COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68835 : ACCELERATED DOCKET STATE OF OHIO, CUYAHOGA SUPPORT : ENFORCEMENT AGENCY, EX REL. : ANA ROSELLO : JOURNAL ENTRY : Plaintiff-Appellant : and -vs- : : OPINION KARL PERRIN : : : PER CURIAM Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Civil appeal from the Juvenile Court Division of the Common Pleas Court Case No. 9470106 JUDGMENT: Affirmed in Part, Reversed in Part and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STEPHANIE TUBBS JONES, ESQ. KARL PERRIN, pro se Cuyahoga County Prosecutor 2037 Cambridge Twinsburg, Ohio 44037 VICTOR P. RAUSER, ESQ. Assistant County Prosecutor ANA ROSELLO, pro se P.O. Box 93894 3462 West 60th Street (up) Cleveland, Ohio 44101-5894 Cleveland, Ohio 44101-9399 - 2 - PER CURIAM: Appellant, the State of Ohio, Cuyahoga County Support Enforcement Agency ("CSEA"), appeals from a judgment of the Juvenile Court denying CSEA's request for full reimbursement of expenses from defendant, Karl Perrin, as a result of the birth and care of Ania Rosello. For the reasons that follow, this judgment is affirmed in part and reversed in part. Ania Rosello was born on July 28, 1991. At the time of Ania's birth, her mother, Ana Rosello, was receiving ADC benefits. On February 3, 1994, CSEA filed a complaint against defendant on behalf of Ana. This complaint sought to establish a parent-child relationship and to order reimbursement for past support CSEA provided to Ana. After a trial on May 19, 1994, the Juvenile Court found defendant to be the father. The case was continued to determine the support issues. The first support hearing was held on August 29, 1994. CSEA sought reimbursement for past expenditures including birth expenses of $4,541.00 and ADC benefits of $2,489.00 and argued that future monthly support under the guidelines should be set at $62.50. The referee noted that CSEA submitted certified documents from the Department of Human Services verifying these expenses. The referee recommended monthly support of $62.50, half of the maternity expenses ($2,270.00), and a portion of the past care requested ($1,562.00). In written objections to this referee's report, CSEA argued that it was entitled to be reimbursed for all care provided - 3 - for the minor child. The Juvenile Court sustained these objections and ordered as follows: IT IS THEREFORE ORDERED that: The matter be returned to the referee for an evidentiary hearing on the past care issue raised in the objection; that for each year of past care requested the referee prepare guidelines, after determining the income of the parties, determine the amount of ADC, if any, received by the mother, number of children in the grant amount and the dollar amount in the grant attributed to the mother for each of the years. On January 4, 1995, CSEA filed a motion for reconsideration arguing that under this court's holding in CSEA v. Lisa Coots (Dec. 15, 1994), Cuyahoga App. No. 67563, unreported, defendant was liable for the entire amount of past care and maternity expenses. The court granted the motion in part and stated as follows: The Court, after due consideration, sustains that part of the motion on the issue of maternity expense [sic] paid by the Department of Human Services and returns the issue of maternity expense to the referee for a finding of fact and law. The balance of the motion to reconsider is overruled and the issue of past care remanded back to the referee to proceed in accordance with the order of December 7, 1994. A second referee's hearing was held on March 1, 1995. In a report issued March 22, 1995, the referee recommended that defendant be held liable for half of the maternity expenses and none of the past care. No objections to this report were filed. The Juvenile Court adopted the referee's report and journalized the judgment entry on April 6, 1995. CSEA filed its notice of appeal on April 12, 1995, and assigned the following three errors: I. THE TRIAL COURT ERRED IN DENYING APPELLANTS' CLAIM FOR LACK OF EVIDENCE WHEN THAT EVIDENCE WAS ALREADY A PART OF THE RECORD. II. THE TRIAL COURT ERRED BY NOT FOLLOWING THE HOLDING OF - 4 - CSEA VS. COOTS IN DETERMINING THE AMOUNT OF PAST CARE DUE ODHS. III. THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH THE REQUIREMENTS OF R.C. 3113.217(C) BY NOT ISSUING A SEPARATE ORDER REGARDING HEALTH INSURANCE. In this accelerated case we need not address the merits of the first two assignments, because CSEA did not preserve these issues for appeal. Civ.R. 53(E)(6) states in part as follows: On appeal, a party may not assign as error the court's adoption of a referee's finding of fact unless an objection to that finding is contained in that party's written objections to the referee's report. Soon after the adoption of Civ.R. 53(E)(6), the court in Proctor v. Proctor (1988), 48 Ohio App.3d 55 at 58, thoroughly discussed the rule and stated as follows: In our view, the express language of Civ.R. 53(E)(6), merely follows well-established case authority that an appellate court will not consider any error which counsel for a party complaining of the 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 corrected or avoided by the trial court. See Schade v. Carnegie Body Co. (1982), 70 Ohio St. 2d 207, 24 O.O. 3d 316, 436 N.E.2d 1001. Accordingly, pursuant to Civ.R. 53(E)(6), we hold that an assignment of error based upon the trial court's adoption of a referee's finding of fact is waived unless an objection to that finding of fact is contained in the party's written objections to the referee's report. CSEA's first two assignments contest the findings of the referee concerning the amount of past care for which CSEA is entitled to be reimbursed. A review of the record reveals that no objections to the March 22, 1995, report were filed. CSEA filed objections to the first referee's report, but not the second. Accordingly, assignments I and II are overruled. The third assignment of error raised by CSEA argues the trial - 5 - court erred by not complying with R.C. 3113.217(C), which mandates a separate order requiring health insurance. The version of Civil Rule 53(E)(6) in effect at the time of this case provides for a 1 waiver regarding a referee's finding only of fact. The rule at that time was silent regarding purely legal determinations by referees. This distinction was noted by the court in State ex rel. Donah v. Windham Exempted Village School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 114, when it stated at 118, "Therefore, to the extent that the referee's finding may be considered to be factual, appellant waived any error." In contrast, the court held that "to the extent that the referee's finding may be characterized as the resolution of a question of law," the finding "is not subject to the waiver set forth in Civ.R. 53(E)(6) ***." Whether health insurance should be ordered is a purely legal issue, a factual finding by the referee being unnecessary. This issue, therefore, was not waived for the purposes of this appeal. CSEA correctly points out that R.C. 3113.217(C) requires the trial court, inter alia, to issue a separate order regarding health insurance and states as follows: In any action or proceeding in which a child support order is issued or modified *** the court also shall issue a separate order that includes all of the 1 . There has been a slight, yet significant, change in this rule. The new Civ.R. 53(E)(3)(b) states in part as follows: A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. (Emphasis added.) This rule became effective on July 1, 1995, and was not in effect at the time either of the referee's report or of the trial court judgment in the case at bar. - 6 - following: (1) A requirement that the obligor under the child support order obtain health insurance coverage for the children who are the subject of the child support order ***; This court recently relied on the mandatory language of this statute and remanded a case for failure to issue a separate order regarding health care. CSEA v. Lozada (1995), 102 Ohio App.3d 442. The Lozada court stated at 458 as follows: In all of the actions presented within the consolidated appeal before this court, the trial court failed to issue a separate order encompassing the myriad of requirements outlined in the thirteen separate paragraphs of R.C. 3113.217. This failure by the trial court to comply with the demands of R.C. 3113.217 is plain error. In the case at bar the trial court's judgment makes no mention of health insurance as required by R.C. 3113.217(C). Accordingly, we remand the case in order that the Juvenile Court may comply with this statute. Judgment affirmed in part and reversed in part. - 7 - This cause is affirmed in part and reversed in part and remanded for further proceedings in accordance with this opinion. It is therefore considered that appellant and appellee shall share the costs equally. It is ordered that a special mandate be sent to said 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. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE DIANE KARPINSKI, 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 .