COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68305 MICHAEL J. BARILATZ : : : Plaiintiff-appellant : JOURNAL ENTRY : v. : AND : : OPINION JOAN PAISLEY, et al : : : Defendants-appellees : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-145457 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: WILLIAM G. DROE Attorney at Law 75 Public Square, #730 Cleveland, OH 44113 For defendant-appellee JOAN PAISLEY, pro se Joan Paisley : Post Office Box 440327 Aurora, CO 80044-0327 For defendant-appellee SANDRA L. WALKER CSEA : Assistant County Prosecutor Post Office Box 93923 Cleveland, OH 4401-5923 - 3 - SWEENEY, JAMES D., P.J.: Plaintiff-appellant Michael J. Barilatz appeals from the November 25, 1994, order of the trial court which overruled plaintiff's objections to the referee's report and granted defendant-appellee Cuyahoga Support Enforcement Agency's ("CSEA") motion to show cause #237841. For the reason adduced below, we affirm. A review of the record on appeal, which is voluminous and contentious, evidencing a great deal of acrimony between the parties, indicates that plaintiff and defendant-Joan Paisley Barilatz were divorced on October 1, 1984. One child, a daughter, was born during the term of the marriage, to wit, Megan (d.o.b. June 27, 1979). Custody of the child was awarded to the mother and the father was ordered, as agreed to by the parties, to pay child support in the amount of $20.00 per week once the father becomes employed. On March 13, 1985, the parties agreed to modify the child support amount to reflect an amount of $25.00 per week, whether father is employed or not, plus poundage to be paid through the Bureau of Support, with the child support amount to automatically increase to $60.00 per week plus poundage upon the father becoming gainfully employed. On June 28, 1989, the trial court, without timely objections to the referee's report, found the father to be in contempt of court for failure to pay child support and sentenced the father to - 4 - thirty days in jail. This contempt order could be purged by the father paying child support in the amount of $60.00 per week plus poundage, plus another $50.00 per week toward the child support arrearage of $9,463.34. A wage order was issued on the father's income source (Veterans Administration) in the amount of $56.10 per week. The Veterans Administration, which had been paying the father monthly compensation for a service connected disability, informed the trial court by letter dated August 29, 1989, that this compensation could not be garnished pursuant to 38 U.S.C. Section 3101, and that an exemption to that federal statute did not apply because the father had not elected to waive a portion of the compensation for purposes of garnishment. See 42 U.S.C. Section 662(f)(2). On April 3, 1992, without timely objections to the referee's report by the father, the trial court again found the father to be in contempt for failure to pay child support, additionally finding a child support arrearage in the amount of $17,211.51. The father was sentenced to sixty days in jail, with the option of purging the contempt citation by: (1) paying $60.00 per week plus poundage as child support; (2) paying $1,000 toward the arrearage, plus $60.00 per month thereafter toward that arrearage; and, (3) taking any step necessary to assure attachment of his veterans benefits, in addition to a wage order on the Veterans Administration. On August 6, 1992, upon a finding that the father failed completely to comply with the purge order of April 3, 1992, the - 5 - trial court found the father to be in contempt of court and ordered the previously entered sixty day sentence into execution. On November 23, 1993, CSEA filed a motion to show cause why the father should not be held in contempt for failing to comply with the child support conditions in the court order of April 3, 1 1992. This motion was served on the third attempt on November 30, 1993, by certified mail upon the father at 1212 South Beachview Road, Willoughby, Ohio. 44094. On December 14, 1993, the trial court set the matter for hearing on February 10, 1994 at 10:15 a.m., and ordered the father to appear at that time. This hearing notice was served by certified mail upon the father at the Willoughby address. On December 20, 1993, the father filed a request for appointed counsel, additionally stating that his monthly expenses amount to $800.00 while his only source of income is $864.00 per month in service connected disability compensation. On February 7, 1994, three days before the scheduled hearing, the father filed a motion for continuance in order for him to obtain legal representation. The hearing on the motion to show cause was conducted on the scheduled date of February 10, 1994. All the parties appeared. The trial court ordered the matter be continued to June 22, 1994, at 10:00 a.m., before the referee, to allow the father to obtain 1 The arrearage in child support at the time of this filing was alleged to be $22,422.99. - 6 - legal representation and for the mother to come to the hearing from her home in Colorado. The motion came on for hearing on June 24, 1994. Appearances were made by the mother and CSEA, but the father did not make an appearance. After the hearing, the referee recommended that CSEA's motion to show cause be granted and that the father be held in contempt, and found the father in arrears in child support payments in the amount of $24,113.47 (as of the hearing date). The referee also made the following finding of fact concerning the father's financial condition: * * * The Defendant [mother] testified the Plaintiff resides with his sister and her spouse at 1212 South Beachview, Willoughby, Ohio 44094. According to the Defendant, the Plaintiff receives Veterans Administration benefits of approximately $900.00 per month, in addition Plaintiff works as a handyman and is paid in cash, and he used to run his present spouse's seventeen properties under Michael's Management. According to the Defendant, management included collecting the rents and maintaining the property. In addition the Plaintiff did outside work for Attorney Droe and Barker in exchange for legal assistance. The Plaintiff (sic.-Defendant) also testified the Plaintiff receives approximately $8,000.00 per semester in order to attend school. The Referee finds the Plaintiff (D.O.B.: 12/19/50, Social Security Number 283-44-1666) attends Cleveland Marshall Law School. According to the Defendant, the Plaintiff purchased a 1993 Hyundai automobile in May 1993. The Defendant testified that the Plaintiff under oath swore that he owned or had interest in: personal and real property and banking accounts acquired during his marriage with Patricia Luke Barilatz and while working - 7 - with her since September 1985; 2) jointly owned property located at 7273 Capt Kidd Reef, Pensacola, Florida 32507, 17119 Perdido Key Drive, B-21, Pensacola, Florida 32507, and Lot 80 Block 1 of Holly By the Sea Development, Holly, Florida 32566. The Referee finds Plaintiff's affidavit describes the property located at 2821 North Park, Cleveland, Ohio 44118 (near Shaker Lakes) as his marital home with his present spouse. The Plaintiff also swore he lived with his spouse since February 18, 1988 as husband and wife. During the hearing of December 1991 and January 1992 before this Court on a Show cause Motion, the Plaintiff described his living arrangement as house sitting. The Referee finds the Plaintiff's sworn statement (attached hereto) identified numerous properties in which he claims an interest. The Plaintiff failed to respond, or appear and defend, and therefore the Referee is unable to make a finding regarding Plaintiff's monthly fixed expenses. [Explanation added.] * * * 2 See Referee's Report filed July 14, 1994. On July 26, 1994, the father, through counsel Droe, filed a motion for extension of ten days in which to file his objections to the referee's report. This motion was granted. On August 5, 1994, plaintiff filed his objections to the referee's report, arguing among other things that he had no notice of the June 24, 1994, hearing date and that he does not have the financial capability to pay child support. On September 29, 1994, with leave of court, CSEA filed its brief in opposition to the father's objections to the referee's report. On October 31, 1994, 2 A transcript of the February and June, 1994, hearings is not provided in the record. - 8 - the father, through counsel, filed a reply brief to CSEA's brief in opposition. On November 25, 1994, the trial court overruled the objections to the referee's report and approved the recommendations of the referee, stating: * * * The Defendant/6's [CSEA] Motion to Show Cause #237841 is granted; the Plaintiff is in contempt of this Court's order for failure to comply with a prior order of this court and the Plaintiff has an arrearage in child support payments to the Defendant [mother] in the amount of $24,113.47 as of June 24, 1994 ($7,611.00 should have been paid plus $17,211.51 minus $709.04 paid/credited); the Plaintiff is sentenced to ninety (90) days in jail commencing 9/2/94 or to 200 in community service hours with the Court Community Service Program commencing 9/2/94, ***; the Plaintiff may purge this contempt by strictly complying with the following conditions: the Plaintiff shall pay $2,500.00 to the Cuyahoga Support Enforcement Agency on or before August 24, 1994; the Plaintiff shall post a $500.00 cash bond with the Clerk of Courts on or before August 31, 1994; the Plaintiff shall pay the $200.00 per month toward the arrearage; the Plaintiff shall pay the Defendant $60.00 per week or $260.00 per month for the current child support of the minor child Megan (DOB 6/27/79); said payments plus 2% poundage, $469.20 per month, shall be paid through Cuyahoga Support Enforcement Agency (CSEA) ***. [Explanation added.] * * * Appellant-father appeals from the order of November 25, 1994, presenting two assignments of error. I - 9 - THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN HOLDING A HEARING WHEN IT FAILED TO NOTIFY THE PLAINTIFF OF THE HEARING. In this assignment, appellant argues that he was not notified of the June 24, 1994, hearing date. Appellant admits that he was personally given notice of the June hearing date at the hearing on 3 February 10, 1994 , but that he expected, and did not receive, notification by mail because he perceived that June hearing date to be merely tentative in nature. It is this alleged failure to receive mail notice of the June hearing which is the basis for this assignment. The long-standing rule in this state is that a court speaks through its journal. See Marous v. Ohio Bell Tel. Co. (1992), 80 Ohio App.3d 306. In this case, the trial court afforded the father personal notice of the June hearing date at the time of the February 10, 1994, hearing. The journal of the trial court reflects that the hearing was rescheduled to the June date and that notice was issued to the father. The journal makes no reference to 3 The trial court's journal of February 15, 1994, reflects the following relative to the February 10, 1994, hearing date: Hearing reset for 6-24-94. OSJ. Vol. 2324, p. 324. NOTICE ISSUED. Also, the trial court's computerized case record reflects the following entry on February 15, 1994: OSJ. Vol. 2324 pg. 324 NOTICE ISSUED. The matter is hereby reset for 6/24/94 at 10:00 a.m. before referee G. Jones in room 312. Failure to appear on this date may result in the issuance of a capias. - 10 - the June hearing date being tentative and subject to change. Additionally, the report of the referee relative to the June 24, 1994, hearing indicates, "The Referee finds that service upon said motion was duly and properly made; that notice containing the date and time of this proceedings (sic.) was mailed to counsel of record or, if unrepresented, to the parties themselves; that the fact of such mailing was journalized in the Domestic Relations Hearing Notice Journal maintained by the Clerk of Courts and is evidenced by a notation on the Docket ***." (Emphasis added.) and, "The Plaintiff failed to appear though daily (sic.) served and notified of the hearing." In Brooks v. Brooks (June 4, 1992), Cuyahoga App. No. 60674, unreported, this court stated the following where appellant claimed that he had failed to receive actual notice of a hearing although the journal and the referee's report contended otherwise: 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. Also see, Gau v. Gau (June 6, 1991), Cuyahoga App. No. 60776, unreported. In the present case, appellant received actual notice of the June, 1994, hearing date at the February, 1994, hearing. Additionally, the journal reflects that notice of this June, 1994, hearing was mailed to the appellant. Appellant claims that his - 11 - affidavit attached to his August 5, 1994, objections to the referee's report avers that he did not receive the mailed notice of the court, however, this affidavit of the father is not signed or notarized and thus cannot be considered in its entirety due to its improper execution. In summary, we conclude that the appellant received reasonable notice of the June, 1994 hearing, and the trial court did not err in conducting that hearing in appellant's absence. The first assignment of error is overruled. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ALLOWING TESTIMONY THAT HAD NO PROBATIVE OR RELEVANT VALUE AND WAS OFFERED SOLELY TO PREJUDICE AND MISLEAD THE TRIER OF FACT. In this assignment, appellant argues that certain testimony of the mother at the June 24, 1994, hearing on the motion to show cause was not relevant pursuant to Evid.R. 403(A), was uncorroborated, and/or prejudicial, and should not have been admitted by the referee. Appellant claims the following testimony, appearing at the end of the referee's report, was irrelevant or uncorroborated: 1. The mother's testimony that accused the father of saying that the domestic relations court is a "joke" and that he can "get around the Court's order without punishment"; 2. The mother's testimony that she had "been to Court on thirty-three (33) occasions to try to collect from the Plaintiff pursuant to the Court's order"; - 12 - 3. The mother's testimony that "the minor child is also receiving counseling as a result of the stress caused by not having what the other children may have." We note that a referee is given a certain amount of latitude in the conduct of the hearing. Contrary to the assertions of the appellant, we do not conclude that the referee abused her discretion in allowing the first and second excerpts of testimony from the mother as they were tangentially relevant to whether the court should grant the show cause motion and find the father in contempt. The third excerpt is not relevant to a finding of an arrearage, however its admission was harmless in light of the remaining evidence of the large arrearage accumulated by the father and the ability of the trial court to weigh and consider only appropriate evidence in ruling on the objections to the referee's report. Next, appellant argues that the mother's testimony concerning the father's income, employment, and living arrangements was erroneous and uncorroborated and should have been stricken. This contention is without merit as the referee, contrary to the appellant's assertion, had before her the father's most recent divorce case record file, see Cuyahoga County Common Pleas Court, Domestic Relations Division Case No. D-228963, in addition to the filings contained in the present case. In addition, the father's objections to the referee's report fails to contain evidence upon which the court could conclude that the assertions of the mother were erroneous, as the affidavit of the father, which purportedly - 13 - refuted the mother's testimony, was improperly executed and could not be considered as evidence. See High v. High (1993), 89 Ohio App.3d 424 (where a party objecting to a referee's report has failed to provide the trial court with the evidence and documents by which the trial court could make a finding independent of the report, appellate review is limited to whether the trial court abused its discretion in adopting the referee's findings). Absent this affidavit, the father's objections were totally unsupported. Accordingly, based on the record before it, the trial court did not abuse its discretion in adopting the findings and recommendation of the referee. The appellant next argues that the referee erroneously found that the father had previously described the father's living arrangement in a prior referee's report as "house sitting." A review of the referee's report filed March 3, 1992, indicates that the referee made the following finding, "The Plaintiff testifies that he house sits the 5 bedroom home belonging to Mrs. Pat Lutz at the above address." (The address mentioned in this quotation refers to the North Park Avenue address near the Shaker lakes.) No timely objections to the referee's report of March 3, 1992, were filed. We see no error in the referee's finding in this case with the term "house sitting" where that term was used by the father during a previous hearing. Finally, the father argues that the referee erred in finding that "the minor child is eligible to receive social security - 14 - benefits from the Plaintiff's benefits however the Defendant failed to request or fill out an application to effectuate that end though ordered to do so by this Court." We, with the concurrence of the appellee in CSEA's brief in opposition to the father's objections, agree that the referee misstated the facts of the record on this point. The father was never ordered by the trial court to effectuate social security benefits for the child, but was ordered to effectuate veterans benefits for the child. The referee report language should be corrected to replace the phrase "social security benefits" with the phrase "veterans administration benefits." This error, which is a minuscule part of the overall referee's report, is harmless as there was considerable evidence upon which the trial court could conclude, within its discretion, that the show cause motion should be granted. The second assignment of error is overruled. 4 Judgment affirmed. 4 Although not addressed by the parties, we take particular interest in the fact that as of June 24, 1994, the father was attending law school at Cleveland State University. While we cannot predict what the Bar may do in the future, it is reasonable to assume, and to caution the appellant, that flaunting the order of a court, being repeatedly held in contempt, and maintaining a considerable arrearage in child support payments must reflect adversely on an applicant who seeks admission to the Bar. - 15 - It is ordered that appellees recover of appellant 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 Cuyahoga County 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. Exceptions. SARA J. HARPER, J. CONCURS DIANE KARPINSKI, J. CONCURS JAMES D. SWEENEY 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 .