COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73288 SHELVEY J. MADAMA : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND LAWRENCE A. MADAMA SR. : OPINION : : Defendant-Appellant : DATE OF ANNOUNCEMENT : SEPTEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Domestic Relations Div. No. D-215215 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Henry C. Epp, Esq. 55 Public Square Suite 1350 Cleveland, Ohio 44113 For defendant-appellant: Joseph G. Stafford, Esq. Vincent A. Stafford, Esq. 380 Lakeside Place 323 Lakeside Avenue West Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Defendant-appellant, Lawrence A. Madama Sr., appeals the decision of the Cuyahoga County Court of Common Pleas to adopt the Magistrate's findings which ordered defendant-appellant to pay -2- $1,436.16 per month in spousal support plus $280.00 per month in spousal support arrearages. Defendant-appellant assigns three errors for review. This court, finding no error, affirms the decision of the trial court. Defendant-appellant and plaintiff-appellee, Shelvey J. Madama, had been married for thirty-four (34) years. Two children were born as issue to the marriage both of whom have reached the age of emancipation. On August 24, 1992, the parties entered into an agreed judgment entry for divorce which contained the following provision: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that effective September 1, 1992, the Defendant shall pay to Plaintiff the sum of $1,836.00, which includes 2% fee, per month as spousal support. Upon the distribution of the proceeds from the sale of the marital home, the spousal support will be reduced to $1,436.16 per month, which sum includes 2% fee. Defendant will continue to pay $1,436.16 per month for spousal support until such time as the Plaintiff elects to take Social Security at Defendant's age 65. Upon election of Social Security, the spousal support will be reduced to such amount as is necessary to equalize the Social Security entitlements of both parties. ***. On April 1, 1997, plaintiff-appellee filed a motion to show cause why a contempt order should not be issued for the willful disregard of the support order. At the hearing before the Magistrate, defendant-appellant was represented by counsel but -3- failed to personally appear.1 The Magistrate made the following findings of fact and conclusions of law pertinent to this appeal: At hearing, counsel for Plaintiff and Defendant stipulated that Defendant has not paid spousal support for the 11 months from August 1996 through June 1997. The total owed during this period was $15,488.00 [11 months x $1,408.00 per month (not including 2% fee)]. Defendant paid $3,836.16 through Cuyahoga Support Enforcement Agency (CSEA) in the period between August 1, 1996 and June 11, 1997 according to CSEA Certified payment records including the last payment of $400.00 disbursed on February 28, 1997. The Magistrate finds that Defendant is in contempt of Court for failure to abide by this Court's prior order relative to payment of spousal support. In the absence of evidence to the contrary, the Defendant had the ability to comply, at least substantially, with the prior order of Court and failed to do so. The Defendant's cumulative arrearage is in the amount of $11,651.84 as of June 11, 1997 all of which is owed to the Plaintiff, which includes credit for all payments disbursed through February 28, 1997. Defendant-appellant timely filed objections to the Magistrate's decision arguing the wage attachment order is in excess of fifty per cent (50%) of the disposable earning of defendant-appellant, in violation of 15 U.S.C. 1673. Defendant- appellant then filed for findings of fact and conclusions of law. Defendant-appellant also filed supplemental objections to the Magistrate's decision arguing the award is excessive and outside defendant-appellant's ability to pay (attached to these motions was a copy of a pay stub and an affidavit of defendant-appellant). On 1The order to appear filed April 23, 1997, also ordered defendant-appellant to bring to the hearing written proof of all support payments, tax returns for 1994 and 1995, proof of unemployment status/income source and earnings (pay stubs), proof of financial institution accounts, proof of benefits, and proof of additional income. -4- September 3, 1997, the trial court overruled defendant-appellant's objections and adopted the Magistrate's finding of fact and conclusions of law. Defendant-appellant timely filed this appeal. Since defendant-appellant's first and second assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE TRIAL COURT INCORRECTLY CALCULATED APPELLANT'S SPOUSAL SUPPORT ARREARAGES. II. APPELLANT DOES NOT HAVE THE ABILITY TO COMPLY WITH THE TRIAL COURT ORDER. Defendant-appellant argues the trial court incorrectly calculated his support arrearages and also issued an award which creates an unreasonable and unconscionable financial burden upon defendant-appellant. We disagree. Importantly, we note that although defendant-appellant was served with the order to appear at the show cause hearing, defendant-appellant did not make an appearance and did not provide the financial information ordered by the court. He was, however, represented by counsel who stipulated that defendant-appellant did not pay spousal support from August 1996 through June 1997. Pursuant to the judgment entry granting divorce, defendant- appellant was initially ordered to pay to plaintiff the sum of $1,836.00, which includes 2% fee, per month as spousal support. Upon the distribution of the proceeds from the sale of the marital home, the spousal support will be reduced to $1,436.16 per month, which sum includes 2% fee. It appears from the record that the parties also stipulated to the financial audit trail prepared by -5- the CSEA and attached to the Magistrate's decision. The financial audit trail establishes that defendant-appellant made seven payments of $1,836.00 when the amount was reduced to $1,436.16. Accordingly, at the time defendant-appellant stopped paying plaintiff-appellee's spousal support, his monthly payments were $1,436.16. However, the financial audit trail also establishes that while defendant-appellant refused to pay his spousal support payment, he still made payments to CSEA totalling $3,836.16. Accordingly, since defendant-appellant stipulated that he did not pay his wife from August 1996, through June 1997, we find the Magistrate properly calculated a spousal support arrearage of $11,651.84 (11 months x $1,436.16 (-) $3,836.16). See, also, Wyum v. Wyum, et al. (March 6, 1997), Cuyahoga App. No. 70317, unreported (Stipulation of parties provides sufficient credible evidence supporting trial court's valuations). Defendant- appellant's first assignment of error is not well taken. In the second assignment of error, defendant-appellant argues the trial court's spousal support order of $1,721.76 per month must be vacated since it is unreasonable, excessive and in violation of 15 U.S.C. 1673 which prohibits attachment of wages in excess of fifty percent (50%) of his disposable earning. However, to the extent that the trial court's order exceeds the maximum withholding limitations under the Act, the withholding employer bears the responsibility to see that no more of the employee's wages are withheld than permitted by the Act. In re Yeauger (1992), 83 Ohio App.3d 493, 500. See, also, R.C. 3113.21(D)(1)(b)(viii). -6- The withholding limitation does not excuse an obligor from satisfying the entire order for support, but provides only that the entire amount may not in all cases be withheld from wages. See In re Yeauger, supra, at fn.3. See, also, Gest v. Gest (April 28, 1998), Lorain App. No. 96-CA-6580. Accordingly, on the record before us, the trial court did not err in awarding $1,721.76 spousal support made under the guidelines of R.C. 3105.18. Defendant-appellant's second assignment of error is not well taken. Defendant-appellant's third assignment of error states: III. THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN INDEPENDENT AND DE NOVO REVIEW OF THE MAGISTRATE'S DECISION UPON APPELLANT'S OBJECTIONS. Defendant-appellant argues the trial court failed in its duty to make its own factual determinations and independent analysis of the Magistrate's recommendations. By failing to conduct such a review, defendant-appellant argues the trial court's decision has all the hallmarks of a rubber stamp review which is prohibited. Civ.R. 53(E), reads in pertinent part: (4) Court's action on Magistrate's decision. (a) When effective. The magistrate's decision shall be effective when adopted by the court. The court may adopt the magistrate's decision if no written objections are filed unless it determines that there is an error of law or other defect on the face of the magistrate's decision. (b) Consideration of objections. Upon consideration of any objections, the court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter. The court may refuse to consider additional evidence proffered upon objections unless the objecting party demonstrates that with reasonable diligence the party could not have produced that evidence for the magistrate's consideration. -7- (c) Permanent and interim orders. The court may adopt a magistrate's decision and enter judgment without waiting for timely objections by the parties, but the filing of timely written objections shall operate as an automatic stay of execution of that judgment until the court disposes of those objections and vacates, modifies, or adheres to the judgment previously entered. The court may make an interim order on the basis of a magistrate's decision without waiting for or ruling on timely objections by the parties where immediate relief is justified. An interim order shall not be subject to the automatic stay caused by the filing of timely objections. An interim order shall not extend more than twenty-eight days from the date of its entry unless, within that time and for good cause shown, the court extends the interim order for an additional twenty-eight days." Pursuant to Civ.R. 53(E), a trial court has the authority to adopt the findings of the Magistrate if the report contains a complete statement of facts which supports the Magistrate's decision. In this case, the Magistrate's report contained sufficient facts and financial information from which the trial court could conduct an independent review and reach the same conclusions. In DeSantis v. Soller (1990), 70 Ohio St.3d 226, the Ohio State Supreme Court again recognized the trial court's authority when it held, [t]he trial court should not adopt challenged referee's findings of fact unless the trial court fully agrees with them that is, the trial court, in weighing the evidence itself and fully substituting its judgment for that of the referee, independently reaches the same conclusion. Id. at 233. We agree with plaintiff-appellee who argues while the trial court is obligated to conduct an independent analysis of the facts and conclusions contained in the Magistrate's report, it is not obligated to modify the Magistrate's decision when it fully agrees -8- with that decision. After a review of the record, we find there was sufficient evidence upon which the trial court could base its findings. It did not conduct a rubber stamp review as alleged by defendant-appellant. Moreover, the trial court did issue its findings of fact and conclusions of law by reviewing the record and adopting the Magistrate's decision. Since defendant-appellant has failed to present any evidence establishing the trial court abused its discretion in failing to conduct an independent review, we overrule defendant-appellant's third assignment of error. Judgment affirmed. -9- It is ordered that appellees recover of appellant their 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 Common Pleas 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 M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .