COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60877 BRUCE M. ZAMBORY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPHINE M. ZAMBORY : aka JOSEPHINE M. CUGLEWSKI : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-131414 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: GARY AXNER, ESQ. DEBRA PICKENS-LYNCH, ESQ. 2000 E. 9th Street, Suite 629 Rockefeller Bldg., Suite 662 Cleveland, Ohio 44115 614 Superior Ave., West Cleveland, Ohio 44113 - 2 - ANN MCMANAMON, J.: Bruce and Josephine Zambory were divorced in 1982 after eleven years of marriage and two children, Joseph (born January 7, 1973) and Jennifer (born October 25, 1976). Incorporated into the divorce decree was an agreement that Josephine Zambory would retain custody of the children and Bruce Zambory would pay $70 a week in child support plus all medical and dental expenses. The father also agreed to pay the cost of his children's school tuition. In 1985, the domestic relations court increased the father's child support obligation to $148.80 a week. Three years later, the court found Bruce Zambory owed his former wife $6445 in child support arrearages and ordered him to increase his weekly payments to $177.28 to reduce the arrearages. In November, 1989, Josephine Zambory filed a motion to show cause alleging her former husband failed to pay the children's school tuition. The court granted the motion, found Bruce Zambory in contempt of court, and suspended a fifteen day jail sentence on the condition the father pay $2105 for tuition reimbursement. The judge also awarded Josephine Zambory $500 in attorney fees. In a timely appeal, Bruce Zambory raises four assignments of 1 error challenging the contempt finding and award of attorney fees. We affirm. In his first assignment of error, Bruce Zambory asserts the domestic relations court improperly ordered him to reimburse his former wife for tuition expenses. He argues that, under the 1 See appendix. - 3 - doctrine of res judicata, the court's 1988 finding of child support arrearages bars the later motion for tuition expenses. In March, 1988, the Prosecuting Attorney for Cuyahoga County filed a motion to show cause on behalf of Josephine Zambory. The motion sought the payment of child support arrearages pursuant to R.C. 2301 et. seq. and it referred only to Bruce Zambory's weekly support obligation. The motion did not seek to enforce the payment of the children's tuition which the father had agreed to remit directly to the school. In July, 1988, the domestic relations court found Bruce Zambory owed $6445 in child support. The court's entry did not address the issue of tuition reimbursement and the arrearages figure is based solely on the father's obligation to make weekly child support payments to Josephine Zambory. At the November, 1989 motion to show cause hearing, Josephine Zambory introduced evidence she paid the children's tuition for the 1986-87, 1987-88 and 1988-89 school years. Bruce Zambory did not deny he failed to meet his tuition obligation but instead argued she was barred from seeking any tuition owed before the court's July 1988 arrearages finding. We find the domestic relations court properly rejected this argument. As previously noted, the 1988 ruling did not address the tuition issue. Further, the trial court has continuing jurisdiction under Civ. R. 75(I) to enforce the payment of support arrearages. Thus, the father's res judicata argument fails. Accord Henry v. - 4 - Daugherty (February 4, 1991), Clermont App. No. CA90-06-064, unreported. Finally, Josephine Zambory testified that the prosecutor stated he could pursue support arrearages but not tuition reimbursement on her behalf in the 1988 proceeding. Accordingly, this assignment of error is overruled. In his second assignment of error Bruce Zambory asserts the court failed to provide adequate notice of the contempt proceedings. Constitutional procedural due process requires: "*** that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation." In re Oliver (1948), 333 U.S. 257, 275. See, also, Courtney v. Courtney (1984), 17 Ohio App.3d 329. The record demonstrates Bruce Zambory received a copy of the motion to show cause why he should not be held in contempt for failing to pay his children's tuition. He appeared with counsel at the motion hearing and cross-examined his former wife about her allegations. Although Zambory was provided with the opportunity to present a defense, he chose not to do so. Finally, Zambory was given an opportunity to challenge the referee's recommended punishment in his objections to the - 5 - referee's report. In light of this record, we find Zambory was afforded his due process rights. This assignment of error is overruled. In his third assignment of error Bruce Zambory contends the referee improperly restricted cross-examination of his former wife. Zambory attempted to question his wife about her legal representation at the hearing on her March 1988 motion for child support arrearages and why she did not cite the tuition arrearages in that motion. Although the referee restricted his cross-examination in this subject, the wife, on redirect, explained that the prosecutor told her he could pursue only child support arrearages and not the tuition expenses. Thus, any alleged error by the referee was harmless. Accordingly, this assignment of error is overruled. In his fourth assignment of error Zambory challenges the award of attorney fees. The award of attorney fees in post-divorce decree proceedings is within the sound discretion of the trial court. Rand v. Rand (1985), 18 Ohio St.3d 356, 359. An appellate court will not disturb a trial judge's ruling absent evidence of an unreasonable, arbitrary or unconscionable decision. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Finally, a showing of - 6 - necessity is not a prerequisite to awarding attorney fees. Rand, supra. Bruce Zambory argues the record lacks evidence to support the $500 fee award. He specifically complains that the court had no evidence of the parties' respective income and expenses as provided for in Local Domestic Relations Rule 21(B)(H). The record demonstrates Josephine Zambory submitted a fee statement from her attorney detailing the time spent pursuing the tuition arrearages. The attorney spent 12.75 hours on Mrs. Zambory's behalf and charged her $1275. Bruce Zambory did not object to the fee statement and offered no evidence challenging his wife's claim for attorney fees. This court also had before it the parties' domestic relations file which contained income and expense statements. In light of the record, we find no error in the $500 attorney fees award. This assignment of error is not well taken and the judgment of the trial court is affirmed. Judgment affirmed. - 7 - 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, 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. FRANCIS E. SWEENEY, P.J., AND HARPER, J., CONCUR JUDGE ANN MCMANAMON 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 8 - A P P E N D I X ASSIGNMENT OF ERROR I THE REFEREE ERRED IN FAILING TO RECOGNIZE THE PRIOR ORDER OF THIS COURT WHEREIN A FINDING OF ARREARAGES FOR SUPPORT WAS MADE. ASSIGNMENT OF ERROR II THE REFEREE ERRED IN SENTENCING APPELLANT TO FIFTEEN (15) DAYS IN THE CLEVELAND HOUSE OF CORRECTION. ASSIGNMENT OF ERROR III THE REFEREE ERRED IN FAILING TO ALLOW APPELLANT THE OPPORTUNITY TO RE-CROSS EXAMINE DEFENDANT (RESPONDENT). ASSIGNMENT OF ERROR IV THE REFEREE ERRED IN GRANTING ATTORNEYS FEES TO RESPONDENT. .