[Cite as Soliman v. Nawar , 2023

- Ohio

- 1762.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Hayam Soliman

, :

Plaintiff

- Appell ee

, :

No. 22 AP

- 633

v. : (C.P.C. No. 21D R

- 668 )

Wael Nawar

, : (REGULAR CALENDAR)

Defendant

- Appell ant

. :

D E C I S I O N

Rendered on May 2 5 , 2023

On brief: Wael Nawar

, pro se

. Argued: Wa e l Nawar

.

APPEAL from the Franklin County Court of Common Pleas

,

Division of Domestic Relations

BEATTY BLUNT, P. J.

{¶ 1} Defendant

- appellant, Wa el Nawar

, appeals from the decision, judgment

entry, and decree of divorce issued by the Franklin County Court of Common Pleas,

Division of Domestic Relations on October 5, 2022. Mr. Nawar, appearing pro se, asserts

seven assignments of error with the trial court ’ s judgment:

First Assignment of Error: The Court erred and abused its

power and acted by racist and un

- fairly way without

impartially.

Second Assignment of Error: The verdict is contrary to

law, T he verdict is contrary to the weight of the evidence,

Defen dant was denied a fair and impartial trial because The

Court erred in [committing numerous alleged errors on the day

of trial and at trial].

Third Assignment of Error: The court order was not

working for the best interest for the child.No. 22AP

- 6 33 2

Fourth Assignment o f Error : The Judge did not taking

serious action to help the appellant from practicing his

parenting time when the appellee prevent him many times

without any actions from the court . Also suffered from lacking

communication with the appellee and the court did not taking

any actions to solve this issue.

Fifth Assignment of Error: There were also a

discrimination at the treatment between the appellant and the

appellee [] W

hen the Judge allowed the appellee and her

attorney to entered to the court room while it was a zoom hearing and before that there were a similar situation but the

appellant [was] prevented from enteri ng the court room when

the appellee was on zoom.

Sixth Assignment of Error: The court did not respect any

foreigner court order issued before th is court looked on this

case. Where there were an Egyptian court order and an

Egyptian divorce decree issued before this case raised and

settled. “He did not care about Egyptian court order”. Which is

against what it supposed to do according to internation al

Judicial agreement where the foreigner court order must be

respectful according to the U.S.A department of Justice rules.

Seventh Assignment of Error: The judge did not follow the

Ohio Civ. R. 4.2 W

hen the judge said that he will allow the

appellee to d o the service for the compliant of the divorce by

the publication. Which is against in what came inside the Ohio

Civ. Rule. 4.2 Which allowed the publication when the

defendant address be unknown. But at this case the defendant

address was known and in Egy pt. But the judge did not direct

the appellee to serve the appellant at this case according to the

Hague

- convention Service. Which proofed that there were a

discrimination against the appellant.

( Sic passim .) ( Brief of Appellant at 6, 7, 28

- 29.)

{¶ 2} Unfortun ately, we are largely unable to address the merits of Mr. Nawar ’ s

arguments. On August 22, 2022, the case was presented to the court for trial

, and according

to the court ’ s judgment entry, on that date “ Plaintiff appeared represented by Attorney

Lindsey Hutchinson and the Defendant [Mr. Nawar] appeared pro se. Testimony and

evidence were presented in this cause of action a nd at the conclusion of the hearing

counsel and Defendant were permitted to submit written closing arguments and

thereafter the matter was taken under advisement.” (Emphasis added.) ( Decision & Jgmt

.No. 22AP

- 6 33 3

Entry at 1 .) The court proceeded to make findings of fact and conclusions justifying its

award of the divorce, division of property, and award of custody and parenting time. Id.

{¶ 3} The record before us does not include a copy of the trial transcript. Prior to

filing his notice of appeal, Mr. Nawar filed a motion requesting the trial court “to order the

official court reporter to prepare a c omplete transcript of all proceeding[s] had in the trial

court” at state expense. ( See Sept. 25, 2022 Mot

. at 1. ) But on October 24, 2022, Mr. Nawar

withdrew that motion. It does not appear that a transcript was ever prepared, and the

court ’ s records est ablish that no transcript n or any praecipe to the court reporter requesting

preparation of a transcript has ever been filed.

{¶ 4} App.R . 9(B)(3) states that “[t]he appellant shall order the transcript in

writing and shall file a copy of the transcript order with the clerk of the trial court,” and

App.R. 9(B)(1) provides that “it is the obligation of the appellant to ensure that the

procee dings the appellant considers necessary for inclusion in the record, however those

proceedings were record ed , are transcribed in a form that meets the specifications” of the

appellate rules. And i n this district, we adhere to the well

- settled rule that if “ ‘ portions of

the transcript necessary for resolution of assigned errors are omitted from the record, the

reviewing court has nothing to pass upon and this, as to those assigned errors, the court has

no choice but to presume the validity of the lower cou rt ’ s proceedings, and affirm. ’ ” Mills

v. Mills , 10th Dist. No. 10AP

- 495, 2011

- Ohio

- 2848, ¶ 11 (affirming decree of divorce),

quoting Knapp v. Edwards Laboratories

, 61 Ohio St.2d 197, 199 (1980).

{¶ 5} On review of Mr. Nawar ’ s merit brief, we must conclude that his first, second,

third, fourth, and fifth assignments of error assert errors with the trial court ’ s procedures

that require a careful review of the trial transcript. We cannot find error with the trial

court ’ s actions based simply on Mr. Nawar ’ s allega tions, and without reference to a record

demonstrating the existence of the alleged errors, we presume the regularity of the trial

court ’ s trial proceedings. See

, e.g., Mills at ¶ 11

- 18 (overruling assignment of error and

affirming grant of divorce). Acc ordingly , in the absence of a trial transcript, we overrule

Mr. Nawar ’ s first, second, third, fourth, and fifth assignments of error.

{¶ 6} We can, however, review the merits of Mr. Nawar ’ s sixth and seventh

assigned errors; although a transcript of the record m ight have been useful in examining

the merits of the arguments raised therein, when read charitably the assignments of errorNo. 22AP

- 6 33 4

themselves allege that the trial court committed errors of law by disregarding the judgment

of a foreign court and by failing to di smiss the case for insufficiency of service of process.

And although we lack a transcribed record of the hearing at which the challenged judgments

were made, the record does reflect that acting on behalf of the trial court a magistrate did

reject Mr. Nawar ’ s contentions as to both issues. ( See July 26, 2021 Memo/Zoom Status

Conference Hearing Notes at 1. ) We therefore will address each of Mr. Nawar ’ s sixth and

seventh assigned errors in turn.

{¶ 7} In his sixth assigned error, Mr. Nawar contends that the trial court lacked

authority to proceed to issue a divorce decree because he had previously obtained a divorce

in Egypt, and the court was required by principles of judicial comity to accept the term s of

that foreign divorce.

{¶ 8} First, as this court recognized in Gargallo v. Gargallo , 10th Dist. No. 7 2 AP

248, 1973 Ohio App. LEXIS 1522, *11 (Jan. 9, 1973)

, “[T]his state recognizes divorces

granted by foreign countries to citizens of the United States whe re the parties were

domiciliaries of such foreign country at the time the divorce was granted in accordance with

the law of that country. Likewise, this state has jurisdiction to grant divorces to or against

citizens of foreign countries who are domicilia ries of this state.” (Citations omitted.) Id. At

no point in the history of these divorce proceedings was the plaintiff a domiciliary of

Egypt

— she filed the action on March 3, 2021 (nearly four months prior to the alleged

Egyptian divorce)

, and at that point averred that she and Mr. Nawa r “have each been

residents of th e S tate of Ohio for more than six (6) months and residents of the C ounty of

Franklin for more than ninety (90) days immediately preceding the filing of this

complaint.” ( Comp l

. at ¶ 1 ; Feb

. 26, 2021 Sworn Verification at 1

. )

{¶ 9} By contrast, it appears that Mr. Nawa r has admitted that he was a

domiciliary of Franklin County prior to the filing of the complaint. Although certified mail

service to the address given for Mr. Nawa r was returned unclaimed, and although on

May 18, 2021 Mr. Nawa r filed a notice to the court asserting that his “known current

address to the Plaintiff” was an apartment in Egypt, certified mail service to Mr. Nawa r to

his current address in Michigan was successfully made on June 14, 2021. And on August

27, 2021 Mr. Nawa r’ s then

- counsel filed an answer to the plaintiff ’ s complaint in which he

“admit[ted] the allegations in Paragraph[s] 1

- 4 of the [plaintiff ’ s] Compl aint,” including theNo. 22AP

- 6 33 5

allegation that he was a domiciliary of Ohio and Franklin County prior to the filing of the

action. ( See Aug. 27, 2021 Answer & Counter c l

. at ¶ 1

. )

{¶ 10} Accordingly, Mr. Nawa r conclusively admitted the jurisdictional facts

necessary for th e trial court to determine the divorce. But even more damningly, Mr.

Nawar ’ s own submissions to the trial court undermine his contention that it was required

to dismiss the case and defer to the judgment of the Egyptian court. On July 20, 2021, Mr.

Nawa r submitted an unauthenticated and uncertified copy of what he claimed was an

Egyptian certificate of divorce between the parties. ( See July 20, 2021 Terminate Case

Request at 1

- 2. ) But according to his own submission, “[t]his marriage has been done in

Egypt by two Egyptian citizens and according to Egyptian law, so the jurisdiction is the

Egyptian courts, based on that I did the divorce in Egypt on 06/29/2021 to be legal divorce

base d on that jurisdiction after I have known that [Plaintiff] raised a case in front of

American court requesting divorce. ” (Emphasis added.) Id. at 1

. Even if there were

evidence in the record establishing that Mr. Nawar had moved to Eqypt

— and there is not

—

by his own admission he did not seek a divorce in Egypt until after the case against him in

Franklin County had already begun.

{¶ 11} “ Comity, which refers to an Ohio court ’ s recognizing a foreign decree, is a

matter of courtesy rather than of right.” State ex r el. Lee v. Trumbull Cty. Probate Court

,

83 Ohio St.3d 369, 374 (1998), citing e.g. Yoder v. Yoder , 24 Ohio App.2d 71, 72 (5th

Dist.1970). In Baze

- Sif v. Sif

, 10th Dist. No. 15AP

- 152, 2016

- Ohio

- 29, we explained:

Comity is a principle in accordance with which the courts in one

state or jurisdiction will give effect to the laws and judicial

decisions of another, not as a matter of obligation but out of

deference and respect. States are empowered, if they elect to

do so, to recognize the va lidity of certain judicial decrees of

foreign governments when they are found by the state of the

forum to be valid under the law of the foreign state, and when

such recognition is harmonious with the public policy of the

forum state. An Ohio court ’ s reco gnition of a foreign decree is

a matter of courtesy rather than of right. An Ohio court is not

bound to enforce a foreign judgment when it is repugnant to

the laws of the United States and Ohio or violates Ohio public

policy

.

The issue of comity is freque ntly applied in divorce cases; a

decree of divorce granted in one country by a court having

jurisdiction to do so will be given full force and effect in anotherNo. 22AP

- 6 33 6

country by comity. However, a decree of divorce will not be

recognized by comity where it was obtained by a procedure

which denies due process of law in the real sense of the term,

or was obtained by fraud, or where the divorce offends the

public policy of the state in which recognition is sought, or

where the foreign court lacked jurisdiction. We review a trial

court ’ s decision to grant or deny comity under an abuse of

discretion standard.

(Internal citations and quotations omitted.) Id. at ¶ 11

- 12

.

{¶ 12} Even assuming the procedures that granted the divorce in Egypt were

considered valid under that country ’ s law (a fact of which we cannot be assured based on

the record before us) , Mr. Nawa r has cited no authority that would compel the trial court

to accept the foreign divorce decree proffered here: where the foreign divorce was obtained

by a sin gle party without any indication that the opposing party had any awareness of the

proceeding, and where the foreign divorce action was not even commenced until after the

local trial court had already commenced procedures in its own divorce case. We are no t

aware of any legal authority requiring or even supporting a grant of judicial comity to the

proffered Egyptian decree under these circumstances , which appear to violate basic

principles of “ due process of law in the real sense of the term

. ” Id. at ¶ 12. Compare Kaur

v. Bharmota , 182 Ohio App.3d 696, 701

- 0 8

, 2009

- Ohio

- 2344 (10th Dist.) (holding that

evidence submitted to the court established that 1961 foreign divorce was validly obtained

under Indian law controlling at the time)

. Accordingly, we believe the trial court correctly

concluded that it was not required to accept the proffered Egyptian divorce decree and

overrule Mr. Nawa r’ s sixth assignment of error.

{¶ 13} In his seventh assignment of error, Mr. Nawa r contends that he was not

correctly ser

ved with process in the divorce, in that he was required to be served in Egypt

in accordance with the rules of the Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters , pursuant to Civ.R. 4.5(A)

. See for

example Tadross v. Tadross , 8th Dist. No. 104372, 2017

- Ohio

- 930, ¶ 5

- 7 (holding that who

was defendant to Ohio divorce action but was domiciled in Egypt was required to be served

pursuant to Civ.R. 4.5(A)).

{¶ 14} But here, Mr. Nawa r does not res ide in Egypt

— in fact, according to the record

it appears he was served in and currently resides in Michigan. ( See June 17, 2021 ServiceNo. 22AP

- 6 33 7

of Certified Mail at 1. ) The mere fact that Mr. Nawa r had an Egyptian address and claims

in an unauthenticated and uns worn pleading that does not establish his domicile for service

purposes. ( See May 18, 2021 Relocation Notice at 1. )

{¶ 15} More importantly, though, is that Mr. Nawar, through his then

- counsel, filed

an answer and counterclaim in this case , in which he admitted domiciliary of Ohio and

Franklin County prior to the filing of the action, but in which he did not assert the defense

of insufficiency of service of process. ( See generally A ug. 27, 2021 Answer & Counter cl.)

“Pursuant to Civ.R

. 12(H), a defendant waives the affirmative defenses of lack of

jurisdiction over the person or insufficiency of service of process unless the defenses are

presented (1) by motion before pleading pursuant to Civ.R. 12(B), (2) affirmatively in a

responsive pleading under Civ.R. 8(C), or (3) within an amended pleading under Civ.R. 15.”

Kvinta v. Kvinta

, 10th Dist. No. 02AP

- 836, 2003

- Ohio

- 2884, ¶ 75, citing State ex rel. The

Plain Dealer Publishing Co. v. Cleveland

, 75 Ohio St.3d 31, 33 (1996). Mr. Nawar did not

file a motion to dismiss prior to the filing of his answer and counterclaim, and did not assert

the defense of insufficiency of service of process in an answer or amended answer. Even if

we broadly constru e Mr. Nawar ’ s letter requesting termination of the case as a motion to

dismiss, he did not at that time assert a defense that service of process was insufficient ;

rather, he argued exclusively that the proffered Egyptian decree of divorce rendered the

trial court action moot, because “the divorce has already been done.” (July 20, 2021

Terminate Case Request at 1. ) Accordingly, pursuant to Plain Dealer Publishing and this

Court ’ s decision in Kv inta , Mr. Nawar forfeited the defense of insufficiency of service of

process. See Kvinta at ¶ 75, citing Plain Dealer Publishing Co. at 33

, and Mills v.

Whitehouse Trucking Co. , 40 Ohio St.2d 55, 60 (1974). It was therefore not erroneous for

the trial cou rt to proceed with the divorce action, as Mr. Nawar ’ s own actions were

responsible for the court ’ s decision. Mr. Nawar ’ s seventh assignment of error is overruled.

{¶ 16} For all the foregoing reasons, Mr. Nawar ’ s seven assignments of error are

overruled, and the judgment of the Franklin County Court of Common Pleas, Division of

Domestic Relations is affirmed.

Judgment affirmed

.

JAMISON and LELAND , JJ., concur.