COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66809 HELEN KRAUSE : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ROBERT KRAUSE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 27, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-190,271 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JOSEPH G. STAFFORD JOHN J. DYER III Attorneys at Law 310 Lakeside Avenue 100 Courthouse Square Cleveland, Ohio 44113 For defendant-appellant: JAMES G. MEIMARIS Attorney at Law 616 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 - 2 - DONALD C. NUGENT, J.: This is an appeal from the Cuyahoga County Court of Common Pleas, Domestic Relations Division. Appellant, Robert Krause, seeks a review of the trial court's denial of his motion to modify spousal support to appellee, Helen Krause. For the reasons that follow, we affirm the judgment of the trial court. I. The parties herein were divorced on January 19, 1990 after forty-two years of marriage. Pursuant to the divorce decree, the parties agreed upon a separation of the marital and personal property. Appellee was awarded assets with a total value of approximately $303,628, including the marital residence. Appellant was awarded assets of approximately $237,032. In addition, the trial court ordered appellant to pay appellee support alimony in the amount of $1,000 per month, plus poundage, until her death, remarriage or further order of court. On February 11, 1993, appellant filed a motion to modify award of support alimony. By way of motion, appellant contended that appellee's income had substantially increased and that his earning capability had substantially decreased and was, therefore, inadequate to meet the obligations imposed by the court. - 3 - On September 17, 1993, appellant's motion was set for hearing and referred to a referee of the domestic relations court. Both parties presented evidence and testified regarding their present financial situations. On October 25, 1993, the referee issued a six-page report for the consideration of the trial court. The pertinent facts derived from the findings of the referee are as follows: The referee further finds that the parties submitted pursuant to Local Rule 19(B) Income and Expense Worksheets to the Court as evidence; * * * The referee further finds that plaintiff's date of birth is 7/15/25. The referee further finds that defendant's date of birth is 12/30/27. * * * The referee further finds that plaintiff is living in the former marital home with the parties' adult daughter; that she has no monthly mortgage payment; that her monthly real estate taxes are $154.00; that her monthly utility expenses are approximately $214.00; and that plaintiff has stated monthly expenses of approximately $2,199.00 of which the Referee finds approximately $1,652 to be her reasonable monthly expenses, resulting in total monthly expenses for plaintiff of $2,020.00. Plaintiff's expenses exceed her current order of support and her current income by $37.00 per month. Plaintiff testified she makes up the difference from her savings. * * * Plaintiff testified that the parties' adult daughter does not contribute to her household expenses since the daughter is unemployed. - 4 - * * * With regard to defendant's monthly expenses; he indicates on Exhibit B that his monthly utility expenses are $220; that he has other monthly expenses of $1,550; and that his monthly expense for home maintenance is approximately $230, although he has no monthly expense for housing. Defendant indicates that he pays an additional $840.00 per month for debt, excluding his alimony payment. Defendant testified that his monthly expenses include his present wife's expenses since she is not employed. The Referee further finds *** that his wife inherited one half of the equity in their present home in 1991; and that defendant used his own assets to purchase the remaining half interest for approximately $40,000 in cash. * * * Defendant testified that in addition to her interest in the home, his present wife also inherited approximately $20,000 cash in 1991. * * * Defendant has no current expense for housing, but testified that he pays approximately $230 in monthly home maintenance expenses which is still $220 per month less than his prior housing expense. Defendant testified that in 1993 he bought his current wife a Ford Mustang for $19,500; and that since the divorce, he has also given his current wife a gift of $15,000 to show his devotion to her. Since the divorce, he has made major household purchases of approximately $7,100 and he has re-wired his home at a cost of $500.00. * * * With regard to his physical condition, defendant testified he has eye problems and back pain due to a herniated disc. Defendant also has a slight hearing problem, otherwise, the defendant appears in good physical condition. * * * - 5 - With regard to defendant's income, he indicates on his Income and Expense statement which was admitted as Exhibit B that he earns gross income of $4,100 per month and net monthly income of $3,150. The gross income on his expense sheet if annualized, would amount to yearly income of $49,200. In support of his testimony, defendant offered a copy of his pay stub from Ford as Exhibit A, which shows that he earned gross income of $1,038.36 and net income of $489.58 for a one week pay period ending 8/1/93. The Exhibit shows that he worked 46.5 hours during that period. The Exhibit also indicate that defendant's year- to-date earnings through 8/1/93 were $44,975.88, which if annualized, would amount to yearly gross income of $77,100. Defendant's earnings for that particular pay period, if annualized, would be $53,994. Defendant produced no tax returns, or any other documentary evidence as to his income. Defendant acknowledged on cross examination that he earned gross income of $74,024 in 1990, $54,832 in 1991 and $64,711 in 1992. Defendant also acknowledged on cross examination that he worked 16.5 hours of overtime during the weeks of 8/22/93 and 9/5/93; and that he has consistently worked between 6.5 and 16.5 hours of overtime per week. * * * With regards to plaintiff's income, she testified that since the divorce her monthly Social Security benefits have increased from $105 to $519. However, at the time of the divorce, the Court took into consideration that plaintiff will qualify for the maximum amount $427 per month from Social Security. * * * At the time of the prior order plaintiff was paying approximately $200 per month for COBRA coverage and she now pays approximately $87 per month for Medicare plus an additional $36 per month for supplemental coverage. Plaintiff testified that her real estate taxes have increased $29 per month; that her car insurance - 6 - has increased $50 per month since she did not previously drive an automobile. * * * Although the plaintiff's Social Security income has increased by $92 and her medical insurance has decreased approximately $77 per month for a net increase of $169, her other monthly expenses have increased and she has had to deplete her savings in order to make repairs to the home. Thus, plaintiff has not had a change of circumstances with regard to her income sufficient to justify a decrease in the current order. * * * Plaintiff has had eye surgery and had surgery for her gall bladder approximately six weeks prior to hearing. Plaintiff testified she is unable to work due to her age and physical condition. Upon consideration of the evidence before her and the statutory factors set forth in R.C. 3105.18(B), the referee recommended that appellant's motion to modify spousal support should be denied because appellant did not meet his burden of proving a "change of circumstances since the divorce to justify a modification." On October 26, 1993, the report of the referee was filed and journalized by the domestic relations court. Both parties have presented affidavits stating that they did not receive a copy of the referee's report by mail. Appellee's affidavit states that on November 8, 1993, she became aware of the filing of the referee's report and filed a motion for extension of time in which to file her objections to the referee's report. - 7 - Appellant's affidavit states that only upon receiving notice of the filing of the appellee's motion for continuance did appellant become aware of the filing of the referee's report. Thereafter, on December 1, 1993, appellant filed his motion for extension of time to obtain a transcript and to file objections. Attached to appellant's motion was an affidavit listing the name of the court reporter and stating that the transcript would be prepared within thirty days. On December 20, 1993, the trial court denied appellant's motion for extension of time. On December 23, 1993, the trial court, after independent review of the referee's report, denied appellant's motion to modify spousal support and ordered appellant to continue to pay $1,000 per month, plus poundage. The trial court also denied as moot appellant's motion to escrow spousal support. Thereafter, on January 24, 1994, appellant filed his appeal with this court, raising the following assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED APPELLANT TO CONTINUE TO PAY ONE THOUSAND DOLLARS PER MONTH IN SPOUSAL SUPPORT, RATHER THAN REDUCING THE AWARD THROUGH MODIFICATION, WHERE APPELLEE'S EXPENSES HAVE SIGNIFICANTLY DECREASED AND APPELLEE'S INCOME HAS SIGNIFICANTLY INCREASED SINCE THE AWARD OF SPOUSAL SUPPORT AND WHILE APPELLANT'S EXPENSES HAVE SIGNIFICANTLY INCREASED AND APPELLANT'S INCOME SIGNIFICANTLY DECREASED SINCE THE AWARD OF SPOUSAL SUPPORT. II. - 8 - As a preliminary matter, on December 5, 1994, during the pendency of this appeal, appellee, Helen Krause, filed a motion to dismiss appeal. As the determination of the motion will necessarily control whether this court will reach the substance of appellant's argument, we will first address the merits, or lack thereof, of appellee's motion. Appellee moves this court to dismiss the herein appeal on the ground that the appellant failed to timely file objections to the 1 referee's report pursuant to the mandates of Civ.R. 53(E)(2). Appellee argues that appellant's failure to timely file objections to the referee's report precludes the appellant from appealing the trial court's decision to this court. For the reasons that follow, we deny appellee's motion to dismiss appeal. In support of her motion to dismiss, appellee relies, inter alia, upon Civ.R. 53(E)(6), which states, in pertinent part, as follows : On appeal, a party may not assign as error the court's adoption of a referee's finding of fact unless an objection to that finding is contained in that party's written objections to the referee's report. 1 Civ.R. 53(E)(2) states, in pertinent part, as follows: Within fourteen days of the filing of the report, a party may serve and file written objections to the referee's report. * * * The objections shall be considered a motion. Objections shall be specific and state with particularity the grounds of objection. - 9 - Further, appellee argues that the ruling in Proctor v. Proct- or (1988), 48 Ohio App.3d 55, precludes the appellant from bringing this action in the appellate court. We do not agree. The Proctor court held the following: An assignment of error based upon a trial court's adoption of a Referee's finding of fact is waived unless an objection to that finding of fact is contained in the party's written objections to the Referee's report. (Emphasis added). Assuming, arguendo, that the appellant's assignment of error was based upon the trial court's adoption of the referee's report, Proctor would not require this court to dismiss the appeal in its entirety. Rather, the holding in Proctor would require this court to treat the appellant's assignment of error as waived. However, in the case sub judice, the appellant's assignment of error is not based upon the trial court's adoption of the referee's findings of fact. Rather, appellant's assignment of error is based upon the trial court's alleged abuse of discretion in weighing the evidence which was presented before it. The appellant does not contest any of the findings of fact made by the referee or adopted by the trial court. Rather, appellant argues that, as a matter of law, the judgment of the trial court is against the manifest weight of the evidence. In essence, it is appellant's argument that the evidence presented before the referee, and adopted by the trial court, so conclusively showed a change in appellant's circumstances - 10 - 2 that under the dictates of R.C. 3105.18(F), the trial court should have, as a matter of law, ordered a modification of the prior support award. Therefore, the proper standard for this court to apply is to review the evidence presented to the referee to determine whether the trial court's adoption of the referee's findings amounted to an abuse of discretion. This is the very determination which was made by the Proctor court. A thorough reading of Proctor reveals, at 63: *** [w]e hold that, unlike the failure to object at all, the mere failure to submit a transcript or affidavit in support of an otherwise properly made objection to a referee's report as provided in Civ.R. 53(E)(6) does not preclude appellate review of the trial court's adoption of a referee's finding of fact. However, in the absence of such transcript or affidavit, appellate review of the trial court's adoption of that finding of fact will be limited to whether the trial court's adoption of that finding constituted an abuse of discretion. See Purpura v. Purpura (1986), 33 Ohio App.3d 237. (Emphasis added). Therefore, the appellant's failure to object to the referee's findings pursuant to Civ.R. 53(E) has merely precluded the appellant from raising any objection before this court as to the 2 A change in circumstance is defined by R.C. 3105.18(F), which states in pertinent part as follows: *** [A] change in circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses. - 11 - factual findings made by the referee in relation to the evidence presented. Indeed, Civ.R. 53(E)(5) provides: *** The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations 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 defects 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. (Emphasis added.) Therefore, the appellant's present appeal can only be reviewed by this court to determine whether the trial court's application of the law to the facts presented in this case amounted to an abuse of discretion. In other words, under the dictates of R.C. 3105.18(F), was the decision of the trial court supported by competent evidence? If there is some competent, credible evidence to support the trial court's findings, this court will not reverse the trial court's decision. See, C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Accordingly, pursuant to the holding of Proctor, this court is not persuaded that the appellant's failure to object to the referee's report would preclude the appellant from appealing the decision of the trial court as it pertains to an abuse of discretion by the trial court in applying the law. Appellant's sole assignment of error presents an issue as to whether the trial court abused its discretion in denying appellant's motion to modify - 12 - when there existed evidence before the referee that the appellant's income had decreased and the appellee's income had increased. Thus, the appellee's motion to dismiss this appeal is denied. III. With the foregoing considerations in mind, we now turn to consider appellant's argument that, considering the weight of the evidence before it, the decision of the trial court denying a modification of spousal support amounted to an abuse of discretion. R.C. 3105.18(C)(1) states the method by which a trial court shall determine the amount of spousal support. It states, in pertinent part, as follows: *** 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 court shall consider all of the following factors: (a) the income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; * * * - 13 - (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; * * * (l) The tax consequences, for each party, of an award of spousal support; * * * (n) Any other factor that the court expressly finds relevant and equitable. In the initial award of spousal support, the trial court considered all of the above factors and duly awarded appellee spousal support in the amount of $1,000 per month. Now, appellant asserts that, considering all of the foregoing factors, he has undergone such a clear change of circumstances that the denial of his motion to modify spousal support amounted to an abuse of discretion because it was arbitrary and not supported by the evidence. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In support of his motion, appellant contends that as a result of his advanced age, he is unable to work the amount of hours which he has been accustomed to working at Ford Motor Company. Thus, appellant contends, his income has decreased substantially due to this inability to work. - 14 - In the hearing before the referee, appellant submitted into evidence a pay stub from the week ending 8/1/93. This pay stub showed that he worked 46.5 hours during that week. The pay stub showed that appellant had earned a gross income of $1,038.36 and net income of $489.58 for that week. However, the pay stub also showed that he had year-to-date earnings of $44,975.88, which, if annualized, would amount to a yearly gross income of $77,100. This evidence, submitted by appellant himself, is surely competent and credible evidence from which the trial court could conclude that the appellant actually had increased rather than decreased earnings. In addition, appellant acknowledged on cross- examination that he earned a gross income of $74,024 in 1990, $54,832 in 1991 and $64,711 in 1992, all of which are increases over the appellant's earnings at the time of divorce ($52,000). The decision of the trial court was based upon an adoption of the referee's findings of fact. As stated in part II of this opinion, appellant failed to object to the findings of fact of the referee. Upon the recommendations within the referee's report, the trial court entered a finding against a modification for the appellant. The referee's report found that considering the facts before it, the appellant failed to show that his income had decreased in an amount sufficient enough to establish a change of circumstances within the confines of R.C. 3105.18. While the referee is the tentative finder of fact, the trial court is the ultimate finder of fact and need not defer to the - 15 - referee's factual findings. Coronet Ins. Co. v. Richards (1991), 76 Ohio App.3d 578, 585. "However, the standard by which a trial court decides whether to adopt, reject, or modify the report of a referee is not the same as that which governs the review by an appellate court of the trial court's decisions upon questions of law. The Civil Rules clearly provide that the trial court must make its own factual determination by undertaking an independent analysis of the issues." DeSantis v. Soller (1990), 70 Ohio App.3d 226, at 233. Moreover, the trial court should not adopt findings of the referee which were objected to by either party unless it fully agrees with the referee's findings after undertaking its own independent analysis. As previously noted, the appellant failed to file objections to any of the findings made by the referee and adopted by the trial court. However, even though no objections were filed, the trial court was still under a duty to critically review and verify to its own satisfaction the correctness of the referee's report. Polen v. Prines (1990), 69 Ohio App.3d 631, 636; Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 105. In the present case, by adopting the referee's report and finding in favor of the appellant, the trial court agreed with the determination of the referee that the facts presented by the appellant did not amount to a change of circumstances warranting a modification of the previous spousal support award. - 16 - In viewing this evidence, it was the role of the trial court to determine whether the amount of support of the original order should be modified based upon the parties' present circumstances. Where modification of an existing order for the payment of spousal support is requested, the threshold determination for the trial court is whether there has been a substantial change in circumstances which was not contemplated at the time of the original order. Roach v. Roach (1989), 61 Ohio App.3d 315, 319; Bingham v. Bingham (1983), 9 Ohio App.3d 191. (See, R.C. 3105.18[F], footnote 2, supra.) Only after a substantial change in circumstances is found can a trial court consider whether or not an existing order should be modified. The latter inquiry involves a re-examination of the existing order in light of the changed circumstances and requires a two-step determination of whether the support alimony is still necessary and, if so, what amount is reasonable. In addressing the question of whether the existing order should be modified, the trial court's discretion is guided and limited by the consideration of all relevant factors, including those listed in R.C. 3105.18(B). Thacker v. Thacker (1991), 74 Ohio App.3d 348; Leighner v. Leighner (1986), 33 Ohio App.3d 214. In the present case, both parties testified before the referee and presented evidence to show that their circumstances had changed. Appellant contended that his added expenses for his new wife, in addition to his inability to work the hours that he used - 17 - to work, resulted in his increased expenses and decreased income. However, these contentions were not supported by the evidence submitted to the referee. Evidence was presented to the referee that the appellant has voluntarily undergone a great deal of his expenses. Appellant testified that he had furnished his new wife's home, bought her a new car, and given his new wife a gift of $15,000 to show his devo- tion to her. Also, the appellant stated that he pays $840 per month on debt payment, excluding his support payment. This court has previously held that a trial court does not abuse its discretion in overruling a motion to modify alimony payments when the alleged inability to pay support stems from the obligor's voluntary decision to incur additional debt. Shanley v. Shanley (1989), 46 Ohio App.3d 100. In addition, the evidence presented showed that the appellant's wife had inherited a half-interest in the couple's home as well as approximately $20,000 in cash. Appellant testified that his wife did not owe anything on the home other than the periodic property taxes and upkeep. It was not an abuse of discretion for the trial court to consider the income and inheritance of the appellant's second wife in determining the resources available to the appellant. See, Roach v. Roach, supra (holding where the husband moves for a reduction of alimony based on reduced income after retirement, his second wife's income may be considered in determining resources available.) - 18 - All of this evidence could have properly led the trial court to find that the appellant did not carry his burden of proving that a change of circumstance existed sufficient to modify the previous award of spousal support. At the time of the original spousal support award, the trial court had before it the parties' lists of monthly expenses and tax returns evidencing their income. The trial court reviewed all of the evidence in light of the factors listed in R.C. 3105.18(B) and concluded that $1,000 a month was a just and proper spousal support award. In the hearing on appellant's motion to modify, the trial court was again presented with evidence to determine the parties' income and expenses. Considering all of the factors listed in R.C. 3105.18(B), the trial court properly found that the circumstances of the parties had not undergone such a substantial change to warrant a modification of the previous award. We find that the decision of the trial court was clearly not against the manifest weight of the evidence as it was supported by competent and credible evidence. Therefore, the decision of the trial court did not amount to an abuse of discretion. Accordingly, appellant's sole assignment of error is overruled. Judgment affirmed. - 19 - 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 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. LEO M. SPELLACY, P.J. TERRENCE O'DONNELL, J. CONCUR JUDGE DONALD C. NUGENT N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .