COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67334 PNINA GLASSMAN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION NATHAN OFFENBERG, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from the Court of Common Pleas, Div. of Domestic Relations, Case : No. 166263. JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Steven H. Slive, Esq. Robert S. Passov, Esq. Alan G. Starkoff, Esq. Mary Beth Ciocco, Esq. Slive & Connick Co., L.P.A. 75 Public Square 740 The Leader Building Suite 914 526 Superior Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44114 Guardian ad Litem: Gary S. Okin, Esq. Kraus & Kraus 1800 Ohio Savings Plaza 1801 East Ninth Street Cleveland, Ohio 44114 -2- HARPER, P.J.: Plaintiff-appellant, Pnina Offenberg p/k/a Pnina Glassman, filed a complaint for divorce in the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, on December 23, 1985. There were a variety of defendants named in the complaint in addition to Nathan Offenberg ("appellee"), including U.S. Metals Service, Inc. Profit Sharing Fund ("U.S. Metals") and MidAmerica Steel Corporation ("MidAmerica"). Appellant filed an amended complaint on February 3, 1986. The trial court ordered temporary support pendente lite on January 16, 1986. The support order obligated appellee to pay child support for the parties' three minor children, to wit: Sherri, d.o.b. September 8, 1980; Lisa, d.o.b. December 6, 1982; and Rachel, d.o.b. July 11, 1985. Appellee was also obligated to pay spousal support as a result of the January 16, 1986 order. The trial court ultimately issued a divorce decree on October 1 14, 1988. The court awarded custody of the three minor children to appellant, and ordered appellee, commencing September 1, 1988, to pay $150 (plus 2 percent poundage) per week per child in child support and $500 (plus 2 percent poundage) per month in spousal support. The alimony was to be paid over a two-year period. The court, in the order, retained jurisdiction of appellee's support 1 A myriad of motions were filed in the trial court, and discovery occurred as well, during the interim. However, for purposes of this appeal, only relevant motions and rulings are mentioned and discussed herein. -3- obligations since any arrearage was not litigated during the divorce proceedings. On February 1, 1989, by agreement of the parties, the trial court ordered that an arrearage in the amount of $9,790.56 be paid from funds held by U.S. Metals. The amount of the arrearage encompassed past child and spousal support, and was current to January 31, 1989. The controversy in this appeal centers on a journal entry prepared by the trial court in April 1994. The entry followed the court's review of a November 2, 1992 referee's report and the parties' objections to the report. Appellant's previously filed motions to show cause, to determine arrearage, for wage order, and for attorney fees, and appellee's previously filed motions for relief from judgment, for attorney fees, and to modify support were at issue at the time. The April 1994 entry indicates the granting of all appellant's motions, and appellee's motion to modify support. Specifically, the trial court found that appellee received the sum of $9,790.56 from his retirement fund as directed in the trial court's February 1, 1989 entry, but failed to pay this amount to appellant. The court also found that appellee failed to pay alimony and support pendente lite for the period of October 13, 1987 through August 31, 1998 in the amount of $6,300. Appellee was also found not to have paid spousal support in the amount of $9,500 through October 1, 1990, and child support in the amount of $823.61 through November 27, 1990, as was ordered by the court in its -4- October 14, 1988 entry. Finally, the trial court found that appellee was in arrears in the amount of $1,771.93 on his obligation to pay the children's medical and dental expenses from August 13, 1987 through December 11, 1990. In the April 1994 entry, the trial court ordered that appellant was entitled to interest on the foregoing arrearage amounts. The court calculated the following amounts of interest: (1) $5,058.80 on the $9,790.56 owed to appellant from appellee's retirement fund; (2) $3,517.29 on alimony and support pendente lite arrearage of $6,300; (3) $4,195.52 on spousal support arrearage of $9,500; (4) $4.12 on child support arrearage of $823.61; and (5) $605.45 on medical and dental arrearage of $1,771.93. The trial court, therefore, found that as of November 27, 1990, appellee owed appellant $13,381.18 in interest on the total arrearage of $28,186.10 for a total of $41,567.28. The court ordered U.S. Metals and MidAmerica to pay the appellant the sum of $41,043.53 on behalf of appellee. This figure represents the total arrearage plus interest amount of $41,567.28 plus $2,000 in attorney fees awarded to appellant, less appellant's share of a Guardian Ad Litem's fee which amounted to $2,532.75. The trial court forwarded a copy of this April 1994 journal entry to appellee's and appellant's respective counsel. This entry was never provided to the clerk of courts for journalization. On April 20, 1994, appellee filed a Motion for Ex Parte Temporary Restraining Order with the court. He argued that the trial court held no authority to impose interest on the unpaid -5- arrearage amounts which were created from court orders issued prior to July 1, 1992 but not reduced to judgment. Appellee cited Dunbar v. Dunbar (1994), 68 Ohio St.3d 369 in support of this argument. Appellee requested that the trial court grant the temporary restraining order thereby preventing U.S. Metals and MidAmerica to pay any of the $13,381.18 interest until he could either file a Civ.R. 60 motion or an appeal to this court. Appellee's motion for temporary restraining order contains a certificate of service indicating that a copy of the motion was mailed to appellant's counsel. Moreover, the court's docket clearly includes the designation that the motion was filed with the court, and ultimately denied on December 9, 1994. The trial court issued its final judgment on May 9, 1994. The entry was not the same as the one prepared and forwarded to the parties' counsel in April 1994. Rather, it disclosed that the trial court found appellee only owed interest on the retirement fund judgment of $9,790.56 and the temporary alimony arrearage of $6,300, and not the spousal support, child support or dental and medical expenses arrearages. The trial court, therefore, reduced the interest awarded to appellant in the April 1994 entry from $13,381.18 to $8,576.09, a difference of $4,805.09. Appellant filed a Civ.R. 60(A) motion for relief from judgment 2 on May 11, 1994. She submitted, in part: 2 Appellant filed a notice of appeal on May 23, 1994 from the May 9, 1994 judgment. This court granted appellant's motion for leave to prosecute the Civ.R. 60(A) motion on July 27, 1994. -6- Presumably, upon authority of the recent Ohio Supreme Court case of Dunbar vs. Dunbar, 68 Ohio St.3d, 369, the Court has modified its original Judgment Entry to delete pre-July 1, 1992 interest from both child support and spousal support arrearages. The Dunbar case indicates that such action would be appropriate with reference to child support arrearages but does not speak to the issue of spousal support arrearages. Accordingly, there is interest due plaintiff on the spousal support arrearage in the amount of $4,192.53, which appears to have been inadvertently omitted from the revised Judgment Entry. The trial court denied appellant's Civ.R. 60(A) motion on October 3, 1994. In this appeal, appellant assigns the following errors for this court's review: First Assignment of Error The trial court [sic] abused its discretion, and committed reversible error, when the Court entertained an ex-parte request from the Defendant/Appellee after the Court had announced its decision, and as a result of that ex-parte request, the Court modified its Journal Entry, which had not been previously journalized. Second Assignment of Error The trial Court abused its discretion, and committed reversible error when it denied the Plaintiff/Appellant due process of law by reducing without a hearing the interest awarded to the Plaintiff/Appellant from the sum of Thirteen Thousand Three Hundred Eighty-One and Eighteen Dollars ($13,381.18) to the sum of Eight Thousand Five Hundred Seventy-Six Dollars ($8,576.00). Appellant challenges the trial court's reduction of interest from the time the court prepared the April 1994 journal entry and mailed it to the parties' respective counsel to the time it entered its final judgment as to this matter on May 9, 1994. Appellant's first assignment of error charges that ex parte communications between appellee's counsel and the trial court about Dunbar -7- resulted in the trial court's recalculation of the interest. She suggests in her second assignment of error that the court's recalculation violated her right to due process because it was done without a hearing. As these two assignments of error both challenge the propriety of the trial court's action, they are reviewed simultaneously. Appellant's arguments in this appeal are without merit for a variety of technical reasons. These reasons relate to the meaning of the appealability of issues, the meaning of an ex parte communication, and the finalization of judgments. Initially, an issue which is raised by this appeal is whether appellant presents appealable issues in her assignments of error. Appellant filed a Civ.R. 60(A) motion on May 11, 1994 in response to the trial court's May 9, 1994 judgment. The gist of the motion is that "three issues were erroneously resolved due to oversight or omission by the Trial Court." These three issues were: (1) failure to include child support arrearage for period between February 1, 1989 to June 27, 1989; (2) deletion of pre-July 1, 1992 interest with reference to spousal support judgment, "[p]resumably, upon authority of *** Dunbar ***"; and (3) premature allocation of Guardian Ad Litem's fees. The second issue relates to the interest award, but appellant never argued that the trial court applied Dunbar only after communicating ex parte with appellee or his counsel, or otherwise abused its discretion in entering judgment without a hearing. Appellant instead relied upon the "clerical portion" of Civ.R. 60 in seeking relief from judgment. -8- It is axiomatic that an appellate court will not consider any error which a party complaining of a trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. See, Lefort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121; Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41. Since appellant failed to bring her arguments pertaining to due process and ex parte communications to the trial court's attention, we could choose not to review these issues on appeal. Assuming arguendo that the alleged errors were brought to the attention of the court, Canon 3, part (A)(4) of the Code of Judicial Conduct states: A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to the law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. *** Nothing contained herein, however, shall preclude a judge from non-substantive ex parte communications on procedural matters and matters affecting prompt disposal of the business of the court. Loc.R. 6(A) of the Court of Common Pleas of Cuyahoga County, 3 Domestic Relations Division , likewise speaks to ex parte communications between an attorney and either the judge or referee who is presiding over the case. The rule prohibits such communications without the presence of opposing counsel or the 3 The Local Rules of the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, are hereafter referred to as "Loc.R. X." -9- opposing party if not represented by counsel. See, also, DR 7- 110(B). An ex parte communication is, generally, a communication concerning a pending case which one party makes to the trial court without notice to the opposing party. See, Morgan v. United States (1938), 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129, U.S. v. Microsoft Corp. (C.A.D.C.1995), 56 F.3d 1448, 1464; In re Paradyne Corp. (C.A.11, 1986), 803 F.2d 604, 612; Mission Power Engineering Company v. Continental Casualty Company (C.D.Cal. 1995), 883 F.Supp. 488, 490; D'acquisto v. Washington (N.D.Ill. 1986), 640 F.Supp. 594, 621; Metzger v. Thurman (July 27, 1993), Scioto App. No. 92 CA 2106, unreported; see, also, Canon 3, Part (A)(4) of the Code of Judicial Conduct for United States Judges; Black's Law Dictionary (5 Ed.Rev.1979), 517. Ex parte communications are strongly discouraged; lawyers and non-lawyers are conversely encouraged to seek the correction of a judgment by a properly served and filed motion. See, Metzger, fn. 5. Loc.R. 24 governs the procedure for requesting and granting ex parte temporary restraining orders. A request for such an order is permitted by separate motion and must be accompanied by an affidavit which is signed by the moving party and contains the reasons for the requested relief. Loc.R. 24(A). The motion must be filed with the Clerk of Courts. Loc.R. 24(B). If the trial court declines to grant the order ex parte, a hearing is set up at the discretion of the court. Id. -10- In the within case, appellee filed his motion for ex parte temporary restraining order as required by Loc.R. 24(A). The motion clearly set forth appellee's reasons for seeking the order, including a cite to Dunbar, supra. Though appellee failed to attach an affidavit to the motion, this failure goes to the sufficiency of the motion and does not discount the fact that he filed the motion with the court. Appellant does not assert that 4 appellee never served the motion on her counsel. She, therefore, had seven days from the date of service of the motion to file a brief in opposition. Loc.R. 15(B). Finally, the trial court was permitted to grant or deny the motion, assuming it was properly supported by affidavit, without a hearing, i.e., ex parte. Loc.R. 24(B). Under these circumstances, this court fails to find that the trial court abused its discretion with regard to appellee's motion for ex parte temporary restraining order. Appellant's allegation that appellee or his counsel somehow, by subterfuge, brought Dunbar to the attention of the trial court is not supported by the record. The record illustrates that appellee followed the proper course in filing the motion regardless of whether it was a legally sound motion. Further, there is no evidence to support appellant's assertion that appellee or his counsel "communicated" with the court about the contents of the motion. 4 We also note that parties carry the burden to follow the progress of their own case. See, Anderson v. Garrick (Oct. 12, 1995), Cuyahoga App. No. 68244, unreported; Maynard v. Maynard (Feb. 11, 1982), Cuyahoga App. No. 43642, unreported. -11- Appellant submits that appellee admitted to such communi- cations in his brief. We direct appellant and her counsel to the long-standing rule of appellate procedure that our review of a case is confined to the lower court record. As stated in Amore v. Amore (Apr. 28, 1983), Cuyahoga App. No. 65485, unreported: Appellate courts, nevertheless, are bound by the record in determining matters on appeal. Since the transcript of proceedings from the trial court fails to disclose that such an ex parte hearing did, in fact, occur, the error is not exemplified by the record, and the matter must be disregarded. See, Society National Bank v. Foxx (Feb. 1, 1991), Lake App. No. 89-L-14-098, unreported. Appellant's reliance on appellee's appellate brief to support her assertion that the trial court communicated with appellee or his counsel about Dunbar is, accordingly, inappropriate. In fact, appellant only admitted to bringing the motion to the court, not speaking with the court about the motion. The record otherwise fails to exemplify any abuse of discretion on behalf of the trial court with regard to the ex parte communication. We also emphasize that the trial court's April 1994 journal entry was never a final judgment. It is well established that "a court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum." Schenley v. Kauth (1953), 160 Ohio St. 109, paragraph one of the syllabus; see, Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 83. There is no "judgment" in a case until the trial court files one with the -12- clerk for journalization. William Cherry Trust v. Hofmann (1985), 22 Ohio App.3d 100, 105; Civ.R. 58; Loc.R. 28(A). Herein, the trial court mailed a copy of its proposed journal entry to both parties' counsel on April 19, 1994. See, Loc.R. 28(B). The trial court obviously intended that the parties respond negatively or positively to the entry. See, id. Appellee responded with a motion for ex parte temporary restraining order the following day. As stated supra, the motion was filed with the court, and appellant could have responded to the motion and, in fact, had nineteen days from the date of filing of the motion until the trial court issued its final judgment to file a responsive brief. Needless to say, the April 1994 journal entry was never a final judgment, but was merely a proposed entry for the parties' approval or rejection under the local rules of the domestic relations court. In other words, appellant was never awarded interest in the amount of $13,381.18 in a final judgment. Furthermore, the trial court denied appellee's motion for temporary restraining order on December 9, 1994. It is thus evident to this court that the central issue in the present case is whether the trial court properly used Dunbar to reduce the interest awarded, rather than whether it did so through ex parte communications with appellee or his counsel, as we reject these arguments as outlined supra. After all, though appellant does not assign this as error, she argues in her brief that notwithstanding Dunbar, she was entitled the amount of interest awarded to her in the April 1994 journal entry. Additionally, notwithstanding -13- appellee's presentation of Dunbar to the trial court via the motion for temporary restraining order, it is the trial court's purportedly inaccurate interpretation of Dunbar which is the motivation behind the relief sought by appellant. In Dunbar, the Supreme Court of Ohio reviewed the impact of R.C. 3113.219 and R.C. 3109.05(C) on the awarding of interest on delinquent child support payments. The court noted that, on or after July 1, 1992, an obligee has a statutory right to interest on delinquent child support payments under R.C. 3113.219(A). The court took into account R.C. 3109.05(C) which provides that: "[O]n or after July 1, 1992, [a court] shall assess interest on any unpaid amount of child support pursuant to section 3113.219 of the Revised Code." R.C. 3109.05(C) was interpreted to apply only to "support orders issued or modified on or after July 1, 1992" in light of the limiting language in R.C. 3113.219(A). Dunbar, 370; see, Dunbar v. Grebler (Aug. 10, 1992), Butler App. No. CA91-12- 209, unreported; 1993 Ohio Atty.Gen.Ops. No. 93-037 (interest under R.C. 3113.219(A) may not be assessed for time periods prior to July 15, 1992). Since the support orders were neither issued nor modified prior to July 1, 1992, the supreme court found that the interest provisions of R.C. 3113.219(A) and R.C. 3109.05(C) were not applicable to the case before it. Id., 370-371. The court then determined that the trial court's award of interest from the date of the entry lump-sum judgment on May 24, 1991 was not an abuse of discretion. Id., 371. -14- Dunbar reveals that the decision not to award interest on delinquent child support payments which were not issued or modified before July 1, 1992 was premised on the limiting language of R.C. 3113.219(A). R.C. 3113.219(A) also governs the awarding of interest on delinquent spousal support payments because it is not strictly limited to delinquent child support payments: "On or after July 1, 1992, when a court issues or modifies a support order under *** section 3105.18 ***." The Portage County Court of Appeals thus properly recognized that Dunbar's confinement of awards of interest to orders issued or modified on or after July 1, 1992 equally applied to spousal support payments. See, Harner v. Harner (Dec. 23, 1994), Portage App. No. 94-P-0011, unreported. In the present case, the trial court's determination of appellee's arrearages never involved orders which were issued or modified after July 1, 1992. Consequently, appellant was never entitled to the interest afforded under either R.C. 3109.05(C) or R.C. 3113.219(A). Trial courts nonetheless possess discretion to award interest on pre-July 1992 issued or modified child support or spousal support orders for which the obligor is delinquent. See, Koegel v. Koegel (1982), 69 Ohio St.2d 355; In re Hammond (1992), 78 Ohio App.3d 170; Kearn v. Kearn (1990), 68 Ohio App.3d 659; Allen v. Allen (1990), 62 Ohio App.3d 621; Kraus v. Kraus (1987), 35 Ohio App.3d 18; Loc.R. 20(D). Appellant, however, fails to present any persuasive argument that the trial court abused its discretion in -15- not awarding all of the interest first mentioned in the April 1994 entry, but not reduced to final judgment on May 9, 1994. Appellant's assignments of error are overruled. Judgment affirmed. -16- It is ordered that appellee recover of appellants their 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, Division of Domestic Relations 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. DAVID T. MATIA, J., AND DIANE KARPINSKI, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 journalization, at which .