COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70490 ANIKO TROMBITAS KALNOKI : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION TIBOR KALNOKI-KIS : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 3, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. 211166 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: ANIKO T. KALNOKI, pro se 1412 Mendelssohn Drive Westlake, Ohio 44145 For defendant-appellee: RICHARD S. KOBLENTZ PETER A. RUSSELL Attorneys at Law 75 Public Square, #1025 Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant-wife, Aniko Trombitas Kalnoki ("appel- lant"), appeals the decision of the trial court that adopted the 1 referee's findings of fact and conclusions of law. Specifically, appellant challenges the finding of the referee determining that defendant-appellee-husband, Tibor Kalnoki-Kis ("appellee"), is financially unable to pay for the parties' youngest child's final year of college. Appellant further challenges the finding that the parties' separation agreement bars a duty to demonstrate that appellee maintain and provide evidence of life insurance suffi- cient to cover his support obligations. For the reasons that follow, appellant's assigned errors are without merit, and we therefore affirm the decision of the Domestic Relations Division of Cuyahoga County Common Pleas Court. A review of the record reveals that the parties were divorced on January 30, 1992. A separation agreement incorporated into the divorce decree provides that appellee "shall, if he is financially able, be responsible for all expenses in relation to a college 1 Effective July 1, 1995, Civ.R. 53 underwent substantial changes, among which was the reference to referees as "magis- trates." Since the events giving rise to this appeal took place prior to the rule's effective date, amended Civ.R. 53 is not applicable in this case and, as such, we will adhere to the substance and nomenclature of the former rule. - 3 - education" for the parties' two children. Appellee has complied with the terms of this provision with the exception of failing to pay the expenses associated with the parties' youngest child's final year of college, which totals approximately $20,000.00. Appellee claims that he is financially unable to pay these ex- penses. The separation agreement further provides that appellee is to pay appellant spousal support in the amount of $550 for thirty-six months, followed by monthly payments of $800 for sixty months. Additionally, the marital home was to be jointly refinanced for at least eighty percent of its value, using the proceeds to reduce marital debt. Appellee was to transfer the marital home to appellant and be responsible for paying the mortgage, all real estate taxes, and insurance on the jointly refinanced property. The separation agreement directed appellee to maintain a policy of life insurance, naming appellant as beneficiary, sufficient to satisfy these obligations in the event of appellee's death. The insurance provisions do not contain any reference that appellee demonstrate compliance within a specified time or on a periodic basis. A hearing on appellant's motion was held over three days in March 1995. The referee found that appellee's gross income for 1994 was in excess of $220,000, which included a performance-based bonus for his work in 1993. Based on this figure, the referee determined that appellee's after-tax income totaled approximately - 4 - $12,000 per month. Of this amount, appellant pays approximately $2,000 to satisfy his obligations owed to appellant for the mortgage, taxes and insurance. Appellee is also liable for several college loans incurred as a result of his obligation to pay for their children's college education. Monthly payments on these loans total $719.80. Appellee expends a similar amount of money on a monthly basis for the living expenses of the parties' children. For his present residence, appellee's expenses exceed $3,400, plus $400 for utilities. The referee further determined that appellee has substantial consumer debt that requires minimal payments totalling $2,167 per month. Expenses for two leased BMW automobiles were determined to be monthly expenses, but no precise figure was contained in the referee's report. A review of the record reveals that the monthly lease payments on these automo- biles total approximately $1500.00. Notwithstanding appellee's housing costs, his automobile payments and his excessive consumer debt, the referee found that appellee was spending his net income on "reasonable living ex- penses" in addition to meeting his obligations owed to appellant and monthly expenses related to the children's college and living expenses. Based on appellee's income and expenses, the referee concluded that appellee was financially unable to undertake further obligation to pay for the youngest child's final year of college and recommended that appellant's motion, in this respect, be denied. - 5 - As to the insurance issue, the referee found that appellee failed to supply appellant with information regarding the amount of insurance coverage and concluded that appellant is entitled to this information as well as whether this coverage meets industry standards for satisfying his obligations. It was therefore recommended that appellant's motion be granted to the extent that appellee is to furnish sufficient evidence of insurance coverage. The referee found, however, that a contempt finding would be inappropriate because the separation agreement does not provide that appellee demonstrate compliance at any particular time. Appellant timely objected to the findings of fact and conclu- sions of law as contained in the referee's report. Specifically, appellant objected to the factual findings relative to appellee's income, expenses and debt; the referee's conclusion that appellee is financially unable to pay for the youngest child's tuition; and the conclusion that the separation agreement was not time-specific with regard to providing appellant with evidence of insurance compliance. Appellant, however, did not provide the trial court with a transcript of the hearing nor did she provide an affidavit attesting to the evidence presented at the hearing. The trial court overruled appellant's objections and adopted the report of the referee. Appellant timely appeals and assigns the following errors for our review: ASSIGNMENT OF ERROR NO. I. - 6 - THE TRIAL COURT ERRED AS MATTER OF LAW IN FINDING DEFENDANT-APPELLEE FINANCIALLY UNABLE TO PAY HIS DAUGHTER'S SENIOR YEAR TUITION AND RELATED EXPENSES. ASSIGNMENT OF ERROR NO. II. THE TRIAL COURT ERRED IN ADOPTING THE REFEREE'S FINDINGS WITHOUT FURTHER CONSIDERATION BECAUSE PLAINTIFF-APPELLANT'S OBJECTIONS TO THE REFEREE'S REPORT WERE NOT MERE ALLEGATIONS, BUT WERE SUPPORTED BY ATTACHED CASE LAW, LEGAL ANALYSIS AND SPECIFIC REFERENCE TO EXHIBITS ADMITTED INTO EVIDENCE, WHICH EXHI-BITS THE REFEREE RELIED UPON IN HER REPORT. ASSIGNMENT OF ERROR NO. III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE REFEREE'S RECOMMENDATIONS BECAUSE THE REFEREE'S REPORT IS FACIALLY DEFECTIVE AND THE FACTUAL FINDINGS ARE INSUFFICIENT TO SUPPORT THE CONCLUSION THAT DEFENDANT-APPELLEE IS FINANCIALLY UNABLE TO PAY THE TUITION AND RELATED EXPENSES FOR HIS DAUGHTER'S SENIOR COLLEGE YEAR. ASSIGNMENT OF ERROR NO. IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DECLINING TO ORDER DEFENDANT-APPELLEE TO PERI- ODICALLY DEMONSTRATE THAT THE LIFE INSURANCE POLICY HE AGREED TO PROVIDE PURSUANT TO THE SEPARATION AGREEMENT IS IN EFFECT, EVEN THOUGH THE AGREEMENT IS SILENT ON SUCH DEMONSTRATION, BECAUSE ABSENT SUCH AN ORDER, THE INSURANCE TERMS OF THE AGREEMENT CANNOT BE ENFORCED IN A JUST AND REASONABLE MANNER. I. In her first assignment of error, appellant contends that the legal conclusion reached by the referee and adopted by the trial - 7 - court is not supported by the evidence. Specifically, appellant argues that the evidence before the trial court conclusively supports that appellee is financially able rather than unable to pay for his daughter's senior year tuition and related college expenses as a matter of law. Former Civ.R. 53(E) governs referees' reports. Subsection (E)(5) provides, in part: The referee's findings of fact must be suffi- cient for the court to make an independent analysis of the issues and to apply appropri- ate rules of law in reaching a judgment order. The court may adopt the referee's rec- ommendations 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 an error or defect. The court shall enter its own judgment on the issues submitted for action and report by the referee. Objections to factual findings contained in a referee's report are governed by former Civ.R. 53(E)(6), which provides that a party objecting to a referee's findings of fact must support his or her objections with excerpts from the transcript or with an affidavit if no transcript is available. In the event no such transcript or affidavit is provided, the trial court may properly adopt the 2 referee's findings without further consideration. In such cases, the proper standard for this court to apply is to review the evidence presented to the referee to determine whether the trial 2 Purpura v. Purpura (1986), 33 Ohio App.3d 237, paragraph two of the syllabus. - 8 - court's adoption of the referee's findings amounted to an abuse of 3 discretion. Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is 4 unreasonable, arbitrary or unconscionable. While appellant has submitted an entire transcript of the hearing to this court, her failure to submit a transcript in the 5 trial court precludes us from considering it here. Appellant argues, however, that she is challenging a purely legal conclusion reached by the referee and, as such, no transcript or affidavit of evidence is required. While ostensibly appellant appears to challenge a conclusion of law, our review of the record reveals that she, in essence, is actually challenging the factual findings that support that con- clusion. Appellant's brief is replete with challenges to appel- lant's income, expenses and debt. While appellant argues that these expenses are voluntarily incurred and cannot support the conclusion that appellee is financially unable to pay college expenses, the referee made no such finding. To the contrary, the referee specifically found that the expenses undertaken by appel- lant were for "reasonable living expenses." 3 Proctor v. Proctor (1988), 48 Ohio App.3d 55, 63. 4 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 5 High v. High (1993), 89 Ohio App.3d 424, 427; Medoff v. Medoff (June 15, 1995), Cuyahoga App. No. 67434, unreported at 2. - 9 - Appellant relies on several cases which attempt to define "financial inability." These cases, however, have interpreted such a clause within the context of statutory factors related to "changed circumstances." This is not the case here. While this line of case law is certainly instructive in outlining the para- 6 meters of financial inability, it is not controlling. The par- ties have chosen to include the financial ability clause as it appears in their separation agreement, and, without further defi- nition, the trial court is left to interpret this clause according to general contract principles. In this regard, the court deter- mined that appellee's expenses left him insufficient income to continue paying for the daughter's college expenses. Absent a transcript from which to review the findings of fact adopted by the trial court, we are not convinced that the trial court abused its discretion in adopting the factual findings or the conclusion sup- ported by them. Accordingly, appellant's first assignment of error is over- ruled. II. In her second assignment of error, appellant claims that the trial court erred in adopting the referee's factual findings 6 See, e.g., Hartlieb v. Hartlieb (Feb. 3, 1994), Cuyahoga App. No. 64635, unreported at 10. - 10 - without further consideration because her objections were sup- ported by case law as well as references to exhibits admitted into evidence. Appellant's argument is without merit. In essence, appellant is trying to compensate for her failure to provide a transcript to the trial court. 7 Former Civ.R. 53(E)(2) provides: Objections shall be specific and state with particularity the grounds of the objection. Upon consideration of the objection, the court may adopt, reject, or modify the report; hear additional evidence; return the report to the referee with instructions; or hear the matter itself. Moreover, former Civ.R. 53(E)(6) provides: The court may adopt any finding of fact in the referee's report without further consideration unless the party who objects to that finding supports that objection with all relevant portions of the transcript from the referee's hearing or an affidavit about evidence submitted to the referee if no transcript is available. 8 Appellant relies on Purpura v. Purpura for the proposition that the exhibits admitted into evidence constitute "other evidentiary material" that obviates the requirement for providing the trial court with a transcript. This is an incorrect conclu- sion. The "other evidentiary material" language contained in that 7 Appellant's brief references Civ.R. 53 as amended effective July 1, 1995. Because the events giving rise to this appeal took place prior to the effective date of the amended version, these references are inaccurate. For all practical purposes, however, the excerpted language contained in appellant's brief is similar but in different alphanumeric order. 8 Purpura, 33 Ohio App.3d 237. - 11 - decision refers to the affidavit option of supporting objections to findings of fact as found in former Civ.R. 53(E)(6) and cited by the Purpura court. The failure to provide the trial court with a transcript or affidavit of evidence does not preclude appellate review of a trial court's adoption of a referee's finding of fact. In the absence of a transcript, however, appellate review of a trial court's adoption of a factual finding is limited to whether or not the trial court 9 abused its discretion in adopting that finding. Finding no such abuse of discretion as discussed in Section I, appellant's second assignment of error is overruled. III. In her third assignment of error, appellant contends that the referee's report is defective on its face and cannot support the conclusion that appellee is financially unable to afford the pay- ment of tuition and expenses. Specifically, she argues that approximately $2,300 of residual income is available after sub- tracting the obligations owed to appellant, the children, and appellee's current housing expenses, and, as such, appellee is not 10 expending his net income. 9 Proctor, 48 Ohio App.3d at 60. 10 Appellant fails to take into account the automobile lease payments, which approximate $1500 per month. Thus, appellee's net income after expenses would be $800.00 - 12 - Appellant takes the court's use of the term "expend" to mean appellee's net income is consumed by the expenses listed in the referee's report and, because funds remain after expenses, the report is defective on its face. For a referee's report to be facially defective, however, it must fail to meet the minimum standards under Civ.R. 53 as discussed in Section I of this opin- 11 ion. Because the referee's report provides sufficient facts from which the trial court could conduct an independent analysis, we do not find the referee's report to be facially defective. Appellant further challenges the referee's conclusion that appellee's monthly expenses were reasonable. Appellant misunder- stands the language contained in the referee's report. The referee made a finding that appellee's expenditures were on "reasonable living expenses," meaning that appellee's expenses were those related to housing, automobiles and consumer debt, not to mention the obligations owed to appellant and the parties' children. The referee made no finding that the amounts expended were reasonable, only that they were incurred on normal day-to-day types of living expenses. Accordingly, appellant's third assignment of error is over- ruled. IV. 11 See, also, Coronet Ins. Co. v. Richards (1991), 76 Ohio App.3d 578, 582-583. - 13 - In her fourth assignment of error, appellant maintains that the trial court erred in adopting the referee's finding that appellee has no duty to periodically provide appellant with evi- dence that he is complying with the insurance provision of the parties' separation agreement. Specifically, she urges that the trial court, within its broad discretionary powers, should have required appellee to demonstrate compliance on a regular basis in light of the fact that appellee has already allowed the previously existing policies to lapse. Without such verification, appellant argues that she is left in the unenviable position of having insufficient funds to cover appellee's obligations in the event of his death. We are not unsympathetic to appellant's plight. Her fears are certainly well-grounded. The trial court, however, did not err in adopting the referee's finding in this matter. The referee did find that appellee is obligated to provide a policy of life insurance sufficient to satisfy his obligations under the parties' separation agreement and ordered appellee to provide to appellant evidence to this effect. The referee, however, did not find that appellee's failure to provide this information was contemptuous because the agreement is silent as to when or how often this information is to be provided. While we acknowledge, as appellant asserts, that without such verification, appellant may be forced to litigate this issue repeatedly, appellant, with the benefit of counsel, agreed to the - 14 - terms of the separation agreement. She cannot now complain it would be unfair for the trial court not to add a verification clause when such a clause was not agreed to by the parties at the time they entered into the separation agreement. Because the trial court did not err in adopting the referee's finding that appellee not be found in contempt for failing to provide evidence of compliance as it relates to the insurance provisions of the parties' separation agreement, appellant's fourth assignment of error is overruled. - 15 - 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 Cuyahoga County Court of Common Pleas, 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. PATRICIA BLACKMON, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 of decision by the .