COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68837 DIANE T. WENDLING : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION WILLIAM J. WENDLING, ET AL. : : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 8, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Division of Domestic Relations, Case No. D-89408. JUDGMENT: AFFIRMED IN PART, AND REVERSED AND MODIFIED IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Diane T. Wendling, pro se, 16955 Mt. Citadel, Fountain Valley, California, 92748. For Defendant-appellant: William J. Wendling, pro se, 9941 Acme Road, Rittman, Ohio, 44270. For Defendant-Appellee, Cuyahoga Support Enforcement Agency: Stephanie Tubbs Jones, Cuyahoga County Prosecutor, Sandra L. Walker, Assistant County Prosecutor, P.O. Box 93923, Cleveland, Ohio 44101-5923. SWEENEY, JAMES D., P.J.: Defendant-appellant-father William J. Wendling (d.o.b. July 17, 1945) appeals from the trial court's ruling on defendant- appellee-movant Cuyahoga Support Enforcement Agency's ("CSEA") April 14, 1994, motion to show cause. For the reasons adduced below, we affirm in part and reverse and modify in part. A review of the record on appeal indicates that the father and plaintiff-appellee-mother Diane T. Crampton (d.o.b. September 17, 1949), formerly known as Diane T. Wendling, were divorced on July 25, 1978. Custody of the two daughters born during the marriage, Karen (d.o.b. January 1, 1976) and Lynn (d.o.b. June 18, 1977), was awarded to the mother. The father was ordered to pay child support, through the Bureau of Support, in the amount of $344.00 per month plus poundage ($172.00 per child plus poundage) and spousal support in the amount of $168.50 per month commencing on June 30, 1978. On March 18, 1980, the father was found to have an arrearage in child support of $200.00, and was ordered to repay this arrearage at the rate of $50.00 per month. On June 11, 1982, the child support order was modified to reflect that the father would not be liable for child support payments during those periods 1 when the children were living with him in excess of one week. The 1 The abatement language from the 1982 agreement provides: 4. The defendant is given an abatement on his support payments during the summer and winter visitation and all periods of visitation in excess of one week when the - 3 - 1982 modification also permitted the children to relocate with the mother to the State of Washington. On April 14, 1994, CSEA filed its motion to show cause, seeking a contempt citation for the father's alleged failure to pay his child and spousal support and payments on medical and dental expenses as required in the 1978 divorce decree. An arrearage in excess of $8,000.00 was alleged in the motion. The motion to show cause was heard on Friday, September 16, 1994, before Referee Alison Nelson. Plaintiff and appellant, both pro se, and counsel for CSEA appeared at the hearing. At the hearing before the referee, CSEA offered the testimony of the plaintiff-mother, who stated the following in pertinent part (R. 10-39): (1) she presently resides in Fountain Valley, California; (2) child support payments from the father stopped coming in September of 1993; (3) the child support records produced by the Bureau of Support reflecting payments up to the hearing date, as represented by CSEA Exhibits 1 and 2, are accurate; (4) the father has made no child support payments directly to the witness; (5) the father did not have to pay child support for any period of visitation with the father in excess of one week; (6) CSEA Exhibit 3, which was prepared by the witness, represents the periods of visitation with the father during the period of 1982 through 1993; (7) the father owns two homes, one a home in Richfield, Ohio, the other a home on a lake, and receives a pension children are in his possession. - 4 - from his former employer; (8) she denies that the father owes her no arrearage; (9) there is a reported history of physical abuse concerning the parties; (10) there are some checks from the father made payable to her directly but she cannot recall whether they paid for support or debts accumulated during the marriage which were ordered to be the responsibility of the father. The plaintiff-mother then testified on her own behalf as follows in pertinent part (R. 40-42): (1) she wants the court support order enforced for the benefit of her two daughters. The defendant-father then testified on his own behalf as follows in pertinent part (R. 43-96): (1) he admits to owing child support from the Fall of 1993 to present; (2) he stopped paying child support at that time because one of the daughters, Karen, turned eighteen and he did not have any funds with which to pay any support; (3) he has tried to find work since his termination from Ameritrust in August of 1990, but has been unsuccessful; (4) at the time of his termination, he rolled his pension over to an IRA valued at $40,000.00, which he lived off of until the Spring of 1993, when it's value was completely depleted; (5) he has remarried since the parties' divorce and his present wife is employed; (6) he did not see his daughters for a four-year period from 1987 to 1991, having been denied visitation by the mother; (7) although he would like to pay his support obligation, he does not have the funds to pay child support at present; (8) his financial records concerning his payments to the mother, which consist of six canceled checks - 5 - submitted to the court, as well as documentation supporting his claims of abatement and transportation, are admittedly incomplete or not available; (9) he has no proof that he was permitted to pay the mother the support directly and not through court; (10) he disputes the arrearage figure of approximately $19,000.00 arrived at by CSEA, claiming to be owed transportation expenses and abated child support from visitation periods exceeding one week; (11) he made no payments outside the Bureau of Support after 1980; (12) he has no documentation to demonstrate that the CSEA records concerning his payment history is incorrect; (13) he admits that he paid no child support when his children did not visit as called for by the divorce judgment because he considered his children as being kidnapped; (14) he has no disability which would prohibit him from employment; (15) his present wife, who supports his present family, is employed as a computer programmer and earns approximately $30,000.00 per year; (16) he could not recall what he and his present wife reported as the joint total income to the IRS this past tax year; (17) plaintiff-mother has never been held in contempt for having allegedly violated the visitation order. On December 7, 1994, the Referee issued her report and recommendation in which she determined that there was no spousal support arrearage, but that there was an arrearage in child support in the amount of $8,205.28 (after subtracting child support and transportation abatements in the amount of $4,988.84 which accrued to the benefit of the father) for the period from September 19, - 6 - 1980, to September 16, 1994. Additionally, the Referee concluded 2 that the father was voluntarily unemployed since August of 1990 and was in contempt of court relating to child support. The father filed objections to the referee's report on December 16, 1994. CSEA filed its brief in opposition to the father's objections on January 30, 1995. On March 21, 1995, the trial court overruled the father's objections and approved the recommendations of the referee. The father filed pro se a timely notice of appeal on April 14, 1995. Seven assignments of error are presented for review. I TRIAL COURT'S REVERSAL OF DEFENDANT'S ABATEMENT VIOLATED DEFENDANT'S RIGHTS AS DEFINED IN 1982 AGREEMENT BETWEEN THE PARTIES, IS CONTRARY TO TESTIMONY GIVEN, AND IS CONTRARY TO THE UNQUESTIONED PRECEDENT SET OVER ITS 13 YEAR EXISTENCE. Before addressing the merits of this appeal, we note that: In reviewing matters concerning child support, an appellate court should apply the abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028. ***, an abuse of discretion connotes that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore, supra. A more detailed analysis of the term appears in Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, quoting, State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 473 N.E.2d 264: 2 In August of 1990, the father was layed off after twenty- seven years of service by Ameritrust Bank from his management position where he earned approximately $40,000.00 per year. - 7 - An abuse of discretion involves far more than a difference in *** opinion. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such a determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion and bias. Calta v. Calta (May 11, 1995), Cuyahoga App. No. 67315, unreported, 1995 Ohio App. LEXIS 1913; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. Appellant's argument in support of this assignment is confusing. Appellant appears to argue that the trial court abused its discretion in not crediting him with those child support abatement periods during the summer and winter periods and those exceeding one week in length during the four-year period when he did not see his children, even though the condition precedent to receiving those abatements, namely that visitation with the father actually occur during the summer and winter or for a period exceeding one week, did not occur during that four-year period. Having failed to demonstrate the condition precedent for abatement for that four-year period, we conclude that the trial court did not abuse its discretion in not reducing the arrearage amount with those non-existent abatements from the four-year period when appellant did not see his daughters. The first assignment of error is overruled. - 8 - II TRIAL COURT'S EXTENSION OF SUPPORT FOR DAUGHTER KAREN BEYOND HER 18TH BIRTHDAY VIOLATES THE TERMS OF THE COUPLES' 1978 DIVORCE AGREEMENT AND IS CONTRARY TO GIVEN TESTIMONY. In the 1978 original divorce decree, the following language was provided concerning child support: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant shall pay the support of the minor children of the Parties hereto the sum of Three Hundred Forty-Four ($344.00) Dollars per month, beginning June 30, 1978, until further order of the Court or until such time as the minor children of the Parties shall attain the age of majority, shall die, or shall otherwise be emancipated, whichever shall first occur. At such time as the oldest of the minor children of the Parties shall attain the age of majority, emancipation or die, the support payment herein set forth shall be reduced by an amount equal to One-Half (1/2) of the monthly amount. ***. (Emphasis added.) Journal Vol. 585, pages 806-807. In this assignment, appellant argues that the court abused its discretion by requiring child support for daughter Karen past her eighteenth birthday on January 1, 1994 to her graduation from high school, six months later, in mid-1994. It is this additional six months in support which is argued should not be counted in the arrearage total. Pursuant to the express language of the divorce decree, and under the facts presented, child support for Karen ceased upon her reaching the age of majority on her eighteenth birthday (January 1, 1994). See In re Dissolution of Lazor (1991), 59 Ohio St.3d 201, paragraph two of the syllabus. - 9 - 3 Appellee's reliance on present day R.C. 3109.05(E) is misplaced as that section's language, requiring support issued pursuant to this section to continue past the age of majority so long as the child is in high school, was enacted years after the divorce decree herein was issued. The divorce decree herein was not issued under the authority of present day R.C. 3109.05(E) and is therefore not controlling. Accordingly, the second assignment of error is affirmed. The amount of the child support arrearage is therefore reduced by $1,052.64 (6 months times $172.00 = $1,032.00, plus 2% poundage [$20.64]). III TRIAL COURT'S REFUSAL TO ACCEPT/CREDIT TRANSPORTATION RECEIPTS, PAID BY DEFENDANT BUT OWED BY THE PLAINTIFF, AFTER THE REFEREE'S HEARING ON 9/16/94 IS WITHOUT LEGAL FOUNDATION. The transportation receipts, totalling $3,907.00, to which appellant refers were not produced at the motion hearing but were 3 Present day R.C. 3109.05(E) provides: (E) Notwithstanding section 3109.01 of the Revised Code, if a court issues a child support order under this section, the order shall remain in effect beyond the child's eighteenth birthday as long as the child continuously attends on a full-time basis any recognized and accredited high school. Any parent ordered to pay support under a child support order issued under this section shall continue to pay support under the order, including during seasonal vacation periods, until the order terminates. (Effective 12- 31-93.)(Emphasis added.) - 10 - 4 attached to his objections to the referee's report. There was no demonstration by appellant at the time of filing the objections to the referee's report why this evidence could not, with reasonable diligence, have been discovered and produced prior to the making of the referee's report. See Civ.R. 53(E)(6). Accordingly, the trial court did not abuse its discretion in not considering this evidence in affirming the referee's report and recommendation. The third assignment of error is overruled. IV SUPPORT LEGITIMATELY OWED TO PLAINTIFF. In this assignment of error, appellant argues matter of factly, without support, that his arrearage as of June 18, 1995, will be $4,068.00, and that by subtracting the transportation amounts mentioned in the previous assignment from that amount, he would owe plaintiff $161.00. Since the previous assignment was found to be without merit, this assignment is also without merit. The fourth assignment of error is overruled. V TRIAL COURT ERRED IN ACCEPTING CSEA/PROSECUTOR'S ARREARS (sic) TOTAL WITHOUT REQUIRING DETAIL OF ITS COMPOSITION. In this assignment, appellant argues that it was error for the trial court to accept CSEA's documentary evidence supporting the arrearage because the records are allegedly not detailed enough for 4 These transportation receipts consisted of unauthenticated photocopies of airline billings and charges on credit card statements and unauthenticated photocopies of airline tickets. - 11 - the trial court to accurately determine the amount of the arrearage. This argument is without merit as the records and testimony before the trial court readily allow the court sufficient information to ascertain the arrearage amount based on the payments made by the father, the disbursements from the Bureau of Support and the amount which was due as child support each month pursuant to the order of support. The fifth assignment of error is overruled. VI APPARENT "RUBBER STAMP" OF REFEREE'S DECISION BY TRIAL COURT JUDGE IS IN VIOLATION OF REQUIREMENT TO "CONDUCT AN INDEPENDENT STUDY" FOR THE APPEAL OF A REFEREE'S REPORT. Appellant argues that the trial court's review of the referee's report and the father's objections thereto was perfunctory simply because the court did not give the father credit against the arrearage for the unauthenticated photocopies of transportation costs attached as exhibits to his objections to the referee's report. Based on our analysis of that evidence attached to the father's objections to the referee's report at the third assignment of error, infra, this assignment of error is without merit. The sixth assignment of error is overruled. VII TRIAL COURT'S QUESTIONABLE CONDUCT TOWARDS THE DEFENDANT. - 12 - In this assignment, appellant argues that he could not receive a fair hearing in the trial court based on his past experiences in that court. No further reasoning or argument is made to support this assertion. Additionally, this argument was not presented in his objections to the referee's report. This issue is therefore waived for appellate purposes. Civ.R. 53(E)(6). In the alternative, were we to address the issue on its merits, we do not conclude based on the record on appeal in this case that the father was denied a fair hearing at the trial court. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. The seventh assignment of error is overruled. In summary, the overall judgment is affirmed except that the arrearage is modified to reflect a total amount due of $7,152.64 ($8,205.28 [arrearage amount ordered by the trial court] minus $1,052.64 [six months of excess child support for one child, plus 2% poundage, as detailed in the second assignment of error, infra] = $7,152.64). Judgment affirmed in part and reversed and modified in part. - 13 - This cause is affirmed in part and reversed and modified in part. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. 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. Exceptions. PATRICIA A. BLACKMON, J., and TERRENCE O'DONNELL, J., CONCUR. 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 .