COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78225 ANTOINETTE GIANCATERINO : : Plaintiff-Appellee : JOURNAL ENTRY : -vs- : AND : ANTHONY GIANCATERINO : OPINION : Defendant-Appellant : Date of Announcement of Decision: JULY 5, 2001 Character of Proceeding: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-231006 Judgment: Reversed and remanded Date of Journalization: Appearances: For Plaintiff-Appellee: BRUCE M. CICHOCKI, ESQ. 2525 Brookpark Road Parma, Ohio 44134 For Defendant-Appellant: PAUL V. WOLF, ESQ. 50 Public Square, Suite 920 Cleveland, Ohio 44113 -2- JAMES J. SWEENEY, J.: Anthony Giancaterino appeals from a judgment of the Domestic Relations Court regarding the divorce from his ex-wife, Antoinette Giancaterino, whereby the court imputed his income, denied his request to supplement the record with his 1998 tax return and increased his child support obligation. After examining the record and the law, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. The history of the case reveals that Mr. Giancaterino and Mrs. Giancaterino were married on November 22, 1984. Two children, Tiffany (d.o.b. 7/3/85) and Anthony, Jr. (d.o.b. 4/7/87), were born of this marriage. However, on January 26, 1994, Mrs. Giancaterino filed a complaint for divorce, which the court granted on April 20, 1994, awarding her custody of both children and $236.96 per month in child support. Beginning on September 20, 1999, but not concluding until November 19, 1999, a Magistrate conducted a hearing on Mrs. Giancaterino's motions to modify child support and to show cause and on Mr. Giancaterino's motion to supplement the record. Thereafter, on October 1, 1999, Mr. Giancaterino filed a motion to modify child custody. As a result of this motion, the parties entered an agreed judgment entry on November 10, 1999 to modify the parental order, whereby Mr. Giancaterino became the residential parent of Anthony. In that order, Mr. Giancaterino agreed to pay $75.00 per month for Tiffany's child support and to permit Mrs. Giancaterino to pursue her pending motions to modify -3- child support and to show cause for the period from December 1, 1998 through October 21, 1999. On January 19, 2000, the Magistrate issued a decision with the findings of fact and conclusion of law which stated in part: *** [W]hat the Magistrate does recall is Defendant's consistent disregard of this Court's orders regarding discovery and verification of his income; that a recess from trial on September 20th was taken to give Defendant additional time to provide evidence in support of his statements regarding his income; that on the last day of trial, Defendant receives a fax transmittal from his accountant as and for his 1998 corporate return. Again, the untimeliness of this evidence nearly ambushes the Plaintiff. Defendant at first testifies to its accuracy but later recants because the return fails to disclose that his current spouse is a 51% shareholder. ***. The Magistrate finds that Defendant failed to support this assertion that he is not the sole shareholder of Imprint Graphics. This assertion is undermined by both his 1997 and 1998 corporate returns which show all line 21 ordinary income going to the Defendant. * * * The Magistrate finds that Defendant's testimony is not credible; that he should not be given additional time to supplement the record to provide or create supportive documentation of his statements under oath; and that Defendant had changed accountants to prepare Imprint Graphics 1998 Corporate return which further weakened the credibility of the facts to be drawn from the document. * * * As to issue of modification, the Magistrate finds that Defendant has understated his income for child support computation purposes; that Defendant's income is best reflected by his statement of his gross household income or $40,000. The Magistrate further notes even if -4- Defendant were only a 49% shareholder of Imprint Graphics, that after an adjustment to other deductions for the year 1998 akin to 1997, 49% of the line 21 ordinary income is approximately$41,000, an amount substantially equal to his combined household income. Further, the Magistrate determined Mr. Giancaterino's support obligation for the period between December 1, 1998 through October 21, 1999 to be $336.18. Mr. Giancaterino objected to the Magistrate's decision, but on May 30, 2000, the trial court adopted it ordering Mr. Giancaterino to pay the following: Commencing December 1, 1998, the Defendant shall pay $336.18 per month per child for the support of Tiffany (dob 7-3-85) and Anthony, Jr. (dob 4-7-87) through the Cuyahoga Support Enforcement Agency (CSEA) plus 2% processing charge until the children reach age eighteen (18) or so long as the children continuously attend, on a full-time basis, any recognized and accredited high school, however, no later than age nineteen (19) unless the child support order provides for a duty of support to remain in effect. (Bold in original.) Mr. Giancaterino appeals from that judgment and raises a single assignment of error for our review, which states: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF AND ABUSED ITS DISCRETION IN ADOPTING THE REPORT AND RECOMMENDATIONS OF THE REFEREE AND IN OVERRULING THE OBJECTIONS OF THE APPELLANT TO SAID REPORT AND RECOMMENDATIONS OF THE REFEREE. Mr. Giancaterino argues the trial court abused its discretion when it adopted the Magistrate's decision, thereby disregarding the agreed judgment entry, imputing his income and increasing his child support payment while denying his request to supplement the record with his 1998 tax returns. Mrs. Giancaterino contends the court acted appropriately when it adopted the Magistrate's decision -5- because the agreed judgment entry permitted her to pursue the motions to modify support and to show cause. We begin by noting that an appeal from the domestic relations court is reviewed under an abuse of discretion standard. The term abuse of discretion connotes more than an error of law or judgment. It implies that the court's attitude is unreasonable, arbitrary or unconscionable. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112; Martin v. Martin (1985), 18 Ohio St.3d 292, 294-295; Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 219. When applying an abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161; Kunkle v. Kunkle(1990), 51 Ohio St.3d 64, 67; Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 131. In the instant case, the Magistrate permitted Mr. Giancaterino additional time through the completion of trial to supply his 1998 tax information in order to verify his income. The Magistrate did not believe his testimony and found it to be contradictory to his 1997 and 1998 corporate tax returns. Thus, it used other available information to determine Mr. Giancaterino's child support obligation for the period of December 1, 1998 through October 21, 1999. We cannot conclude the court abused its discretion when it adopted the Magistrate's decision imputing Mr. Giancaterino's income and denying him additional time potentially to fabricate documentation to support his income. We next turn to the related issue of child support for the -6- time period between December 1, 1998 to October 21, 1999. We cannot conclude the court abused its discretion when it adopted that decision, thereby increasing Mr. Giancaterino's child support payment for that time period. However, the court has abused its discretion by ordering Mr. Giancaterino to pay support for Anthony until he attains the age of nineteen after the parties have agreed that Mr. Giancaterino would become Anthony's residential parent and continue to pay support for Tiffany. This agreement is not reflected in the court's order. Thus, we reverse on this issue alone with instructions to the trial court to clarify its order limiting the payment of $336.18 per month for Anthony to the time period of Mrs. Giancaterino's motion and not for any time when Mr. Giancaterino has custody of Anthony. Judgment reversed and remanded for further proceedings consistent with this opinion. -7- It is ordered that appellant recover of appellee his 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 Domestic Relations Division 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. TIMOTHY E. McMONAGLE, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES J. SWEENEY JUDGE 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). .