[Cite as Clark v. Clark, 2012-Ohio-3249.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97294


                                   MARCIA L. CLARK

                                                     PLAINTIFF-APPELLANT

                                               vs.

                                       JACK A. CLARK
                                                     DEFENDANT-APPELLEE



                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Domestic Relations Division
                                       Case No. D-334815

        BEFORE: Stewart, P.J., Rocco, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                    July 19, 2012
ATTORNEY FOR APPELLANT

Sam Thomas, III
Rockefeller Building
614 W. Superior Avenue
No. 1100-1106
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Victoria Nagy Smith
Victoria Nagy Smith Co., LPA
1236 Smith Court
Rocky River, OH 44116

Kimberly K. Yoder
Kimberly K. Yoder Co., LPA
20325 Center Ridge Road, Suite 512
Rocky River, Ohio 44116
MELODY J. STEWART, P.J.:

       {¶1} Plaintiff-appellant Marcia L. Clark and defendant-appellee Jack A. Clark

were divorced in a proceeding in which they contested just one issue: whether Marcia

should pay spousal support to Jack. Following trial, the court ordered Marcia to pay Jack

spousal support of $1,000 per month for 24 months. Marcia claims this order was an

abuse of the court’s discretion and against the manifest weight of the evidence because

Jack made essentially no financial contribution to the marriage and was so abusive during

the marriage that he did not merit spousal support.

       {¶2} Prior to trial, the parties settled all their issues apart from spousal support.

The court allotted one hour of time for the parties to argue their respective positions on

that issue.   Following trial, the court used a form entry to issue judgment.              That

judgment referenced R.C. 3105.18(C)(1), with the court stating that it considered factors

(a), (b), (h), (k), (l), and (n) in awarding spousal support. Those factors were the income

of the parties; their relative earning abilities; the relative extent of the parties’ education;

the time and expense necessary for Jack, the party seeking spousal support, to acquire

education or training to qualify for appropriate employment; the tax consequences of an

award of spousal support; and “any other factor that the court expressly finds to be

relevant and equitable,” although the court did not state what that factor might be.
       {¶3} We review the court’s decision for both the award and amount of spousal

support under an abuse of discretion standard. Cherry v. Cherry, 66 Ohio St.2d 348, 421

N.E.2d 1293 (1981). However, the record on appeal does not contain evidence of any

kind, much less that which would document the earning capabilities of the parties or their

conduct during the marriage. Although the court stated that it heard the “testimony” on

the contested spousal support issue, no court reporter was present to record the trial, nor

were the proceedings recorded for later transcription.

       {¶4} “[I]t is the duty of the appellant to ensure that the record, or whatever

portions thereof are necessary for the determination of the appeal, are filed with the court

in which he seeks review.” Rose Chevrolet, Inc. v. Adams

36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988). “App.R. 9(B) * * * makes clear that a

transcript of all evidence relevant to challenged findings or conclusions is necessary when

the appellant contends: (1) they are contrary to the weight of the evidence, or (2) they

are unsupported by the evidence.” Tyrrell v. Invest. Assoc., Inc., 16 Ohio App.3d 47, 49,

474 N.E.2d 621 (8th Dist.1984).

       {¶5} When a transcript from a trial is necessary for appeal but unavailable, the

appellant must utilize App.R. 9(C) and prepare a statement of the evidence for the court’s

settlement and approval. Marcia did not do so. The arguments on appeal refer to

statements made in Marcia’s trial brief, but statements contained in a trial brief do not

constitute evidence. Inger Interiors v. Peralta, 30 Ohio App.3d 94, 96, 506 N.E.2d 1199
(8th Dist.1986); State v. Mathia, 11th Dist. No. 92-P-0035, 1992 WL 366891 (Dec. 11,

1992).

         {¶6} With the record on appeal containing no evidence of any kind, we cannot

review the court’s judgment to determine whether that judgment was an abuse of

discretion. We have no choice but to presume the regularity of the court’s judgment and

overrule Marcia’s assignments of error. Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1980).

         {¶7} The dissent argues that the court accepted Marcia’s proposed findings of fact

and that these findings of fact form the record on appeal.                This conclusion

misapprehends the nature of a court’s factual findings. 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, 23 Ohio St.3d 170, 172, 492 N.E.2d 146, 147 (1986), quoting

Werden v. Crawford, 70 Ohio St.2d 122, 124, 435 N.E.2d 424, 426 (1982). All findings

of fact are subject to review based on the weight of the evidence, regardless of whether

made by a jury or the court sitting as the trier of fact. Gerijo, Inc. v. Fairfield, 70 Ohio

St.3d 223, 638 N.E.2d 533 (1994); Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80,

10 OBR 408, 461 N.E.2d 1273 (1984). It is an oxymoron to say that “findings of fact”

can constitute a “record” for purposes of appeal — the only way to review those factual

findings is by examining the record of evidence and testimony before the court.     If there
is no record of evidence presented to the court, we have no choice but presume the

regularity of the court’s findings of fact.

       {¶8} Even if we could somehow construe the court’s findings of fact as

constituting the “record” on appeal, the court made it plain that it was accepting Marcia’s

proposed findings of fact only to the extent they were not “inconsistent” with the court’s

order. (Arguably, the court should have required Jack to submit findings for the court to

adopt.) The court’s order that Marcia pay spousal support was at odds with nearly all of

her proposed findings of fact. For example, when submitting her proposed findings of

fact, Marcia conceded that she testified at trial that she earned overtime pay on her job,

but was claiming post-trial that she “no longer receives overtime as was her testimony

during trial of this matter” as a basis for arguing against any award of spousal support to

Jack. In her pretrial statement, Marcia claimed to earn $79,000 per year, including

overtime pay. Both parties agreed that Jack earned only $12,274 per year. In her

proposed findings of fact and conclusions of law, Marcia argued that a recent loss of

overtime dropped her income to $60,000, a fact that she conceded was contrary to her

trial testimony.

       {¶9} As we have noted, pretrial statements are not evidence — we cite them only

to underscore the futility of reviewing claimed errors regarding factual disputes when no

transcript or statement of the evidence is available. Marcia’s post-trial claimed income

was significantly at odds with her trial and pretrial claimed income. And to the extent

that the court ordered Marcia to pay Jack spousal support, it must have rejected her claims
of his idleness, personal abuse, and drinking because those allegations would have been

inconsistent with the court’s judgment.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover of appellant his 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.




MELODY J. STEWART, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;

KENNETH A. ROCCO, J., DISSENTS WITH
SEPARATE OPINION



KENNETH A. ROCCO, J., DISSENTING:

       {¶11} I respectfully dissent from the majority’s decision to presume the regularity

of the court’s judgment and overrule Marcia’s assignments of error based on “the record

on appeal containing no evidence of any kind.” The court specifically adopted Marcia’s

proposed findings of fact and conclusions of law unless they were “internally
inconsistent” with the court’s order. These adopted findings and conclusions form the

“record” for review of this appeal.

       {¶12} The majority acknowledges “[s]ome of Marcia’s proposed findings of fact

were inconsistent with the court’s order.” The majority, however, fails to note only one of

nine relevant proposed findings and conclusions were consistent with the court’s order.

       {¶13} The trial court’s findings of fact and conclusions of law included:

       1) “Throughout the parties’ six (6) year marriage, the Defendant made no

contributions to the marriage, excessively drank alcohol, was verbally cruel, and at times

there were physical altercations between Plaintiff and Defendant.”

       2) “During the eighteen (18) months the Defendant resided in Iowa, there was no

financial assistance and/or communications made by either party to the other.”

       3) “Defendant frequently advised Plaintiff that ‘his money is his money and he will

do whatever he wants to do with it.’” He also told Marcia he spent all of his money on

alcohol.     While Jack acted remorseful for not using his income to pay the household

expenses, he immediately resorted to the same careless acts depicted prior to his display

of regret.

       4) Jack damaged Marcia’s vehicle while at work, but refused to pay for the

damages.

       5) Jack drove a car loaned to him by a friend, and Marcia paid at least $1,500 for

repairs to the car.   Jack did not re-pay Marcia for the repairs.     6) “Trial court may

use its discretion and consider factors such as reckless spending during the marriage and
drug and alcohol addiction to minimize the amount of spousal support to award.”

(Citations omitted.)

       7) “Per the Defendant’s testimony he didn’t do anything to mitigate his losses, he

sits around being bored looking stir crazy, staring at the four walls, and collecting his

unemployment. Defendant didn’t take the initiative to improve his quality of life.”

       8) “Plaintiff has no disposable income to pay any spousal support to the

Defendant. Plaintiff is in the negative in the amount of $154.01 per month [as shown by

wife’s pretrial statement and affidavit of property].”

       9) “The duration of spousal support should be reduced by a year and a half from

six years to four and a half years for the eighteen (18) months the parties did not

cohabitate with each other.”

       {¶14} The goal of spousal support is to reach an equitable result.      Kaechele v.

Kaechele, 35 Ohio St.3d 93, 96, 518 N.E.2d 1197 (1988). “And while there is no set

mathematical formula to reach this goal, the Ohio Supreme Court requires the trial court

to consider all 14 factors of R.C. 3105.18(C)[, when originally granting spousal support,]

and ‘not base its determination upon any one of those factors taken in isolation.’”

Dunagan v. Dunagan, 8th Dist. No. 93678, 2010-Ohio-5232, ¶ 15, citing Kaechele. A

trial court is not required to enumerate each factor in R.C. 3105.18(C)(1), but must

provide a sufficient basis to support its award.         Kapadia v. Kapadia, 8th Dist. No.

94456, 2011-Ohio-2255, ¶ 87, citing Abram v. Abram, 9th Dist. No. 3233-M,

2002-Ohio-78.
       {¶15} The trial court’s award of spousal support is almost entirely inconsistent

with its facts and conclusions. The facts point to a different conclusion, but the court

failed to explain why it awarded the support despite the fact findings. In other words,

there is no basis for the trial court’s conclusion Jack is entitled to spousal support of

$1,000 per month for 24 months given such facts.          Jack entered the marriage as a

minimum wage worker, and he did little, if anything, to contribute to the social and

financial well-being of the marriage.     Under these circumstances, he should leave the

marriage without spousal support unless it is clear, and not speculative, the court rejected

all or most of the findings of fact 1 through 8.

       {¶16} I agree with the majority that the purpose of findings of fact is “to aid the

appellate court in reviewing and determining the validity of the basis for the trial court’s

judgment.” Citation omitted. Findings of fact 1 through 8 do not aid our review;

instead they confound it.    Thus, I would, therefore, reverse the award and remand the

matter to the trial court for either an explanation, based on the “findings of fact and

conclusions,” for the award to Jack of $1,000 per month for 24 months, or a recalculation

of the award if the court determines Jack remains entitled to any spousal support.

Kapadia; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578

(1978).
