[Cite as Wilk v. Wilk, 2011-Ohio-5273.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96347
GREGORY C. WILK, JR. PLAINTIFF-APPELLEE
vs.
YALANA WILK DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-333919
BEFORE: Celebrezze, J., Kilbane, A.J., and Keough, J.
RELEASED AND JOURNALIZED: October 13, 2011 ATTORNEY FOR APPELLANT
Jennifer L. Lawther 27730 Euclid Avenue Cleveland, Ohio 44132
ATTORNEY FOR APPELLEE
John D. Zalic Law Office of John Zalic 7515 Pearl Road Suite 206 Middleburg Heights, Ohio 44130
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Yalana Wilk, appeals from the judgment entry of
divorce entered in the Cuyahoga County Court of Common Pleas, Domestic Relations
Division, on December 29, 2010. After review of the record and relevant case law, we
affirm in part, reverse in part, and remand.
{¶ 2} Appellant and Gregory C. Wilk, Jr. (“appellee”) were married in
McConnelsville, Ohio, on September 23, 2000. On October 25, 2010, appellee filed a
complaint for divorce. Upon receiving service of the complaint for divorce on October
29, 2010, appellant failed to file a formal answer with the court. On December 29, 2010,
the trial court held a hearing for a final determination of the issues. Appellant did not
appear at the hearing and presented no evidence or documentation to the trial court. At
the conclusion of the hearing, the trial court issued a final judgment entry granting
appellee an uncontested divorce. {¶ 3} On January 28, 2011, appellant filed a notice of appeal with this court.
Subsequently, appellant filed a motion for relief from judgment and a motion to stay
judgment with the lower court on February 9, 2011. On March 16, 2011, appellant filed
a motion to remand with this court so that her pending motions with the lower court could
be adjudicated. On April 8, 2011, this court denied appellant’s motion to remand.
{¶ 4} Appellant’s timely appeal raises three assignments of error:
{¶ 5} I. “The trial court abused its discretion by naming Gregory C. Wilk as the
residential parent and legal custodian of the minor children without considering the best
interests of the minor children.”
{¶ 6} II. “The trial court abused its discretion in dividing the marital property
by listing the date of termination of the marriage as December 29, 2010, yet using values
of assets from June 30, 2010.”
{¶ 7} III. “The trial court abused its discretion by not considering spousal
support.”
Law and Analysis
I
{¶ 8} In her first assignment of error, appellant argues that the trial court erred in
allocating parental rights and responsibilities without including the relevant evidence and
factors it considered in determining the “best interests” of the children within the
judgment entry. {¶ 9} Pursuant to the divorce decree, appellee was named the residential parent
and legal custodian of the parties’ three minor children. An appellate court must uphold
the trial court’s allocation of parental rights and responsibilities absent an abuse of
discretion, which implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Mason v. Mason, Cuyahoga App. No. 80368, 2002-Ohio-6042, citing
Masters v. Masters (1994), 69 Ohio St.3d 83, 630 N.E.2d 665. Accordingly, absent a
clear showing of an abuse of discretion, we will not reverse the trial court’s judgment.
{¶ 10} Provisions for the allocation of parental rights and responsibilities are set
forth in R.C. 3109.04. In making the allocation, the trial court is required to take into
account the best interests of the children. In determining the best interests of a child, the
court is to consider all relevant factors, including, but not limited to, those factors set
forth in R.C. 3109.04(F)(1). However, absent a Civ.R. 52 motion,1 a trial court need not
make specific findings correlating to R.C. 3109.04(F) in the judgment entry. See Harp v.
Harp (Apr. 16, 1990), Clermont App. No. CA 89-08-075. Further, an appellate court
will presume regularity in the trial. State v. Coombs (1985), 18 Ohio St.3d 123, 125, 480
N.E.2d 414. Therefore, generally this court would presume that the trial court
considered the R.C. 3109.04(F) factors, unless there is reason to believe the trial court did
not consider those factors. See Bird v. Bird (Feb. 19, 1985), Stark App. No. CA 6423.
Civ.R. 52 states: “When questions of fact are tried by a court without a jury, judgment may 1
be general for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.” {¶ 11} In this case, the trial court’s judgment entry not only fails to mention R.C.
3109.04 or make any related factual findings, it also fails to indicate that the trial court
considered the children’s best interests in designating appellee as the custodial parent. In
fact, the judgment entry makes no mention of the children’s best interests. Rather, the
judgment entry merely consists of a blanket order, stating, “[i]t is further ordered,
adjudicated and decreed that parental rights and responsibilities are allocated primarily to
Plaintiff, Gregory C. Wilk, who is hereby designated the Residential Parent and Legal
Custodian of the minor children.”
{¶ 12} While we recognize that the trial court was not required to make express
findings of fact without a Civ.R. 52 motion before it, we find that where, as here, the best
interests of children are at issue, there should be some indication in the judgment entry
that the trial court considered the best interests of the children pursuant to R.C.
3109.04(F) when it allocated parental rights and responsibilities. Without such indicia of
reliability, we have no basis to presume that the trial court considered the R.C. 3109.04(F)
factors. See Hawkins v. Hawkins (Dec. 18, 1979), Franklin App. No. 79AP-404; Phillips
v. Phillips, Licking App. No. 2005CA00072, 2006-Ohio-2098.
{¶ 13} For the foregoing reasons, appellant’s first assignment of error is sustained
as it pertains to the allocation of parental rights and responsibilities. Because there is no
transcript of the December 29, 2010 divorce hearing available for this court to review, we
remand this mater to the trial court for a limited hearing on the allocation of parental
rights and responsibilities. II
{¶ 14} In her second assignment of error, appellant argues that the trial court
abused its discretion in dividing the parties’ marital property by listing the date of
termination of the marriage as December 29, 2010, yet using values of assets from June
30, 2010. Furthermore, appellant contends that the trial court erred in failing to include
specific findings of fact to support its use of June 30, 2010 as the valuation date for
certain marital assets.
{¶ 15} In the divorce decree, the trial court used the alternative date of June 30,
2010 as the valuation date for the parties’ interest in appellee’s Boilermakers National
Annuity trust and IRA accounts. “The decision to use the final hearing date as the
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[Cite as Wilk v. Wilk, 2011-Ohio-5273.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96347
GREGORY C. WILK, JR. PLAINTIFF-APPELLEE
vs.
YALANA WILK DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-333919
BEFORE: Celebrezze, J., Kilbane, A.J., and Keough, J.
RELEASED AND JOURNALIZED: October 13, 2011 ATTORNEY FOR APPELLANT
Jennifer L. Lawther 27730 Euclid Avenue Cleveland, Ohio 44132
ATTORNEY FOR APPELLEE
John D. Zalic Law Office of John Zalic 7515 Pearl Road Suite 206 Middleburg Heights, Ohio 44130
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Yalana Wilk, appeals from the judgment entry of
divorce entered in the Cuyahoga County Court of Common Pleas, Domestic Relations
Division, on December 29, 2010. After review of the record and relevant case law, we
affirm in part, reverse in part, and remand.
{¶ 2} Appellant and Gregory C. Wilk, Jr. (“appellee”) were married in
McConnelsville, Ohio, on September 23, 2000. On October 25, 2010, appellee filed a
complaint for divorce. Upon receiving service of the complaint for divorce on October
29, 2010, appellant failed to file a formal answer with the court. On December 29, 2010,
the trial court held a hearing for a final determination of the issues. Appellant did not
appear at the hearing and presented no evidence or documentation to the trial court. At
the conclusion of the hearing, the trial court issued a final judgment entry granting
appellee an uncontested divorce. {¶ 3} On January 28, 2011, appellant filed a notice of appeal with this court.
Subsequently, appellant filed a motion for relief from judgment and a motion to stay
judgment with the lower court on February 9, 2011. On March 16, 2011, appellant filed
a motion to remand with this court so that her pending motions with the lower court could
be adjudicated. On April 8, 2011, this court denied appellant’s motion to remand.
{¶ 4} Appellant’s timely appeal raises three assignments of error:
{¶ 5} I. “The trial court abused its discretion by naming Gregory C. Wilk as the
residential parent and legal custodian of the minor children without considering the best
interests of the minor children.”
{¶ 6} II. “The trial court abused its discretion in dividing the marital property
by listing the date of termination of the marriage as December 29, 2010, yet using values
of assets from June 30, 2010.”
{¶ 7} III. “The trial court abused its discretion by not considering spousal
support.”
Law and Analysis
I
{¶ 8} In her first assignment of error, appellant argues that the trial court erred in
allocating parental rights and responsibilities without including the relevant evidence and
factors it considered in determining the “best interests” of the children within the
judgment entry. {¶ 9} Pursuant to the divorce decree, appellee was named the residential parent
and legal custodian of the parties’ three minor children. An appellate court must uphold
the trial court’s allocation of parental rights and responsibilities absent an abuse of
discretion, which implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Mason v. Mason, Cuyahoga App. No. 80368, 2002-Ohio-6042, citing
Masters v. Masters (1994), 69 Ohio St.3d 83, 630 N.E.2d 665. Accordingly, absent a
clear showing of an abuse of discretion, we will not reverse the trial court’s judgment.
{¶ 10} Provisions for the allocation of parental rights and responsibilities are set
forth in R.C. 3109.04. In making the allocation, the trial court is required to take into
account the best interests of the children. In determining the best interests of a child, the
court is to consider all relevant factors, including, but not limited to, those factors set
forth in R.C. 3109.04(F)(1). However, absent a Civ.R. 52 motion,1 a trial court need not
make specific findings correlating to R.C. 3109.04(F) in the judgment entry. See Harp v.
Harp (Apr. 16, 1990), Clermont App. No. CA 89-08-075. Further, an appellate court
will presume regularity in the trial. State v. Coombs (1985), 18 Ohio St.3d 123, 125, 480
N.E.2d 414. Therefore, generally this court would presume that the trial court
considered the R.C. 3109.04(F) factors, unless there is reason to believe the trial court did
not consider those factors. See Bird v. Bird (Feb. 19, 1985), Stark App. No. CA 6423.
Civ.R. 52 states: “When questions of fact are tried by a court without a jury, judgment may 1
be general for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.” {¶ 11} In this case, the trial court’s judgment entry not only fails to mention R.C.
3109.04 or make any related factual findings, it also fails to indicate that the trial court
considered the children’s best interests in designating appellee as the custodial parent. In
fact, the judgment entry makes no mention of the children’s best interests. Rather, the
judgment entry merely consists of a blanket order, stating, “[i]t is further ordered,
adjudicated and decreed that parental rights and responsibilities are allocated primarily to
Plaintiff, Gregory C. Wilk, who is hereby designated the Residential Parent and Legal
Custodian of the minor children.”
{¶ 12} While we recognize that the trial court was not required to make express
findings of fact without a Civ.R. 52 motion before it, we find that where, as here, the best
interests of children are at issue, there should be some indication in the judgment entry
that the trial court considered the best interests of the children pursuant to R.C.
3109.04(F) when it allocated parental rights and responsibilities. Without such indicia of
reliability, we have no basis to presume that the trial court considered the R.C. 3109.04(F)
factors. See Hawkins v. Hawkins (Dec. 18, 1979), Franklin App. No. 79AP-404; Phillips
v. Phillips, Licking App. No. 2005CA00072, 2006-Ohio-2098.
{¶ 13} For the foregoing reasons, appellant’s first assignment of error is sustained
as it pertains to the allocation of parental rights and responsibilities. Because there is no
transcript of the December 29, 2010 divorce hearing available for this court to review, we
remand this mater to the trial court for a limited hearing on the allocation of parental
rights and responsibilities. II
{¶ 14} In her second assignment of error, appellant argues that the trial court
abused its discretion in dividing the parties’ marital property by listing the date of
termination of the marriage as December 29, 2010, yet using values of assets from June
30, 2010. Furthermore, appellant contends that the trial court erred in failing to include
specific findings of fact to support its use of June 30, 2010 as the valuation date for
certain marital assets.
{¶ 15} In the divorce decree, the trial court used the alternative date of June 30,
2010 as the valuation date for the parties’ interest in appellee’s Boilermakers National
Annuity trust and IRA accounts. “The decision to use the final hearing date as the
valuation date or another alternative date pursuant to R.C. 3105.171 (A)(2)(a) and (b) is
discretionary and will not be reversed on appeal absent an abuse of discretion.”
(Emphasis added.) Cangemi v. Cangemi, Cuyahoga App. No. 86670, 2006-Ohio-2879,
¶23, citing Schneider v. Schneider (1996), 110 Ohio App.3d 487, 493, 674 N.E.2d 769.
A review of the record fails to demonstrate that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.
{¶ 16} In this case, appellant did not submit any valuations to the trial court and
failed to present any evidence to support her position that the June 30, 2010 valuation
date was inequitable. Consequently, we assume regularity in the trial court’s decision to
use June 30, 2010 as the valuation date for appellee’s Boilermakers National Annuity
trust and IRA accounts. See Davis v. Davis, Cuyahoga App. No. 82343, 2003-Ohio-4657, ¶18, citing Hruby v. Hruby (June 11, 1997), Columbiana App. No.
93-C-9 (“[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.”).
{¶ 17} Additionally, appellant failed to request findings of fact and conclusions of
law pursuant to Civ.R. 52. Therefore, the trial court was not required to include specific
findings of fact to support its use of June 30, 2010 as the valuation date for the parties’
{¶ 18} Accordingly, appellant’s second assigned error is overruled.
III
{¶ 19} In her third assignment of error, appellant argues that the trial court abused
its discretion by failing to conduct a spousal support analysis in the judgment entry.
{¶ 20} Generally, a trial court’s award of spousal support must include analysis of
or reference to the factors in R.C. 3105.18(C)(1) underlying the order. Otherwise the
reviewing court cannot determine if the award was fair, equitable, and in accordance with
the law. Kapadia v. Kapadia, Cuyahoga App. No. 94456, 2011-Ohio-2255.
{¶ 21} In this matter, appellee requested spousal support in his complaint.
However, the December 29, 2010 judgment entry did not include an award of spousal
support for either party. As stated, appellant did not file an answer to the complaint for
divorce, failed to appear for trial, presented no evidence at trial, and made no requests of the trial court before or during trial. Additionally, appellant has not provided this court
with the transcript of the divorce proceedings, and we must presume regularity in the trial
court’s decision not to award spousal support in this matter. Therefore, the trial court did
not abuse its discretion in failing to conduct a spousal support analysis when it did not
include an award of spousal support in the judgment entry.
{¶ 22} Appellant’s third assignment of error is overruled.
{¶ 23} Affirmed in part; reversed in part as to the allocation of parental rights and
responsibilities. The matter is remanded for further proceedings consistent with this
opinion.
It is ordered that appellant and appellee share the 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 common
pleas 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.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR