In Reversing Sale, Trial Court Overstepped Its Authority

The Fifth District recently issued an interesting decision on financial misconduct. The case is Shalash v Shalash, 2013-Ohio-5064 [PDF]. In that case, the husband purchased a carryout for $200,000.00 during the marriage. A few days after the divorce was filed the husband transferred the business to his Mother for $55,000.00. The Trial Court found that the carryout was a marital asset, and that the transaction was a “sham transaction”. The trial court ordered the business transferred to the wife. In reversing that portion of the case, the Fifth District held 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. [the carryout] 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 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 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.

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