COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69103 BARBARA BERNASEK NKA : BARBARA STARON : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION LEE J. BERNASEK : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 14, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Division of Domestic Relations, Case No. D-120900. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Barbara A. Belovich, Esq. 5638 Ridge Road Parma, Ohio 44129 For Defendant-appellant: Lee J. Bernasek, pro se 1299 Washington Boulevard Mayfield Hts., Ohio 44124-1625 For Cuyahoga Support Enforcement Agency (CSEA): Sandra L. Walker Assistant County Prosecutor P.O. Box 93923 Cleveland, Ohio 44101-5923 SWEENEY, JAMES D., J.: Defendant-appellant-husband Lee J. Bernasek (d.o.b. March 7, 1943) appeals from a variety of trial court rulings relative to post-divorce decree motion practice initiated by plaintiff- appellee-wife Barbara Bernasek, n.k.a. Barbara Staron (d.o.b. August 5, 1944). For the reasons adduced below, we affirm. A review of the record on appeal indicates that the parties were married on October 17, 1964. Two daughters were born during the marriage, namely, Jennifer (d.o.b. April 11, 1970) and Tiffany (d.o.b. February 9, 1978). On April 16, 1981, the trial court journalized an order dissolving the marriage, incorporating therein the separation agreement of the parties. The trial court journalized an agreed amended dissolution agreement on May 20, 1992, which implemented the following in pertinent part: 1. The wife would be responsible for the mortgage payments on the Sedalia property ; 2. The husband shall maintain life insurance in an amount not less than $72,000.00, naming the wife and the daughters as beneficiaries; 3. The husband shall pay child support for Tiffany in the amount of $50.00 per week plus poundage payable through CSEA ; the husband shall provide health insurance coverage for Tiffany and provide the wife 1 The Sedalia property refers to the marital home which was awarded to the wife. 2 CSEA is the Cuyahoga Support Enforcement Agency, which was joined as a new party defendant on November 17, 1993. - 3 - with policy information; the husband shall pay for all necessary medical and dental bills; 4. The husband shall pay spousal support, through CSEA, in the amount of $364.66 per month plus poundage until and including June, 1996; 5. The husband shall pay to wife "$300 per month commencing July, 1996 until and including July, 2000. Said payments shall be made directly to wife and shall be used at wife's discretion for college expenses for Tiffany. Should Tiffany die or choose not to go to college, husband will not be responsible for this amount."; 6. The amended agreement resolves all motions pending before the trial court; 7. The husband will pay the wife $7,500.00 for child support and spousal arrearage, with $4,000.00 due within thirty days by the date of the amended agreement, and the remaining $3,500.00 "shall be paid as follows: the wife shall provide husband with invoice to Tiffany's parochial high school. Husband thereafter shall pay to wife the invoice amount. The aforementioned remaining arrearage ($3500) shall be paid within 18 months of the date of this agreement."; 8. The husband shall pay the cost of this proceeding. See generally Journal Vol. 1977, page 56-58. On February 16, 1993, the wife filed a motion to show cause (#221505) and for attorney fees (#221506) alleging that the husband failed to pay medical and dental bills for Tiffany, reimburse the parochial high school tuition for Tiffany, and provide health insurance for Tiffany at his cost. - 4 - On June 3, 1993, the husband filed a motion to show cause (#227713) alleging the wife failed to attend the referee hearing scheduled for March 22, 1993, and a motion for attorney fees (#227712) for having to defend the wife's motions filed on February 13, 1993. On July 30, 1993, the wife filed a brief in opposition to the husband's motions. Referee Bernadette Marshall conducted hearings on the wife's motions and issued her report and recommendation on February 4, 1994, wherein she granted motions #221505 and #221506. The husband filed his objections to the referee's report on February 22, 1994. On March 7, 1994, the trial court journalized the following order: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant-1's [wife] Motions to Show Cause #221505 and for Attorney Fees #221506 are hereby granted; that Defendant-2 [husband] pay $216.67 per month per child through the Cuyahoga Support Enforcement Agency (CSEA) plus 2% statutory fee as child support for Tiffany (dob: 2/9/78) until the child reaches eighteen or so long as the child continuously attends on a full-time basis a recognized and accredited high school, whichever occurs later; that Defendant-2's arrearage including medical, dental, former arrearage and attorney fees is in the amount of $7290.11 as of 6/3/93: that Defendant-2 is hereby sentenced for said contempt to 30 days in Cuyahoga County jail or to perform not less than 200 hours of community service in lieu of actual incarceration which service shall be performed at the direction of the Court Community Services and be subject to the Court's review; that Defendant-2 (sic) sentence will be suspended provided that Defendant pay $75 per month on the arrearage as well as the current child support order of $216.67 per month and the spousal support of - 5 - $364.66 per month through 6/96 when spousal support drops to $300 per month from 7/1/96 through July of the year 2000; that further Defendant-2 pay $4000 within 30 days of journalization directly to Defendant-1; that in the event Defendant-2 does not purge his contempt, he is hereby ordered to report to the office of the Deputy Sheriff in the Old Courthouse, One Lakeside Avenue immediately to serve his sentence, subject to immediate release upon later compliance; that Defendant- 2's Motion for Expenses and Defendant-2's Motion to Show Cause #227713 are both denied. IT IS FURTHER ORDERED that Defendant-2 post a cash bond with the Clerk of Court of $500 to be posted on or before 3/15/94. Defendant-2's Motion to Show Cause #227713 and for Expenses #227712 are denied. Costs adjudged against Defendant-2. [ss. Timothy M. Flanagan] JUDGE TIMOTHY M. FLANAGAN Journal Vol. 2335, pages 586-587 [Explanation added] (Emphasis in the original). On April 4, 1994, the wife filed her brief in opposition to the husband's objections to the referee's report. On April 7, 1994, the trial court, on its own motion, vacated the order of March 7, 1994, sustained the husband's objections to the referee's report and set the following motions for hearing: (1) wife's motion to show cause #221505 and for attorney fees #221506; (2) husband's motion to show cause #227713 and for expenses #227712; and, (3) CSEA's motion to quash (#236079 and #236080) certain subpoenas issued by the husband relative to the hearing before the referee. - 6 - On July 13, 1994, the husband filed a motion to dismiss the wife's pending motions for want of prosecution. The wife filed a brief in opposition to this motion by the husband on July 26, 1994. The pending motions of the parties were then heard by referee Serpil Ergun on August 11 and October 27, 1994. On January 23, 1995, referee Ergun issued her twelve page report and recommendations, granting the wife's motions, denying the husband's motions and denying as moot CSEA's motions to quash. On February 6, 1995, the wife filed an objection to referee Ergun's report, seeking to have the husband be ordered to pay Tiffany's orthodontic expenses in its entirety ($2,880.00), not just the amount of $1,435.07 as recommended by the referee. On February 9, 1995, the husband filed a motion requesting that all transcript fees relative to referee Ergun's hearings be taxed as costs due to the alleged indigency of the husband. This motion was denied. The husband sought reconsideration of this denial, and the court denied reconsideration on March 10, 1995. On March 14, 1995, the husband filed a request for findings of fact and conclusions of law as to the denial of his motion to tax transcript fees as costs. Also on March 14, 1995, the husband filed an unsupported response to the wife's objections to referee Ergun's report. On March 28, 1995, with leave of court, the husband filed his objections to referee Ergun's report. - 7 - On May 11, 1995, the court, after independent review of the record, overruled the objections of the parties and approved the recommendation of the referee as follows: Defendant-2/Lee J. Bernasek's Motion for Defendant's Expenses #227712, Motion for Contempt of Court #227713, and Motion Dismissing Actions Against Defendant, Lee J. Bernasek, for Want of Prosecution by Defendant- 1/Barbara Staron #251796 are hereby denied. Defendant-3/Cuyahoga Support Enforcement Agency's Motions to Quash Subpoena #236079, and #236080 are hereby denied as moot. Defendant-1/Barbara Staron's Motion to Show Cause #221505 and Motion for Attorney Fees # 221506 are hereby granted. Defendant-2/Lee J. Bernasek is in contempt of Court for failure to abide by this Court's previous orders requiring him to pay for all necessary medical and dental bills for Tiffany, and to pay the remaining $3,500 toward a $7,500 support arrearage, as recorded at Vol. 1977, Pg. 55 et seq. Defendant-2 is hereby sentenced for said contempt to thirty (30) days in jail or in the alternative, to perform not less than 200 hours of community service in lieu of actual incarceration, which service shall be performed at the direction of the Court Community Services and be subject to the Court's review. However, Defendant-2's sentence will be suspended and his contempt purged provided that he pay $1,435.07 through the Cuyahoga Support Enforcement Agency (CSEA) within thirty (30) days of the journalization of this order for monies owed for medical and dental expenses incurred for Tiffany. Said payment is in addition to any obligation to pay current support. In the event Defendant-2 does not purge his contempt, he is hereby ordered to report, during regular Court business hours, to the Court Community Services Liaison *** no later than forty (40) days after the journalization of this order to perform his community service, subject to immediate release upon later compliance. Upon the failure to appear for - 8 - imposition of sentence or failure to complete his community service, the Court, ***, shall issue a capias for Defendant-2 to serve the jail sentence ordered above. In addition to the above sentence and civil purge, the Defendant-2 shall do the following: (1) Pay $1,900.00 towards the Defendant-1's attorney fees as additional spousal support within sixty days of journalization of this order for which judgment is rendered in favor of Defendant-1 against Defendant-2 upon which execution may issue, and (2) furnish a copy of the actual health insurance policy covering Tiffany and a participant card, if available, to Defendant-1 within ten (10) days. Failure to comply with this order can result in a contempt action as proscribed in Ohio Revised Code Section 2705.05 the penalty for which may be imprisonment for not more than thirty (30) days and/or fine of not more than $250.00 for the first offense, sixty (60) days in jail and/or $500.00 fine for the second offense and up to $1,000.00 fine and/or ninety (90) days in jail for (sic) third or subsequent offense. Costs adjudged against Defendant-2. Journal Vol. 2604, pages 270-271. The husband, acting pro se, filed a timely notice of appeal from the order of May 11, 1995, and presents eight assignments of 3 error for review. I THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED (SIC) WHEN IT GRANTED DEFENDANT- 1/BARBARA STARON'S MOTION TO SHOW CAUSE NO. 221505 AND ORDERED APPELLANT TO PAY $1,435.07 FOR MONIES OWED FOR NECESSARY MEDICAL AND 3 The record on appeal does not contain the transcripts from the hearings before the referees. - 9 - DENTAL BILLS INCURRED BY THE APPELLEE, FOR DAUGHTER, TIFFANY, AS LOCATED IN THE FIRST FULL PARAGRAPH ON PAGE 2 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0271. II THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED (SIC) WHEN IT GRANTED DEFENDANT- 1/BARBARA STARON'S MOTION TO SHOW CAUSE NO. 221505 AND FOUND APPELLANT IN CONTEMPT OF COURT FOR FAILING TO PAY $3,500 AS REQUIRED IN PREVIOUS ORDER RECORDED IN VOL. 1977, PG. 55 ET SEQ., AS LOCATED IN THE FIRST FULL PARAGRAPH ON PAGE 2 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0271. III THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED (SIC) WHEN IT GRANTED DEFENDANT- 1/BARBARA STARON'S MOTION TO SHOW CAUSE NO. 221505 AND ORDERED APPELLANT TO FURNISH TO APPELLEE THE ACTUAL HEALTH INSURANCE POLICY COVERING TIFFANY WITHIN TEN (10) DAYS AS STATED ON PAGE 2 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0271. IV THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED DEFENDANT-1/BARBARA STARON'S MOTION FOR ATTORNEY FEES NO. 221506 AND ORDERED APPELLANT TO PAY $1,900 TOWARD APPELLEE'S ATTORNEY FEES AS NOTED IN THE THIRD FULL PARAGRAPH ON PAGE 2 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0271. V THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADJUDGED ALL COSTS AGAINST APPELLANT, AS NOTED IN THE LAST PARAGRAPH AND SENTENCE ON PAGE 2 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0271. VI THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED (SIC) WHEN IT DENIED APPELLANT'S MOTION FOR EXPENSES AS NOTED IN THE LAST PARAGRAPH ON - 10 - PAGE 1 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0270. VII THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED (SIC) WHEN IT DENIED APPELLANT'S MOTION FOR CONTEMPT OF COURT AGAINST DEFENDANT- 1/BARBARA STARON AND HER ATTORNEY FOR FAILURE TO APPEAR FOR THE MARCH 22, 1993, HEARING AS NOTED IN THE LAST PARAGRAPH ON PAGE 1 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0270. VIII THE TRIAL COURT ABUSED ITS DISCRETION AND ERRORED (SIC) WHEN IT DENIED APPELLANT'S MOTION FOR DISMISSING ACTIONS AGAINST DEFENDANT, LEE J. BERNASEK, FOR WANT OF PROSECUTION BY DEFENDANT-1/BARBARA STARON, AS FOUND IN THE LAST PARAGRAPH ON PAGE 1 OF THE JUDGMENT/ORDER VOL. 2604; PG. 0270. Each of the abovementioned assignments present an abuse of discretion standard of review as applied to the final order of May 11, 1995. An abuse of discretion connotes more than an error of judgment, but rather, indicates an attitude on the part of the court that is unreasonable, unconscionable or arbitrary. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622. It is also noted that: A party who objects to the factual findings of a referee is required to support the objection with excerpts from the hearing transcript or with an affidavit if no transcript is available. If an affidavit is employed, it must purport to comprise all the relevant evidence submitted to the referee on the issue, instead of just the evidence the objecting party believes was disregarded. (Civ.R. 53[E][6], applied.) (Emphasis added.) - 11 - Pappenhagen v. Payne (Cuyahoga, 1988), 48 Ohio App.3d 176, paragraph two of the syllabus. In the present case, the husband's objections to the referee's report employed an affidavit rather than an excerpt from the hearing transcript. No hearing transcript was provided the trial court or this appellate court. This affidavit did not "purport to comprise all the relevant evidence submitted to the referee on the issue." Id. Instead, the affidavit was couched in such terms as to that evidence he believed was disregarded. "Without a complete account of the evidence, the court was not obliged to reject the referee's finding in this regard." Id. at 178. We additionally note that an appellant has the duty to exemplify or identify the claimed error within the record, App.R. 12(A)(2), and is also under a duty, where the appellant is urging on appeal that a finding is not supported by the evidence, to "include in the record a transcript of all evidence relevant to the findings or conclusion.", pursuant to App.R. 9(B), or a statement of the evidence or proceedings where a transcript is unavailable, pursuant to App.R. 9(C). In the present case, appellant-husband filed his notice of appeal pursuant to App.R. 9(C). Yet, no App.R. 9(C) statement was ever proposed by the husband, approved by the trial court, or included in the record on appeal. Considering the above, we cannot conclude that the trial court abused its discretion in approving the recommendations of referee Ergun, particularly where - 12 - appellant has failed to provide an adequate record, in this court or the trial court, which exemplifies the claimed error. Assignments overruled. Judgment affirmed. - 13 - 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, 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. Exceptions. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR. JAMES D. SWEENEY 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 .