[Cite as Mayer v. Mayer, 2012-Ohio-4924.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                             :   JUDGES:
IMOGENE MAYER                                :   William B. Hoffman, P.J.
                                             :   Sheila G. Farmer, J.
                        Plaintiff-Appellee   :   Julie A. Edwards, J.
                                             :
-vs-                                         :   Case No. 2012 CA 00038
                                             :
                                             :
GARY MAYER                                   :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                          Civil Appeal from Stark County
                                                  Court of Common Pleas, Domestic
                                                  Relations Division, Case No. 2009
                                                  CR 00728

JUDGMENT:                                         Affirmed

DATE OF JUDGMENT ENTRY:                           October 22, 2012

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

BEVERLEY PROCTOR-DONALD                           CHARLES W. FONDA, ESQ.
ESQ.                                              75 Public Square – Suite 650
401 Tuscarawas Street, West                       Cleveland, Ohio 44113
Suite 500
Canton, Ohio 44702                                RAVI SURI, ESQ.
                                                  850 Euclid Ave., Suite 804
                                                  Cleveland, Ohio 44114
[Cite as Mayer v. Mayer, 2012-Ohio-4924.]


Edwards, J.

        {¶1}    Appellant, Gary Mayer, appeals a judgment of the Stark County Common

Pleas Court, Domestic Relations Division, modifying spousal support.          Appellee is

Imogene Mayer.

                                  STATEMENT OF FACTS AND CASE

        {¶2}    The parties were married in 1989. They separated in 2008, and were

granted a divorce in 2010. In the 2010 divorce judgment, the court awarded appellee

spousal support in the amount of $200.00 per month and half of a $43,178.71 workers’

compensation settlement which the court found to be marital property.           Appellant

appealed. This Court reversed, finding the workers’ compensation settlement to be

appellant’s separate property and remanded the case for further proceedings. Mayer v.

Mayer, 5th Dist. 2010–CA–00277, 2011-Ohio-1884.

        {¶3}    On remand, the case proceeded to a hearing before a magistrate on the

issue of modification of spousal support. The magistrate found that appellant’s monthly

income is $2,243.68, while appellee’s net income is $985.90, a reduction of about

$700.00 per month in appellee’s income due to her inability to work because of health

problems. The magistrate found that appellee had reduced her expenses as much as

possible; however, her current monthly expenses allow no room for error or emergency.

Due to the disparity in income, the magistrate recommended modifying spousal support

to $450.00.

        {¶4}    Appellant filed an objection to the magistrate’s report, arguing that the

amount of spousal support was against the weight of the evidence and an abuse of

discretion. He did not file a transcript of the hearing before the magistrate but attached
Stark County App. Case No. 2012 CA 00038                                                  3


his own affidavit to the objections, stating that the amount is unduly burdensome and

would create a hardship for him.

      {¶5}   The trial court noted that no transcript was prepared so the court was

unable to review the actual testimony. The court reviewed the magistrate’s findings and

decision and adopted the decision of the magistrate. Appellant assigns two errors:

      {¶6}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN MORE THAN

DOUBLING WIFE’S SUPPORT TO $450/MONTH BECAUSE THAT AMOUNT WOULD

INEQUITABLY LEAVE HUSBAND UNABLE TO MEET HIS NECESSARY MONTHLY

EXPENSES, WHILE WIFE WOULD HAVE A SIGNIFICANT MONTHLY SURPLUS.

      {¶7}   “II. THE TRIAL COURT ERRED IN FAILING TO SPECIFICALLY RULE

ON HUSBAND’S OBJECTIONS BECAUSE CIV. R. 53(b) REQUIRES A RULING ON

OBJECTIONS PRIOR TO ADOPTING A MAGISTRATE’S DECISION.”

                                                I

      {¶8}   In his first assignment of error, appellant argues that the court erred in

increasing appellee’s spousal support to $450 per month because that amount leaves

him unable to meet his expenses and leaves appellee with a surplus. He further argues

that the court erred in increasing support based on the finding that the workers’

compensation award is separate property because he needs that money for future

medical expenses.

      {¶9}   Appellant did not file a transcript of the proceedings with the trial court for

ruling on his objections as required by Civ. R. 53(D)(3)(b)(iii). Appellant also has not

filed a transcript with this Court. Our review of the trial court's findings is limited to

whether the trial court abused its discretion in adopting the magistrate's report when the
Stark County App. Case No. 2012 CA 00038                                                  4

party objecting to a magistrate's report fails to provide a transcript. State ex rel. Duncan

v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995). In order

to find an abuse of discretion, we must look at the totality of the circumstances in the

case sub judice and determine whether the trial court acted unreasonably, arbitrarily or

unconscionably and there was not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983). When the objecting party fails to provide a

transcript of the original hearing before the magistrate for the trial court's review, the

magistrate's findings of fact are considered established and may not be attacked on

appeal. Doane v. Doane, 5th Dist. App. No. 00CA21, 2001 WL 474267 (May 2, 2001).

Accordingly, we review this matter only to analyze whether the trial court abused its

discretion in reaching specific legal conclusions based upon the established facts.

Sochor v. Smith, 5th Dist. No. 00CA00001 (June 28, 2000).

       {¶10} We do not find that the court abused its discretion in modifying support

based on the facts as set forth in the magistrate’s decision. The magistrate found that

appellant’s expenses included $2,415.50 exclusive of spousal support, but she also

noted that his rent is on the high end and appellee has made a “superb effort” to lower

her expenses. It appears from the magistrate’s findings that both parties are living on

an amount of money that leaves little room for luxuries or error, and based on the

disparity of income, we cannot find, in the absence of a transcript, that the court abused

its discretion.

       {¶11} Further, contra to appellant’s argument, the decision does not reflect that

the court increased support because the workers’ compensation settlement is now

designated as separate property. The magistrate merely noted that the appellee no
Stark County App. Case No. 2012 CA 00038                                                   5


longer had the contemplated asset of $9,000.00 nor the $200.00 per month payment

from the workers’ compensation award.

       {¶12} The first assignment of error is overruled.

                                                  II

       {¶13} In his second assignment of error, appellant argues that the court erred in

failing to specifically rule on his objections as required by Civ. R. 53(D)(4)(d):

       {¶14} “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.”

       {¶15} Appellant cites to O’Brien v. O’Brien, 5th Dist. No. 02 CA-F-08-038, 2003-

Ohio-2893, where we held that the trial court erred in adopting the magistrate's decision

without specifically stating whether it was overruling or sustaining any, all, or part of the

objections both parties filed to the magistrate’s decision.

       {¶16} In the instant case, the trial court did not specifically overrule appellant’s

objection to the magistrate’s report. However, appellant filed a single objection, arguing

that the amount of spousal support was against the manifest weight of the evidence and

therefore an abuse of discretion.      The trial court noted that appellant had filed an

objection. The court further noted that appellant failed to provide a transcript, but the

court reviewed the findings and decision. The court stated that it made an independent
Stark County App. Case No. 2012 CA 00038                                                  6


analysis of the issues and law and adopted the magistrate’s decision.             Because

appellant filed a single objection and failed to file a transcript, we find that the court’s

decision is adequate to rule on the objection even in the absence of specific language

stating that the objection is overruled.

       {¶17} The second assignment of error is overruled.

       {¶18} The judgment of the Stark County Common Pleas Court, Domestic

Relations Division, is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES

JAE/r0829
[Cite as Mayer v. Mayer, 2012-Ohio-4924.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


IMOGENE MAYER                                   :
                                                :
                           Plaintiff-Appellee   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
GARY MAYER                                      :
                                                :
                       Defendant-Appellant      :       CASE NO. 2012 CA 00038




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is

affirmed. Costs assessed to appellant.




                                                    _________________________________


                                                    _________________________________


                                                    _________________________________

                                                                 JUDGES
