COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69454 BARBARA JARZABEK : : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : JOHN POWERS : OPINION : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Court, No. D-17919l. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Madelon Sprague, Esq. Zamore, Luria & Giser 1111 Tower East 20600 Chagrin Boulevard Shaker Heights, OH 44122-5334 For Defendant-Appellee: Thomas J. LaFond, Esq. David A. Lum, Esq. Schneider, Smeltz, Ranney & LaFond 1525 National City Bank Building 629 Euclid Avenue Cleveland, OH 44114 -2- DAVID T. MATIA, P.J.: Barbara Jarzabek, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which denied plaintiff-appellant's motions to show cause and to compel discovery and granted John Powers', defendant- appellee's, motions to modify custody and child support. Plaintiff-appellant assigns five errors for this court's review. Barbara Jarzabek's, plaintiff-appellant's, appeal is not well taken. I. THE FACTS Barbara Jarzabek, plaintiff-appellant, and John Powers, defendant-appellee, were married on June 19, 1976 in Cleveland, Ohio. Two children were born as issue of this marriage, Kelly (d.o.b. 6-26-79) and Michael (d.o.b. 2-25-83). On July 27, 1987, the parties' marriage was dissolved by a decree of dissolution which incorporated the parties' amended separation agreement as well as a joint custody agreement. The amended separation agreement provided that Barbara Jarzabek, plaintiff-appellant, would be the residential parent for the parties' two minor children. The agreement provided further that John Powers, defendant-appellee, would pay $1,000 per month in child support for each child through September 30, 1989. Thereafter, defendant-appellee agreed to pay $1,200 per month, per child, with annual cost of living increases. Defendant-appellee also agreed to maintain a life insurance policy in the amount of $100,000 as security for his child support obligations. -3- On August 30, 1993, John Powers, defendant-appellee, filed a motion to modify custody as well as a motion to modify child support. Defendant-appellee based these motions upon his continued unemployment status,the total depletion of an investment account at Society National Bank from which he had been supporting himself and the fact that the parties' minor daughter Kelly had moved out of plaintiff-appellant's residence and was living with defendant- appellee as of January, 1993. On September 3, 1993, Barbara Jarzabek, plaintiff-appellant, filed a motion to show cause, a motion for attorney fees and a request for production of documents. On October 28, 1993, plaintiff-appellant filed a motion to compel discovery. Plaintiff- appellant maintained that John Powers, defendant-appellee, was voluntarily unemployed but still had ample income from various family trusts and gifts to maintain his family life style and pay the amount of child support originally agreed upon by the parties. Plaintiff-appellant maintained further that defendant-appellee had failed to provide life insurance as agreed upon. On May 24, 1994, the parties executed an agreed judgment entry which resolved all of the issues between them with the exception of the child support issue and the allocation of the dependency exemption. The remaining issues were tried before a referee on May 24, 1994. On February 2, 1995, the referee issued the report and recommendation in which the referee reduced the child support obligation for Kelly by one-half retroactively to January, 1993 and -4- reduced the child support obligation for Michael to $736.50 per month beginning August 30, 1993. Barbara Jarzabek's, plaintiff- appellant's, motions to show cause and to compel discovery were denied. Plaintiff-appellant's motion for attorney fees was granted in part. Plaintiff-appellant was awarded $500 in attorney fees and expenses incurred in prosecuting the motion to show cause. On April 17, 1995, Barbara Jarzabek, plaintiff-appellant, filed objections to the report and recommendation of the referee. On July 21, 1995, the trial court overruled plaintiff-appellant's objections and adopted the referee's report as the final order of the court. Barbara Jarzabek, plaintiff-appellant, filed a timely notice of appeal from the judgment of the trial court on August 21, 1995. II. FIRST ASSIGNMENT OF ERROR Barbara Jarzabek's, plaintiff-appellant's, first assignment of error states: THE COURT ERRED IN FAILING TO FIND HUSBAND IN CONTEMPT OF COURT FOR HIS REFUSAL TO PAY CHILD SUPPORT AND TO MAINTAIN LIFE INSURANCE. A. THE ISSUE RAISED: CONTEMPT. Plaintiff-appellant argues, through her first assignment of error, that the trial court erred in failing to find defendant- appellee in contempt of court. Specifically, plaintiff-appellant maintains that defendant-appellee's refusal to pay child support was unwarranted since the couple's oldest child Kelly had not resided with defendant-appellee for a continuous period of thirty -5- days or more as set forth in the amended separation agreement. Plaintiff-appellant maintains further that defendant-appellee failed to take sufficient steps to have the requisite life insurance policy, which was to serve as security for his child support obligation, in place. Plaintiff-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR CONTEMPT OF COURT. R.C. 2705.02 provides in pertinent part: A person guilty of any of the following acts may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer. R.C. 2705.031(B)(1) provides in part: (B)(1) Any party who has a legal claim to any support ordered for a child, spouse, or former spouse may initiate a contempt action for failure to pay the support. *** In a civil contempt proceeding for failure to pay court ordered support, the movant must prove, by clear and convincing evidence, that the defendant violated the court order at issue. Pugh v. Pugh (1984), 15 Ohio St.3d 136, 139; Rinehart v. Rinehart (1993), 87 Ohio App.3d 325, 328. The movant is not required to prove that the defendant's disregard for the court order was willful or intentional. Pugh v. Pugh, supra, paragraph one of the syllabus. Once the movant has sufficiently demonstrated the defendant's failure to pay the support as ordered, the -6- defendant bears the burden of alleging and proving his inability to comply with the court order. Rinehart v. Rinehart, supra. C. THE TRIAL COURT DID NOT ERR IN FAILING TO FIND HUSBAND IN CONTEMPT. In the case sub judice, a review of the record from the trial court demonstrates that defendant-appellee did not refuse to pay the full amount of child support but in actuality had overpaid his child support obligation by $544.11. The referee based this finding upon the fact that the couple's oldest child Kelly changed residences in January, 1993 and moved in with defendant- appellee. In spite of this fact, defendant-appellee continued paying the full amount of child support to plaintiff-appellant for Kelly until July, 1993 even though defendant-appellee was entitled to a fifty percent decrease in child support for Kelly pursuant to the terms of the amended separation agreement which stated: In the event that either child shall live with the Husband for a continuous period of thirty (30) days or more, the child support paid by the Husband to the Wife for said child shall be reduced by the amount of 50 percent until such time as the child resumes residency with the Wife. Plaintiff-appellant argues that, since she retained visitation rights for Kelly (i.e., 10 days with defendant-appellee, the residential parent, and four days every other weekend with plaintiff-appellant, the non-residential parent) no reduction in child support was necessary because Kelly did not reside with defendant-appellee for thirty "continuous" days. However, -7- although Kelly visited plaintiff-appellant's home on a regular basis, her legal residence as of January, 1993 was at the home of defendant-appellee. For these reasons, the trial court correctly determined that Kelly had resided with defendant-appellee for a period exceeding thirty continuous days and reduced the child support obligation accordingly. Plaintiff-appellant argues further that the trial court should have held defendant-appellee in contempt due to his admitted failure to maintain a policy of life insurance with plaintiff- appellant as beneficiary as security for his child support obligation. A review of the record from the trial court demonstrates that defendant-appellee had, in fact, failed to maintain the requisite life insurance policy. However, at the time of the hearing in the trial court, defendant-appellee had already taken the necessary steps to obtain the proper insurance with the First Colony Life Insurance Company and thereby came into compliance with the previous court order. Under the circumstances, the trial court properly concluded that defendant- appellant had substantially complied with the trial court's order rendering a contempt citation unnecessary. D. CONCLUSION. For the foregoing reasons, plaintiff-appellant's first assignment of error is not well taken since defendant-appellee was entitled to a reduction in child support for Kelly due to a substantial change in circumstances and defendant-appellee had -8- substantially complied with the life insurance requirement set forth in the amended separation and joint custody agreements. -9- III. SECOND ASSIGNMENT OF ERROR Barbara Jarzabek's, plaintiff-appellant's, second assignment of error states: THE COURT ERRED IN DETERMINING THAT THERE WAS A SUBSTANTIAL CHANGE IN CIRCUMSTANCES TO JUSTIFY A MODIFICATION OF CHILD SUPPORT. A. THE ISSUE RAISED: MODIFICATION OF CHILD SUPPORT. Plaintiff-appellant argues that the trial court erred in modifying the child support payments agreed upon by the parties. Specifically, plaintiff-appellant maintains that no substantial change in circumstances had taken place. It is plaintiff- appellant's position that even though defendant-appellee had depleted one investment account, he still maintained sufficient income from various family trust accounts and gifts to justify the agreed upon child support payments. Plaintiff-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW. In reviewing a motion for modification of child support, the court must employ a two-step process. Cheek v. Cheek (1982), 2 Ohio App.3d 86, 87, 2 OBR 95, 96-97, 440 N.E.2d 831, 833. It must first decide whether the movant has demonstrated a change in circumstances. If there has been a change of circumstances demonstrated, the court may then make an appropriate modification. Cole v. Cole (1990), 70 Ohio App.3d 188, 190, 590 N.E.2d 862, 964; Brockmeier v. Brockmeier (1993), 91 Ohio App.3d 689. An appellate court will not reverse a trial court's -10- judgment regarding modification of child support unless it can be shown that the trial court abused its discretion. Booth v. Booth (1989), 44 Ohio St.2d 142, 144. In Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, the Ohio Supreme Court set forth the elements of an abuse in discretion: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. MODIFICATION OF CHILD SUPPORT DID NOT CONSTITUTE AN ABUSE OF DISCRETION. A review of the record from the trial court demonstrates that a change in circumstances did exist justifying a modification of defendant-appellee's child support obligation. Since the dissolution of marriage in July 1987, defendant-appellee left his job in New Jersey in order to be closer to his family in Cleveland. After relocating, defendant-appellee worked for a family owned trucking company in Cleveland until the company went out of business in 1992. Since that time, defendant-appellee has employed a number of different placement firms in an effort to obtain employment. Defendant-appellee also returned to college in order to obtain his degree and increase his marketability as a prospective employee. -11- During this period, defendant-appellee supported himself, his family and paid his child support obligations out of proceeds from an investment account at Society National Bank. In August, 1993 this account, which originally totalled $381,000, was depleted. These factors, combined with the change of residence of the couple's oldest child Kelly, constitute a substantial change in circumstances justifying a modification of child support. Plaintiff-appellant maintains that defendant-appellee's unemployment status is voluntary and, even without a job, defendant-appellee still receives significant disbursements from family trust accounts and gifts to cover all agreed upon child support obligations. A review of the record fails to support plaintiff-appellant's argument. The trial court referee specifically addressed the issue of voluntary unemployment and rejected it, finding that defendant- appellee had engaged in a diligent, if unsuccessful, employment search. The record supports the trial referee's conclusion. In addition, although defendant-appellee does receive financial assistance from his family in the form of trust disbursements, these disbursements do not total the same amount defendant- appellee had available to him while employed and prior to depletion of the investment account. This is particularly significant in light of the trial referee's proper exclusion of gifts and loans defendant-appellee received from his family since such gifts and loans are discretionary in nature and not generally included as gross income. R.C. 3113.215(A)(2). -12- D. CONCLUSION. For the foregoing reasons, the trial court properly determined that modification of child support was appropriate due to the change of circumstances previously set forth. Plaintiff- appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Barbara Jarzabek's, plaintiff-appellant's, third assignment of error states: THE COURT ERRED IN ADOPTING THE REFEREE'S REPORT AND RECOMMENDATION WHICH WAS BASED UPON ERRONEOUS FINDINGS OF FACT AND CONCLUSIONS OF LAW. A. THE ISSUE RAISED: REFEREE'S REPORT. Plaintiff-appellant maintains that the trial court incorrectly adopted the report and recommendation of the referee. Specifically, plaintiff-appellant argues that the trial court erred in determining that defendant-appellee was entitled to a fifty percent reduction in child support for Kelly, failed to accurately describe the extent of the investment account at Society National Bank and erroneously concluded that defendant- appellee was not voluntarily unemployed. Plaintiff-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW. Civ.R. 53(E)(5), which sets forth the standard to be applied to referee reports, states: (5) When effective. The report of a referee shall be effective and binding only -13- when approved and entered as a matter of record by the court. The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations about appropriate conclusions of law and the appropriate resolution of any issues. However, the court shall determine whether there is any error of law or other defect on the face of the referee's report even if no party objects to such an error or defect. The court shall enter its own judgment on the issues submitted for action and report by the referee. In Nolte v. Nolte (1978), 60 Ohio App.2d 227, 231, the court stated in pertinent part: The report of a referee requires at a minimum a statement of the basis of his findings and recommendations in order that the trial court be able to make an independent analysis of the validity of the report before approving it and entering judgment. *** Thus, when a referee's report contains a conclusion regarding an issue in the case, the facts that lead to that conclusion must also be included in the report. *** The report must contain not only a recommendation of the court's order but also the facts presented to the referee upon which that order is based. *** The trial judge may not render judgment unless and until he has independently analyzed the case; he is in no position to make such an analysis unless the referee's report includes a statement of the facts relevant to the issue before the court. *** Whenever a referee's report contains a legal conclusion but omits the facts necessary to reach that conclusion, the judgment is voidable. -14- The trial court must undertake the equivalent of a de novo determination, in light of any filed objections, when independently assessing facts and conclusions contained in the referee's report. The trial court does not apply the same manifest weight of the evidence standard used on review by the court of appeals. DeSantis v. Sollar (1990), 70 Ohio App.3d 226. Generally, in a domestic relations matter, a reviewing court should apply the abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144. As previously stated, an abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore, supra, at 219. Therefore, this court will not reverse the trial court's judgment below unless it determines that the trial court's decision implies an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. When applying the abuse of discretion standard, a reviewing court is not free to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135; Ericks v. Ericks (1992), 79 Ohio App.3d 657, 665. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADOPTING THE REFEREE'S REPORT. In the case sub judice, a review of the report and recommendation of the referee demonstrates that the conclusions set forth in the report were based upon sufficient factual -15- findings and conclusions of law. As previously stated, the change in residence of the couple's oldest child Kelly was sufficient to warrant a fifty percent reduction in child support for Kelly pursuant to the terms of the amended separation agreement. In addition, sufficient factual findings were set forth regarding the nature and extent of defendant-appellee's investment account at Society National Bank as well as defendant- appellee's employment search to enable the trial court to make an independent analysis and determination pursuant to Civ.R. 53(E)(5). See Harbeitner v. Harbeitner (1994), 94 Ohio App.3d 485. D. CONCLUSION. For the foregoing reasons, this court finds that the trial court did not abuse its discretion in adopting the report and recommendation of the referee. Plaintiff-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR Barbara Jarzabek's, plaintiff-appellant's, fourth assignment of error states: THE COURT ABUSED ITS DISCRETION BY IMPROPERLY MODIFYING THE TERMS OF THE PARTIES' SEPARATION AGREEMENT. A. THE ISSUE RAISED: MODIFICATION OF CHILD SUPPORT. Plaintiff-appellant maintains that the trial court improperly modified the separation agreement between the parties by reducing -16- the child support obligation for Kelly by fifty percent as of January, 1993 and by failing to provide child support for Kelly after August 30, 1993. It is plaintiff-appellant's position that the child support reduction constituted an abuse of discretion. Plaintiff-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW. As previously stated, the modification of a child support obligation involves a two-step process. Initially, the moving party must show a change in circumstance. Then, if there has been a change of circumstance demonstrated, the trial court may then make an appropriate modification. Cheek v. Cheek, supra. The trial court's modification of a child support obligation will not be disturbed on appeal without a clear showing that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, supra; Tovar v. Tovar (Nov. 10, 1993), Cuyahoga App. No. 63933, unreported. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY MODIFYING THE CHILD SUPPORT OBLIGATION. A review of the record fails to support plaintiff-appellant's contention that the trial court abused its discretion by modifying defendant-appellee's child support obligation for the couple's oldest child Kelly. Clearly, the fifty percent reduction in child support from January, 1993 to August, 1993 was done in accordance with the separation agreement based upon -17- Kelly's change in residence. No abuse of discretion occurred regarding the fifty percent reduction. The trial court's reduction in child support for Kelly subsequent to August, 1993 was based upon a number of factors. Defendant-appellee's inability to find gainful employment and the depletion of the large investment account from which defendant- appellee had been paying a large percentage of his child support obligations combined with Kelly's change in residence in January, 1993 led the trial court to conclude that the reduction was necessary. Under the circumstances, this court finds that the factors set forth above constituted a substantial change in circumstances justifying the reduction. D. CONCLUSION. Accordingly, plaintiff-appellant's fourth assignment of error is not well taken since the trial court did not abuse its discretion by modifying the child support obligations contained in the separation agreement. VI. FIFTH ASSIGNMENT OF ERROR Barbara Jarzabek's, plaintiff-appellant's, fifth assignment of error states: THE COURT IMPROPERLY FAILED TO AWARD COMPLETE ATTORNEY FEES AND EXPENSES TO WIFE. A. THE ISSUE RAISED: ATTORNEY FEES. Plaintiff-appellant argues, through her fifth and final assignment of error, that the trial court erred in failing to award all of her stated attorney fees and expenses incurred in -18- pursuit of her motions for contempt and to compel discovery. Specifically, plaintiff-appellant maintains that she was entitled to $8,120 in attorney fees and $235 in expenses. Plaintiff-appellant's fifth and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR ATTORNEY FEES. Appellate review of attorney fee awards in domestic relations actions is not intended to deny awards of reasonable fees and is limited to determining whether (1) the factual considerations upon which the award was based are supported by the manifest weight of the evidence, or (2) the domestic relations court abused its discretion. Oatey v. Oatey (1992), 83 Ohio App.3d 252, 263, Linehan v. Linehan (1986), 34 Ohio App.3d 124. An award of alimony may be made in the form of an allowance for reasonable attorney fees. Swanson v. Swanson (1976), 8 Ohio App.2d 85, 89. Consideration must be given to the reasonableness of the fee award and to the criteria used in the granting of an alimony award. Id. at 90. McCoy v. McCoy (1993), 91 Ohio App.3d 570, 583. In Swanson, the Ohio Supreme Court relied upon DR2- 106(B) of the Code of Professional Responsibility, which sets for the following guidelines for determining the reasonableness of a fee: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. -19- (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent. Id. at 90-91. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING ATTORNEY FEES. In the case sub judice, plaintiff-appellant sought $8,355 in attorney fees and expenses. The trial court held in its final entry: Defendant/01's Motion for Attorney Fees #233328 is granted in part and denied in part. Defendant/02 shall pay $500.00 toward Defendant/01's attorney fees as additional spousal support for which sum judgment is rendered and upon which execution may issue. A review of the record demonstrates that the trial court did not abuse its discretion. Defendant-appellee was not held in contempt of court nor did the trial court grant plaintiff- appellant's motion to compel discovery. As the trial court -20- referee correctly observed, "In light of the unsuccessful prosecution of *** [the] Motion to Show Cause and Motion to Compel Discovery, a substantial award of attorney fees would be grossly inequitable." However, the trial court did award partial attorney fees based upon defendant-appellee's failure to fully comply with his obligation to maintain life insurance as security for his child support obligation. Given the factual circumstances, a $500 award of attorney fees was appropriate and did not constitute an abuse of discretion. D. CONCLUSION. Accordingly, plaintiff-appellant's fifth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -21- It is ordered that appellee recover of appellant his 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 Domestic Relations 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. NAHRA, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA 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 .