[Cite as Pietrantano v. Pietrantano, 2013-Ohio-4330.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




LINDA J. PIETRANTANO,                                   :

        Plaintiff-Appellee,                             :   CASE NO. CA2013-01-002

                                                        :        OPINION
   - vs -                                                         9/30/2013
                                                        :

MICHAEL A. PIETRANTANO,                                 :

        Defendant-Appellee.                             :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                        DOMESTIC RELATIONS DIVISION
                            Case No. 10 DR 33851



Crossman Law Firm, LLC, F. Ann Crossman, Michelle Maciorowski, 7051 Clyo Road,
Centerville, Ohio 45459, for plaintiff-appellee

Trotter Law, LLC, Janaya L. Trotter, 3460 Reading Road, Cincinnati, Ohio 45229, for
defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Michael A. Pietrantano ("Husband'), appeals a decision of

the Warren County Common Pleas Court, Domestic Relations Division, denying his motion

for a reduction in spousal support. For the reasons set forth below, we affirm the judgment of

the trial court.

        {¶ 2} After a 36-year marriage, Husband and Linda J. Pietrantano ("Wife") filed for
                                                                     Warren CA2013-01-002

divorce in July 2010. During the pendency of the divorce proceedings, Husband was working

as a sales engineer in Nashville, Tennessee, and received an annual base salary of $95,000.

In addition, Husband resided in a fully-furnished apartment paid for by his then-employer.

However, on January 1, 2011, Husband's pay structure changed and Husband's annual base

salary decreased from $95,000 to $54,000 plus commissions at a rate of 18 percent and

bonuses.

       {¶ 3} On February 15, 2011, a final divorce hearing was held, approximately one

month after Husband's base salary had been reduced to $54,000. At the hearing, both

Husband and Wife testified that they anticipated Husband would still be able to earn $95,000

per year even though his base salary had decreased by $41,000. The trial court issued its

final decree of divorce on April 7, 2011 (the "Final Decree"), wherein the parties agreed to an

equalization of income. As to the issue of spousal support, the Final Decree provided as

follows:

              Husband's previous pay through his current employer has been a
              base pay of $95,000.00 per year plus commissions. Due to internal
              changes in compensation at his employment, Husband's base pay is
              now $54,000.00 per year plus commissions. Commissions are paid
              on a monthly basis. The intent of the parties is to equalize the income
              until such time as Husband has received a total gross income in a
              calendar year of $95,000.00. Until that time, Husband's spousal
              support to Wife shall be one-half of the base pay which is $27,000.00
              per year gross, or $2,250.00 per month gross plus one-half of the
              gross commissions. * * *

              Further, once Husband has earned $95,000.00 in total gross income,
              which includes base pay, commissions and/or any bonuses for the
              calendar year, potential income shall be imputed to Wife, and (sic) the
              current minimum wage standard, which at present is $15,392.00 per
              year, for purposes of calculating additional spousal support. * * *

              Therefore, the parties agree * * * that Wife is entitled to 50% of the
              gross amount of any income earned by Husband up to $95,000.00.
              At such time as Husband earns $95,000.00, the sum of $15,392.00 in
              income shall be imputed to Wife if Wife is not earning income or
              earning income less than $15,392.00. * * *


                                              -2-
                                                                  Warren CA2013-01-002

             Husband's current income is $54,000.00 per year base salary plus
             commissions. Wife has no income. IT IS THEREFORE ORDERED,
             ADJUDGED AND DECREED that Husband shall pay to Wife the sum
             of $2,250.00 per month effective March 1, 2011 and on the first of
             every month thereafter until such time as his base salary increases.

      {¶ 4} On March 31, 2011, Husband was laid off from his job. The layoff occurred one

week prior to the issuance of the Final Decree but after the final hearing had been held and

the matter had been submitted to the trial court.       Husband received unemployment

compensation from April 2011 until November 2011, at which time he was able to secure new

employment in Colorado as a commercial sales engineer. Husband's new employment

included an annual base salary of $65,000 plus a commission rate of "four percent of gross

margin profit dollars generated to the company." As of April 2012, Husband's year-to-date

income generated from commissions is $182.

      {¶ 5} Husband's new employment does not pay housing expenses. Therefore,

Husband is now responsible for monthly rent, insurance, and utility expenses for an

apartment which he was required to furnish at his own expense. However, Husband's new

employer reimburses Husband for business mileage on his vehicle at the federal rate and for

70 percent of his business expenses.

      {¶ 6} Due to the change in his salary and living expenses, Husband moved for a

reduction in spousal support on March 28, 2012. A hearing on the matter was held June 15,

2012 (the "Spousal Support Hearing"), after which the magistrate denied Husband's motion.

Upon a request for findings of fact and conclusions of law, the magistrate issued a decision

determining that "the change in Husband's income was contemplated at the time of the final

hearing, due to the agreement of a percentage of income being 50% of any gross income

agreed to by the parties, as opposed to an agreement of a set amount." Further, the

magistrate found that any increase in Husband's living expenses "appeared to be voluntary in

nature."
                                            -3-
                                                                                  Warren CA2013-01-002

        {¶ 7} Husband objected to the magistrate's decision and, on December 21, 2012, the

trial court overruled, in part, and sustained, in part, Husband's objections and otherwise

adopted the decision of the magistrate.1 The trial court found there was no substantial

change in circumstances to warrant a modification of spousal support. In reaching this

conclusion, the trial court determined that, based upon the unambiguous language of the

Final Decree—specifically the fact that Husband's annual salary was identified as $54,000

and not $95,000—any change in Husband's income had been anticipated in the wording of

the Final Decree and contemplated by the parties and the time the Final Decree was filed.

        {¶ 8} From the trial court's decision, Husband appeals, raising two assignments of

error. For ease of discussion, we shall address the assignments of error out of turn.

        {¶ 9} Assignment of Error No. 2:

        {¶ 10} THE TRIAL COURT ERRED IN FAILING TO INDEPENDENTLY REVIEW THE

RECORD BY SOLELY RELYING ON THE MAGISTRATE'S DECISION AT ODDS WITH

THE DICTATES OF OHIO CIV.R. 53.

        {¶ 11} In his second assignment of error, Husband argues the trial court abused its

discretion by failing to independently review the record and relying solely upon the

magistrate's decision in contravention of Civ.R. 53(D)(4)(d). In support of this contention,

Husband makes the following arguments: (1) the trial court failed to discuss more than one

spousal support factor contained in R.C. 3105.18(C); (2) the trial court failed to "comment or

reference" any portion of the record "unrelated to the Magistrate's Decision"; and (3) the trial

court completely disregarded several of Husband's objections including his argument that his

increased living expenses constituted a change in circumstances. In addition, Husband



1. The trial court overruled Husband's objections relating to the motion to modify spousal support but sustained
Husband's objection that Wife should be required to pay one-half of an invoice relating to the maintenance of the
marital residence. Issues relating to the marital residence were not appealed by the parties and are not currently
before this court.
                                                       -4-
                                                                       Warren CA2013-01-002

states that the "trial court had a responsibility to, at the very least, address [Husband]'s

objections and state the court's basis for its decision in sufficient detail to enable a reviewing

court to determine that the decision whether or not to modify the award is fair, equitable, and

in accordance with the law."

       {¶ 12} Civ.R. 53(D)(4)(d) provides:

              Action on objections. If one or more objections to a magistrate’s
              decision are timely filed, the court shall rule on those objections. In
              ruling on objections, the court shall undertake an independent review
              as to the objected matters to ascertain that the magistrate has
              properly determined the factual issues and appropriately applied the
              law. Before so ruling, the court may hear additional evidence but may
              refuse to do so unless the objecting party demonstrates that the party
              could not, with reasonable diligence, have produced that evidence for
              consideration by the magistrate.

       {¶ 13} The magistrate is a subordinate officer of the trial court, not an independent

officer performing a separate function. Therefore, "a trial court may not 'merely rubber-stamp'

a magistrate's decision." McCarty v. Hayner, 4th Dist. Jackson No. 08CA8, 2009-Ohio-4540,

¶17, citing Knauer v. Keener, 143 Ohio App.3d 789, 793 (2d Dist.2001); and Roach v.

Roach, 79 Ohio App.3d 194, 207 (2d Dist.1992). A failure of the trial court to rule on the

objections and conduct an independent review of the magistrate's recommendations as

required by Civ.R. 53(D)(4)(d) is an abuse of discretion. See Cottrell v. Cottrell, 12th Dist.

Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 93, citing Barrientos v. Barrientos, 196 Ohio

App.3d 570, 2011-Ohio-5734, ¶ 5 (3d Dist.). An abuse of discretion is more than an error of

law or judgment but connotes that the trial court's decision was arbitrary, unreasonable, or

unconscionable. Strain v. Strain, 12th Dist. Warren No. CA2005-01-008, 2005-Ohio-6035, ¶

10.

       {¶ 14} Ordinarily, a reviewing court will presume that the trial court performed an

independent review of the magistrate's decision. McCarty at ¶ 18; Cottrell at ¶ 93. Thus,

"the party asserting error bears the burden of affirmatively demonstrating the trial court's
                                               -5-
                                                                         Warren CA2013-01-002

failure to perform its duty of independent analysis." Id.; Cottrell at ¶ 93, citing Gilleo v. Gilleo,

3d Dist. Mercer No. 10-10-07, 2010-Ohio-5191, ¶ 46. "[S]imply because a trial court adopted

the magistrate's decision does not mean that the court failed to exercise independent

judgment." Id. A trial court may adopt a magistrate's decision in whole or in part pursuant to

Civ.R. 53(D)(4)(b) so long as the trial court fully agrees with the magistrate's findings "after

weighing the evidence itself and fully substituting its judgment for that of the [magistrate]." In

re Dunn, 101 Ohio App.3d 1, 8 (12th Dist.1995), citing DeSantis v. Soller, 70 Ohio App.3d

226, 232 (10th Dist.1990).

       {¶ 15} Husband first argues that the trial court's failure to address the spousal support

factors enumerated in R.C. 3105.18(C) is evidence of the trial court's failure to undertake an

independent review of the record and comply with Civ.R. 53(D)(4)(d).

       {¶ 16} "In determining whether spousal support is appropriate and reasonable, and in

determining the nature, amount, and terms of payment, and duration of spousal support," the

trial court must consider the 13 factors listed in R.C. 3105.18(C)(1) and any other factor the

trial court finds relevant. R.C. 3105.18(C)(1). However, in order to modify a spousal support

order, the trial court must determine that the circumstances of either party have changed and

the divorce decree must contain a provision specifically authorizing the trial court to modify

the amount or terms of spousal support. R.C. 3105.18(E) and (F). Since the trial court did

not find a change in circumstances in this case, it was not required to discuss the R.C.

3105.18(C)(1) factors in its judgment entry denying appellant's motion for reduction of

spousal support. Jacobsen v. Jacobsen, 7th Dist. Mahoning No. 03 MA 3, 2004-Ohio-3045,

¶ 30; Hill v. Hill, 12th Dist. Clermont Nos. CA2004-08-066 and CA2004-09-069, 2005-Ohio-

5370, ¶ 5 (analyzing first whether a substantial change in circumstances has occurred to

warrant modification and then determining whether modification was appropriate under R.C.

3105.18(C)). Therefore, the fact that the trial court did not address these factors is not
                                                -6-
                                                                         Warren CA2013-01-002

evidence of its failure to independently review the record.

       {¶ 17} Husband next argues that the trial court's failure to "comment or reference" any

portion of the record beyond the Final Decree and the magistrate's decision sufficiently

demonstrates the trial court's lack of an independent review of the record.

       {¶ 18} The fact that the trial court did not cite to any specific portion of the transcript or

any exhibit admitted into evidence beyond these relied upon by the magistrate does not

demonstrate that the trial court failed to undertake an independent review as to the objected

matters. Cottrell, 2013-Ohio-2397 at ¶ 94. "'While citing such material would tend to

demonstrate that the trial court conducted the requisite independent review, there is no

requirement in Civ.R. 53(D)(4)(d) that the trial court do so.'" Id., quoting Hampton v.

Hampton, 12th Dist. Clermont No. CA2007-03-033, 2008-Ohio-868, ¶ 17.

       {¶ 19} Finally, Husband contends that the trial court's complete disregard of several of

his objections demonstrates the trial court's failure to comply with Civ.R. 53(D)(4)(d) as

required. Specifically, Husband contends that the trial court "wholly ignored" his arguments

that (1) both Husband and Wife did not contemplate a change in Husband's income at the

time of the final hearing; (2) Husband's living expenses had increased; and (3) income should

be imputed to Wife to equalize the parties' income.

       {¶ 20} As stated above, Civ.R. 53(D)(4)(d) provides that, if one or more objections to a

magistrate's decision are timely filed, "the court shall rule on those objections," and, in so

ruling, "the court shall undertake an independent review as to the objected matters[.]"

Contrary to Husband's argument, this rule does not require the trial court to address each

and every portion of an objection raised by the party, but to rule on each objection.

       {¶ 21} In his "Objection to Magistrate's Decision," Husband provides as his first

objection: "[Husband's] request for a reduction in spousal support should have been

granted." Within this objection, Husband argued that a substantial change in circumstances
                                                -7-
                                                                                      Warren CA2013-01-002

had occurred due to Husband's decrease in income and increase in living expenses.

Husband further claimed in his first objection that the parties did not contemplate these

changes at the time of the Final Decree and that income should be imputed to Wife so as to

truly equalize the parties' incomes.

        {¶ 22} In its "Entry Overruling in Part and Sustaining in Part Objections to the

Magistrate's Decision," the trial court discussed Husband's "first objection," stating that

Husband "argues that he makes considerably less money now than was contemplated by the

Judgment Decree of Divorce" and that he "claims that he is unable to pay his bills after

paying Wife $2,708 per month in spousal support." After an albeit brief and cursory review of

the arguments raised by Husband, the trial court overruled Husband's first objection in its

entirety.

        {¶ 23} While we acknowledge that it would be a better practice for the trial court to

more fully discuss and review all aspects of a party's objections, we find that the trial court

ruled on the entirety of Husband's first objection in compliance with Civ.R. 53(D)(4)(d). As

such, we find that Husband has not affirmatively demonstrated that the trial court failed to

conduct an independent review of the record. The fact that the trial court did not reference

Husband's arguments or give as great a depth to the objection as it could have, and perhaps

should have, does not establish that the trial court violated Civ.R. 53(D)(4)(d) in ruling on the
                                                                                  2
objections and undertaking an independent review of the record.

        {¶ 24} Based upon the foregoing, we find that the trial court did not abuse its discretion

by allegedly failing to conduct an independent review of the record in contravention of Civ.R.


2. We additionally note that the trial court further demonstrated its independent review of the record by
sustaining Husband's objection that he be required to fully pay an invoice relating to maintenance of the marital
home. The trial court found that the magistrate was incorrect in ruling that Husband must pay the invoice and
altered the magistrate's award to require Wife to pay one-half of the invoice. Though the invoice issue was not
raised on appeal, the trial court's sustaining of Husband's objection indicates that it independently reviewed the
record in ruling on all of Husband's objections. This supports the argument that the trial court did more than just
"rubber-stamp" the magistrate's decision.
                                                       -8-
                                                                      Warren CA2013-01-002

53(D)(4)(d). Accordingly, Husband's second assignment of error is overruled.

       {¶ 25} Assignment of Error No. 1:

       {¶ 26} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S

MOTION FOR REDUCTION OF SPOUSAL SUPPORT.

       {¶ 27} In his first assignment of error, Husband argues the trial court erred in finding

that there was no substantial change in circumstances to warrant a reduction in his spousal

support obligation and that such a finding was against the manifest weight of the evidence.

       {¶ 28} "A trial court has broad discretion in determining a spousal support award,

including whether or not to modify an existing award." Hutchinson v. Hutchinson, 12th Dist.

Clermont No. CA2009-03-018, 2010-Ohio-597, ¶ 16, citing Strain v. Strain, 12th Dist. Warren

No. CA2005-01-008, 2005-Ohio-6035 at ¶ 10. Thus, absent an abuse of discretion, a

spousal support award or modification will not be disturbed on appeal. Id.

       {¶ 29} "In exercising its discretion to modify a spousal support award, a trial court must

determine: '(1) that the divorce decree contained a provision specifically authorizing the court

to modify the spousal support, and (2) that the circumstances of either party have changed.'"

Hutchinson at ¶ 17; Strain at ¶ 11; R.C. 3105.18(F). The party seeking modification of a

spousal support obligation bears the burden of showing that the modification is warranted.

Hutchinson at ¶ 17; Hill, 2005-Ohio-5370 at ¶ 5.

       {¶ 30} In determining whether the trial court's finding was supported by the greater

amount of credible evidence, this court "weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether, in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of

justice that the judgment must be reversed and a new trial ordered." Schneble v. Stark, 12th

Dist. Warren Nos. CA2011-06-063 and CA2011-06-064, 2012-Ohio-3130, ¶ 67; Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohi-2179, ¶ 12. "[E]very reasonable presumption must
                                              -9-
                                                                               Warren CA2013-01-002

be made in favor of the judgment and the finding of facts." Volkman at ¶ 21. "If the evidence

is susceptible of more than one construction, the reviewing court is bound to give it that

interpretation which is consistent with the verdict and judgment * * *." Id.

        {¶ 31} Neither party disputes that the trial court was authorized to modify the spousal

support obligation in this case. The parties' divorce decree granted the trial court continuing
                                                                             3
jurisdiction to modify the amount of spousal support throughout its duration. The dispute in

this case centers on the trial court's determination that the change in circumstances

requirement was not met and, specifically, that the change in circumstances was not

substantial and had been contemplated by the parties at the time of the Final Decree.

        {¶ 32} A change in circumstances "includes, but it not limited to, any increase or

involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical

expenses." R.C. 3105.18(F); Strain, 2005-Ohio-6035 at ¶ 13. The change in circumstances

must be (1) substantial, making the existing award no longer reasonable and appropriate; (2)

not purposely brought about by the moving party; and (3) not contemplated by the parties or

the court at the time the parties entered into the prior agreement.                      Strain at ¶ 13;

Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, ¶ 31-32; R.C.

3105.18(F).

        {¶ 33} At the Spousal Support Hearing, Wife testified that she believed the spousal

support award in the Final Decree was based upon a "tier" system. First, Wife was to receive

one-half of any income earned by Husband below $95,000. Next, Wife was to receive one-

half of any income earned by Husband above $95,000 less minimum wage (approximately

$15,000 at the time of the Final Decree) which would be imputed to Wife. Finally, Wife was


3. A portion of the Final Decree provides:

                The parties further agree that the spousal support shall be subject to the continuing
                jurisdiction of the Court and modifiable upon a change of circumstances which shall
                include cohabitation with an unrelated third party.
                                                   - 10 -
                                                                     Warren CA2013-01-002

to receive one-half of any bonuses and commission earned by Husband. During his

testimony, Husband agreed that this was the structure of the spousal support award as

contained in the Final Decree.

       {¶ 34} The Final Decree listed Husband's salary as $54,000 per year plus

commissions and provided that, in following the intent of the parties to equalize their income,

Husband shall pay Wife one-half of his base salary, or $27,000, and one-half of his

commissions "until such time as Husband has received a total gross income in a calendar

year of $95,000.00." Contrary to Husband's contentions, there is no indication in the Final

Decree that Husband will make $95,000 per year or that a change in circumstances would

occur if Husband failed to make $95,000 per year. Rather, the decree provides that, once

Husband earns $95,000 in total gross income in one year, his spousal support payments will

be offset by an imputation of income to Wife.

       {¶ 35} If Husband's argument that the parties anticipated Husband would make

$95,000 per year is accepted as true, then there would have been no reason why the Final

Decree would not have provided that Husband pay to Wife the sum of $47,500, or one-half of

his $95,000 base salary. Instead the Final Decree provides that Wife is entitled to one-half of

any income earned by Husband up to $95,000. Though Husband argues that the trial court's

use of $54,000 as his base salary was simply a "mistake" on the part of the trial court, we

disagree and find no support for this conclusion in the record. We find the intent of the

parties as set forth in the Final Decree was to equalize their incomes, whether Husband's

income be more or less than $95,000 per year, and that it was contemplated by the parties

and the trial court that Husband's salary could be less than $95,000 per year.

       {¶ 36} Thus, the unambiguous spousal support language contained in the Final

Decree provided that the parties would equalize their incomes by Husband providing Wife

one-half of his income until he reaches a yearly income of $95,000, at which time minimum
                                             - 11 -
                                                                     Warren CA2013-01-002

wage income would be imputed to Wife. The fact that Husband's income has changed from

$54,000 per year plus commissions to $65,000 per year plus a lower percentage of

commissions does not alter the language of the Final Decree or demonstrate a substantial

change in circumstances.

       {¶ 37} Husband also contends that a change in circumstances occurred in this case

due to an increase in his living expenses. Specifically, Husband argues that his monthly

income after his spousal support obligation is $2,708 while his monthly expenses, not

including groceries and health insurance, total approximately $4,722. Thus, Husband argues

that a substantial change in circumstances has occurred based upon an increase in his living

expenses. Within this argument, Husband also asserts that the trial court failed to address

this argument pursuant to Civ.R. 53(D)(4)(d).

       {¶ 38} As we have previously discussed above, though the trial court did not

specifically address Husband's contention that his increased living expenses constituted a

change in circumstances, the trial court overruled Husband's entire first objection which

included the increased living expenses argument. Therefore, the trial court complied with

Civ.R. 53(D)(4)(d). The remaining issues before us, then, are whether the trial court abused

its discretion in overruling that objection and whether such a decision was against the

manifest weight of the evidence.

       {¶ 39} The evidence from the June 15, 2012 Spousal Support Hearing provided that

Husband lived in a fully furnished apartment paid for by his former employer at the time the

Final Decree was filed. Husband's new employer, however, does not supply such a living

arrangement and Husband has been required to pay monthly rent, insurance, utilities, and

furniture expenses since November 2012. During the Spousal Support Hearing, Husband

provided the trial court with an exhibit setting forth a comparison of his expenses at the time

of the Final Decree with his current expenses. As part of his current expenses, Husband
                                             - 12 -
                                                                      Warren CA2013-01-002

included spousal support, which is not a living or medical expense as provided by R.C.

3105.18(F)(1). Husband also failed to include the mileage reimbursement he receives from

his current employer as well as the 70 percent of business expenses that his employer

reimburses.

       {¶ 40} In removing the spousal support from Husband's current expenses, we find that

Husband's monthly expenses at the time of divorce were $2,572 and his current monthly

expenses, not including groceries and health insurance, total approximately $3,295. We find

that such an increase in Husband's monthly expenses, less than $1,000 per month, does not

constitute a substantial change in circumstances in this case and note that the $3,258 figure

would be further reduced when Husband receives reimbursements from his employer. See

Mandelbaum, 2009-Ohio-1222 at ¶ 32 (providing that a substantial change in circumstances

is one that is drastic, material, and significant).

       {¶ 41} Based upon the foregoing, we find that the trial court did not abuse its discretion

in denying Husband's motion for reduction of spousal support and that such a determination

was not against the manifest weight of the evidence. The change in Husband's yearly

income and the minimal increase in his living expenses do not constitute substantial changes

in circumstances as contemplated by R.C. 3105.18(F).

       {¶ 42} Accordingly, Husband's first assignment of error is overruled.

       {¶ 43} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




                                               - 13 -
