[Cite as Roberts v. Opalich, 2023-Ohio-4652.]

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, 44 

Ohio App.2d 5, 7, 335 N.E.2d 708 (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. Id. 

“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, 2017-Ohio-8460, ¶ 8, citing Hussain v. Hussain, 12th 

Dist. Butler No. CA2015-07-127, 2016-Ohio-3214, ¶ 12. “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, 168 Ohio St. 357, 155 N.E.2d 206 (1958), paragraph one of 

the syllabus; see also Verma v. Verma, 179 Ohio App.3d 637, 2008-Ohio-6244, 903 
N.E.2d 343, ¶ 14 (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.” Tatsing at ¶ 17. 

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, 

296 So.2d 638, 639 (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, 375 So.2d 32, (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.” Id. at 33. 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. Id. 

Accordingly, the court found the marriage was valid. 

Conversely, in Hall v. Maal, 32 So.3d 682 (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.” Id. at 686. 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. 

Id. 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.” Id. 

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.” Hall at 686. 

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, 375 So.2d 32, at 33.

Husband’s citation to Preure v. Benhadj-Djillali, 15 So.3d 877 

(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. Id. at 878. 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.” Id. 

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, 224 So.3d 740, 746 

(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, 44 Ohio St.3d 128, 130, 541 N.E.2d 597 (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, 69 Ohio St.2d 318, 319, 432 

N.E.2d 183 (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, 

44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (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, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.2d 818, ¶ 67, 

quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. 

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

reasoning process. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 

N.E.2d 528, ¶ 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