COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73146 CHARLES BARTH : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION ELEANOR BARTH : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : JULY 30, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. D-214201 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: RANDALL M. PERLA, ESQ. 19443 Lorain Road Fairview Park, OH 44126 DAVID B. SHILLMAN, ESQ. 720 Leader Building Cleveland, OH 44114 -2- JOHN T. PATTON, J.: Plaintiff-appellant Charles Barth ( husband ) appeals from the order of the trial court adopting the magistrate's decision to modify spousal support in favor of defendant-appellee Eleanor Barth ( wife ). The parties were divorced by judgment entry filed October 13, 1994. The judgment entry provided husband would pay wife $3,750.00 per month in spousal support. On July 26, 1995 the parties entered an agreed judgment entry modifying spousal support because husband became unemployed. The amount of spousal support was reduced to $2,000.00 per month with a stipulation that [u]pon plaintiff's becoming re-employed, spousal support shall be subject to further modification. Subsequently, husband became re-employed in October, 1995. Wife filed a motion to modify spousal support on October 24, 1995 and husband filed a motion to modify spousal support on June 27, 1996. The matter was heard by a magistrate on August 23, 1996 and October 10-11, 1996. The magistrate found that husband failed to perfect service upon wife as to his motion to modify, so his motion was dismissed. The magistrate also found: The parties further agreed that if Plaintiff elects to commence retirement benefits from his pension plan(s) prior to the age of 65, all sums actually received by Defendant pursuant to the applicable QDRO(S) shall be credited to reduce spousal support. The Magistrate finds that Plaintiff, is employed; and that he is currently receiving pension benefits from his TRW pension plan. -3- The Magistrate finds that Defendant has not reached age 65; and that she is under no duty to apply or secure her pension benefits at this time. The magistrate then granted wife's motion to modify spousal support and increased the amount from $2,000.00 to $2,500.00 per month. The trial court adopted the magistrate's decision and journalized an entry on August 13, 1997. It is from this decision husband appeals submitting three assignments of error. In his first assignment of error, husband states as follows: THE TRIAL COURT ERRED IN DISMISSING APPELLANT'S MOTION TO MODIFY SPOUSAL SUPPORT FOR WANT OF SERVICE. Husband argues the trial court erred in dismissing his motion to modify spousal support for want of service because the record reflects service was perfected. In support of this argument, husband cites to three documents in the record. The first document is a Return On Service of Writ which states wife was personally served at her residence on August 22, 1996. The second document is an INSTRUCTIONS FOR SERVICE dated August 21, 1996, filed on August 23, 1996, stating a special process server served wife with a copy of a motion to modify spousal support. The third document husband cites is his Exhibit B which is attached to his objections to the referee's decision and is an order appointing a special process server. Husband claims these documents clearly show wife was served with the motion to modify spousal support and the trial court erred in finding service was not perfected regarding this motion and erred in dismissing his motion for this reason. -4- In response, wife argues Loc.R. 33 and Civ.R. 4 mandate that a time-stamped copy of an order designating a process server must be filed before such a procedure can be performed. Therefore, in the instant case husband did not file a time-stamped copy and service was not proper. As a result, the trial court was correct in dismissing husband's motion to modify spousal support for lack of service. Additionally, wife contends even if service was perfected it was harmless error to dismiss husband's motion to modify spousal support. She maintains the magistrate considered the entirety of the evidence and, by necessary implication if the magistrate found she was entitled to an increase in spousal support, the magistrate must also have found husband was not entitled to decrease his spousal support payments. The record reveals a process server personally served wife on August 22, 1996 with husband's motion to modify spousal support. This is indicated by a Return On Service of Writ filed with the trial court on August 23, 1996 and INSTRUCTIONS FOR SERVICE filed on the same day. However, there is no evidence in the record that the process server who served wife with husband's motion to modify spousal support applied to do so. Husband attached to his objections to the magistrate's decision an unsigned order, received for filing on June 7, 1996, indicating the process server did apply as a server. The magistrate construed all this evidence and made nebulous findings of fact and conclusions of law. At the motion hearing the magistrate held: -5- THE MAGISTRATE: The magistrate finds that service was perfected upon the defendant with regard to plaintiff's motion to modify spousal support to conclude that service was not perfected because the order granting plaintiff permission to serve his motion by process server or having been granted after the process server had been served, I believe creates a form over substance problem. Then in the decision, the second paragraph states [t]he Magistrate finds service upon said motions was duly and properly made. Two paragraphs later the magistrate states [t]he Magistrate finds that Plaintiff has failed to perfect service upon the Defendant as to his Motion to Modify. Subsequently, the magistrate dismissed husband's motion to modify spousal support for want of service. Although there is no order of the court in the record recognizing a process server was appointed, the Return On Service of Writ and Instructions for Service together with the hearing transcript indicate wife was served with husband's motion to modify spousal support. To hold the husband's motion should be dismissed because service was not proper allows a minor technicality to prevail over hearing an issue on its merits; i.e., form over substance. Thus, we agree with the husband that the trial court abused its discretion in adopting the decision of the magistrate dismissing husband's motion to modify spousal support for lack of service. Zayed v. Zayed (1995), 100 Ohio App.3d 410, 417. However, we also determine this error to be harmless because husband does not show how the dismissal of his motion affected his substantial rights. See Civ.R. 61. At the hearing where the motions to modify spousal support were heard, the magistrate was -6- confronted with the issue of whether service was proper and found that it was. The magistrate went on to state [b]asically the parties present similar issues with regard to their motions to modify spousal support * * * the Magistrate will proceed with regard to both motions to modify spousal support. The magistrate proceeded to hear evidence regarding both parties' motions. Husband does not indicate what other evidence he would have introduced nor does he indicate whether he had other arguments he could have presented. Furthermore, husband does not show how he was prejudiced as a result of the trial court dismissing his motion to modify spousal support. Based on the foregoing, we overrule husband's first assignment of error. Husband's second assignment of error states as follows: THE TRIAL COURT ERRED IN FAILING TO TAKE INTO CONSIDERATION PENSION INCOME THAT APPELLEE WAS ENTITLED TO RECEIVE FROM APPELLANT'S PENSIONS, PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS, IN DETERMINING SPOUSAL SUPPORT. Husband argues the trial court erred in determining wife did not have an affirmative duty to apply for pension benefits since he commenced receiving his benefits prior to reaching the age of 65. In support of this argument, husband cites a prior order of the court which states: In the event that plaintiff elects to commence retirement benefits from his TRW and/or Textron Pension Plans, prior to his attaining the age of 65 years, all sums actually received by Appellee (Eleanor Barth) pursuant to applicable QDRO shall be credited to reduce the spousal support ($2,000), payable with respect to the applicable time period. -7- Husband claims this order mandates wife must elect to take one-half of his benefits so as to reduce his monthly spousal support obligation. He maintains the trial court erred in not considering wife was entitled to $890.80 per month in pension benefits when determining an appropriate amount of spousal support. Wife counter-argues the order husband refers to does not mandate that she elect to receive pension payments simply because he elected to receive such payments. She contends the order states husbands monthly spousal support obligation shall be reduced by all sums actually received by wife. Thus, there is no affirmative duty forcing her to commence receiving pension payments. Moreover, wife claims for financial reasons it is more beneficial to her to receive the pension benefits later because: (1) the monthly payments available to her at age 65 would be reduced by 6.66 percent if she received the payments now, (2) she does not want reduced payments later in life when she will not be able to work as she presently does, and (3) there is a ten percent penalty for premature withdrawal of pension funds. In the magistrate's decision, the magistrate found that if husband elected to commence receiving pension benefits prior to reaching age 65 then all sums actually received by wife would be credited against his spousal support obligation. The magistrate also found husband is receiving pension benefits and wife, who has not reached age 65, is under no duty to apply or secure her pension benefits at this time. -8- We disagree with husband. It is obvious from the magistrate's decision that the magistrate considered whether wife had an affirmative duty to elect to receive pension payments. The magistrate found the wife had no duty to apply or secure her pension benefits at this time. Likewise, we find there is nothing in the record which indicates wife has to commence receiving pension payments. The order husband refers to as creating an affirmative duty for wife to commence receiving pension payments merely states all sums actually received. This is not an order mandating wife must receive pension payments and credit them against husband's monthly spousal support obligation. Therefore, we find the trial court did not abuse its discretion in adopting the magistrate's decision which found there was no affirmative duty created by a prior order mandating that wife must commence receiving pension payments and credit them against husband's monthly spousal support obligation. Accordingly, husband's second assignment of error is overruled. Husband's third assignment of error states as follows: THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLANT'S EXPENSES AND SPOUSAL SUPPORT EXCEEDED HIS INCOME AND IN INCREASING HIS MONTHLY SPOUSAL SUPPORT OBLIGATION FROM $2,000.00 TO $2,500.00, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Husband argues his monthly expenses and spousal support obligation exceed his monthly income. He claims his monthly expenses amount to $4,791 per month and his monthly income is $5,280 resulting in a monthly net disposable income of $489 per month. Husband maintains he was unemployed for a period of almost -9- two years and during that time he accumulated an arrearage of $35,000 because of spousal support payments and has had to cash in an annuity to pay off the arrearage. Additionally, he argues wife should begin collecting pension benefits which will act as a credit against his monthly spousal support obligation. Lastly, husband argues the trial court erred in failing to consider his income and expenses in determining an appropriate amount of spousal support. The magistrate found that husband overstated and duplicated his monthly expenses. Specifically, the magistrate found husband overstated expenses for medical and car insurance, for his car, and his rent. The magistrate found husband duplicated his car, oil, gas and repairs, food, gift, membership, travel, and prescription expenses by approximately $962.00 per month. The magistrate determined husband's monthly expenses totaled $1,855 and that after paying all his expenses and spousal support his net disposable income is $1,438.61 per month. Based on this finding and the fact that the wife sufficiently demonstrated her need for spousal support, husband was ordered to increase his monthly spousal support payment from $2,000 to $2,500. Husband refers to several exhibits in order to establish his monthly expenses. However, a review of these exhibits reveals duplication and overstatement of his expenses. Husband earns a base salary of $75,000 with the potential for incentive pay which is undeterminable at this time. The record also indicates his net disposable income to be $5,294.12 per month. Based on this figure and the previous findings, we hold the trial court did not abuse its discretion in adopting the -10- magistrate's decision which determined husband's monthly expenses and income and increased his spousal support payment from $2,000 to $2,500. Accordingly, husband's third assignment of error is overruled. Judgment affirmed. -11- 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 direct ing 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. ANN DYKE, P.J. LEO M. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON 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 .