COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69261 MARIAN PRUCE : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH PRUCE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JANUARY 11, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-155960 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: JOSEPH R. ULRICH, ESQ. MORTON L. KAPLAN, ESQ. 1959 Mentor Avenue, Suite 2 1750 Standard Bldg. Painesville, OH 44077 Cleveland, OH 44113-1747 JOHN D. SUTULA, ESQ. 920 Terminal Tower Cleveland, OH 44113 - 2 - PATTON, J. Plaintiff-wife Marian Pruce and defendant-husband Joseph Pruce, both educators, were divorced in 1985. In a settlement agreement incorporated into the divorce decree, the parties agreed the wife would retain custody of their sole child and the husband would pay $50 per week in child support. In July 1993, the parties agreed to modify the child support order by increasing the husband's obligation to $537.50 plus poundage. On November 10, 1995, the husband filed a motion to modify the support order, citing the wife's increased income as a changed circumstance justifying the proposed modification. In addition, he maintained his own income had dropped and a recalculation of child support would show a ten percent differential between the prior support order and what the circumstances now required. A referee heard the matter and found no change of circumstances necessitating modification of the support order. Using current income figures for the husband, the recalculated support figure failed to meet the ten percent threshold by eighty- nine cents. The domestic relations court overruled the husband's objections and approved the referee's findings of fact and conclusions of law. In his first assignment of error, the husband argues the referee misstated the amount of support agreed to in the July 1993 modification and this misstatement adversely affected the calculation of support for purposes of the November 1993 motion to - 3 - modify. The divorce decree required the husband to pay $50 per week in child support. The May 1993 modification specifically increased that amount to "the sum of $125.00 per week, $537.50 per month, plus poundage ***." In addition, a handwritten notation on the child support computation worksheet attached to the agreed judgment entry states, "[f]ather will increase his yearly obligation $393.00 per year due to needs of child." The referee found the recalculated support obligation ($484.64 per month) was still less than a ten percent change from the previously ordered $537.50. The husband claims this is because the referee improperly failed to add the additional $393.00 yearly payment to the May 1993 agreed judgment entry. The husband's argument lacks merit. A review of the child support worksheet attached to the May 1993 agreed judgment entry shows the parties correctly computed the husband's yearly support obligation. Using then-applicable support guidelines, the parties calculated the husband's support obligation at $6,057. To this figure, they added the additional support of $393 to arrive at a total yearly obligation of $6,450 ($6,057 + $393 = $6,450). The referee used the $6,450 figure as the basis for computing the alleged change in circumstances justifying the husband's proposed modification. Pursuant to R.C. 3113.215(B)(4), a ten percent deviation between support obligations and a current recalculated amount shall be considered by the court as a change of circumstance that is - 4 - substantial enough to require a modification of the child support order. The terms of R.C. 3113.215 are mandatory in nature and must be followed literally and technically in all material respects. Marker v. Grimm (1992), 65 Ohio St.3d 139, paragraph two of the syllabus; Rock v. Cabral (1993), 67 Ohio St.3d 108, 110. The referee calculated the husband's current support obligation at $484.64 per month. Additional computations showed the change in the husband's monthly support obligation was just less than the ten percent threshold amount ($537.50 - $53.75 = $483.75), or eighty- nine cents. Because this figure did not meet the ten percent deviation to show a substantial change in circumstances, the trial court did not err by adopting the referee's recommendation to deny the motion to modify child support. The first assignment of error is overruled. In his second assignment of error, the husband claims the court erred by failing to consider other substantial changes in circumstances besides the ten percent criterion which would justify modification of child support. He claims these factors are the reduction of his summer employment income and the wife's remarriage to a spouse with his own source of income. The husband ran his own summer painting and remodeling business during the school summer break. He testified he would terminate his work as a painter, but nonetheless anticipated continuing some form of summer employment through summer school teaching or retail clerking, earning between $1,000 and $1,500 per - 5 - summer. The work sheet shows the referee added $1,500 (along with anticipated income from rental properties) to the husband's gross income. This figure is in line with the husband's own testimony that his summer income was $1,599 in 1993 and between $1,500 and $2,000 in 1994. As to the contributions of the wife's spouse, R.C. 3113.215(B)(3)(g) provides the court, when determining whether an amount of child support would be unjust, may consider benefits that either parent receives from remarriage or sharing living expenses with another person. The decision to modify child support in the absence of a ten percent deviation is within the sole discretion of the trial court. Rock, supra, at 112; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. Our review of the evidence fails to show the trial court abused its discretion by adopting the referee's recommendation to deny the motion to modify. At the hearing on the motion, testimony concerning the wife's spouse's contribution to the marriage formed a negligible portion of the husband's case. In fact, the husband specified the wife's increased income from teaching as grounds for the motion to modify, and the thrust of the wife's testimony related to that point. Consequently, the husband did not elicit significant testimony relating to the benefit the wife derived from her spouse's financial contributions. The evidence he did elicit showed the wife's spouse earned about $35,000 per year, although the parties maintained separate financial accounts. The spouse - 6 - paid utilities, but the wife paid for food, clothing for the child, and debts relating to the house. Moreover, the husband's motion to modify support came only six months after he signed the May 1993 judgment agreement. The trial court could reasonably find the short lapse of time between the modification and the wife's remarriage belied any argument relating to a significant change of circumstances justifying modification. Indeed, the evidence did not show the wife derived any significant financial benefit from remarriage. On these facts, we cannot say the trial court abused its discretion by adopting the referee's recommendation to deny the motion to modify. The second assignment of error is overruled. In his third assignment of error, the husband claims the trial court erred in its computation of both his and the wife's income. The significance of this argument relates to the trial court's finding that the husband missed the ten percent deviation threshold by eighty-nine cents. The husband maintains a slight correction of these income totals will bring him within the ten percent deviation amount sufficient to show a change of circumstances pursuant to R.C. 3113.215(B)(4). The referee heard the husband testify he could earn between $1,000 and $1,500 per summer as a summer school teacher. The husband complains the referee improperly computed his summer income at $1,500, choosing to take the high end of the husband's earning estimate. However, the husband himself stated summer school pay - 7 - "would not be that much different" from what he earned from his painting and remodeling business, about $1,500 per summer. Given the $500 range in potential earnings, we cannot say the trial court abused its discretion by adopting the referee's recommendation to adopt the high end figure for summer income. Likewise, the husband's complaint that the referee failed to use actual 1994 summer earnings of $1,430.25 must fail. Although the husband testified he earned $1,430.25 from three "big" jobs, he also stated that he worked on at least seven other smaller jobs that grossed $1,375 with no corresponding materials expense. Arguably, the referee's findings understate the husband's 1994 income because the smaller jobs are not added to the amount netted from the three big jobs. In any event, the $1,500 amount is a reasonable average in light of the testimony and exhibits. Finally, the husband claims the referee did not accurately compute the wife's total gross income because he failed to add $213 of interest income reported on her 1993 income tax return. The referee computed the wife's 1994 gross income from the husband's exhibit A, a teacher's annual salary notification. While interest income should be added to total gross income for purposes of determining support payments, see R.C. 3113.215(A)(2), there is no evidence in the record to show the wife would report $213 in interest income for tax year 1994. Absent clear evidence that interest income had accrued at the time of the hearing, the trial - 8 - court did not abuse its discretion by adopting the referee's findings. The third assignment of error is overruled. Judgment affirmed. - 9 - 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. LEO M. SPELLACY, C.J. JAMES D. SWEENEY, 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, at which time it will become the judgment and order of the court and time period for review will begin to run. .