COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72076 MARILYN JONES, ET AL. : : JOURNAL ENTRY Plaintiff-appellees : : AND vs. : : OPINION BENJAMIN HOLBERT, III : : Defendant-appellant : : : JANUARY 8, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Juvenile Court : Case No. 9073316 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: For defendant-appellant: TIMOTHY G. SPACKMAN, ESQ. Robert J. Sawyer, Esq. Assistant County Prosecutor 300 The Superior Bldg. 1910 Carnegie Avenue, 2nd Fl. 815 Superior Avenue Cleveland, OH 44115 Cleveland, OH 44114-2746 PATTON, J. Defendant-appellant Benjamin Holbert III ( defendant ) appeals the juvenile court's order approving and adopting the recom- -2- mendation of the magistrate relating to child support payments. Defendant claims the magistrate's computations were incorrect regarding both his gross income and the court ordered support paid to other children. On September 3, 1996 a hearing was held before the magistrate. The magistrate noted paternity had already been established and temporary support had previously been ordered. Based on the guideline worksheets, which establish a party's gross income, debts, and child's expenses, the magistrate recommended defendant pay $123.00 per week in child support, plus $7.00 per week for past care, plus a fee of 2%. Defendant filed objections to the magistrate's report, complaining that his annual gross income and annual court-ordered support paid for other children were incorrectly computed. Defendant attached a notarized document from his employer showing deductions taken each week from his pay check. This document reveals defendant pays support to two other children. He makes bi- weekly support payments of $81.60 to a child in Portage County and bi-weekly payments of $155.04 to a child in Franklin County. The juvenile court, over defendant's objections, adopted the magistrate's report. Defendant timely filed his notice of appeal and presents a single assignment of error. In his sole assignment of error, defendant states as follows: THE TRIAL COURT COMMITTED ERROR AS A MATTER OF LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN FAILING TO ENFORCE CHILD SUPPORT GUIDELINES PURSUANT TO OHIO REVISED CODES 3113.215 (B)(1)(a)(b), 3113.215(D), AND 3113.215(E)(F). -3- Defendant complains the trial court erred by adopting the erroneous recommendation of the magistrate in violation of R.C. 3113.215(B)(1)(a) and (b). He claims the worksheet used by the magistrate to determine support payments incorrectly lists $2,280.00 instead of $6,152.64 as annual court-ordered support paid to other children. The error, defendant argues, resulted in a higher child support payment. In addition, defendant contends the magistrate overstated his gross annual income. In response, the state maintains defendant, in juvenile court, never addressed whether there was an error on the worksheet concerning support paid to other children or whether defendant presented evidence of another support order from a different jurisdiction. Thus, the alleged support order error cannot be considered for the first time on appeal. The state also argues defendant did not attach a relevant portion of the transcript to his objections, in violation of Civ.R. 53 (E)(3)(b). Therefore, the juvenile court should not have considered defendant's objec- tions to the magistrate's report. First, regarding defendant's income, we find the juvenile court did not err in calculating defendant's gross income. The juvenile court worksheet attached to the magistrate's October 3, 1996 decision verifies defendant's gross income as $58,438.00. On appeal, the state submits defendant's W-2 tax statement which also verifies defendant's income as $58,438.00. Defendant offers no evidence to support his argument that this amount was erroneously -4- calculated, therefore, defendant's income was correctly reported by the juvenile court. Second, regarding defendant's annual court-ordered support paid to other children, we find the juvenile court erred in overruling defendant's objections. On March 26, 1996 a hearing was held to determine maternity expenses and modify child support. Three days later the magistrate's decision was issued and in it he stated, *** it is stipulated that figures in the guideline worksheet are accurate, used in the calculation of child support. Attached to this decision was the child support computation guideline and on the line for annual court-ordered support paid for other children the amount reported was $5,928.00. Six months later, on September 3, 1996, another hearing was held before the magistrate to establish a final child support amount. Subsequent to the hearing, the magistrate issued his decision. Attached to this decision was a computation guideline which indicated the annual court-ordered support paid for other children was $2,288. This amount was $3,640 less than the amount reported by the magistrate's decision issued six months earlier and the record reveals no explanation for this apparent discrepancy. Because of this discrepancy, defendant filed an objection to this decision, arguing the amount reported for the court-ordered support paid for other children was incorrect. In support, defendant attached a notarized document from his employer showing he has garnished from his paycheck bi-weekly child support payments of $81.60 and $155.04 pursuant to two other child support cases -5- from other jurisdictions, with a yearly total of $6,152.64. Over defendant's objection, the juvenile court adopted the decision of the magistrate. The state now argues defendant's assignment of error should not be considered because he did not raise it at juvenile court and because he did not attach an affidavit or transcript to his objections to the magistrate's decisions as mandated by Civ.R. 53 (E)(3)(b). The state fails to realize the failure to submit a transcript or affidavit to an objection is not fatal; rather it merely changes the standard of review on appeal. The sufficiency of a referee's report may be the basis for an appeal even where the appellant fails to submit a transcript or affidavit. Where a trial court adopts the report of a referee over the unsupported objection filed, the standard, upon appellate review, is abuse of discretion of the trial court. Proctor v. Proctor (1988), 48 Ohio App.3d 55, at 60. A trial court will not be found to have abused its discretion unless its decision involves more than an error of judgment and can be characterized as unreasonable, arbitrary, or unconscionable. Id. When applying the abuse of discretion standard of review, an appellate court must not substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138. The state also contends that since defendant failed to raise the error relating to the miscalculation of court-ordered support -6- to other children at juvenile court, he is precluded from raising it on appeal. This argument also fails. The filing of an objection to a magistrate's decision preserves the issue for appellate review. Proctor, supra, at 58. See also Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207. In the present case, after the magistrate's decision was rendered, defendant filed objections. Included among these objections was defendant's argument that the court-ordered support paid for other children was erroneously calculated. Therefore, by filing an objection to the magistrate's decision defendant preserved the issue for appeal. Addressing the merits of defendant's appeal, we find the juvenile court abused its discretion in determining the amount of support defendant pays to his other children. In March 1996, the juvenile court reported that defendant annually paid $5,928 to support his other children. In contrast, six months later the same magistrate reported that defendant annually paid $2,288 to support his other children, a difference of $3,640. Moreover, in his objections to the juvenile court and on appeal to this court, defendant submitted a notarized document from his employer showing that he paid $6,152.64 in support to his other children. This apparent contradiction is irreconcilable based on the evidence in the record. Therefore, we find the juvenile court's adoption of the magistrate's decision was arbitrary in light of the three different -7- amounts reported and remand this case for a re-computation of the court-ordered support paid for other children. Judgment reversed and remanded. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said court 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. JAMES D. SWEENEY, C.J. ROBERT E. HOLMES, J.,* CONCURS. JUDGE JOHN T. PATTON *SITTING BY ASSIGNMENT: ROBERT E. HOLMES, Retired Justice of The Supreme Court of Ohio. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the -8- .