COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69146 CHARLES SLIVKA : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION NGAN SLIVKA : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-213434 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MARTHA V. YEAGER, ESQ. ALEXANDRIA RUDEN, ESQ. 400 Terminal Tower 1223 West Sixth Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant, Charles Slivka, appeals a decision of the Court of Common Pleas, Domestic Relations Division, granting Plaintiff-appellee, Nghan Slivka's motions to modify child support and to set and determine spousal support. In multiple assignments of error, appellant claims that the trial court abused its discretion in granting the above cited motions. Upon review, we find appellant's assignments of error to be devoid of merit. 1 Hence, we affirm the judgment of the trial court. A decree of divorce was granted in favor of appellee on October 20, 1992. Appellee was awarded custody of the parties' four minor children and appellant was ordered to pay child support in the amount of $247.00 per month based upon a minimum wage of $4.25 per hour at 20 hours per week. Appellee was not awarded spousal support in the final decree. However, jurisdiction was reserved to determine the matter. On April 11, 1994 appellee filed the above cited motions (D-213434, Motion Nos. 244941, 244942) and testimony was heard on October 21 and December 30, 1994. Bruce Rotherforth, Administrative Manager of the Internal Brotherhood of Electrical Workers ("I.B.E.W.") Local Fringe Benefits Fund, Local 38, testified that appellant was a member of the I.B.E.W.; that upon completion of his five year apprentice- 1 Appellant also attempted to appeal a marital property division ruling. However, such appeal was untimely filed. See, Motion No. 67997. Hence, any arguments relating to the court's division will not be reviewed. See, App. R. 4(A). - 3 - ship, appellant would be permitted to establish his own business or work for other electrical contractors and that union records indicated that appellant had $1,856.83 in his pension fund. Michael Burns, Financial Secretary for the I.B.E.W. testified that appellant had been variously yet steadily employed as an apprentice electrician from February, 1993 until the present; that he was currently employed by Gateway Electric; that as a third year apprentice he was being paid $12.04 per hour and that on August 15, 1995 he would become a fourth year apprentice and would progress to 2 a pay scale of $14.09 per hour. Appellee testified that she was awarded custody of the four children born as issue of the marriage; that all but her seventeen year old daughter, who attends college, lived with her; that she made $8.88 per hour as a manual laborer; that she receives approximately $62.00 per month in child support despite the court's $247 order; that she pays all living expenses for herself and the four children; that she and the children live in a two bedroom apartment and that due to overcrowding, she is looking for a three bedroom rental property. Appellee further testified that she was Vietnamese; that she married the appellant when she was eighteen; 2 Burns testified that the appellant had worked for Atlas Electric from February-September, 1993 at a rate of $7.00/hour; that he worked for Contemporary Electric from September-November, 1993 at a rate of approximately $8.00/hour; that he worked for Day Electric from November-April, 1994 at a rate of $9.00/hour; that he worked for Berkens Electric from April-July, 1994 and that as far as he knew, appellant currently worked for Gateway Electric at a rate of $12.04 per hour. - 4 - that she and the appellant were married for nearly 18 years; that she had a tenth grade education and that she suffers from arthritis due to long term manual labor which currently involves the cutting and sewing of canvas for the manufacture of awnings. Lastly, appellee testified that appellant had failed to comply with support or marital property division orders; that he was unable to keep a job and that he had difficultly getting along with people. Appellant testified that he had been employed by the Gateway Electric Company since July of 1994 but that his employment was terminated two weeks prior to the December 30, 1994 hearing after he filed a grievance against Gateway alleging harassment which he claimed amounted to unlawful termination. Appellant stated that he did not quit his job to deny his wife child support and/or alimony but quit because of problems with his union and employer. On cross-examination, appellant admitted that the Ohio Bureau of Employment Services found that he had voluntarily resigned from employment. However, he indicated that he was appealing the ruling. When asked whether he had notified the Child Support Enforcement Agency (CSEA) of his employment as an apprentice electrician at increasing levels of pay, he stated that he "had no knowledge" of such notice obligation. Appellant denied that he was subrogating the rights of his children by his inability to tolerate alleged name calling at work. He also refused to respond personally to the referee's inquiry as to whether he had the ability to work stating to her that "everybody" had the ability to - 5 - work. (Tr. 167) Additionally, appellant refused to answer questions regarding the specifics of his claimed efforts to secure employment despite repeated instructions from the referee to do so. On March 6, 1995 the referee issued her report; found the appellant to be voluntarily unemployed and imputed income to him in the amount of $18,060.00. The referee increased appellant's child support obligation from $247.00 to $430.66 per month and awarded spousal support in the amount of $175.00 per month for three years. No objections were filed and final judgment was entered on May 16, 1995. Appellant filed an appeal on June 15, 1995 advancing eleven assignments of error. Upon review, we find appellant has failed to offer specific argument in support of his first, second, third and tenth assignments of error. Hence, these claimed errors will not be reviewed. See, North Coast Cookies v. Sweet Temptations (1984) 16 Ohio App.3d 342. Appellant's remaining assignments of error shall be addressed. IV THE TRIAL COURT EXHIBITED BIAS AND PREJUDICE AGAINST DEFENDANT. In his fourth assignment of error, appellant claims that the domestic relations court exhibited bias and prejudice by permitting appellee's counsel to make negative statements regarding his attendance at court hearings, his employment history and his income and expense history. Appellant also claims that the court demonstrated bias when it solicited appellee's opinion as to - 6 - whether she wished to proceed with a hearing scheduled for September 29, 1994 after appellant's counsel failed to appear. Upon review, we find appellant has failed to establish prejudicial error. The record demonstrates that the referee did not proceed with the hearing in the absence of appellant's counsel despite the fact that she had given emphatic, verbal notice to appellant and counsel regarding the hearing date. Moreover, the statements to which appellant refers were relevant in that it related to issues raised in appellee's motions and provided the court with procedural as well as background information regarding events which occurred during the two year period following the court's initial decree. It is well settled that the party alleging bias bears the burden of overcoming the presumption of judicial integrity. State v. Wagner (1992), 80 Ohio App.3d 88. Appellant has failed to do so. His fourth assignment of error is overruled. V DEFENDANT WAS DENIED HIS RIGHT TO OBJECT TO THE REFEREE'S REPORT FOR THE OCTOBER 21, 1994 HEARING, REPORT ISSUED APRIL 11, 1995. In his fifth assignment of error appellant claims that the court deprived him of his right to object to the referee's report because he did not personally receive a copy of the report. Appellant's assignment of error is devoid of merit. The record demonstrates that the referee's report was mailed to parties' counsel on March 6, 1995; that neither party filed - 7 - objections and that the report was submitted to the court for adoption on April 11, 1995 to wit, nearly 30 days later. Hence, appellant was in constructive receipt of the report on March 6, 1995 and was provided the requisite 14 day period to file objections in compliance with Civ.R. 53(E)(1) and (2). We note that neither appellant nor counsel filed affidavits indicating that the court failed to issue the report. Appellant's fifth assignment of error is overruled. VI THE TRIAL COURT ABUSED ITS DISCRETION BY IMPUTING INCOME TO DEFENDANT THAT WAS NOT WARRANTED BY THE EVIDENCE PRESENTED AT TRIAL. VIII THE TRIAL COURT AGAINST THE WEIGHT OF THE EVIDENCE IMPUTED INCOME TO DEFENDANT. IX THE TRIAL COURT ALLOWED PURE SPECULATION CONCERNING DEFENDANT'S POSSIBLE EARNING CAPACITY TO BE ENTERED INTO THE COURT RECORD AS IF IT WERE CURRENT FACT ON WHICH DEFENDANT'S INCOME COULD BE CALCULATED. In his sixth, eighth and ninth assignments of error appellant claims that the trial court's imputation of income in the amount of $18,060.00 was improper and speculative. Appellant's arguments lack merit. R.C. 3113.215(A)(1)(b) authorizes a trial court to impute to the gross income of a parent who is unemployed or underemployed a sum of the gross income of the parent and any potential income of the parent. - 8 - Whether a parent is "voluntarily under- employed" within the meaning of R.C. 3113.215(A)(5) and the amount of "potential income to be imputed to a child support obligor are matters to be determined by the trial court based upon the facts and circumstances of each case. The determination will not be disturbed on appeal absent an abuse of discretion. 3 Rock v. Cabral (1993), 67 Ohio St.3d 108, syllabus The record demonstrates that the appellant enrolled in the electrician's apprenticeship program approximately two years after the divorce; that he became steadily employed at increasing rates of pay; that he resigned from employment just two weeks before appellee's second support hearing and that he refused to provide the court with any specifics regarding his claimed efforts to secure employment. The record also demonstrates that competent, credible evidence was provided by union officials that appellant was making approximately $12.00 per hour at the time of the hearing and that he could expect to be paid nearly $15.00 per hour within the next year. Wage statements indicating appellant's employment as an apprentice electrician were also submitted into evidence. Based upon appellant's recent work history, qualifications and prevailing job opportunities, the referee concluded that appellant's potential income amounted to $18,060 ($12.04 per hour x 1500 hours per year). Accordingly, the imputation of this amount of income was not against the manifest weight of the evidence nor 3 While Rock specifically refers to a finding of "under- employment" it is equally applicable to a finding of "unemploy- ment." Id. at 111. - 9 - was it speculative. See, C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Appellant's sixth, eighth and ninth assignments of error are overruled. VII THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING APPELLEE SPOUSAL SUPPORT WHEN SPOUSAL SUPPORT WAS NOT WARRANTED. In his seventh assignment of error, appellant claims that the trial court erred in awarding spousal support because appellee's salary was sufficient and comparable to his; because their eldest child would soon be emancipated and because appellant's current standard of living was comparable to her prior standard of living. Appellant's arguments are unpersuasive. The trial court has broad discretion in determining spousal support and is subject to reversal on appeal only if an abuse of discretion is demonstrated. See, Cherry v. Cherry (1981), 66 Ohio St.2d 348 and Bechtol v. Bechtol (1990), 49 Ohio St.3d 21. The record demonstrates that the appellant was working a 20 hour week for minimum wages at the time of the divorce; that the court explicitly reserved jurisdiction to revisit the issue of spousal support and that it considered all of the applicable criteria for awarding support as set forth in R.C. 3105.18. The court's judgment entry demonstrates that in determining appellee's award it considered her employment related arthritis, her limited education, her limited earning potential; her overcrowded living conditions and the fact that she would be the custodial and - 10 - residential parent for three of the four children for at least three years. The court also considered the fact that the parties' had lived in a multi-bedroom home prior to the divorce; that the appellant was awarded the residence; that he continues to live in the home which carried no mortgage and that he pays for no living expenses other than his own. Moreover, the award which amounts to 4 less than $50 per week, is scheduled to terminate in three years. Appellant has failed to demonstrate that the instant award was erroneous or that court's attitude in granting appellee's motion for same was arbitrary, capricious or unconscionable. His seventh assignment of error is overruled. XI THE TRIAL COURT, EVEN IF DEFENDANT HAD AS ACTUAL INCOME THE FIGURE IMPUTED TO HIM, HAS LEFT THE DEFENDANT WITH LESS THAN THE FEDERAL POVERTY GUIDELINES TO LIVE ON. Appellant's claim is devoid of merit. 15 U.S.C. Section 1673(b) of the Consumer Credit Protection Act states that the maximum part of the aggregate disposable earnings of an individual for any work week shall not exceed 65%. Disposable earnings is defined as that part of the earnings remaining after the deductions from those earnings of any amounts required by law to be withheld. Jackson v. Jackson (December 16, 1993), Cuyahoga App. No. 64265, unreported. 4 Appellee's award was ordered to terminate when her third child reaches the age of majority leaving her with responsibility for only one minor child at that time. - 11 - The record demonstrates that the referee determined appellant's annual income to be $18,060; that this amount was reduced by Federal, State and Local Taxes of $3,449; that the amount was further reduced by child and spousal support awards amounting to $7,167 and that appellant's remaining income amounted to $7,444. Hence, the record demonstrates that no more than 49.1% of appellant's disposable income was attached pursuant to the instant child and spousal support orders. Appellant's eleventh assignment of error overruled. The judgment of the domestic relations court is affirmed. It is so ordered. - 12 - 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, 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. SWEENEY, P.J., AND PORTER, J., CONCUR ANN DYKE JUDGE 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, .