COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69245 DAISY MEADOWS NKA TERRANOVA : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RALPH MEADOWS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : APRIL 18, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-142238 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ARTHUR P. LEARY, ESQ. ALAN I. GOODMAN, ESQ. 214 East Park Street 620 Terminal Tower Chardon, OH 44024 Cleveland, OH 44113 - 2 - PATTON, J. Appellant Ralph Meadows ("husband") appeals the domestic relations court's decision to adopt the referee's report which recommended denying the husband's motion to modify child support. The court also found the husband failed to pay a past arrearage in full. On July 17, 1983 the marriage of the husband and appellee Daisy Meadows ("wife"), was dissolved. The wife was awarded custody of the parties two minor children and the husband was ordered to pay $360 per month in child support for both children. On June 9, 1992 the husband's child support payments were modified to $212 per month. On April 1, 1994 the husband filed a motion to have his child support further modified. An evidentiary hearing was held in front of a referee, who recommended denying the husband's motion to modify because there was no change in circumstances justifying a modification. The referee also determined the husband overpaid his child support by $1,858.24 between June 17, 1992 and February 4, 1994. The trial court adopted the referee's findings of fact and conclusions of law over appellant's objections. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN FAILING TO MODIFY CHILD SUPPORT RETROACTIVE TO APRIL 1, 1994, THE DATE THE APPELLANT FILED HIS MOTION. The husband contends the referee failed to consider that the defendant had no income from the time he filed his motion until the - 3 - time of the hearing, a period of almost ten months. The husband argues the court should have retroactively modified his child support from the day he filed his motion. The law in Ohio is clear, "[a]bsent some special circumstance, an order of a trial court modifying child support should be retroactive to the date such modification was first requested." State, ex rel. Draiss v. Draiss (1990), 70 Ohio App.3d 418, 421. "Any other holding could produce an inequitable result in view of the substantial time it frequently takes to dispose of motions to modify child support obligations." Murphy v. Murphy (1984), 13 Ohio App.3d 388, 389. However, in order to have a modification of a child support order retroactive to the date it was first requested, the trial court must first determine that a modification of child support is warranted. Here, the referee found: "that no change in circumstances has occurred necessitating a modification of child support because the recalculated amount of support is less than ten percent (10%) than the amount of child support required to be paid under the existing order." Since the trial court determined a modification of child support was not warranted, it did not err by failing to modify child support retroactive to April 1, 1994, the date the husband filed his motion. Accordingly, the husband's first assignment of error is overruled. The husband's second assignment of error states: - 4 - THE TRIAL COURT ERRED IN FAILING TO GIVE THE APPELLANT FULL CREDIT FOR ALL CHILD SUPPORT PAYMENTS MADE TO APPELLEE, THEREBY REDUCING THE AMOUNT OF THE OVERPAYMENT THAT WAS OTHERWISE CREATED. The husband argues the trial court did not credit to his prior arrearage the $1,858.24 in child support he overpaid from June 17, 1992 to February 4, 1994, thereby paying off the arrearage. In 1986, the husband and wife signed an agreed judgment entry specifying the husband's past support arrearage at $5,760.00. The husband agreed to pay $25 per week to extinguish this arrearage. In 1992, the husband filed a motion to modify child support, claiming he had paid off the arrearage. Although the trial court granted the motion to modify child support, it adopted the referee's findings that: "as of June 20, 1986, Defendant-2 was in arrears in the amount of $5760.00; that Defendant-2 testified that he believed he has paid his arrearage to Defendant-1 as indicated by the CSEA records he had in his possession at the time of hearing; that said records were not certified and were not offered for evidence; that Defendant-2 was given until November 5, 1992 to submit certified CSEA records showing payments from June 20, 1986 to the date of the hearing, on his behalf; that of the writing of this report on November 6, 1992, no records have been submitted by Defendant-2; and therefore, the Referee makes no findings as to any arrearage/overpayment of support by Defendant-2 to Defendant-1." As in 1992, the husband here fails to substantiate his claim. The husband has not provided this court with either documentary - 5 - evidence or a transcript of the hearing before the referee. The only available source of evidence is the report and recommendation of the referee. In that report, the referee acknowledged the $1858.24 overpayment by the husband, but stated "said calculation does not include previously calculated arrearages" accruing from the 1986 agreed judgment entry. In the absence of a transcript or other evidence, this court is bound by a presumption of regularity in the prior proceedings. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; Vanke v. Vanke (1992), 80 Ohio App.3d 576, 582. Therefore, this court must presume regularity in the trial court's order because there is no way to compare the factual findings of the referee, as adopted by the trial court, with the actual testimony which was heard by the referee. Upon a review of the record that is before us, we find that there was a child support overpayment of $1858.24 by the husband, but due to lack of evidence we cannot find that the trial court erred in failing to give the husband credit towards his arrearage as a result of this overpayment. Therefore, the husband's second assignment of error is overruled. Judgment affirmed. - 6 - 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 Court of Common Pleas 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. O'DONNELL, P.J. KARPINSKI, J., CONCUR JUDGE JOHN T. PATTON 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, .