Gray v. Gray

[Cite as Gray v. Gray, 2011-Ohio-4091.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95532

MARCY L. GRAY
PLAINTIFF-APPELLEE

vs.

SCOTT A. GRAY
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-329703

BEFORE: Jones, J., Blackmon, P.J., and Cooney, J.
 RELEASED AND JOURNALIZED: August 18, 2011

ATTORNEY FOR APPELLANT

Thomas A. McCormack
The Superior Building
Suite 1915
815 Superior Avenue
Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE

Jonell R. Glitzenstein
20050 Lakeshore Boulevard
Euclid, Ohio 44123

LARRY A. JONES, J.:

{¶ 1} Defendant-appellant, Scott Gray (“Scott”), appeals from a judgment entry-decree

of divorce from plaintiff-appellee, Marcy Gray (“Marcy”), filed by the Cuyahoga County Court

of Common Pleas, Domestic Relations Division. Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶ 2} Marcy and Scott married in 1996 and had two children. In 2010, Marcy filed

for divorce. A pretrial hearing was scheduled for April 5, 2010. Scott, who resided in

Oregon, failed to appear. He also did not inform the court that he could not attend the pretrial,

request a telephonic pretrial, or move for a continuance. Scott’s attorney did attend the

hearing. At that time, a trial date was set for July 8, 2010.

{¶ 3} On the day of trial, Scott again failed to appear, although he knew about the trial
date. The trial court denied his counsel’s request for a continuance, noting that Scott did not

appear for the pretrial, was given ample notice of the trial date, and had not properly requested a

continuance prior to trial. The trial court then directed Marcy’s attorney to draft the judgment

entry of divorce. Scott’s counsel left the courthouse prior to the completion of judgment entry

of divorce and did not participate in the final hearing.

{¶ 4} Marcy’s counsel submitted the judgment entry to the trial court the same day,

along with an application for child support and a private health insurance questionnaire that had

been previously completed by both parents. The trial court took testimony from Marcy and

issued a journal entry granting the divorce.

{¶ 5} Scott filed his notice of appeal and subsequently filed with this court a purported

App.R. 9(C) statement of the evidence or proceedings, which was signed by both parties and

indicated that the trial court executed the journal entry without taking evidence. The trial court

then submitted its own App.R. 9(C) statement of the evidence, stating that the trial court had

indeed taken testimony from Marcy prior to granting the divorce.

{¶ 6} Scott assigns the following five assignments of error, some of which will be

combined for review:

“I. The trial court abused its discretion and erred as a matter of law by making findings
of fact and conclusions of law without hearing evidence regarding the issues decided.

“II. The trial court abused its discretion and erred as a matter of law by dividing
marital property unequally without reference to the factors in R.C. 3105.171 and by
including punishment of defendant as a factor in the division of property.
 “III. The trial court erred as a matter of law and abused its discretion in calculating
child support when it had heard no evidence of the alleged facts set forth in the child
support computation worksheet.

“IV. The trial court abused its discretion and erred as a matter of law by deviating child
support without meeting the requirements of R.C. 3119.22 and 3119.23.

“V. The trial court abused its discretion and erred as a matter of law when it ignored
the requirements of Local Rule 28(B)(1)(a), instead directing counsel to prepare an
uncontested judgment entry to be signed on the day of trial.”

Standard of Review

{¶ 7} When reviewing the propriety of a trial court’s determination in a domestic

relations case, an appellate court generally applies an abuse of discretion standard. Booth v.

Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. This same standard is used in

reviewing orders relating to alimony and a division of marital property. Id., citing Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140, and Martin v. Martin (1988), 37

Ohio St.3d 292, 18 N.E.2d 1112. Likewise, a trial court’s decision regarding a child support

obligation will not be reversed on appeal absent an abuse of discretion. Pauly v. Pauly, 80

Ohio St.3d 386, 390, 1997-Ohio-105, 686 N.E.2d 1108. “Since it is axiomatic that a trial

court must have discretion to do what is equitable upon the facts and circumstances of each

case, it necessarily follows that a trial court’s decision in domestic relations matters should not

be disturbed on appeal unless the decision involves more than an error of judgment.” (Internal

citation omitted.) Booth at 144. So long as the decision of the trial court is supported by
some competent, credible evidence going to all the essential elements of the case, this court will

not disturb it. Masitto v. Masitto (1986), 22 Ohio St.3d 63, 66, 488 N.E.2d 857.

{¶ 8} With these principles in mind, we turn to review the assignments of error.

Findings of Fact and Conclusions of Law

{¶ 9} In his first assignment of error, Scott asserts that the trial court abused its

discretion by making findings of fact and conclusions of law without hearing evidence.

According to Scott, the trial court failed to hold a hearing or take evidence before rendering its

decision. A review of the record, however, indicates otherwise. According to the trial

court’s App.R. 9(C) statement, the court directed Marcy’s attorney to draft the judgment entry

of divorce. After it was drafted, the court swore Marcy in and began to take evidence as to

the facts of the case. The court then realized that the judgment entry of divorce was

incomplete and directed Marcy’s attorney to complete said entry. The App.R. 9(C) statement

indicates that the proceedings concluded sometime in the middle of the afternoon.

{¶ 10} Although the parties’ App.R. 9(C) statement stated that the trial court did not

take evidence, the actual App.R. 9(C) statement approved by the court expressly disputes that

allegation. The trial court wrote “[w]hen Plaintiff’s attorney stated there was no evidence

taken, she is inaccurate. * * * The Plaintiff was sworn in and proceeded to answer questions

of her attorney and the Court. * * * The Defendant’s attorney was not present for those

proceedings, so he could have not been aware whether or not testimony was taken.”
 {¶ 11} App.R. 9(C) gives a trial court “the authority to delete, add, or otherwise modify

portions of a proposed statement so that it will conform to the truth and be accurate before [the

trial court] approves it.” Kiley v. Davis, Cuyahoga App. No. 82233, 2003-Ohio-5074, appeal

not allowed by 102 Ohio St.3d 1410, 2004-Ohio-1763, 806 N.E.2d 562, citing Joiner v. The

Illuminating Co. (1978), 55 Ohio App.2d 187, 196, 380 N.E.2d 361. Thus, the trial court in

this case modified the parties’ statement and approved a statement of proceedings that

conformed to the truth and accuracy of the actual trial court proceedings. See Joiner.

{¶ 12} Under Civ.R. 52, the purpose of findings of fact and conclusions of law is “‘to

aid the appellate court in reviewing the record and determining the validity of the basis of the

trial court’s judgment.’” In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 172, 492

N.E.2d 146, 147, quoting Werden v. Crawford (1982), 70 Ohio St.2d 122, 124, 435 N.E.2d

424, 426. “The purpose of separately stated findings of fact and conclusions of law is to

enable a reviewing court to determine the existence of assigned error. *** If the [trial]

court’s ruling or opinion, together with other parts of the trial court’s record, provides an

adequate basis upon which an appellate court can decide the legal issues presented, there is *

** substantial compliance” with the procedural rule requiring the court to make separate

findings of fact and conclusions of law. Abney v. W. Res. Mut. Cas. Co. (1991), 76 Ohio

App.3d 424, 431, 602 N.E.2d 348.

{¶ 13} It is undisputed that Scott did not attend his divorce trial. His attorney elected
not to participate in the preparation of the judgment entry of divorce or stay for the final

hearing to cross-examine Marcy. This being the case, we find that Scott has waived his right

to contest this issue on appeal. See, generally, State v. Williams (1977), 51 Ohio St.2d 112,

364 N.E.2d 1364. Moreover, we have reviewed the trial court’s findings of fact and

conclusions of law and find no abuse of discretion. The trial court made no order of spousal

support, but reserved jurisdiction to do so; designated Marcy as the residential parent; ordered

Scott to pay child support; and divided the marital property. Each of these decisions, as

discussed infra, was supported by competent and credible evidence.

{¶ 14} The first assignment of error is overruled.

Division of Property

{¶ 15} Scott next argues that the trial court abused its discretion in dividing the marital

property unequally. Scott argues that the value the trial court placed on the marital real estate

was too high. But Scott failed to present any evidence of valuation to support his claim.

“[I]f a party fails to present sufficient evidence of valuation, they have presumptively waived

their right to appeal the distribution of those assets since the trial court can only make decisions

based on the evidence presented and is not required to order submission of additional

evidence.” Davis v. Davis, Cuyahoga App. No. 82343, 2003-Ohio-4657, ¶18, citing Hruby

v. Hruby (June 11, 1997), Columbiana App. No. 93-C-9; see, also, Roberts v. Roberts, Franklin

App. No. 08AP-27, 2008-Ohio-6121. Moreover, “when a party fails to present evidence as to
the value of an item, it is akin to an invited error and that party has waived the right to appeal

in regard to that asset.” Tyler v. Tyler, Cuyahoga App. No. 93124, 2010-Ohio-1428, ¶31,

citing Roberts. Consequently, Scott is now barred from asking this court to review the trial

court’s division of property.

{¶ 16} Moreover, our review of the trial court’s division of property shows that the

values utilized for the purposes of property and debt division were supported by both parties’

sworn financial affidavits, discovery, and Marcy’s testimony as set forth in the court’s App.R.

9(C) statement.

{¶ 17} The second assignment of error is overruled.

Child Support

{¶ 18} In the third and fourth assignments of error, Scott challenges the trial court’s

computation of child support. A trial court calculates the amount of child support using the

basic child support schedule and the applicable child support computation worksheet. R.C.

3119.02 requires that “[i]n any action in which a court child support order is issued or

modified, in any other proceeding in which the court determines the amount of child support

that will be ordered to be paid pursuant to a child support order, or when a child support

enforcement agency determines the amount of child support that will be paid pursuant to an

administrative child support order, the court or agency shall calculate the amount of the

obligor’s child support obligation in accordance with the basic child support schedule, the
applicable worksheet, and the other provisions of sections 3119.02 to 3119.24 of the Revised

Code.”

{¶ 19} Here, Marcy’s attorney prepared the child support worksheet and submitted it to

the trial court at the final hearing. Although neither Scott nor his attorney were present to sign

the worksheet, the record reflects that the calculation was based on financial affidavits

submitted by both parties as part of the divorce proceedings. The docket indicates that Marcy

filed her motion for child support with a supporting affidavit during the pretrial process. Scott

answered the motion and filed his own financial affidavit, and the parties exchanged discovery.

{¶ 20} Again, Scott has waived his claims by not participating in the divorce

proceedings. Thus, absent any evidence to the contrary, we do not find that the trial court

abused its discretion in computing child support.

{¶ 21} The third and fourth assignments of error are overruled.

Judgment Entry

{¶ 22} Finally, Scott claims that the trial court erred in its application of Loc.R.

28(B)(1). Loc.R. 28(B)(1) provides:

“(1) The Court may order or direct either party or counsel to prepare and present for
journalization the judgment entry required by subsection (A) of this Rule. When so
ordered or directed by the Court, such party or his counsel shall, within 10 days
thereafter, unless the time be extended by the Court, prepare a proper judgment entry
and submit the same to the opposing party or his counsel. The opposing party or his
counsel shall have 3 days in which to approve or reject the judgment entry. In the event
of rejection, the opposing party or his counsel shall file with the Court, at the time of
such rejection, a written statement of his objections to the judgment entry. This
 subsection shall not apply to uncontested matters or dissolutions of marriage.

“(2) Failure of the opposing party or his counsel to approve or reject any submitted

judgment entry as provided above will allow the preparer of the entry to unilaterally

present the entry for journalization by certifying thereon that the provision requiring

submission to the opposing party or his counsel has been complied with and the date on

which such compliance occurred.”

{¶ 23} Local rules of court are generally procedural in nature, and the court has

discretion in interpreting its own local rules. See Boieru v. State Emp. Relations Bd. (1988),

54 Ohio App.3d 23, 560 N.E.2d 801. We review the trial court’s application of Loc.R. 28

under an abuse of discretion standard. Roth v. Roth, Cuyahoga App. No. 89141,

2008-Ohio-927.

{¶ 24} Although Scott did not appear for a pretrial or trial and his counsel decided not

to stay to participate in drafting the judgment entry of divorce, Scott now claims that he should

have been given time to review and object to the judgment entry.

{¶ 25} Loc.R. 4(A) of the Court of Common Pleas of Cuyahoga County, Division of

Domestic Relations, provides: “[i]f a party seeking relief fails to appear on the scheduled trial

or hearing date, either in person or by counsel, the court may enter an order dismissing the

action for want of prosecution. If the other party fails to appear, either in person or by

counsel, and the party seeking relief does appear, the court may allow the case to proceed and
hear and determine all matters.” Id. As the trial court stated in its App.R. 9(C) statement,

when Scott failed to appear at trial, the court directed Marcy’s attorney to draft the judgment

entry. Marcy’s attorney had not previously drafted the entry, as is the custom in uncontested

divorce cases, because the parties expected Scott to attend his own divorce trial. But Scott

failed to appear, and his counsel left without participating in drafting the final judgment entry

or hearing. Based on this set of facts, we find no abuse of discretion in the trial court’s

application of Loc.R. 28(B)(1).

{¶ 26} Therefore, the fifth assignment of error is overruled.

{¶ 27} Accordingly, judgment is affirmed.

It is ordered that appellee recover of appellant her costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas Domestic Relations Division 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.

LARRY A. JONES, JUDGE

PATRICIA A. BLACKMON, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR