COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60674 LINDA L. BROOKS : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BARRY H. BROOKS, M.D. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations No. D-140808 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: PAULA J. GOODRICH Newman & Newman 716 Leader Building Cleveland, Ohio 44114 For Defendant-Appellant: JAMES L. HARDIMAN Hardiman, Alexander, Buchanan & Howland 1414 Diamond Building 1100 Superior Avenue Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Defendant-appellant Barry H. Brooks, M.D., appeals from a post-decree domestic relations court order reducing to judgment child support arrearages in an amount totalling $18,177.25. Plaintiff-appellee Linda L. Brooks and defendant were divorced July 29, 1983 and plaintiff was awarded custody of their two minor children. Defendant was obligated to pay alimony of $420 per week to plaintiff for thirty months pursuant to the final domestic relations court decree although the decree provided that defendant's obligation would be reduced to $220 per week if plaintiff remarried or cohabited with a male during this period. Defendant's child support obligations were subsequently modified by the domestic relations court to $110 per week for each of the two children commencing January 18, 1985. Defendant subsequently filed a motion to terminate alimony contending plaintiff was cohabitating with another male and that defendant had accordingly overpaid his alimony obligations under the divorce decree. The domestic relations court entered judgment in favor of defendant finding that plaintiff received $9,018.44 in alimony overpayments. The record does not reveal whether defendant made any efforts to collect from plaintiff on this judgment, however, it appears the outstanding judgment has not been paid. Defendant without a court order subsequently terminated child support payments for his eldest son Jason based upon his contention that Jason was emancipated and stopped - 3 - attending school. The record demonstrates defendant made no child support payments for Jason since November 1989, but failed to obtain a court order concerning these support payments. Plaintiff subsequently filed a motion to reduce child support arrearages to judgment. The record demonstrates defendant was personally served with this motion by certified mail. Defendant does not dispute receipt of the motion but contends neither he nor his counsel received notice of the hearing on the motion. Neither defendant nor his counsel appeared at the August 1, 1990 hearing scheduled on this motion. The referee found that notice of the hearing had been mailed by the clerk of the domestic relations court. After the hearing, the referee recommended judgment in favor of plaintiff in the total amount of $18,177.25 including interest for the period from June 18, 1985 to August 1, 1990. The referee made no set-off for the prior judgment in favor of defendant arising from the alimony overpayments to plaintiff. Defendant subsequently filed objections to the referee's recommendations contending the following, viz., (1) he did not receive actual notice of the August 1, 1990 hearing date, (2) the judgment exceeded the amount sought by plaintiff in her motion, and (3) the referee improperly refused to set off defendant's judgment for the alimony overpayments from the child support arrearages prior to rendering judgment on plaintiff's motion. - 4 - The trial court subsequently adopted the referee's recommendations after reviewing the referee's report and defendant's objections. Defendant timely appeals raising three assignments of error. I. Defendant's first assignment of error follows: THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING JUDGMENT FOR APPELLEE WHERE THERE WAS NO SHOWING THAT APPELLANT HAD ACTUALLY RECEIVED NOTICE OF THE HEARING. Defendant's first assignment of error lacks merit. Defendant contends that neither he nor his counsel received actual notice of the August 1, 1990 hearing scheduled on plaintiff's motion to reduce the child support arrearages to judgment. Dom. Rel. Loc. Rules 2(E)(3) and 16(D) provide that notice of the hearing date upon motions as in the case sub judice shall be sent to the parties or counsel of record no less than fourteen days prior to the scheduled hearing. The referee's report indicated compliance with these rules as follows: The Referee finds that service upon said motion was duly and properly made; that notice containing the date and time of this (sic) proceedings was mailed to counsel of record or, if unrepresented, to the parties themselves; that the fact of such mailing was journalized in the Minute Book maintained by the Clerk of Courts ***. (Emphasis added). The report further states as follows: The Referee further finds that Plaintiff filed a Motion to Reduce Arrearage to - 5 - Judgment (#168272) and for Attorney Fees (#168273) on June 11, 1990; and that a hearing was held August 1, 1990 with Plaintiff and Counsel for Plaintiff, Defendant failing to appear although duly served with notice of the hearing. (Emphasis added). Defendant filed an affidavit with his objections to the referee's report claiming that neither he nor his attorney received notice of the scheduled hearing date. The affidavit states in pertinent part as follows: 3. That contrary to the Referee's report, neither the defendant or (sic) his attorney was served with notice of the hearing and, therefore, had no knowledge or prior notice of the August 1, 1990 hearing. However, a reviewing court must presume, absent evidence to the contrary, that notice sent by the clerk of courts was received when the record demonstrates the clerk followed the applicable rules in mailing notice of a scheduled hearing as in the case sub judice. Martin v. Manning (December 5, 1991), Cuyahoga App. No. 62039, unreported. Under the circumstances, we find the trial court did not err in failing to conduct an evidentiary hearing to determine whether defendant actually received such notice since defendant failed to rebut the presumption of notice of the August 1, 1990 hearing in his affidavit. Defendant's affidavit failed to state a reason to explain why he did receive the notice of the hearing sent by the trial court. - 6 - Defendant's counsel likewise failed to submit an affidavit stating that he did not receive notice of the August 1, 1990 hearing date. Defendant's statement that his counsel did not receive such notice from the domestic relations court is not based upon personal knowledge and defendant failed to produce certified copies of the relevant pages of the Clerk of Courts Minute Book to demonstrate notice had not been sent. See, Id. The record demonstrates defendant received the prior notice of the filing of plaintiff's motion; however the record contains no evidence the notice of the hearing date was returned to the clerk of court or any explanation for why defendant did not receive such notice. Plaintiff and plaintiff's counsel both attended the August 1, 1990 hearing. Contrary to defendant's argument, the validity of a judgment is not affected by a party's failure to receive actual notice of the hearing. Id.; Americare Corp. v. Misenko (1984), 10 Ohio St. 3d 132. Accordingly, defendant's first assignment of error is overruled. The Court shall address defendant's remaining assignments of error pursuant to App. R. 12(A). II. Defendant's second assignment of error follows: APPELLEE'S JUDGMENT EXCEEDED HER DEMAND AND, AS SUCH, APPELLANT WAS DENIED DUE PROCESS. Defendant's second assignment of error lacks merit. Defendant contends plaintiff's motion to reduce child support arrearages to judgment requested only $5,500.00 and not - 7 - the $16,910.93 in arrearages with $1,266.32 in interest calculated and awarded by the trial court contrary to Civ. R. 54(C). Defendant has cited no authority that Civ. R. 54(C) applies in the context of a motion to reduce outstanding unpaid child support installment orders to a lump sum judgment for purposes of execution under the domestic relations court's continuing post- decree jurisdiction. Based upon our review of the record sub judice, plaintiff's motion provided defendant with sufficient notice that defendant was potentially liable for all accrued unpaid child support arrearages with interest. See, DeFranco v. Village of Valley View (Nov. 29, 1990), Cuyahoga App. No. 57719, unreported at 11. Accordingly, defendant's second assignment of error is overruled. III. Defendant's third assignment of error follows: FAILURE OF THE TRIAL COURT TO OFF-SET APPELLEE'S JUDGMENT BY AMOUNT DUE APPELLANT CONSTITUTED AN ABUSE OF DISCRETION AND REVERSIBLE ERROR. Defendant's third assignment of error lacks merit. Defendant contends the trial court abused its discretion by failing to set-off defendant's judgment against plaintiff for alimony overpayments in the amount of $9,018.44 with interest against the amount of outstanding child support arrearages prior to rendering its judgment in the case sub judice. - 8 - However, defendant has failed to satisfy his burden of demonstrating the trial court abused its discretion. An "'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219. Defendant has cited no authority mandating the trial court set-off a debt of the mother for alimony overpayments against the father's unrelated debt of child support. A trial court's determination whether to set off unrelated debts against child support or alimony obligations will not be reversed on appeal absent evidence of such an abuse of discretion. See Minha v. Minha (1989), 48 Ohio App. 3d 303; Maloof v. Maloof (Feb. 7, 1991), Cuyahoga App. No. 58034, unreported; McGowan v. McGowan (Mar. 10, 1988), Cuyahoga App. No. 53488, unreported. Based upon our review of the record sub judice, defendant has demonstrated no abuse of discretion. Defendant presented no evidence to the trial court that he made any effort to collect plaintiff's debt for alimony payments since the judgment was rendered more than five years prior or that the judgment otherwise would be uncollectible. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee(s) recover of appellant(s) 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 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. NAHRA, P.J., and ANN McMANAMON, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .