[Cite as Mayer v. Mayer, 2012-Ohio-4924.]

COURT OF APPEALS 

 STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IMOGENE MAYER 

 Plaintiff-Appellee 

-vsGARY MAYER 

 

 Defendant-Appellant 

: JUDGES: 

: William B. Hoffman, P.J. 

: Sheila G. Farmer, J. 

: Julie A. Edwards, J. 

: 

: Case No. 2012 CA 00038 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from Stark County 

 Court of Common Pleas, Domestic 

Relations Division, Case No. 2009 

CR 00728 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 22, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

BEVERLEY PROCTOR-DONALD CHARLES W. FONDA, ESQ. 

ESQ. 75 Public Square – Suite 650 

401 Tuscarawas Street, West Cleveland, Ohio 44113 

Suite 500 

Canton, Ohio 44702 RAVI SURI, ESQ. 

 850 Euclid Ave., Suite 804 

 Cleveland, Ohio 44114 

 
[Cite as Mayer v. Mayer, 2012-Ohio-4924.]

Edwards, J. 

{¶1} Appellant, Gary Mayer, appeals a judgment of the Stark County Common 

Pleas Court, Domestic Relations Division, modifying spousal support. Appellee is 

Imogene Mayer. 

STATEMENT OF FACTS AND CASE

{¶2} The parties were married in 1989. They separated in 2008, and were 

granted a divorce in 2010. In the 2010 divorce judgment, the court awarded appellee 

spousal support in the amount of $200.00 per month and half of a $43,178.71 workers’ 

compensation settlement which the court found to be marital property. Appellant 

appealed. This Court reversed, finding the workers’ compensation settlement to be 

appellant’s separate property and remanded the case for further proceedings. Mayer v. 

Mayer, 5th Dist. 2010–CA–00277, 2011-Ohio-1884. 

{¶3} On remand, the case proceeded to a hearing before a magistrate on the 

issue of modification of spousal support. The magistrate found that appellant’s monthly 

income is $2,243.68, while appellee’s net income is $985.90, a reduction of about 

$700.00 per month in appellee’s income due to her inability to work because of health 

problems. The magistrate found that appellee had reduced her expenses as much as 

possible; however, her current monthly expenses allow no room for error or emergency. 

Due to the disparity in income, the magistrate recommended modifying spousal support 

to $450.00. 

{¶4} Appellant filed an objection to the magistrate’s report, arguing that the 

amount of spousal support was against the weight of the evidence and an abuse of 

discretion. He did not file a transcript of the hearing before the magistrate but attached 
Stark County App. Case No. 2012 CA 00038 3 

his own affidavit to the objections, stating that the amount is unduly burdensome and 

would create a hardship for him. 

{¶5} The trial court noted that no transcript was prepared so the court was 

unable to review the actual testimony. The court reviewed the magistrate’s findings and 

decision and adopted the decision of the magistrate. Appellant assigns two errors: 

{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN MORE THAN 

DOUBLING WIFE’S SUPPORT TO $450/MONTH BECAUSE THAT AMOUNT WOULD 

INEQUITABLY LEAVE HUSBAND UNABLE TO MEET HIS NECESSARY MONTHLY 

EXPENSES, WHILE WIFE WOULD HAVE A SIGNIFICANT MONTHLY SURPLUS. 

{¶7} “II. THE TRIAL COURT ERRED IN FAILING TO SPECIFICALLY RULE 

ON HUSBAND’S OBJECTIONS BECAUSE CIV. R. 53(b) REQUIRES A RULING ON 

OBJECTIONS PRIOR TO ADOPTING A MAGISTRATE’S DECISION.” 

I 

{¶8} In his first assignment of error, appellant argues that the court erred in 

increasing appellee’s spousal support to $450 per month because that amount leaves 

him unable to meet his expenses and leaves appellee with a surplus. He further argues 

that the court erred in increasing support based on the finding that the workers’ 

compensation award is separate property because he needs that money for future 

medical expenses. 

{¶9} Appellant did not file a transcript of the proceedings with the trial court for 

ruling on his objections as required by Civ. R. 53(D)(3)(b)(iii). Appellant also has not 

filed a transcript with this Court. Our review of the trial court's findings is limited to 

whether the trial court abused its discretion in adopting the magistrate's report when the 
Stark County App. Case No. 2012 CA 00038 4 

party objecting to a magistrate's report fails to provide a transcript. State ex rel. Duncan 

v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654 N.E.2d 1254 (1995). In order 

to find an abuse of discretion, we must look at the totality of the circumstances in the 

case sub judice and determine whether the trial court acted unreasonably, arbitrarily or 

unconscionably and there was not merely an error of law or judgment. Blakemore v. 

Blakemore, 5 Ohio St.3d 217 (1983). When the objecting party fails to provide a 

transcript of the original hearing before the magistrate for the trial court's review, the 

magistrate's findings of fact are considered established and may not be attacked on 

appeal. Doane v. Doane, 5th Dist. App. No. 00CA21, 2001 WL 474267 (May 2, 2001). 

Accordingly, we review this matter only to analyze whether the trial court abused its 

discretion in reaching specific legal conclusions based upon the established facts. 

Sochor v. Smith, 5th Dist. No. 00CA00001 (June 28, 2000). 

{¶10} We do not find that the court abused its discretion in modifying support 

based on the facts as set forth in the magistrate’s decision. The magistrate found that 

appellant’s expenses included $2,415.50 exclusive of spousal support, but she also 

noted that his rent is on the high end and appellee has made a “superb effort” to lower 

her expenses. It appears from the magistrate’s findings that both parties are living on 

an amount of money that leaves little room for luxuries or error, and based on the 

disparity of income, we cannot find, in the absence of a transcript, that the court abused 

its discretion. 

{¶11} Further, contra to appellant’s argument, the decision does not reflect that 

the court increased support because the workers’ compensation settlement is now 

designated as separate property. The magistrate merely noted that the appellee no 
Stark County App. Case No. 2012 CA 00038 5 

longer had the contemplated asset of $9,000.00 nor the $200.00 per month payment 

from the workers’ compensation award. 

{¶12} The first assignment of error is overruled. 

II 

{¶13} In his second assignment of error, appellant argues that the court erred in 

failing to specifically rule on his objections as required by Civ. R. 53(D)(4)(d): 

{¶14} “If one or more objections to a magistrate's decision are timely filed, the 

court shall rule on those objections. In ruling on objections, the court shall undertake an 

independent review as to the objected matters to ascertain that the magistrate has 

properly determined the factual issues and appropriately applied the law. Before so 

ruling, the court may hear additional evidence but may refuse to do so unless the 

objecting party demonstrates that the party could not, with reasonable diligence, have 

produced that evidence for consideration by the magistrate.” 

{¶15} Appellant cites to O’Brien v. O’Brien, 5th Dist. No. 02 CA-F-08-038, 2003-

Ohio-2893, where we held that the trial court erred in adopting the magistrate's decision 

without specifically stating whether it was overruling or sustaining any, all, or part of the 

objections both parties filed to the magistrate’s decision. 

{¶16} In the instant case, the trial court did not specifically overrule appellant’s 

objection to the magistrate’s report. However, appellant filed a single objection, arguing 

that the amount of spousal support was against the manifest weight of the evidence and 

therefore an abuse of discretion. The trial court noted that appellant had filed an 

objection. The court further noted that appellant failed to provide a transcript, but the 

court reviewed the findings and decision. The court stated that it made an independent 
Stark County App. Case No. 2012 CA 00038 6 

analysis of the issues and law and adopted the magistrate’s decision. Because 

appellant filed a single objection and failed to file a transcript, we find that the court’s 

decision is adequate to rule on the objection even in the absence of specific language 

stating that the objection is overruled. 

{¶17} The second assignment of error is overruled. 

{¶18} The judgment of the Stark County Common Pleas Court, Domestic 

Relations Division, is affirmed. 

By: Edwards, J. 

Hoffman, P.J. and 

Farmer, J. concur 

______________________________ 

______________________________ 

______________________________ 

 JUDGES 

JAE/r0829 
[Cite as Mayer v. Mayer, 2012-Ohio-4924.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IMOGENE MAYER : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

GARY MAYER : 

 : 

 Defendant-Appellant : CASE NO. 2012 CA 00038 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is 

affirmed. Costs assessed to appellant. 

 _________________________________ 

 _________________________________ 

 _________________________________ 

 JUDGES