COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71847 CAROLE M. CHLOPECKI nka : CARLIE JAMESON : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION DALE CHLOPECKI, et al. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT April 16, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division of Common Pleas Court Case No. D-206577 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: For Defendants-Appellees: JOSEPH G. STAFFORD, ESQ. LOUISE MOSHER, ESQ. JAMES E. POWELL, ESQ. Louise Mosher Co., L.P.A. 380 Lakeside Place 600 Standard Building 323 Lakeside Avenue, W. 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: -2- Appellant, Carole Chlopecki, nka Carlie Jameson, appeals the trial court's decision in her divorce action. Carole Chlopecki assigns the following six errors for our review: I. THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN INDEPENDENT AND DE NOVO REVIEW UPON OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE REFEREE. II. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT APPELLANT'S MOTION TO CONTINUE THE HEARING. III. THE TRIAL COURT ERRED WHEN IT ALLOWED APPELLANT'S DISCHARGED COUNSEL TO APPEAR IN THE HEARING ON APPELLANT'S BEHALF. IV. THE TRIAL COURT ERRED WHEN IT IMPUTED INCOME TO THE PLAINTIFF FOR PURPOSES OF CHILD SUPPORT. V. THE TRIAL COURT ERRED WHEN IT ORDERED A VISITATION SCHEDULE THAT IS NOT SUPPORTED BY EVIDENCE THAT THE SCHEDULE IS IN THE BEST INTERESTS OF THE MINOR CHILDREN. VI. THE TRIAL COURT ERRED WHEN IT ORDERED AN AWARD OF ATTORNEY FEES WITHOUT EVIDENCE OR FINDINGS TO SUPPORT THE REASONABLENESS OF THE ATTORNEY FEE AWARD. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Carole Chlopecki, nka Carlie Jameson and Dale Chlopecki were married on October 13, 1972. They had two children, Lisa (D.O.B. 11/22/77) and Nicole (D.O.B. 01/29/80). At the time of the divorce, Dale Chlopecki was 43 years old and Carole Chlopecki was 42 years old. Dale Chlopecki was employed as an account executive at Booth American Company earning approximately $65,000 per year. -3- Carole was employed at Harris Broadcasting, Inc. earning $20,000 per year. The Chlopeckis entered into a separation agreement, which was incorporated into the decree of divorce issued 10/16/91. The separation agreement included a designation of the personal property to be awarded to each party. Custody of the couple's two children was awarded to Carole Chlopecki and Dale Chlopecki was ordered to pay a total of $918 dollars per month for child support and $510 dollars per month in spousal support. In June of 1994, Carole Chlopecki called Dale Chlopecki and asked him if he would mind having the girls live with him. He replied that he had no objection. The following day, Carole Chlopecki brought the girls to Dale Chlopecki's home and left them there. In August of 1994, Carole Chlopecki told Dale Chlopecki that she wanted the girls to come back and live with her. Dale Chlopecki refused. This appeal involves four post-decree motions filed by the parties. Dale Chlopecki filed a motion to show cause, a motion to modify custody, and a motion for attorney fees. Carole Chlopecki filed a motion to dismiss Dale Chlopecki's motions to modify custody and for attorney's fees. The trial court conducted a hearing on the motions on June 20, 1995. Carole Chlopecki did not appear at the hearing. Her trial counsel told the trial court that Carole Chlopecki would not attend the hearing. Trial counsel asked the trial court to continue the -4- case due to Carole Chlopecki's absence. Citing the numerous prior continuances,the trial court denied the motion for a continuance. The court heard testimony from Dale Chlopecki, Casimir Cudnik, from Family Conciliation Services, and Alan Levine, Dale Chlopecki's trial counsel. At the end of the testimony, Carole Chlopecki's trial counsel again asked for a continuance of the hearing as to Carole Chlopecki's motion to dismiss. Again, her request was denied. On 12/6/96, the trial court issued a journal entry granting Dale Chlopecki's motion to modify custody and awarding him custody of the couple's two children. The court also granted Dale Chlopecki's motion to show cause and found Carole Chlopecki in contempt of court for withholding property that was awarded to Dale Chlopecki in the parties' separation agreement. The court also granted the motion for attorney's fees, ordering Carole Chlopecki to pay $1000 toward Dale Chlopecki's attorney fees. Carole Chlopecki's motion to dismiss was denied. This appeal followed. In her first assignment of error, Carole Chlopecki argues the trial court erred in failing to conduct a de novo review upon objections to the report and recommendation of the referee. She argues the trial court merely rubber stamped the referee's report without considering her objections or making an independent determination of the issues in the case. Under Civ.R. 53(E)(5), a trial court must enter its own judgment on the issues submitted for action and report by the referee. Inman v. Inman (1995), 101 Ohio App.3d 115, 117. The -5- trial court must conduct a de novo review of the facts and an independent analysis of the issues to reach its own conclusions about the issues in the case. Id. at 118. See also Roach v. Roach (1992), 79 Ohio App.3d 194, 207. Carole Chlopecki argues the portion of the journal entry overruling her objections and adopting the referee's report appears to have been stamped onto a copy of the referee's report. She also points out that the stamp refers to the Magistrate, a term not used to refer to referees at the time the hearing was held on June 20, 1995.1 As a preliminary matter, we must point out that the referee's report was issued on May 6, 1996. At that time, the change to the term magistrate had also taken place. Decisions that have condemned rubber stamping have involved situations such as the use of a single document to serve as both the report of the magistrate and the trial court's journal entry or the trial court's failure to expressly rule on a party's objections to the magistrate's report. Nelson v. Nelson (May 28, 1992), Cuyahoga App. No. 60824, unreported [citing Haag v. Haag (1983), 9 Ohio App.3d 169 at paragraph two of the syllabus.] See also Staggs v. Staggs (1983), 9 Ohio App.3d 109, 110; Nolte v. Nolte (1978), 60 Ohio App.2d. 227, 231. In this case, the Magistrate's report and the trial court's journal entry were two separate documents. Also, the trial court 1 On July 1, 1995, Civ.R. 53(A) was amended to change the title of referee to magistrate . -6- expressly overruled Carole Chlopecki's objections to the Magistrate's report. More significantly, the use of standard language to overrule objections to the magistrate's report and adopt its decision has been upheld by this court. This is not the practice condemned by this court in Nolte, Staggs, and Haag. Pursuant to Civ.R. 53, an independent review of the pleadings, referee's report and objections is all that is required of the trial court in adopting, rejecting or modifying said report. Id. In this case, the magistrate's report contained a detailed summary of the relevant evidence. The trial court's journal entry states that it was entered after consideration of the pleadings, Magistrate's decision, and objections. (Trial court's 12/06/96 journal entry at Vol. 2909, Pg 733.) Because there is no clear evidence to the contrary, we accept the trial court's statement as true. See Roach at 208. Carol's first assignment of error is overruled. In her second assignment of error, Carole Chlopecki argues the trial court erred by refusing to continue the hearing. Whether to grant or deny a continuance is up to the discretion of the trial court. Ham v. Park (1996), 110 Ohio App.3d 803, 810; Sayre v. Hoelzle-Sayre (1994), 100 Ohio App.3d 203, 208; Griffin v. Lamberjack(1994), 96 Ohio App.3d 257, 264. Relevant factors to be considered by the trial court when deciding whether to grant a continuance include the length of the requested delay, whether other continuances have been requested and received, the inconvenience to litigants, witnesses, opposing counsel and the -7- court, whether the requested delay is for legitimate reasons or is merely dilatory, purposeful, or contrived, and whether the moving party contributed to the circumstances leading to the request for the continuance. Ham at 810; Griffin at 264. A review of the facts of this case reveals that nearly all of the above factors weighed against granting a continuance. As noted by the trial court and evidenced by the record, there had been numerous prior continuances of the motion hearing, many of which were requested by Carole Chlopecki. Also, Carole Chlopecki's voluntary absence precipitated the request for the continuance. Despite being advised by her attorney that the hearing was going to go forward, she deliberately refused to attend. The witnesses were present on the scheduled day of the hearing and were prepared to go forward. Also, the trial court specifically determined that rescheduling the hearing would result in major inconvenience to the parties and the court. I don't think that if I were able to reschedule your hearing date, we would be able to accomplish any sort of a new hearing date within a time that would not prejudice the rights of both Mr. and Mrs. Chlopecki and more importantly the Chlopecki children if we were to continue today's proceeding. (Tr. 7-8.) Under the circumstances, we conclude the trial court did not err in denying the motion for continuance. Carole Chlopecki's second assignment of error is overruled. In her third assignment of error, Carole Chlopecki argues the trial court erred by allowing Levine to appear on her behalf after being advised that she had discharged him. Generally, a client may -8- terminate the attorney-client relationship at any time. Mobberly v. Hendricks (1994), 98 Ohio App.3d 839, 843. However, [t]he trial court retains some discretion to refuse a party's request to change counsel which necessarily will cause delay or other prejudice to the opposing party. Columbus v. Triplett (1993), 91 Ohio App.3d 239, 246. As discussed above, the trial court stated that continuing the case would result in a delay that would prejudice the parties' rights. In Sayre, the court upheld the trial court's refusal to allow a continuance requested by a party whose trial counsel withdrew from representing her on the day of the hearing. The Sayre court recognized the importance of the court's interest in controlling its docket, the public's interest in an efficient judicial system, and the possibility of prejudice to the defendant. In balancing these interests, the court found it significant that the continuance was necessary due to the behavior of the defendant. As discussed above, the trial court may, in its discretion, refuse a party's attempt to change counsel when the change is sought for improper or dilatory reasons. In this case, Carole Chlopecki wrote a letter to her trial counsel suggesting that she had discharged him. The letter was ambiguous at best. Carole Chlopecki did not notify the trial court of her decision or request additional time to obtain other counsel. Furthermore, she voluntarily decided not to attend the hearing. This behavior justified the trial court's refusal of a continuance. -9- The trial court advised Levine that no continuance would be issued and allowed Levine to decide whether to continue with the representation. Due to Carole Chlopecki's unexcused failure to appear, the trial court could have summarily entered judgment against her. Under the circumstances, we conclude the trial court did not err in allowing Levine to appear on Carole Chlopecki's behalf. Carole Chlopecki's third assignment of error is without merit. In her fourth assignment of error, Carole Chlopecki argues the trial court erred in imputing income to her for purposes of calculating child support. R.C. 3113.215 defines income as follows: Income means either of the following: (a) For a parent who is employed to full capacity, the gross income of the parent; (b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent, and any potential income of the parent. Where a parent is voluntarily unemployed or voluntarily underemployed, potential income includes imputed income that the court or agency determines the parent would have earned if fully employed as determined from the parent's employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides. R.C. 3113.215(5)(a). Determining whether a parent is voluntarily unemployed or voluntarily underemployed is a question of fact for the trial court. Rock v. Cabral (1993), 67 Ohio St.3d 108, 111. A court's -10- decision on that issue will not be reversed absent an abuse of discretion. Id. See also Madden v. Madden (October 30, 1997), Cuyahoga App. No. 71302, unreported; Nelson v. Nelson (July 13, 1995), Cuyahoga App. No. 67901, unreported. During the motion hearing, Dale Chlopecki presented uncontradicted evidence that, at the time of the divorce, Carole Chlopecki was employed as an account executive at a radio station. He also testified that he knew of no reason why she could not work as an account executive. The trial court imputed $9,360.00 per year in income to Carole Chlopecki the equivalent of working full time at minimum wage for fifty-two weeks a year. In light of the uncontradicted evidence that Carole Chlopecki could have earned a significantly higher salary, we conclude the trial court did not abuse its discretion in imputing a minimum wage salary to Carole Chlopecki. In her fifth assignment of error, Carole Chlopecki argues the trial court erred in establishing the schedule for her visits with the children. A review of the record reveals that both children are now emancipated. Accordingly, this assignment of error is moot. In her sixth assignment of error, Carole Chlopecki argued the trial court erred in awarding attorney's fees to Dale Chlopecki without supporting evidence or findings about their reasonableness. A decision on whether to award attorney's fees rests within the sound discretion of the trial court. Neel v. Neel (1996), 113 Ohio App.3d 24, 34; Parzynski v. Parzynski (1992), 85 Ohio App.3d 423, -11- 439; Birath v. Birath (1988), 53 Ohio App.3d 31, 39; Schwab v. Schwab (Jan. 15, 1998), Lawrence App. No. 97 CA 36, unreported. R.C. 3105.18(H) authorizes a trial court to award attorney fees to a party in divorce proceedings if it determines that the other party is able to pay the attorney's fees awarded by the court. The court must also determine if either party will be prevented from fully litigating his rights and adequately protecting his interests if no attorney fee award is made. The Magistrate recommended $1,507.00 as a reasonable amount of attorney fees for the post-divorce litigation. The magistrate found that Heine's hourly rate was well within the range of customary charges for similar legal services in the Cleveland area. The trial court ordered Carole Chlopecki to pay $1,000.00 toward that amount. He made an express determination that [b]oth parties are gainfully employed and have the ability to contribute toward Defendant's legal fees. (Magistrate's Report and Recommendation at 6.) The Magistrate's report and the trial court's journal entry were silent as to whether either party would be prevented from fully litigating his rights and protecting his interests. Courts have held that, absent such findings, an award of attorney fees constitutes an abuse of discretion. See Gill v. Gill (Oct. 10, 1997), Hamilton App. No. C-960610, unreported. At the motion hearing, Dale Chlopecki's attorney, William Heine, testified he had been in private practice for three years and that half of his practice was in Domestic Relations Court. He testified that he charged Dale Chlopecki $110.00 per hour for his -12- services and that he spent twelve to fourteen hours working on the show cause motions. No evidence was presented to show that the fee charged or the time spent was unreasonable or excessive. Accordingly, the trial court did not abuse its discretion in making the award of attorney's fees. Carole Chlopecki's sixth assignment of error is overruled. Judgment affirmed. -13- It is ordered that Appellees recover of Appellant their 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 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. Exceptions. SPELLACY, J., and ROCCO, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .