COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67434 GLORIA MEDOFF : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION HERBERT MEDOFF : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE DOMESTIC RELATIONS DIVISION COMMON PLEAS COURT CASE NO. D-134301 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ANDREW J. SIMON (#0037264) CAMERATTA & SIMON 7976 BROADVIEW ROAD - SUITE 100 BROADVIEW HTS., OHIO 44147 For Defendant-Appellant: SHALE S. SONKIN (#0001585) SONKIN & FROMSON CO., L.P.A. 526 SUPERIOR AVENUE, EAST 540 LEADER BUILDING CLEVELAND, OHIO 44114 ROBERT ZASHIN (#0000043) ZASHIN, RICH & SATULA 55 PUBLIC SQUARE, SUITE 1490 CLEVELAND, OHIO 44113 - 2 - 2 SPELLACY, P.J.: Defendant-appellant/cross-appellee Herbert Medoff appeals the denial of his motion to modify spousal support and the granting in part of plaintiff-appellee/cross-appellant Gloria Medoff's motion to modify spousal support. Herbert Medoff assigns the following errors for review: I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO CONSIDER THE EVIDENCE AND TESTIMONY OF DEFENDANT-APPELLANT'S REDUCED EARNINGS AND INCREASED EXPENSES WHEN FINDING HIM VOLUNTARILY UNDEREMPLOYED AND IN FAILING TO SPECIFY THE AMOUNT OF DEFENDANT- APPELLANT'S IMPUTED INCOME. II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN ADMITTING INTO EVIDENCE THE UNSUBSTANTIATED TESTIMONY OF THE PLAINTIFF- APPELLEE'S EXPERT WITNESS AND BASING ITS RECOMMENDATIONS ON SAID TESTIMONY CONTRARY TO OHIO EVIDENCE RULE 703. III. THE TRIAL COURT'S EXTENSION OF DEFENDANT- APPELLANT'S OBLIGATION TO PAY SPOUSAL SUPPORT OF SIX HUNDRED DOLLARS ($600.00) PER WEEK FOR AN ADDITIONAL TWO (2) YEARS OVER AND ABOVE THE ORIGINAL ORDER IS ARBITRARY, UNCONSCIONABLE AND AN ABUSE OF DISCRETION. IV. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW BY VIOLATING THE CONSUMER CREDIT PROTECTION ACT 15 U.S.C.A. SEC. 1673(b) AND OHIO REVISED CODE SECTION 3113.21(B)(1)(a). V. THE TRIAL COURT'S AWARD OF ATTORNEY FEES IN THE AMOUNT OF EIGHT THOUSAND NINE HUNDRED NINETY DOLLARS ($8,990.00) TO PLAINTIFF-APPELLEE IS UNREASONABLE, ARBITRARY AND UNSUPPORTED BY THE EVIDENCE HEREIN. VI. THE TRIAL COURT'S AWARD [OF] THREE HUNDRED TWENTY-EIGHT DOLLARS AND SEVENTY-FIVE CENTS ($328.75) IN ATTORNEY FEES TO DEFENDANT- APPELLANT IS UNREASONABLE, ARBITRARY, AN ABUSE OF DISCRETION AND UNSUPPORTED BY THE EVIDENCE HEREIN. - 3 - 3 As none of the assignments of error have merit, the judgment of the trial court is affirmed. I. The parties were divorced in 1984. The trial court found Dr. Herbert Medoff to earn between $110,000 and $100,000 gross. Under the judgment, Herbert was to pay Gloria $600 per week in spousal support for a period of ten years commencing June 1, 1984. In 1990, Herbert filed a motion to modify spousal support in which he alleged circumstances had changed requiring a reduction in his spousal support obligation. Gloria responded by filing her own motion to modify spousal support requesting an increase in support. Both filed numerous motions for attorney fees, sanctions, to show cause and to quash. After an evidentiary hearing was held, the referee recommended that Herbert's motion to modify be denied, and Gloria's granted in part. The referee found Herbert's wage and salary income to be derived from his incorporated medical practice. Herbert controls the amount of his salary, dependent upon gross business receipts and expenditures. The referee found Herbert to be voluntarily underemployed as, regardless of changes in the health care industry, he still had the capacity to earn income within the same range as he earned at the time of the divorce. The referee found Gloria's health had not improved since the time of the divorce when the trial court stated she was in poor physical and mental condition due to an automobile accident. In - 4 - 4 addition to her previous problems, Gloria was diagnosed with breast cancer and underwent a mastectomy. The deterioration in her health constituted a substantial change in circumstances warranting a modification of the spousal support order. It was recommended that the weekly spousal support payments of $600 be extended for a two- year period. Herbert filed objections to the referee's findings. The trial court overruled the objections and entered an order adopting the referee's recommendations. Herbert filed a motion for a new trial which was denied. II. In his first assignment of error, Herbert contends the trial court abused its discretion by finding him underemployed as it failed to consider testimony and evidence of his reduced earnings and increased expenses. The trial court also failed to specify the amount of imputed income. Herbert argues he submitted his tax returns showing the decline in his income and states he takes as large a salary as the business permits. He avers his practice has declined due to changes in the medical industry such as the rise in HMO's and the reduction in Medicare payments while expenses have risen. Herbert did not present the full transcript of the hearing for the trial court's consideration when the objections to the report were filed. Rather, Herbert supported his objections with isolated portions of the transcript. Civ.R. 53(E)(6) states in pertinent part: - 5 - 5 The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that objection with a copy of all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee, if no transcript is available. Herbert has submitted an entire transcript of the hearing to this court, however, we are precluded from considering the transcript as it was not before the trial court. High v. High (1993), 89 Ohio App.3d 424. Further, the portions of the transcript which were provided to the trial court are insufficient to support Herbert's objections as it is impossible to discern whether the testimony was later rebutted, contradicted, or impeached in any fashion. Many of the excerpts submitted in support pertain to one response by a witness without further elaboration. The account of the evidence must be complete or the trial court is not obliged to reject the referee's finding. See Pappenhagen v. Payne (1988), 48 Ohio App.3d 176. Because Herbert did not provide the trial court with the required evidence to support his objections to the referee's factual findings, our review is limited to a determination of whether the trial court abused its discretion in adopting the referee's report. High, supra, at 427. An abuse of discretion connotes more than an error of law or judgment. It implies that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 6 - 6 The referee found Herbert could adapt to the changes taking place within the health care industry but refuses to modify his business practices to maximize his earning potential. The decrease in Herbert's earnings primarily is attributable to this attitude. The trial court did not abuse its discretion in adopting the finding that Herbert is voluntarily underemployed. Herbert also argues the referee failed to specify the amount of imputed income. The referee's report specifically does not attribute income to Herbert over and beyond what he earned at any point but states he has the earning ability and financial capacity to comply with the existing spousal support obligation. It was not necessary for the referee to impute an exact amount of income to Herbert as his finding was based on Herbert's income and other financial resources. Herbert's first assignment of error is overruled. III. In his second assignment of error, Herbert argues the testimony of Gloria's expert witness should not have been admitted into evidence and that it was error for the referee to base his recommendations on the testimony. Herbert maintains the testimony should have been rejected as it was not based on facts or data perceived by the expert or admitted into evidence at the hearing in contradiction to Evid.R. 703. The only evidence before this court is the statement of the witness that experienced physicians in internal medicine with ten - 7 - 7 or more years of experience have yearly incomes of between $130,000 and $150,000 and a letter from the expert's company requesting additional information. The basis for the expert's opinion cannot be discerned from this limited evidence. The regularity of the trial court's proceedings will be presumed. Herbert's second assignment of error lacks merit. IV. In his third assignment of error, Herbert asserts the extension of spousal support for a two-year period was an abuse of discretion. Herbert argues Gloria failed to show a substantial change in circumstances to warrant the extension. He contends Gloria's need for psychological and psychiatric care has lessened since 1984 and that she is not depressed but is functioning extremely well. Herbert also asserts Gloria's physical condition has improved allowing her to work as she has done for a number of years since their divorce. R.C. 3105.18(E) provides that a trial court may modify the amount or terms of spousal support of a continuing order of periodic payments if the circumstances of either party has changed. Where modification of an existing order for the payment of spousal support is requested, the threshold determination is whether there has been a substantial change in circumstances which was not contemplated at the time of the original order. Bingham v. Bingham (1983), 9 Ohio App.3d 191, 193. In addition, the alleged change in circumstances must not have been purposely brought by the party - 8 - 8 seeking the modification. Nash v. Nash (1945), 77 Ohio App. 155, 157. At the time of the divorce, the trial court found Gloria to be in poor physical and emotional health requiring dental expenses and psychiatric or psychological treatment. She had limited employment prospects until the dental and emotional treatment was completed. In his report regarding the parties' motions to modify spousal support, the referee noted Gloria's health had not improved since the time of the divorce. She developed a dysfunction of her temporomandibular joint which is painful and sometimes interferes with her speech. Gloria continues her treatment for her emotional and psychiatric problems. In 1991, she was diagnosed with breast cancer and underwent a mastectomy. The referee regarded the deterioration of Gloria's health as a substantial change in circumstance since the time the divorce decree was entered. At the time of the divorce, Gloria sought psychiatric treatment approximately seventy-five times. By 1991, her visits decreased to forty-two visits. Herbert argues this indicates her condition has improved considerably since 1984. However, visits of just less than one week show a need for continuing psychiatric care. As anticipated by the trial court, Gloria's emotional treatment has not concluded. Herbert also points out that problems with the tempero- mandibular joint are common and that many people with this difficulty are able to function. Nothing in the record indicates - 9 - 9 the severity of Gloria's condition and how it interferes with her ability to function. Further, the development of cancer was not anticipated at the time of the divorce. The trial court did not abuse its discretion in adopting the referee's finding that the deterioration of Gloria's health constituted a substantial change in circumstance warranting an extension of the order of spousal support. Herbert's third assignment of error is overruled. V. In his fourth assignment of error, Herbert asserts the trial court abused its discretion and erred by violating the Consumer Credit Protection Act and R.C. 3113.21(D)(1)(a). Herbert argues the spousal support order violates these laws by exceeding sixty percent of his disposable earnings. Section 303(B) of the Consumer Credit Protection Act, Section 1673(b), Title 15, U.S. Code states in pertinent part, that: (2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed-- (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and (B) Where such individual is not support- ing such spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week; ***. R.C. 3113.21(D) provides in pertinent part: - 10 - (D) If a court or child support enforcement agency is required under division (A), (B), or (C) of this section or any other section of the Revised Code to issue one or more withholding or deduction notices described in this division or court orders described in division (D)(6) or (7) of this section, the court shall issue one or more of the following types of notices or court orders, or the agency shall issue one or more of the following types of notices to pay the support required under the support order in question and also, if required by any of those divisions, any other section of the Revised Code, or the court, to pay any arrearages: (1)(a) If the court or the child support enforcement agency determines that the obligor is employed, the court or agency shall require the obligor's employer to withhold from the obligor's personal earnings a specified amount for support in satisfaction of the support order, to begin the withholding no later than the first pay period that occurs after fourteen working days following the date the notice was mailed to the employer under divisions (A)(2) or (B) and (D)(1)(b) of this section, to send the amount withheld to the child support enforcement agency designated for that county pursuant to section 2301.35 of the Revised Code, to send that amount to the agency immediately but not later than ten days after the date the obligor is paid, and to continue the withholding at intervals specified in the notice until further notice from the court or agency. To the extent possible, the amount specified in the notice to be withheld shall satisfy the amount ordered for support in the support order plus any arrearages that may be owed by the obligor under any prior support order that pertained to the same child or spouse, notwithstanding the limitations of sections 2329.66, 2329.70, 2716.02, and 2716.05 of the Revised Code. However, in no case shall the sum of the amount specified in the notice to be withheld and any fee withheld by the employer as a charge for its services exceed the maximum amount permitted under section 303(b) of the "Consumer Credit Protection Act," 15 U.S.C. 1673(b). - 11 - Both section 303(B) of the Consumer Credit Protection Act and R.C. 3113.21(D)(1)(a) pertain to the amount which may be garnished or withheld by an obligor's employer. There has been no garnishment or withholding in the instant case. The provisions are not applicable. Herbert's fourth assignment of error is meritless. VI. In his fifth assignment of error, Herbert argues the trial court's award of attorney fees to Gloria was unreasonable, arbitrary and unsupported by the evidence. Herbert asserts there were no unique issues or procedural complexities in the case. He argues Gloria's legal expenses were exacerbated by her persistence in making unnecessary discovery requests even after the cutoff date for discovery had passed. A trial court has the discretion to award attorney fees in post-divorce decree proceedings. Rand v. Rand (1985), 18 Ohio St.3d 356, 359. On appeal, the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of the evidence or whether there was an abuse of discretion. Swanson v. Swanson (1976), 48 Ohio App.2d 85. In Swanson, the court referred to DR 2-106(B) of the Code of Professional Responsibility which provides the following guidelines for determining the reasonableness of a fee: "(1) The time and labor required, the novelty and difficulty of the questions - 12 - involved, and the skill requisite to perform the legal service properly. "(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. "(3) The fee customarily charged in the locality for similar legal services. "(4) The amount involved and the results obtained. "(5) The time limitations imposed by the client or by the circumstances. "(6) The nature and length of the professional relationship with the client. "(7) The experience, reputation, and ability of the lawyer or lawyers performing the services. "(8) Whether the fee is fixed or contingent." Id., at 90-91. The trial court must make a factual determination as to the reasonableness of the fees charged. The reasonableness of the fees is tested by the disciplinary rule factors set forth in Swanson. R.C. 3105.18(H). Gloria incurred legal fees of $25,960 in the proceedings below and $6,763.11 for depositions and other costs. The referee found there were no unique issues or procedural complexities in the matter but that the case was complicated by Herbert's persistence in claiming he was financially unable to meet his support obliga- tions requiring Gloria to hire an expert. Herbert was found in contempt for failing to pay the full amount of his obligation under the prior order of the court. Gloria's legal fees included the costs related to Herbert's actions which required her to seek enforcement of the support order. The referee found most of the - 13 - services rendered by Gloria's attorneys to have been necessary and awarded her $8,990 for attorney fees. There is ample support for the award of attorney fees. The referee based the partial award on the facts of the case. The trial court did not abuse its discretion in awarding the fees. Herbert's fifth assignment of error lacks merit. VII. In his sixth assignment of error, Herbert contends the award of $328.27 to him in attorney fees was unreasonable. Herbert argues the award is inadequate to compensate him for the fees incurred by Gloria's unnecessary and unwarranted discovery requests. The referee found Herbert's attorney fees necessitated by Gloria's last minute discovery requests to be $328.27 while Herbert avers the fees were $1,781.50. Although Herbert has presented a statement from his attorneys showing the hours expended in responding to Gloria's discovery requests, there is nothing in the record of what facts were before the referee when the award was made. The referee found one hour each was spent on the discovery requests by two of Herbert's attorneys and 2.25 hours by the legal staff. There is nothing in the record to indicate this finding was an abuse of discretion. Herbert's sixth assignment of error is overruled. - 14 - VIII. Gloria has assigned the following error in her cross-appeal: I. THE TRIAL COURT ABUSED ITS DISCRE- TION WHEN IT FAILED TO RESERVE JURISDICTION TO MODIFY THE SPOUSAL SUPPORT AWARD. Gloria notes the language used in extending her spousal support does not reserve jurisdiction to modify the award. She argues the failure to include such language was an abuse of discretion. A trial court must expressly reserve jurisdiction in order to modify a spousal support award made for a fixed period of years. Ressler v. Ressler (1985), 17 Ohio St.3d 17, syllabus. It has been held that it is an abuse of discretion to fail to reserve jurisdiction to modify a definite award of spousal support. Nori v. Nori (1989), 58 Ohio App.3d 69. Nori involved an initial ten- year award of spousal support. In the instant case, the trial court did reserve jurisdiction over the initial ten-year spousal support order but failed to do so over the two-year extension of support. The award has already been modified by extending it for a short period of time. It was not an abuse of discretion for the trial court to fail to reserve jurisdiction over the short-term extension. Cf. Nori, supra. Gloria's assignment of error is overruled. Judgment affirmed. - 15 - 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 Domestic Relations Division of 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. TERRENCE O'DONNELL, J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY PRESIDING 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 journalization, at which time .