COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59786 ELIZABETH LEE, N.K.A. SAMBOR : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM J. LEE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 83-D-145782 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: BRIAN M. URBAN, ESQ. BARRY KING, ESQ. 600 Standard Building 728 Marion Building Cleveland, Ohio 44113 1276 West Third Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant/defendant, William Lee, and plaintiff/appellee, Elizabeth Sambor, were divorced in 1984. In April of 1990 the trial court entered a journal entry which overruled appellant's objections to a prior referee's report, adopted the report, dismissed without prejudice appellant's motions to modify, to show cause and for attorney's fees (nos. 120445, 120446 and 120447) and granted appellee's motions to modify child support, for attorney's fees, to show cause why appellant should not be held in contempt and to terminate joint custody. On appeal appellant assigns three errors for review. I THE TRIAL COURT ABUSED ITS DISCRETION IN: A AWARDING CHILD SUPPORT BASED ON AN IMPUTED INCOME. B AWARDING ATTORNEY FEES TO PLAINTIFF. C AWARDING SOLE CUSTODY OF THE MINOR CHILD TO PLAINTIFF. A Rule 75(d) of the Supreme Court Rules of Superintendence for the Courts of Common Pleas stated as follows: Potential Income. If a parent is voluntarily unemployed ... child support may be calculated based on a determination of potential income. ... If the trial - 2 - court should decide to impute income, then it should determine employment potential and probable earnings level based on the obligor's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community. (Emphasis added.) Appellant's former employer testified that appellant earned $2,625 a month until his termination for cause. The referee also had evidence that his two prior employers paid him $34,500 and $27,500, respectively. The referee properly concluded that appellant had the ability to earn that amount ($31,500 a year). Assignment of error No. I(A) is overruled. B Appellant argues that the amount awarded for attorney's fees exceeds his ability to pay and was awarded for unnecessary work, i.e. a premature motion to show cause. Appellant's brief failed to pursue his claim that he could not afford to pay the amount ordered. He did argue that the motion contending that he was behind in his child support payments was premature because it claimed a failure to pay an amount ordered in a referee's report that was not adopted and journalized until after the motion. However, at the subsequent referee's hearing the failure to pay was established as having occurred pursuant to a proper court order. The motion was not unnecessary. Assignment of error No. I(B) is overruled. C Appellant contends that he was not allowed to testify and that the referee ignored the family conciliation department - 3 - report that appellee subconsciously wished appellant would stay out of the child's life. Appellant and his attorney failed to appear. The referee's report found that appellant's attorney received notice but appellant's affidavit attached to the objections to the report states that he never received notice of the August and October hearings, was not told by his counsel and only suspected the date of the October hearing because of a subpoena. However, appellant's brief concedes notice of the hearing on the motions but insists there was no notice of a contempt hearing. The hearing on the motion to show cause was the contempt hearing. Notice was provided. The report (attached to appellant's objections) is not signed, the identity of the author is unknown and it is dated April 27, 1988, over a year before the hearing in question. It was not an abuse of discretion to decide not to be bound by that report. Assignment of error No. I(C) is overruled. II THE FINDING OF CONTEMPT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS. Appellant contends that in addition to notice of the hearing on the motions, under R.C. 2705.03 he was entitled to notice of the charge and an opportunity to be heard. However, one of the motions was the motion to show cause why appellant should not be held in contempt for failure to pay child support as ordered. - 4 - Appellant had the notice required. Cincinnati v. Cincinnati District Council 5 (1973), 35 Ohio St. 2d 197 (motion "to show cause" complied with R.C. 2705.03). Assignment of error No. II is overruled. III THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING DEFENDANT'S MOTIONS TO SHOW CAUSE AND MOTION TO MODIFY CHILD SUPPORT. Appellant's motions were dismissed without prejudice for want of prosecution after appellant failed to appear at the hearing after receiving notice. Appellant has not been prejudiced. The trial court did not abuse its discretion. Assignment of error No. III is overruled. The judgment is affirmed. - 5 - 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 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. NAHRA, J., AND SPELLACY, J. CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .