COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68897 SHARYL A. SCHMUHL : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD G. SCHMUHL, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : FEBRUARY 15, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-226551 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: PATRICIA A. KARLE, ESQ. RICHARD G. SCHMUHL, JR., PRO 56 Liberty Street, #304 SE P.O. Box 526 P. O. Box 24067 Painesville, OH 44077 Cleveland, OH 44124-0067 - 2 - PATTON, J. Defendant-husband Richard Schmuhl appeals from a divorce decree rendered in favor of plaintiff-wife Sharyl Schmuhl. 1 Husband's nine pro se assignments of error challenge various procedural and factual rulings by the trial court. The issues were tried before a referee who issued a report and recommendations on December 5, 1994. The referee found the husband and wife were married in 1983 and had two children, ages nine and eleven at the time of divorce. The referee found the husband is a voluntarily unemployed computer programmer and imputed to him $60,000 of yearly income. The wife worked part-time and earned $9,800 in 1994. The only marital assets were a house with a net value of $41,000 and household goods valued at $3,000. The referee recommended granting a divorce on grounds of gross neglect of duty. She recommended the husband pay the sum of $928.20 per month as child support, and further pay child support arrearages of $11,602.50. The parties were ordered to sell the marital residence and split the proceeds, with the proviso the husband pay $3,286 as his contribution to the marital debt; $5,000 to compensate the wife for one-half the cash awarded to the husband; $11,602 in temporary support arrearages; and $4,500 as spousal support toward attorney fees. 1 The husband lists ten assignments of error, but only argues nine of them in his brief. Pursuant to App.R. 12(A)(2), we disregard the seventh assignment of error because it has not been argued separately. - 3 - The husband did not immediately file objections to the referee's report. Instead, on February 15, 1995, he filed a Civ.R. 12(B) motion to dismiss premised on the wife's failure to submit a list of trial witnesses fourteen days prior to the hearing. On March 21, 1995, the husband filed his objections to the divorce decree. The trial court overruled both motions and issued a judgment entry of divorce incorporating the substance of the referee's recommendations. This appeal followed. The first assignment of error complains the referee improperly permitted two witnesses to testify despite the wife's failure to submit a timely witness list pursuant to Loc.R. 12(B) of the Cuyahoga County Court of Common Pleas, Domestic Relations Division. These witnesses gave testimony relating to the husband's occupation as a computer programmer and the excellent employment opportunities available for persons with his training and experience. This testimony ultimately formed the basis for the referee's conclusion that the husband was voluntarily unemployed. Loc.R. 12(B)(2) of the Cuyahoga County Court of Common Pleas, Domestic Relations Division states: "(B)(2) No party shall be permitted to call any witness, except rebuttal witnesses, whose name was not included on the witness list or any supplement thereto, unless good cause can be shown as to why the need for such witness was not known to the party until after the time for supplementing his witness list expired, or unless the identity of the witness was otherwise known to the opposing party. The court may however, in its discretion allow either party to call any witness whose name is - 4 - not included on a witness list, when doing so will serve the interests of justice." The wife did not submit a witness list as required by Loc.R. 12(B); however, the husband did not make any objection at the hearing. The failure to object at a time when the error could be corrected constitutes a waiver of any error. See Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43. Moreover, with the absence of any objection from the husband the referee could presume the husband had not been surprised. Under the circumstances, we find the referee properly exercised her discretion to permit testimony from witnesses whose names did not appear on a witness list. The first assignment of error is overruled. The second assignment of error complains the referee erred by refusing to permit the husband to cross-examine the wife's witnesses. The hearing transcript shows otherwise. It appears the husband failed to prepare a pre-trial statement which would have assisted the referee in deciding issues relating to support and property division. As a consequence, the referee told the husband: "*** that unless he filled out a pre-trial statement that I would not permit him to present evidence in his case in chief, that I would however permit [sic] to cross-examine any witnesses that the plaintiff put on in her case." After the direct examination of one of the wife's witnesses, the hearing adjourned for a luncheon recess. When the hearing reconvened, the husband failed to return. The wife and one of her - 5 - witnesses said they saw the husband in the hallway just before the hearing reconvened, but he walked out, saying "*** I don't have to come back." The referee waited until 3:00 p.m. before continuing the hearing in the husband's absence. Despite the husband's failure to submit a pre-trial statement, the referee would have allowed him to cross-examine the wife's witnesses. He ignored this opportunity, voluntarily absenting himself from the hearing without notice to the referee. By leaving, he contributed to the error he now claims. Sayre v. Hoelzle-Sayre (1994), 100 Ohio App.3d 203, 208. If the husband had reasons compelling his absence, he should have placed those reasons on the record. His failure to do so makes it impossible to substantiate his claims. As it stands, the record simply fails to demonstrate any error. The second assignment of error is overruled. The third assignment of error complains the trial court erred by adopting the referee's recommendations on the division of marital property since the referee failed to assign a fair market value to the wife's automobile and failed to consider a cash settlement the wife received in an unrelated action. The automobile and a $9,000 cash settlement had been the subjects of a restraining order prohibiting their sale or transfer. The wife later asked the court for relief from the order restraining the transfer of the automobile so she could trade it for a newer model. By an agreed judgment entry, the parties stated - 6 - the wife "*** is no longer restrained from transferring or encumbering" the automobile. In addition, the husband agreed the wife's settlement came from an investment that did not involve marital funds. This pre-hearing agreement removed any need to value the assets for purposes of dividing the marital estate. The third assignment of error is overruled. The fourth assignment of error complains the trial court erred by failing to rule on the husband's objections to the wife's motion for relief from the order restraining the sale of the automobile. This assignment is without merit. The agreed judgment entry was filed April 25, 1995, six days after he submitted his objections to the wife's motion; consequently, his objections were necessarily withdrawn. The fifth assignment of error complains the trial court erred in its calculations of child support because it chose not to use actual data and imputed to the husband $60,000 in yearly earnings. The gravamen of this assignment concerns the trial court's conclusion that the husband is voluntarily unemployed. R.C. 3113.215(A)(1)(b) defines income for a parent who is unemployed or underemployed as "the sum of the gross income of the parent, and any potential income of the parent." "Potential income" is that income the court determines the parent would have earned if fully employed as determined from the parent's employment potential and probable earnings based upon recent work history, occupational - 7 - qualifications, prevailing job opportunities and salary levels in the community. See R.C. 3113.215(A)(5)(a). The determination whether a spouse is voluntarily unemployed or underemployed is a question of fact for the trial court and reviewable only for an abuse of discretion. See Rock v. Cabral (1993), 67 Ohio St.3d 108, syllabus. The wife presented testimony from two witnesses who were familiar with the husband's qualifications as a computer programmer and with that job market in the Cleveland area. They testified programmers with the husband's qualifications with mainframe computers were in great demand and could expect to earn $29.25 per hour as independent contractors. The husband's past employment history not only substantiated this potential earning capacity, but indicated he purposely chose to work as an independent contractor in order to avoid providing family health insurance and other employment benefits to his family during his separation from the wife. The husband does not counter this evidence. He merely cites to portions of the record where the wife testified he received bi- weekly unemployment compensation of $578.00 (since expired), claiming this figure accurately states his income potential. The trial court could reasonably disregard this argument in favor of the compelling evidence showing the husband engaged in a course of conduct designed to minimize his earnings and benefits during the - 8 - divorce proceeding. Finding no abuse of discretion, we overrule the fifth assignment of error. The sixth assignment of error is the trial court erred by failing to consider his children's interest income when calculating child support. Nothing in the record shows the children had any interest income, nor for matter did the husband give the referee any reason to suppose that interest income existed. In any event, a child's interest income is not relevant for purposes of determining a spouse's gross income. The sixth assignment of error is overruled. The eighth assignment of error complains the trial court erred by awarding the wife $4,500 in attorney fees despite the husband's claimed inability to pay. To support his argument, the husband again cites to the wife's trial testimony that his only source of income, unemployment compensation, expired prior to hearing. In addition, he cites to the wife's testimony that she is currently employed as a part-time employee earning approximately $10,000 per year, presumably making her better able to manage the financial burden of paying her attorney. The referee recommended the husband pay the wife's attorney fees since she would not have the financial ability to pay after the division of marital property, while the husband's earning potential gave him the ability to contribute to those fees. This recommendation is premised on the court's ruling which imputed to the husband $60,000 in gross income. To the extent the husband - 9 - opposes this finding, we reject it because we addressed the same argument in our disposition of the fifth assignment of error. Under the circumstances, we find the trial court did not abuse its discretion by ordering the husband to contribute to the wife's attorney fees. The eighth assignment of error is overruled. In his ninth and tenth assignments of error, the husband complains the trial court erred by failing to consider the debt he incurred in maintaining the marital residence and erred by transmuting into marital property $15,000 of his money used as a downpayment on the marital residence. We find the trial court did not abuse its discretion on either point because the husband presented no evidence of his debt or a downpayment on the marital residence. He left the hearing while the wife was presenting her case and failed to return. In essence, he abandoned his right to press his claims and, in doing so, waived the right to claim error in this court. Stores Realty Co. v. Cleveland, supra. The ninth and tenth assignments of error are overruled. Judgment affirmed. - 10 - 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 Court of Common Pleas 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. HARPER, P.J. JAMES D. SWEENEY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .