COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70241 : BARBARA REECH : : : JOURNAL ENTRY Plaintiff-Appellee : and Cross-Appellant : and v. : : OPINION JEFFREY REECH : : : Defendant-Appellant : and Cross-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court Case No. D-218121 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant and Cross-Appellant: and Cross-Appellee: JONATHAN A. RICH, ESQ. RICHARD D. EISENBERG, ESQ. ZASHIN & RICH CO., L.P.A. ZIMMERMAN, CATICCHIO & 55 Public Square, Suite 1490 EISENBERG Cleveland, Ohio 44113-1901 5001 Mayfield Road, Suite 105 Cleveland, Ohio 44124 - 2 - KARPINSKI, J.: Defendant-appellant, Jeffrey Reech, appeals from the judgment of the trial court which modified Jeffrey's child support obligation and awarded plaintiff-appellee, Barbara Reech, attorney's fees in the amount of $4,822.30. On appeal, Jeffrey argues that the trial court erred by (1) awarding attorney's fees, (2) ordering him to pay more than 50 percent of the child's unreimbursed medical expenses, (3) ordering the modification to be retroactive to the date the motion to modify was filed, and (4) modifying his child support obligation. Barbara responds to the last two arguments by filing her own assignments of error, which argue that (1) the modification should have been retroactive to the date Jeffrey attempted to have his support obligation reduced and (2) the trial court should have imputed a higher income to Jeffrey. For the reasons that follow, we find the trial court properly exercised its discretion and, therefore, we affirm the judgment of the court below. The relevant facts follow. Barbara and Jeffrey had their marriage dissolved on July 15, 1992. By agreement defendant's child support obligation was $307.00 per month. The order also required Jeffrey to pay 50 percent of the child's unreimbursed medical expenses. On June 22, 1993, defendant's child support obligation was reduced to $178.47 per month. This reduction was warranted because Jeffrey was unemployed. - 3 - In August, 1993, Jeffrey stopped paying his child support. Barbara filed various motions to show cause and to modify. Jeffrey, however, became current in his support obligation as of May 10, 1994. On May 11, after hearing testimony from the parties, the trial court referee issued findings of fact and conclusions of law. The referee determined that Jeffrey should pay $5,895.00 in attorney's fees and $402.00 a month in child support. The referee found that Jeffrey had income, even though he was unemployed, from an inheritance of approximately $395,000.00 he received in April of 1993. The yearly income from this inheritance was $33,776.00. Jeffrey filed objections to this referee's report. The trial court approved the bulk of the referee's report, but sustained, in part, Jeffrey's objections. The court lowered the amount of attorney's fees to $4,822.30. The court also ordered Jeffrey to pay 72 percent, as opposed to 50 percent, of the minor child's unreimbursed medical, dental, and optical expenses. Jeffrey timely appealed raising four assignments of error. The first states as follows: I. THE TRIAL COURT ERRED IN THE AWARD OF ATTORNEY'S FEES. In this assignment, Jeffrey argues that the trial court erred because there were insufficient facts upon which to base its award of attorney's fees. A decision to award attorney fees - 4 - should not be interfered with absent a clear showing of an abuse of discretion. Swanson v. Swanson (1976) 48 Ohio App.2d 85, 89; Robiner v. Robiner (Dec. 7, 1995), Cuyahoga App. No. 67195, unreported. The referee's report furnished sufficient facts to establish that the trial court did not err in awarding attorney's fees. The referee found as follows: 1. The issues were routine and straightforward. 2. The hourly rate requested is commensurate with customary fees in this locality. 3. The Defendant/01's[Barbara] attorney is an experienced attorney who regularly practices in Domestic Relations Court. 4. The Defendant/02's[Jeffrey] failure to inform Defendant/01[Barbara] of his inheritance and his refusal to impute a reasonable income figure for said lump sum has necessitated a great deal of discovery and attorney fees as well as the necessity of a full evidentiary hearing. In determining the amount of reasonable attorney fees for this case, consideration was given as to whether all the legal services rendered were necessary and whether under the facts of this case the amount of time expended on such services was fully compensable. Upon consideration of the relative financial position and earning abilities of the parties, the Referee finds that the Defendant/02[Jeffrey] should pay $5,895.50 toward Defendant/01's[Barbara] attorney fees as and for child support for which sum [sic] judgment should be rendered for Defendant/01[Barbara]. Adopting these findings of fact and conclusions of law, the trial court, nevertheless, reduced the amount of attorney's fees from $5,895.00 to $4,822.30. To arrive at its decision, the referee heard testimony regarding the experience and hourly rate of Barbara's attorney. The referee also received documentation, in the form of the attorney's time sheet, showing the amount of work performed on the case. Much of the work was necessary to prove - 5 - that Jeffrey had assets of approximately $395,000 as a result of his inheritance. Accordingly, the trial court's award of attorney's fees was supported by sufficient evidence and not an abuse of discretion. This assignment is overruled. Jeffrey's second assignment states as follows: II. THE TRIAL COURT ERRED IN ORDERING REAPPORTIONMENT OF UNREIMBURSED MEDICAL, DENTAL AND OPTICAL AND EXTRAORDINARY UNINSURED MEDICAL EXPENSES FOR THE PARTIES' MINOR CHILD. In this assignment, Jeffrey argues the trial court erred when it reapportioned Jeffrey's responsibility for the minor child's unreimbursed medical, dental, and optical expenses from 50 percent to 72 percent. Jeffrey argues that (1) the parties agreed to share these expenses equally, (2) Barbara did not ask for a reapportionment, and (3) the referee did not make sufficient findings of fact on this issue under Civ.R. 53. This assignment lacks merit. First, the trial court had the authority to reapportion the unreimbursed medical expenses for the minor child. R.C. 3113.217(C) specifically states that in an action to modify child support, the court shall issue a separate order, which may modify, inter alia, obligations regarding insurance coverage and unreimbursed medical costs for the child. Therefore, whenever a court modifies child support, those items in the original order corresponding to the provisions of R.C. 3113.217 are also subject to modification. Wade v. Wade (Aug. 9, 1996), Lake App. No. 95-L-189, unreported at 5; Gentry v. Gentry (Sept. 30, 1996), Buter App. No CA96-06-110, unreported at 2; - 6 - Marquart v. Marquart (Feb. 9, 1993), Franklin App. No. 92AP- 1318, unreported at 3. Second, a domestic relations court has the authority to modify provisions of a separation agreement which relate to child support. Rohrbacher v. Rohrbacher (1992), 83 Ohio App.3d 569, 575; Dudziak v. Dudziak (1992), 81 Ohio App.3d 361, 369. In the case at bar, the court was not bound by the parties' prior agreement regarding medical expenses, especially when there was a substantial change of income and a failure to keep up the bargain. Third, although she did not request to reapportion these expenses, Barbara did seek to modify the child support order, which request the court does not review in a vacuum. Barbara's affidavit, attached to her motion to modify child support, specifically described the special medical needs of her son and averred that Jeffrey had consistently failed to reimburse her for half of the uninsured medical expenses as required in the prior order. At the hearing in front of the referee, Barbara testified as to these medical expenses as well as the parties' income. In responding to these facts, as well as evidence of new income, the court was not limited, like an arbitrator, to the remedy appellant proposed. It was within the province of the court to design a different remedy to the problem as long as it was faithful to the facts before it. Finally, the facts supported the remedy. The referee, in her report, specifically noted the amount of unreimbursed medical - 7 - expenses as well as the incomes of the two parents. These findings are sufficient under Civ.R. 53 to allow the reviewing trial court to conduct an independent review of the issues decided by the referee. Accordingly, the trial court did not abuse its discretion by requiring Jeffrey to pay more than half of the unreimbursed medical expenses. This assignment is overruled. Jeffrey's third assignment and Barbara's first cross- assignment of error both contest the retroactivity of the child support modifications. Jeffrey's third assignment states as follows: III. THE TRIAL COURT ERRED BY ARBITRARILY ORDERING THAT ALL MODIFICATIONS COMMENCE DECEMBER 28, 1993. Barbara's first cross-assignment states as follows: I. THE TRIAL COURT ERRED BY NOT MODIFYING THE CHILD SUPPORT RETROACTIVE TO JUNE 22, 1993 WHEN THE APPELLANT FRAUDULENTLY OBTAINED A REDUCTION IN HIS SUPPORT OBLIGATION. Barbara's motion to modify was filed on December 28, 1993. Jeffrey argues that the trial court erred by making the modification retroactive to the date her motion was filed. Barbara responds that not only was the trial court correct in making the date retroactive, the trial court should have gone one step further and made the modification retroactive to June 22, 1993, when Jeffrey had his support obligation reduced because of unemployment even though he had inherited approximately $395,000.00--a change in income he failed to report to the court. - 8 - Generally, modifications of child support orders may be retroactively applied to the date such modifications were first requested. State, ex rel. Draiss v. Draiss (1990), 70 Ohio App.3d 418, 421; Tobens v. Brill (1993), 89 Ohio App.3d 298, 304; Oatey v. Oatey (Apr. 25, 1996), Cuyahoga App. Nos. 67809, 67973, unreported; R.C. 3113.21(M)(4). A decision whether or not to make a modification retroactive is reviewed under the abuse of discretion standard. Hamilton v. Hamilton (1995), 107 Ohio App.3d 132. Barbara argues that although the trial court acted appro- priately in making the modification retroactive to the date she filed her motion, it was an abuse of discretion not to make the modification retroactive to the date Jeffrey obtained the support reduction. To support her argument, Barbara cites Osborne v. Osborne (1992), 81 Ohio App.3d 666, 674, wherein the court stated that while modifications are usually effective from the date the motion to modify was filed, "courts have recognized extreme circumstances in which equitable considerations permit retroactive modification prior to the date of the motion." The Osborne court went on to note that fraud was an extreme circumstance justifying retroactive modification of child support. Barbara points to the fact that Jeffrey continued to seek and did in fact obtain a reduction in child support while he received an inheritance of approximately $395,000. The record reveals that Jeffrey requested a reduction in child support in August of 1992, one month after the divorce. At - 9 - the referee's hearing, Jeffrey admitted the following: (1) on March 29, 1993, $323,000 was deposited in his Huntington Bank checking account, (2) this money was part of Jeffrey's inheritance, (3) he had possession of this inheritance when his child support was reduced, (4) he never informed CSEA of this inheritance, (5) in June 1993, he transferred the money from the checking account to a Minnesota Mutual annuity account, (5) from June 1993 to December 1993 the annuity grew in the amount of $16,888.83 and (6) he was, at the time of the hearing, living off the money from the fund. The only reason given by Jeffrey as to why he did not report the inheritance as income prior to June 1993 was that he thought the money was tied up in Probate Court and that he still had to pay taxes on it. Regarding Jeffrey's third assignment, the trial court did not abuse its discretion when it made the modification retroactive to the date Barbara filed her motion. The fact that Jeffrey had a substantial source of income while he pursued a reduction is sufficient justification for the trial court's retroactive application of the modification. Regarding Barbara's assignment, although there is support in the law for her claim the modification should have been retroactive to the date of the order reducing payment, Barbara never filed an objection to the referee's report. She therefore failed to preserve the issue for appeal. A review of the record reveals that the referee recommended that the modification be retroactive to December 28, 1993. Although Barbara responded to - 10 - Jeffrey's objection that the modification should be retroactive to December of 1993, she never made the argument that it should be retroactive further back to June of 1993. This argument appears for the first time on appeal. 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." Therefore, because Barbara did not raise this issue below in the form of an objection under Civ.R. 53, we will not consider this issue on appeal. Barbara's first cross-assignment is overruled. Jeffrey's fourth assignment and Barbara's second assignment both concern the amount of income imputed to Jeffrey for purposes of computing child support and state as follows: IV. THE TRIAL COURT ERRED IN ORDERING MODIFICATION OF CHILD SUPPORT BY ADOPTING THE REPORT OF THE REFEREE WHICH IMPROPERLY ESTABLISHED INCOME FOR BOTH APPELLANT AND APPELLEE. Wife's two cross-assignments of error state as follows: II. THE TRIAL COURT ERRED BY IMPUTING AN UNREASONABLY LOW INCOME TO THE APPELLANT FOR THE PURPOSES OF COMPUTING CHILD SUPPORT. In these two assignments, the parties argue about the amount of income imputed to Jeffrey. Jeffrey argues that the amount of income imputed by the trial court, $33,776.00, is too high because he has not been able to find employment. Barbara argues the amount is too low because Jeffrey has held jobs where he earned up to $43,000.00 a year. - 11 - The amount of income imputed to an obligor is left to the sound discretion of the trial judge. Rock v. Cabral (1993), 67 Ohio St.3d 108. In the case at bar, the trial court did not abuse its discretion. The trial court heard testimony regarding (1) Jeffrey's qualifications, including graduate level certification for computer systems from Case Western Reserve University, (2) his past employment when he earned as much as $43,000.00 annually in highly technical jobs, and (3) the estimated annual interest income of $33,776.00 from the inherited money. The interest income alone gave the trial court sufficient basis to impute the income at $33,776.00. Because of defendant's earning ability and past employment, the trial court did not abuse its discretion in setting the level of income for Jeffrey. Jeffrey's fourth assignment and Barbara's second cross-assignment are overruled. Judgment affirmed. - 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 Domestic Relations Division of the Common Pleas 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, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .