COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67315 GLORIA JANE CALTA : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : THOMAS JOHN CALTA : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. D-125181. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Gloria J. Calta 9845 Snow Road Parma Heights, OH 44130 For Defendant-Appellant: Thomas P. Aldrich, III, Esq. 1060 Greyton Road Cleveland Heights, OH 44112 For Cuyahoga Support Joseph C. Young, Esq. Enforcement Agency: Assistant County Prosecutor P.O. Box 93923 Cleveland, OH 44101-5923 -2- DAVID T. MATIA, J.: Defendant-appellant, Thomas J. Calta, appeals the trial court's approval of the Referee's Report and Recommendation granting plaintiff-appellee's, the Cuyahoga Support Enforcement Agency (CSEA), motion to show cause and denying appellant's motion for reduction in child support arrearages. The trial court's order also found appellant in contempt of court for failing to pay $35,879 in child support arrearages. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On March 23, 1982, plaintiff-appellee, Gloria J. Calta, was granted a divorce from defendant-appellant, Thomas J. Calta, for gross neglect of duty. Appellee was awarded care, custody and control of their three children; Dale, Christine and Julie. Appellant was granted reasonable visitation rights and ordered to pay $30/week in support for each of their children. Within one year of the divorce, appellee filed a motion to show cause claiming appellant had failed to comply with the trial court's order requiring child support payments. Appellee subsequently assigned her rights of support to the Cuyahoga County Welfare Department which was joined as a new party defendant. On March 18, 1983, appellant was found guilty of contempt with ten days incarceration suspended on the condition of future child support payments plus $20/week on the arrearage to both the -3- Cuyahoga County Welfare Department and appellee. Appellant again refused to pay child support. Beginning in 1984, the only payments appellant made to the welfare department for child support were offsets by the Internal Revenue Service which were substantially less than amount of money actually owed. These offset payments continued until 1986. On August 31, 1993, the Cuyahoga Support Enforcement Agency (CSEA) became a new party defendant and filed a motion to show cause for appellant's failure to make any payments towards child support. At this point, CSEA claimed appellant owed $30,861.84 to Cuyahoga Department of Human Services and $7,014 to plaintiff- appellee, Gloria J. Calta. On December 14, 1993, appellant motioned for a reduction in child support arrearages. Both motions were referred to a referee in the Division of Domestic Relations. The referee granted CSEA's motion to show cause and denied appellant's motion to reduce child support arrearages. Appellant's cumulative arrearage from March 23, 1982 through February 24, 1994 was found to be $35,897, $27,122 of which is owed to the Cuyahoga Department of Human Services and $7,440.84 of which is owed to appellee. Appellant was again found in contempt of court and sentenced to 30 days in the county jail, or, in the alternative, to perform 200 hours of community service. However, appellant's sentence would be suspended if appellant paid $2,000 plus 2 percent fee through the CSEA toward arrearages within 60 days of the -4- journalization of the order and $100/month plus two percent fee through the CSEA towards the remaining arrearage. Defendant-appellant, Thomas J. Calta, objected to the report of the referee on March 29, 1994. On April 20, 1994, the trial court overruled appellant's objections and approved the referee's report and ordered appellant to seek employment and report to the CSEA every month regarding employment status. Subsequently, on April 27, 1994, defendant-appellant motioned the trial court to modify the court order. Appellant requested the $2,000 lump sum payment ordered by the referee be reduced to $300. A hearing was scheduled on this motion for July 14, 1994. Appellant timely filed this appeal on May 19, 1994 thus divesting the trial court of jurisdiction over his motion to modify. II. FIRST AND SECOND ASSIGNMENT OF ERROR Since defendant-appellant's, Thomas J. Calta, first two assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE TRIAL COURT ERRED IN REFUSING TO ACCEPT A LEGITIMATE AFFIDAVIT FROM A COUNTY EMPLOYEE, WHICH REFUSAL WAS PREJUDICIAL TO APPELLANT. II. THE TRIAL COURT ERRED IN REFUSING TO ACCEPT TESTIMONY FROM TWO WITNESSES FOR APPELLANT. A. ISSUE RAISED: WHETHER THE REFEREE'S REFUSAL TO ADMIT CERTAIN EVIDENCE PREJUDICED APPELLANT. Defendant-appellant, Thomas J. Calta, claims the trial court erred in approving the referee's recommendation when the referee refused to admit certain evidence presented by appellant's -5- counsel. Specifically, appellant argues the affidavit of a county employee and the testimony of two out of three witnesses was relevant to the amount of time the children spent with appellant. While appellant admits the evidence was cumulative, he argues it was not duplicative. As such, appellant argues, by omitting this evidence the referee weakened appellant's attempt of reducing child support arrearages thereby prejudicing appellant. Appellant's first and second assignments of error are not well taken. B. THE TRIAL COURT'S DISCRETION IN ADMITTING AND/OR EXCLUDING EVIDENCE. Generally, a trial court is vested with broad discretion in the admission and/or exclusion of evidence. State v. Hymore (1967), 9 Ohio St.2d 122. As such, this court will reverse such decision by the trial court only upon the showing of abuse of discretion. An abuse of discretion connotes more than merely an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO ADMIT THE CUMULATIVE AND DUPLICATIVE TESTIMONY. In the case sub judice, appellant argues the affidavit of a county employee and the testimony of two witnesses was relevant to establish the amount of time the three children were in his possession. Appellant was attempting to reduce his child support -6- arrearages by establishing he in fact took care of the three children for these specified periods of time. However, the amount of time each child spent with appellant was set forth in defendant-appellant's Exhibit B. Not only do we find the affidavit constitutes inadmissible hearsay under Evid.R. 801, but both the affidavit and the testimony of two witnesses was cumulative and duplicative of the evidence established by appellant's exhibit. As such, the trial court did not abuse its discretion in adopting the referee's report when the referee excluded said evidence. Appellant's first and second assignments of error are not well taken. III. THIRD AND FOURTH ASSIGNMENTS OF ERROR Since defendant-appellant's, Thomas J. Calta, third and fourth assignments of error contain similar issues of law and fact, we will consider them concurrently: III. THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY CHILD SUPPORT FOR A CHILD ACKNOWLEDGED BY HIS EX-WIFE NOT TO BE HIS DURING THE HEARING AND WHILE UNDER OATH. IV. THE TRIAL COURT ERRED IN NOT CREDITING APPELLANT FOR DIRECT SUPPORT TO CHILDREN WHILE EX-WIFE CONTINUED TO BE CREDITED FOR CHILD SUPPORT EVEN THOUGH NOT IN CUSTODY OF CHILDREN. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO REDUCE CHILD SUPPORT ARREARAGES. Defendant-appellant, Thomas J. Calta, argues the trial court erred in adopting the referee's recommendation and denying his -7- motion for reduction in child support. Specifically, appellant argues: 1) appellee's admission that appellant was not the father of one of the three children should alleviate arrearages due for that particular child and 2) appellant should be credited for time he cared for the children. Appellant's third and fourth assignments of error are not well taken. B. STANDARDS OF REVIEW FOR MODIFYING CHILD SUPPORT. In reviewing matters concerning child support, an appellate court should apply the abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142. As previously stated, an abuse of discretion connotes that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore, supra. A more detailed analysis of the term appears in Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, quoting, State v. Jenkins (1984), 15 Ohio St.3d 164, 222: An abuse of discretion involves far more than a difference in *** opinion. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such a determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion and bias. With this principle in mind, we turn towards both of appellant's assignments of error requesting the retroactive modification of child support arrearages. -8- C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION TO REDUCE CHILD SUPPORT ARREARAGES ON THE ISSUE OF NON-PATERNITY. Regarding the non-existence of a father-child relationship, a review of the record indicates appellant was at all times aware of his non-paternity in regards to the child at issue. Knowing this, appellant legally changed the child's last name to "Calta" when the parties were married and assumed all responsibilities of parenthood. Furthermore, at no time has appellant brought an action under R.C. 3111 to establish the non-existence of the relationship. Also, appellant did not deny the existence of a father-child relationship at the divorce proceeding. See Gilbraith v. Gilbraith (March 14, 1986), Athens App. No. 1244, 1245, 1247, unreported. Finally, assuming arguendo appellant had established the non-existence of a father-child relationship, it may not be applied retroactively in an effort to modify the amount of child support arrearages due. Brooks v. Fair (1988), 40 Ohio App.3d 202. For these reasons, the trial court did not abuse its discretion in denying appellant's motion to reduce child support arrearages. D. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING CREDIT TOWARDS CHILD SUPPORT ARREARAGES. With regards to the credit against arrearages for time appellant cared for his children, the Ohio Supreme Court has held -9- "[d]ue and unpaid installments allowed by the court for the support of a minor child may not be modified." McPherson v. McPherson (1950), 153 Ohio St. 82. In the case sub judice, a review of the record indicates at no time did appellant petition the court to alter and/or modify the child support order as it stood. Instead, after almost ten years of non-compliance to the child support order, appellant filed a motion to reduce child support arrearages. Appellant's filing of a post-judgment motion to modify was rendered a nullity when appellant filed his notice of appeal. In keeping with McPherson, the trial court did not err in refusing to credit against the arrearage for time appellant "cared for" his children. See, also, Wilmer v. Wilmer (1990), 66 Ohio App.3d 713; R.C. 3113.21 (M)(3). Appellant's third and fourth assignments of error are not well taken. IV. FIFTH ASSIGNMENT OF ERROR Defendant-appellant's fifth assignment of error states: V. THE TRIAL COURT ERRED IN ISSUING JUDGMENT WHICH WOULD RESULT IN APPELLANT BEING UNABLE TO MEET OBLIGATION AND BEING JAILED, THUS FURTHER BEING PRECLUDED FROM MAKING CHILD SUPPORT PAYMENTS. A. ISSUE RAISED: WHETHER THE TRIAL COURT'S JUDGMENT WAS UNREASONABLE. Defendant-appellant argues the trial court's judgment is unreasonable. Specifically, appellant argues the trial court's judgment demanding $2,000 lump sum payment leaves appellant no -10- option but to be placed in default of the order and sentenced to jail. As such, no child support payments will be made. Defendant-appellant's fifth assignment of error is not well taken. B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN RENDERING ITS JUDGMENT. The trial court adopted the referee's report and recommendation on April 20, 1994. The trial court's order found appellant in contempt of court for failing to pay approximately $35,897 in child support arrearages. The court sentenced appellant to 30 days incarceration or 200 hours of community service. The trial court would have suspended its order on the condition that appellant pay a lump sum of $2,000 within 60 days of the order and $100/month towards child support arrearages. Under R.C. 3115.23, the trial court is furnished with additional powers to assure compliance with its order including the power of contempt. Since the trial court provided appellant with options in regard to its finding of contempt, i.e., 200 hours of community service, we do not find the order "automatically places him in a default situation where he will be jailed." As such, we do not find the trial court's order constitutes an abuse of discretion under the standards above- mentioned. Defendant-appellant's fifth assignment of error is not well taken. Affirmed. -11- 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. SPELLACY, P.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .