The parties then participated in a wedding ceremony in Aventura, Florida on

January 16, 2013, officiated by a minister who returned the certificate of marriage

to the Cuyahoga County Probate Court within 30 days of the ceremony. These

actions are indicative of the parties’ “attempting in good faith to go through the steps

that would result in a legally cognizable wedding.” 

.

               Husband contends that rather than substantial compliance with

Florida law, there was “zero compliance” because the parties did not obtain a Florida

marriage license before they were married. (Appellant brief, p. 6). We disagree and

find the parties’ actions in having their marriage license overnighted to them in

Florida, as well as their officiant’s return of the certificate to the court, demonstrates

good faith and substantial compliance. Furthermore, even assuming the Ohio

license was invalid under Florida law, “an invalid marriage license does not of itself
invalidate the marriage in the absence of a statutory declaration of invalidity,” of

which Husband cites none. Shelton, 

.

                Husband’s citation to Preure v. Benhadj-Djillali, 

(Fla.2009), as support for his contention that the marriage was invalid because the

parties never obtained a Florida marriage license is not on point. In Preure, the

parties participated in a religious ceremony in Oregon but never applied for a

marriage license, even though the wife admitted that Oregon law required a

marriage license for a valid marriage to occur. 

. The Florida court found

that the marriage was not valid because neither party sought nor obtained an

Oregon marriage license and, further, that Oregon decisional law indicated that a

lawful marriage presumes that the parties “at least undertook efforts to satisfy the

state’s requirements for a valid marriage, one of which is to obtain a marriage

license.” 

                This case is not like Preure. Here, the record reflects that Husband

and Wife undertook efforts to satisfy the requirements for a valid marriage; they

obtained a marriage license, albeit from Ohio, and apparently believing that license

sufficient to satisfy the requirements for a legally cognizable wedding in Florida, had

it overnighted to them in Florida before their wedding.          Moreover, after the

marriage, until the time of trial, they filed joint tax returns and procured life

insurance and healthcare benefits for Wife as Husband’s “spouse.”             Clearly,

Husband and Wife had a good faith belief that they had satisfied the requirements

for a valid marriage in Florida.
              “Due to the harshness of declaring a marriage void, few circumstances

have been identified as requiring such a result.” Smith v. Smith, 

(Fla.2017). On these particular facts and circumstances, where Husband and Wife

acted in good faith and substantial compliance with the law, we find that the trial

court did not err in finding that Husband and Wife’s marriage was voidable rather

than void, and that it therefore had jurisdiction to render a decision on Wife’s

complaint for divorce. The first assignment of error is overruled.

      B. Mortgage Deduction

              In his second assignment of error, Husband contends that the trial

court erred in including the mortgage reduction on the Tungsten Road property in

its property division analysis. Husband contends that the Tungsten Road property

is a premarital asset because it was awarded to him in his previous divorce. He

asserts that his only involvement with the property during the marriage was to

collect the rent from the tenant; pay the mortgage, taxes and insurance; and if a

repair was needed, hire a contractor, all of which he asserts took less than one hour

per month of his time. Thus, he contends the trial court should not have considered

the Tungsten Road property in its division of marital property because it was a

premarital asset and his involvement with it should have been considered “passive.”

              Upon granting a divorce, the trial court is required to divide and

distribute the marital estate between the parties in an equitable manner. Holcomb

v. Holcomb, 

, 

 (1989). In doing so, the trial

court is necessarily vested with wide discretion in formulating an equitable
distribution of such property. Id.; Berish v. Berish, 

, 

 (1982). As a result, the trial court’s division of marital property will not

be disturbed on appeal unless the trial court abused its discretion. Booth v. Booth,

, 

 (1989). The Ohio Supreme Court has

defined “‘abuse of discretion’ as an ‘unreasonable, arbitrary, or unconscionable use

of discretion, or as a view or action that no conscientious judge could honestly have

taken.’” State v. Kirkland, 

, 

, 

, ¶ 67,

quoting State v. Brady, 

, 

, 

.

“Abuse of discretion” has also been described as including a ruling that lacks a sound

reasoning process. State v. Morris, 

, 

, 

, ¶ 14.

               Under R.C. 3105.171(A)(3)(a)(iii), marital property includes all

income and appreciation on separate property due to the labor, monetary, or in-kind

contribution of either party that occurred during the marriage. Passive income and

appreciation acquired from separate property by one spouse during the marriage is

separate property. R.C. 3105.171(A)(6)(a)(iii). “Passive income” is defined as

“income acquired other than as a result of the labor, monetary, or in-kind

contribution of either spouse.” R.C. 3105.171(A)(4).

               We find no abuse of discretion in the trial court’s consideration of the

mortgage reduction on the Tungsten Road property in its division of marital assets.

Husband’s “labors” regarding the property, even if not involving a significant

amount of time, were not passive. It is apparent from Husband’s own testimony
that he performed duties with respect to the property that paid down the mortgage

and helped it to be maintained. Accordingly, the trial court did not abuse its

discretion in determining that the reduction in the mortgage on the property was

marital, rather than separate, property.     The second assignment of error is

overruled.

      C. Judgment Entry

              After the trial court overruled Husband’s objections to the

magistrate’s decision, it ordered Wife to prepare a proposed judgment entry of

divorce, which she did. In his third assignment of error, Husband contends that the

trial court erred when it adopted Wife’s proposed judgment entry because it did not

mirror the language used in the magistrate’s recommended decision.

              Specifically, Husband objects that the judgment entry included

language that Husband should prepare the Qualified Domestic Relations Order

(“QDRO”) within 30 days of journalization of the divorce decree, even though such

language was not included in the magistrate’s decision. He also objects that Wife’s

proposed entry included language that the issue of temporary support would remain

pending and not merge into the divorce decree and that except for Wife’s motion to

show cause and motion for attorney fees, all other pending motions were denied as

moot, even though such language was not in the magistrate’s decision.

              Husband contends that the trial court erred in adopting this language

in its judgment entry because “when counsel on a case is requested to prepare the

judgment entry, all that counsel can do is follow the terms in the magistrate’s
decision and under no circumstances is counsel permitted to add [to] or modify the

language.” (Appellant’s brief, p. 17). Husband cites no legal authority for this

argument, however.

               Moreover, both parties were given an opportunity to weigh in on the

final language of the decree and both filed materials with the court to that end.

Husband has the burden of showing that the trial court abused its discretion in

adopting Wife’s proposed judgment entry, which he cannot do. It is nonsensical to

suggest that because the magistrate did not include any language about the

preparation of a QDRO to distribute retirement assets that the trial court must leave

the final judgment entry silent as to the manner in which such assets are to be

distributed. Furthermore, the magistrate’s written decision was a recommendation

to the trial judge; the trial court may adopt or reject a magistrate’s decision in whole

or in part, and with or without modification. Civ.R. 53(D)(4)(b). Thus, even if Wife’s

proposed judgment entry contained language not included in the magistrate’s

recommended decision, the trial court acted within its discretion to adopt Wife’s

proposed final judgment entry, despite the fact that it did not quote the magistrate’s

decision verbatim. The third assignment of error is overruled.

                  Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, A.J., and
MICHAEL JOHN RYAN, J., CONCUR